8.2 Bringing a Civil Action to Recover Assets 8.2.1 Initiating a Civil Action A civil action to recover assets may be brought to courts or to arbitration. Courts of a foreign jurisdiction may be competent if a defendant is living (an individual), was incorporated or does business (an entity) in the jurisdiction; if the assets are within or have transited the jurisdiction; or if an act of corruption or money laundering was committed within the jurisdiction. It is generally possible to use evidence gathered in the course of a criminal proceeding in a civil litigation. Arbitration may be used when an international contract provides for an arbitration clause; alternatively, a bilateral investment treaty may be the basis for investment arbitration. Most bilateral investment treaties provide for mandatory dispute resolution mechanisms or permit recourse to international arbitration under the auspices of the ICSID. The center’s jurisdiction extends to any legal dispute arising directly out of an investment between a contracting state (or any constituent subdivision or agency of a contracting state designated to the center by that state) and a national of another contracting state, which the parties to the dispute consent in writing to submit to the center.
8.2.2 Collecting Evidence and Securing Assets As with criminal proceedings, the plaintiff in a civil court will have to provide direct or circumstantial evidence to establish the cause of action. Box 8.7 describes the use of circumstantial evidence in private civil proceedings. Using Evidence Gathered in Criminal Proceedings Although it generally is possible to use evidence gathered in the course of a criminal proceeding in a civil action, it may not be permitted in some jurisdictions because of the secrecy and confidentiality of investigation laws.255 Similarly, evidence initially gathered to support foreign criminal investigations and prosecutions may be used in civil proceedings initiated in some common law jurisdictions.256
255. In France, for example, it is a crime to disclose elements of ongoing criminal proceedings to third parties. However, when criminal proceedings are completed, civil parties to the criminal procedure are allowed to use and disclose related documents in a civil proceeding. 256. In Federal Republic of Nigeria v. Santolina, Solomon & Peters and Diepreye Alamieyeseigha, the Proceeds of Corruption Unit of the Metropolitan Police gathered information about the corrupt assets and activities of Alamieyeseigha in support of its own criminal investigations and pursuant to requests for MLA from the federal government of Nigeria. Alamieyeseigha fled the United Kingdom before prosecution could be brought, and he enjoyed immunity from prosecution in Nigeria while in office. Nigeria brought civil proceedings in England to recover its assets. The High Court of England ordered the Metropolitan Police to disclose to Nigeria the information gathered during the criminal investigations on confirmation by the police agency that such disclosure would not prejudice its investigations.
Civil Proceedings
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