Philip Hackett Q.C The 36 Group SPEAKER

NEW APPROACHES TO TRACING AND RECOVERY INSTITUTIONALISING THE WAR ON CORRUPTION: PHILIP HACKETT Q.C. THE 36 GROUP LONDON

THE PROBLEM HOW MUCH MONEY HAS NIGERIA LOST TO CORRUPTION? HOW MUCH MONEY HAS BEEN RECOVERED? WHY HAS SO LITTLE BEEN RECOVERED? WHAT IS THE SOLUTION?

THE INTERNATIONAL FRAMEWORK There are many international instruments containing specific provisions to combat international and domestic corruption OECD Convention on combatting Bribery of Foreign Public Officials in International business Transactions The African Union Convention on Preventing and Combatting Corruption The Council of Europe Criminal Law Convention on Corruption The UN Convention Against Corruption The Inter American Convention Against Corruption A principled object is the repatriation of funds to the ‘loser’ state but this has failed in practice

REGULATORY ACTION IN THE UK There are many attractions to seeking action through the UK Authorities Wide jurisdictional provisions including the Bribery Act 2010 Effective, intelligence led, co ordinated and well resources Agencies with compulsory investigation and production powers including unexplained wealth orders and registers of beneficial ownership Purpose drafted substantive law penalising the bribe taker, facilitation payments, presumption of corporate liability and effective resolutions such as Deferred Prosecution Agreements Restraint and draconian confiscation provisions Civil Recovery Orders: Part 5 Proceeds of Crime Act 2002.

HAS UK REGULATORY ACTION RESULTED IN NIGERIAN RECOVERIES? Nigeria/UK Agreements and Memorandums of Understanding Provision for compensation in Court settlements SFO v Innospec and a constitutional problem Deferred Prosecution agreements and exception What happens to recoveries: DFID and policy considerations The V Mobile case 10 years on The timing of UK complex criminal cases

CIVIL ACTION FOR RECOVERY The High Court of Justice in London Development of procedure and jurisprudence in international civil fraud cases Wide construction to jurisdiction Proper law of the ‘transaction’? Interim relief World wide freezing Orders appropriate in corruption cases Disclosure of assets BUT NOTE THE PROCEEDURAL AND EVIDENTIAL BURDEN ON THE APPLICANT

CIVIL ACTION AGAINST FORMER PUBLIC OFFICAL WHO MISAPROPRIATES PROPERTY OR ACCEPTS BRIBE Jurisdiction of English Courts Interim relief Torts of bribery, fraud and deceit in English law Public policy driven Irrebuttable presumptions of corrupt motive and influence No requirement to prove causation Procedural and timing advantages over regulatory action

THE EQUITABLE REMEDIES Unjust enrichment Knowing receipt Dishonest assistance Impose constructive trusts on third parties giving rise to proprietary rights and tracing Family members and associates banks Professional advisors See Group Seven v Notable [2017]EWHC 2466 (Ch)

CIVIL ACTION AGAINST THE BRIBE PAYER Principle liable for agent Principle may be liable although unaware of fact of payment Dishonesty not a requirement Payer may be contractor to Nigerian Government obtaining business; or Multinational acquiring rights in Nigeria Civil action in payers home state; rights unaffected by regulatory action Proprietary claim in respect of bribe/secret profit may trace with priority over unsecured creditors if agent insolvent; see FHR European Ventures v Mankarious [2016] EWHC 359

PRACTICAL ISSUES, COSTS AND FUNDING English Court may require security for costs Costs of commercial litigation in London significant Cross undertaking in damages Evidential challenges Involvement of third parties in restraint and tracing Relationship with parallel regulatory action Multi jurisdictional investigations Third Party funding

THANK YOU