Enforcing judgments in a “borderless world” is no easy feat
TOPICS: Asset recovery
Companies and individuals anticipating a battle to collect what they’re owed by adversaries should envision their fight as being divided into three phases: before, during, and after litigation. That is one of the observations made by Ian Casewell, co-head of the Mintz Group’s asset-tracing group and head of its London office, in an article in the summer 2017 issue of Corporate Disputes magazine.
Titled “Judgment Enforcement in a Borderless World,” Ian’s article pointed out the inherent difficulties in trying to retrieve what is owed; it quoted statistics from New York’s Westchester County Supreme Court in 2015 showing that, of all judgments obtained in the court between 1996 and 2014, 81% remained uncollected.
Before launching a lawsuit, Ian counsels gathering intelligence on the counterparties, making sure they have enough assets to make them “fit-to-sue.” This is also the time for identifying initial asset enforcement targets if and when the opportunity arises. During litigation, he wrote, “there may be a need to monitor the other side’s assets for indications of restructuring, dissipation, fraudulent conveyances and other evidence of insulating themselves against future enforcement actions.”
After prevailing in court and winning an award comes a time when lawyers and investigators should work most closely together. They would focus on seizure in the jurisdiction where the award was issued, of course, plus enforcement-friendly locales. Besides bank accounts and real estate, Ian recommends focusing on assets “integral to the adversary’s daily operations,” such as trade receivables. “Mapping supply chains and identifying choke points for seizure of money and goods can prove an effective strategy to encourage prompt settlement.”
A lot depends, naturally, on the identity of the debtor. Sovereigns, for example, exhibit patterns in the array of assets they hold outside of their territories, including the location of foreign reserves, government bonds, planes and ships, and goods connected to trade and commercial deals.
The Mintz Group’s asset-tracing team – co-headed by U.S.-based Chris Weil – has deep experience helping litigants to collect what they are due and, in Ian’s words, “to limit the risk of receiving, after long and costly litigation, a very expensive piece of paper – a judgment with little chance of recovery.”
As it happens, the authoritative Who’s Who Legal publication named Ian as one of five asset-recovery “Thought Leaders” in the U.K., based in part on peers’ and corporate counsels’ nominations, and the only non-accountant in the list. The publication’s summer issue said that Ian “is regularly called upon to coordinate asset-tracing involving complex international scenarios,” and quoted other asset-tracing professionals as describing him as a “market-focused practitioner” and “a great operator.” The same issue called Mintz Group President Jim Mintz “a highly experienced figure in global investigations and the top name in the USA, according to our research.”