3rd Annual Cross Border Litigation and Asset Recovery Forum 2015, Lagos, November 6, 2015 International co-operation in fraud investigation, use of mutual legal assistance and multi-jurisdictional asset freezing orders

Corruption on a global scale USD 1 trillion is paid annually in bribes*. The greatest part of this corruption occurs in developing countries. This figure does not include embezzlement of public funds or from theft (or misuse) of public assets**. The effects of corruption are a daily burden on the population. *http://www.oecd.org/corruption/Illicit_Financial_Flows_from_Developing_Countries.pdf **http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20190295~menuPK:34457~pagePK:34370~piPK:34424~theSitePK:4607,00.html

Mutual Legal Assistance: International Mutual Legal Assistance Act on International Mutual Legal Assistance in Criminal Matters (IMAC), UNCAC, Bilateral treaties, Parties, Timing, Local criminal investigations as a support, Aim: Obtaining a final verdict in either country to repatriate assets.

Recent developments Political changes around the world Northern Africa: Arab Spring uprisings in (Tunisia, Egypt, Libya). Globally: Yemen, Ivory Coast, Syria, Ukraine. Hope for a better future for citizens. Upheaval highlighted both the potential and limits of international co-operation in fraud investigations and mutual legal assistance: Political will to change situation? Weaknesses of local institutions? Availability of resources to investigate complex financial crimes? Mutual Legal Assistance (MLA) requests sufficient?

Unilateral Government Intervention Swiss Federal Council Freezing Orders Political decision Based on the Constitution Based on the Embargo Act Aimed at allowing local prosecuting authorities to commence own criminal investigations. Aimed at nurturing a MLA relationship EU Council Freezing Orders Regular renewal based on evidence provided

UN Charter Against Corruption: How can UNCAC help? The Principles of UNCAC Promoting and strengthening measures to prevent and combat corruption efficiently and effectively Strengthen international cooperation, mutual legal assistance and technical assistance. Introduction of preventive measures in national legislation (anti money-laundering provisions). Promoting codes of practice for public officials and criminalizing bribery, embezzlement etc. Introducing transparent procurement and public reporting systems. Introducing freezing, confiscation and asset recovery measures.

Other Statutory Instruments: The Restitution of Illicit Assets Act Additional statutory measures: 2010, in view of situation in Haiti, Switzerland passed the "Restitution of Illicit Assets Act" (RIAA), applicable to “failed states”. Collapse or unavailability of national judicial system. Successfully applied in case of Haiti (restitution of USD 5 million). But limited scope of application.

The PEP-Act New legislation proposed IMAC sometimes insufficient for complex modern fraud cases. New "PEP-Act" proposed as basis for freezing orders against Politically Exposed Persons. Applicable when notoriously corrupt governments are toppled. Provisions for failed states situations and ordinary IMAC cases. Swiss government can charge Finance Ministry with commencing administrative forfeiture action of provisionally blocked assets. Additional instruments such as the shifting of the burden of proof, and voluntary provision of information available. Practical help (schooling of prosecuting authorities abroad).

Challenges ahead Summary: The real challenge lies in evidencing, that a PEP and his entourage can be classified as a criminal organization. Evidence may be destroyed before commencement of investigation. Investigators may be “tainted”. Political will may be unclear and wavering. Time and resource constraints. Highly complex legal structures. Sophisticated defense teams.

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