1. Philip Hackett Q.C
The 36 Group
SPEAKER

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

3. 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?

4. 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

5. 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.

6. 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

7. 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

8. 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

9. 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)

10. 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

11. 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

14. THANK YOU