The crippling effect of corruption in many States throughout the world is well documented and the statistics are alarming – the World Bank estimates for example that over $US20 billion of State assets are stolen annually by corrupt officials, with only a small percentage of stolen funds pursued or recovered. The existence of systemic corruption damages the reputation of those States where it is prevalent and operates as a significant barrier attracting and sustaining foreign investment that is critical to sustainable economic and social development in many countries. The loss of State funds through corruption also undermines the ability of many States to supply of essential services such as schools, hospitals and roads in many countries.

Not surprisingly, there have been renewed calls for greater coordination and cooperation by States in the fight against corruption and the recovery of stolen assets.

Against this background, the inaugural Global Forum for Asset Recovery (“GFAR”) held at the end of 2017 at the headquarters of the World Bank in Washington DC was welcomed as a new initiative in the fight against corruption. GFAR was jointly hosted by the United Kingdom and United States with support from the World Bank’s Stolen Asset Recovery Initiative and brought together officials from 20 countries to discuss how to improve international co-operation and co-ordination to recover stolen assets. The meeting was widely considered to be a success and focused in particular on efforts in four priority countries – Nigeria, Sri Lanka, Tunisia and Ukraine – and included sessions on enhancing capacity, renewing commitments to prosecuting asset recovery cases and, increasing international collaboration.

In a statement delivered at the conclusion of the Forum, a coalition of Civil Society organisations welcomed the renewed political commitment to improve asset recovery efforts and called upon governments to do more in the fight against corruption and to be more transparent in reporting their efforts.

There are many options available to States to tackle corruption and pursue asset recovery. In this regard, the most appropriate avenue to pursue recovery or compensation for corruption will depend on a range of factors that should be evaluated from the outset having regard to the particular circumstances of the case, and periodically reviewed and revised as the recovery program progresses.

One of the first steps for any State seeking to embark upon an asset recovery program is to identify and assess suitable civil and criminal mechanisms. In most jurisdictions, both criminal and civil options are available and can be pursued simultaneously in the recovery of assets. Civil proceedings are often less conspicuous than criminal prosecutions, but can often provide an avenue for flexible claims, bringing claims for compensation against a wider range of defendants, a lower burden of proof and, the prospect of non-conviction based forfeiture.

Increasingly, States are cooperating through avenues such as a mutual legal assistance – a formal procedure through which countries obtain evidence and offer other appropriate support to criminal investigations including conducting asset recovery initiatives. This assistance can also be used by States to establish joint investigation teams for larger or more complex asset recovery operations. In suitable cases, consideration should also be given to seeking the assistance of foreign authorities in bringing criminal and/or civil forfeiture proceedings against suspected individuals within their jurisdiction and repatriating recovered funds to the requesting State

In conclusion, new initiatives to promote International cooperation and coordination such as the GFAR provide for foundation for renewed action by States to tackle corruption and recover stolen assets. States that are committed to the fight against corruption should be encouraged to assess their options to ensure they able to take the necessary at the national level and also to work in cooperation with other States to enhance the prospects of success.

The Cooley Asset Recovery Team acts for States around the globe in the recovery of stolen assets and the initiation of anti-corruption programs. We have significant experience directly managing large-scale asset recovery programs for States and state-owned entities across the Caribbean, Africa and Asia and in advising States seeking to take direct action and build national capacity. For further information and assistance, please contact team leader James Maton, Laurence Harris, Henry Stewart or Prina Patel or visit Cooley Asset Recovery for more information.

Posted by Prina Patel

Associate at Cooley UK LLP