Examples of conditions commonly necessary to give effect to such requests are: •
General requirements for MLA requests are met and there are no grounds for refusal. There are reasonable grounds to believe that the assets being sought are linked to the criminal activities, or that the target has committed an offense from which a benefit has been derived. There are reasonable grounds to believe the assets will be confiscated. The location of the assets to be restrained is provided. The relief sought could also be obtained if proceedings had been brought in the requested jurisdiction (or the assets subject to confiscation are also subject to confiscation in the requested jurisdiction).213 Copies (certified, if necessary) of relevant court orders are included, and are enforceable in the requested jurisdiction.
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Similar to investigative orders, provisional measures can be taken by a prosecutor or investigating magistrate in civil law jurisdictions; common law jurisdictions generally require authorization by a court. As stated above, this may affect the form and requirements for the request, as well as the time it takes to process the request. Additional points for practitioners to consider include these: •
Notice to the asset holder. Most jurisdictions will issue provisional orders ex parte, but laws typically require that notice be given within a certain period of time to the asset holder and others with a legal interest in the asset. Notices in foreign jurisdictions must be translated (if necessary) and published—another cost consideration for practitioners. Some jurisdictions permit use of the Internet to publish notice, a process that is more cost effective. Some jurisdictions do not permit foreign authorities to publish or serve legal notices (even by mail or shipper) within their borders, and an MLA request to serve notice must be made through the central authority. Some jurisdictions require that the MLA request, application, and order be disclosed to the asset holder (see box 7.3). • Additional dissipation risks. Some jurisdictions allow for legal fees and living expenses (schooling, leases, mortgage) to be paid out of seized or restrained assets; and, over time, that can significantly reduce the assets available for confiscation. Courts in the requested jurisdiction may order these fees to be paid, even if not permitted under the law of the requesting jurisdiction.214 • Different features of confiscation models. Where the cooperating jurisdictions have different models for asset confiscation, practitioners must be aware of the 213. This condition can be difficult to fulfill, especially because jurisdictions differ in the types of relief that are permitted. This generally includes anything of value obtained directly or indirectly from an offense and instrumentalities used in connection with an offense. However, relief may extend to incorporate fines, substitute assets, extended confiscation, and assets intended for use in an offense. 214. In some jurisdictions, an argument can be made that if the requesting jurisdiction is “enforcing” the requested state’s order, it should follow the procedural and substantive law provisions of the requesting state.
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