Anti money%20laundering%2c%20anti bribery%2c%20anti corruption%20nadia%27s%20paper by Jambar

Jamaica’s Anti-Money Laundering Regime and Restraint Orders

Jamaican Bar Association’s Annual Weekend Conference Montego Bay, Jamaica 16-19 November 2017 Nadia Chiesa, WeirFoulds LLP 4100 - 66 Wellington Street West TD Bank Tower Toronto, ON M5K 1B7 (1) 416.947.5084 nchiesa@weirfoulds.com

Introduction

•

As the global fight against money laundering, bribery and corruption continues to intensify, the Panama Papers leak and the unfolding Odebrecht corruption scandal have brought heightened scrutiny to this issue in the Caribbean.

•

For several years, Jamaica and other Caribbean countries have responded to calls from the international community to strengthen antimoney laundering, anti-bribery and anti-corruption (“AML/ABAC”) legislation, resulting in an ever-expanding legislative framework that has an impact on business, finance and law in Jamaica and across the region.

•

As lawyers, many of us deal with AML/ABAC legislation on a regular basis and in a broad range of situations, such as: 1.

advising clients on international financial transactions

providing corporate services

acting for clients facing restraint or confiscation orders

Introduction • The reach and effect of AML/ABAC legislation are not limited by borders. Clients may be affected by the extra-territorial reach of investigations and prosecutions in other jurisdictions. • Further, the impact of AML/ABAC legislation on our everyday practice is not limited to the realm of criminal law practitioners. Civil and commercial lawyers need to understand how the legislation works and what it could mean for their clients. • This presentation will focus on one aspect of the AML/ABAC framework: restraint orders. • The sweeping nature of these orders can often restrain most, if not all, of a client’s assets, and result in lengthy and costly litigation to vary or discharge the orders.

Overview 1. Jamaica’s AML/ABAC Legislative Framework 2. Jamaica’s Proceeds of Crime Act and Restraint Orders 3. Mutual Legal Assistance Treaties 4. The Registration and Enforcement of ExtraTerritorial Restraint Orders in Jamaica

AML/ABAC Legislative Framework: Jamaica Act Proceeds of Crime Act, 2007 (‟POCA”)

Overview -Establishes money laundering offences, including: -principal money laundering offences (ss. 92-93) -offence of failure to report suspected money a laundering (ss. 94-95) -offence of ‟tipping off” (s. 97)

Proceeds of Crime

-Sets out duties and obligations of persons in regulated sectors regarding identification of clients; verification of u (Money Laundering financial transactions; implementation of AML controls; record keeping practices; training for employees on AML Prevention) legislation Regulations, 2007 Money Laundering Act, 1998

-Defines ‟money laundering” -Imposes duty on financial institutions to report certain transactions -Empowers DPP to obtain monitoring orders

AML/ABAC Legislative Framework: Jamaica See also: • Terrorism Prevention Act, 2005, as amended • Corruption Prevention Act, 2000, as amended • Law Reform (Fraudulent Transactions) (Special Provisions) Act, 2013

Money laundering is… “The processing of assets generated by criminal activity to obscure the link between the funds and their illegal origins” International Monetary Fund, “The IMF and the Fight Against Money Laundering and the Financing of Terrorism” (13 May 2017)

“The process that disguises illegal profits without compromising the criminals who wish to benefit from the proceeds” United Nations Office on Drugs and Crime (UNODC), “The Money Laundering Cycle”

The 3 stages of money laundering 1. Placement: Move funds from direct association with the crime 2. Layering: Disguise the trail to hide the illegal source 3. Integration: Re-acquire the illegal funds, now that the origins are “hidden” so that the funds cannot be connected to the crime

The money laundering cycle

Source: UNODC, “The Money Laundering Cycle” 9

What is “money laundering”? As defined in POCA s. 91(1)(b): Money laundering is an act which – (i) constitutes an offence under section 92 or 93; (ii) constitutes an attempt, conspiracy or incitement to commit an offence specified in sub-paragraph (i); or (iii) constitutes aiding, abetting, counselling or procuring the commission of an offence specified in sub-paragraph (i);

What is â&#x20AC;&#x153;money launderingâ&#x20AC;?? As defined in the Money Laundering Act, s. 3: (1) A person shall be taken to engage in money laundering if that person (a)

engages in a transaction that involves property that is derived from the commission of a specified offence; or

(b)

acquires, possesses, uses, conceals, disguises, disposes of or brings into Jamaica, any such property; or

(c)

converts or transfers that property or removes it from Jamaica,

and the person knows, at the time he engages in the transaction referred to in paragraph (a) or at the time he does any act referred to in paragraph (b) or (c), that the property is derived or realized directly, or indirectly from the commission of a specified offence.

ÂŠ2017 WeirFoulds LLP

POCAâ&#x20AC;&#x2122;s money laundering offences Concealing, etc. criminal property â&#x20AC;&#x201C; s. 92 (1) Subject to subsection (4), a person commits a criminal offence if that person(a) engages in a transaction that involves criminal property; (b) conceals, disguises, disposes of or brings into Jamaica any such property; or (c) converts, transfers or removes any such property from Jamaica, and the person knows or has reasonable grounds to believe, at the time he does any act referred to in paragraphs (a), (b) or (c), that the property is criminal property. (2) Subject to subsection (4), a person commits an offence if that person enters into or becomes concerned in an arrangement that the person knows or has reasonable grounds to believe facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person. (3) For the purposes of this section, concealing or disguising property includes concealing or disguising the nature of the property, its source, location, disposition, movement or ownership or any rights with respect to the property.

ÂŠ2017 WeirFoulds LLP

POCA’s money laundering offences Acquisition, use and possession of criminal property – s. 93 (1) Subject to subsections (2) and (3), a person commits an offence if that person acquires, uses or has possession of criminal property and the person knows or has reasonable grounds to believe that the property is criminal property. See also: Non-disclosure – ss. 94-96 Tipping off – s. 97

POCA’s focus on proceeds “The name of the Act provides some indication of the intention that Parliament had when it passed the legislation. The long title of the POCA is “An Act to provide for the investigation, identification and recovery of the proceeds of crime and for connected matters”. This must have been a crime committed, not suspicious activity, and that crime must have generated proceeds. The POCA is designed to identify such proceeds of a crime, wherever they may have been dissipated and in whatever form and to recover those proceeds from whomever knowingly benefited from them. The POCA is designed to recover ill-gotten gains from criminals, not from suspects. It is well known that the tentacles of crime continue to multiply and, have become more invasive of the social fabric. The need to fight the expansion of crime and to deprive criminals of the proceeds of their criminal activity is as obvious as it is great. However, this must be balanced against the rights of individuals.” In the Matter of an Application for Customer Information Order Pursuant to s. 119 of the Proceeds of Crime Act, 2007, [2013] JMCA Civ 34 14

What are “proceeds of crime”? •

Jamaica’s POCA does not define “proceeds of crime” as such –

The offences focus on the definition of “criminal property”

–

POCA s. 91(1)(a) - “criminal property”: property is criminal property if it constitutes a person’s benefit from criminal conduct or represents such a benefit, in whole or in part and whether directly or indirectly (and it is immaterial who carried out or benefitted from the conduct)”

•

Trinidad’s Proceeds of Crime Act, Ch. 11:27 uses a similar definition: see s. 43

•

Antigua’s Proceeds of Crime Act, 1993 defines “proceeds of crime” as: “Proceeds of crime” means

(a)

Proceeds of a scheduled offence

(b)

Any property or benefit derived, obtained or received, directly or indirectly, by any person from any act or omission that occurred outside of Antigua and Barbuda, and would, if it had occurred in Antigua and Barbuda, have constituted a scheduled offence

What are “proceeds of crime”? • To be considered criminal conduct, that conduct must involve a conviction • However, it does not matter who committed the offences which amounted to criminal conduct or who benefitted from that commission • You can commit an offence contrary to s. 92(1)(a) if you engage in a transaction involving criminal property if you know or have reasonable grounds to believe the property involved is criminal property, even if you did not commit the “criminal conduct” In the Matter of an Application for Customer Information Order Pursuant to s. 119 of the Proceeds of Crime Act, 2007, [2013] JMCA Civ 34

Restraint and confiscation orders Type of Order

Description

Reference

Restraint (may also be referred to as ‟freezing” in other jurisdictions)

-Preserves a defendant’s assets which POCA, ss. 32-33 might become subject to a confiscation order -Prevents a defendant from rendering a confiscation order nugatory by dissipating assets before such order is made in the event of a conviction

Confiscation

-Made after a conviction -Intended to deprive the convicted defendant of the financial benefit obtained through criminal conduct

POCA, Part II – Forfeiture Orders and Pecuniary Penalty Orders POCA, Part IV – Civil Recovery

Purpose of civil recovery orders under POCA “The enactment of POCA in 2007 introduced a seismic shift in the entitlement of persons who were in possession of the proceeds of crime. Prior to the POCA, a person in possession of proceeds of crime, if not convicted, and those proceeds not proved to be connected with his crime, held a good title to those proceeds of crime as against the world. With the passage of POCA, Parliament was seeking to take the benefit of crime away from those whose unlawful conduct placed the proceeds of crime in their possession. Such persons who were quite likely to invest those proceeds in the furtherance of more crime. It is clear that the recovery of proceeds of unlawful conduct is not a deprivation of property from anyone. The property was not the entitlement of anyone, so no one could be deprived, victims might be able to recover something of what they lost from the proceeds. In those circumstances there was no danger of these provisions of POCA colliding and being inconsistent with the constitutional guarantees of not being deprived of property. (Continued…) 18

Purpose of civil recovery orders under POCA POCA was enacted, to provide for the investigation, identification and recovery of the proceeds of crime and for connected matters. The general purpose of Part IV of POCA, as stated in the side note of Section 56(1)(a) of POCA, is “(a) enabling the enforcing authority to recover, in civil proceedings before the Court, property which is, or represents, property obtained through unlawful conduct.” The Agency is placed in the position of an ordinary claimant in civil proceedings. The Agency has no prosecutorial function, its role is limited to “investigate, identify and recovery proceeds of crime” and matters ancillary to those objectives. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. The law is not directed at a lifestyle; neither is it aimed at individuals.” Asset Recovery Agency v. Ouida Desrene Stenette et al., [2017] JMSC Civ 120

Purpose of civil recovery orders under POCA “Parliament has enacted legislation that has as its primary object crime reduction by means of undermining the economic capability of criminals to wage criminal activity. It has reflected this in POCA. One of the powers given to ARA is the ability to secure restraint orders against possibly criminally derived property. It is vital that ‘bad money’ or money derived from unlawful activity be kept out of the financial system because of the severe distorting effects that it can have on both macro and micro economy. It is vital that criminals and their associates be deprived of their property not for the purpose of enriching the State but for crippling their ability to continue as a criminal economic enterprise. In keeping with this policy, the respondents were asked to disclose their assets and their location. This does not necessarily mean that the respondents are engaged in money laundering or the holding of property derived from criminal activity. The order is designed to assist in the investigative process. (…)” Asset Recovery Agency v. Andrew Hamilton et al., [2013] JMSC Civ 136 20

Restraint orders: When can the Court issue a restraint order? (POCA s. 32) (1) The Court may make a restraint order if any of the following conditions are satisfied— (a)there is reasonable cause to believe that an alleged offender has benefitted from his criminal conduct and— (i) a criminal investigation has been started in Jamaica with regard to the offence; (ii) proceedings for the offence have been commenced in Jamaica and have not been concluded; or (iii) the enforcing authority has made an application under section 5, 20, 21, 26 or 27, which has not been determined, or the Court believes that such an application is to be made; (Continued…)

Restraint orders: When can the Court issue a restraint order? (POCA s. 32) (b) where— (i) the enforcing authority has made an application under section 22 (reconsideration of benefit after order is made), which has not been determined or the Court believes that such an application is to be made; and (ii) there is reasonable cause to believe that the Court will decide under that section that— (A) in the case of a forfeiture order, the property identified under the fresh identification of the defendant's benefit exceeds the property found by the Court that made the order; or (B) in the case of a pecuniary penalty order, the amount found under the new calculation of the defendant's benefit exceeds the relevant amount as defined in that section; (Continued…) 22

Restraint orders: When can the Court issue a restraint order? (POCA s. 32) (c) whereâ&#x20AC;&#x201D; (i) the enforcing authority has made an application under section 24 (reconsideration of available amount after order is made), which has not been determined, or the Court believes that such an application is to be made; and (ii) there is reasonable cause to believe that the Court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount as defined in that section; or (d) where the enforcing authority has made an application under section 58 (recovery orders), which has not been determined or the Court believes that such an application is to be made.

See s. 32(2)-(3) for exceptions/carve-outs. 23

ÂŠ2017 WeirFoulds LLP

Restraint orders: What is the test? • Applicant must show that there are objectively reasonable grounds for believing that an alleged offender has benefitted from his criminal conduct • Applicant does not have to prove that the alleged ofference has benefitted from his criminal conduct • Applicant does not have to meet the criminal or civil standard of proof

“Reasonable grounds for believing” “Reasonable grounds for believing a primary fact, such as that the person under investigation has benefited from his criminal conduct, or has committed a money laundering offence, do not involve proving that he has done such a thing, whether to the criminal or civil standard of proof. The test is concerned not with proof but the existence of grounds (reasons) for believing (thinking) something, and with the reasonableness of those grounds. Debate about the standard of proof required, such as was to some extent conducted in the courts below, is inappropriate because the test does not ask for the primary fact to be proved. It only asks for the applicant to show that it is believed to exist, and that there are objectively reasonable grounds for that belief. 25

“Reasonable grounds for believing” Nor is it helpful to attempt to expand on what is meant by reasonable grounds for belief, by substituting for ‘reasonable grounds’ some different expression such as ‘strong grounds’ or ‘good arguable case’. There is no need to improve upon the clear words of the statute, which employs a concept which is very frequently encountered in the law and imposes a well-understood objective standard, of which the judge is the arbiter.” Assets Recovery Agency (Ex Parte), [2015] UKPC 1

Restraint orders: Scope “As far as restraint orders are concerned it must be remembered that the restraint order is not restricted to property directly or indirectly connected to or derived either the predicate crime but extends to any property, even if lawfully acquired. The reason is that all realisable property may be used to satisfy the amount assessed to be the benefit derived by the person from either the predicate crime or the money laundering offence. POCA is directed at benefit from crime and not profit. Thus the expression ‘taking the profit out crime’ while catchy is legally incorrect. Once that benefit is quantified and captured in a dollar figure then any property held by the defendant, legally or illegally acquired, may be used to satisfy that benefit which has been stated in dollar terms. Therefore it is quite permissible for ARA to seek restraint orders against all property of the defendant that may be available to meet any sum assessed to be his benefit from his crime.” Assets Recovery Agency v. Brown (a.k.a. Michael Barnes) et al, JM 2015 SC 104

Restraint orders: Application (POCA s. 33) • Can be made ex parte – Rationale: If the defendant has notice of the order sought, the preservation of assets may be compromised – The applicant has a duty of full and frank disclosure

• Must be served on persons affected by the order

Restraint orders: Conditions (POCA s. 33) • Can be made prohibiting any person from dealing with any realizable property held by a specific person – “property”: all property wherever situate, including (a) money; (b) all forms of real or personal property; and (c) things in action and other intangible or incorporeal property; – “realizable property”: (a) any free property held by the defendant; or (b) any free property held by the recipient of a tainted gift

Restraint orders: Conditions (POCA s. 33) • May provide for reasonable living expenses and reasonable legal expenses – Exception: legal expenses that are related to specific offences and are incurred by the defendant or recipient of a tainted gift

• Enable any person to carry on any trade, business, profession or occupation • Order may be subject to conditions

Restraint orders and hearsay evidence (POCA s. 37) (1) Evidence shall not be excluded in restraint proceedings on the ground that the evidence is hearsay evidence. (2) For the purposes of this section(a) restraint proceedings are proceedings â&#x20AC;&#x201C; (i) for a restraint order; (ii) for the discharge or variation of a restraint order; or (iii) on an appeal under section 35; (b) hearsay is a statement that is made otherwise than by the person giving oral evidence in the proceedings and is tendered as evidence of the matters stated. (3) Sections 31E to 31G of the Evidence Act shall apply in relation to restraint proceedings as they apply in relation to civil proceedings.

ÂŠ2017 WeirFoulds LLP

Restraint orders: How to discharge or vary (POCA s. 34) • Application to vary or discharge may be made by: – The person who applied for the order – Any person affected by the order

• The Court may vary or discharge the order, subject to certain conditions related to how the order was originally made See, for example, Assets Recovery Agency v. Rowe et al, JM 2014 SC 4

Judicial comments on the scope of restraint orders “Before turning to an examination of the law and facts of this case the Court is compelled to make some observations about the draft order submitted. On more than one occasion in the past the Court has indicated to the Agency that the terms of the draft orders are too sweeping and lead to unnecessary litigation and dissipation of resources particularly that of the defendant. The present state of the statute prohibits the defendant from using any of the restrained property to defend himself in respect of matters arising under Proceeds of Crimes Act (‘POCA’). There is the real possibility that an entirely innocent defendant may be hampered in refuting the state’s assertions because the resources available may have to be consumed in seeking variations of the restraint order.” Assets Recovery Agency v. Brown (a.k.a. Michael Barnes) et al, JM 2015 SC 104

Mutual Legal Assistance Treaty (“MLAT”) • MLAT: an agreement between states to provide assistance in criminal matters • Governments agree to exchange evidence and information relevant to an investigation in at least one of the states that is a party to the MLAT • In money laundering investigations, MLATs may assist countries in obtaining banking and other financial records relevant to the investigation from treaty partners See: United Nations Office on Drugs and Crime, Manual on Mutual Legal Assistance and Extradition, (New York: United Nations, September 2012)

International treaties for mutual legal assistance Jamaica is a signatory to and has ratified, among others: •

United Nations Convention against Corruption

•

United Nations Convention against Transnational Organized Crime

•

Inter-American Convention Against Corruption

See also Schedule 2 of MACMA Jamaica has also entered into bilateral treaties for mutual legal assistance, such as: Treaty Between the Government of Jamaica and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters Extradition Treaty Between the Government of Jamaica and the Government of the United States of America

Execution of requests for assistance under international treaties for mutual legal assistance • International treaties provide that the execution of requests for assistance shall be in accordance with the domestic law of the requested state • For example: Requests for assistance issued by the requesting state shall be made in writing and shall be executed in accordance with the domestic law of the requested state. Inter-American Convention Against Corruption, Articles 10 and 13

Execution of requests for assistance under international treaties for mutual legal assistance “An obligation on states to provide mutual legal assistance is now an accepted feature of several international instruments in the global battle against transnational criminality and corruption. (…) MACMA seeks to give effect in the domestic law of Jamaica to the country’s international obligations under these instruments. To this end, it establishes a regime under which (i) Jamaica may enlist the aid of certain foreign states in relation to pending criminal investigations in Jamaica; and (ii) certain foreign states may enlist the aid of the Jamaican authorities in relation to pending criminal investigations in those states”. Hinds (Norton Wordworth) et al v. Director of Public Prosecutions, [2017] JMCA Civ 17

Registration and enforcement of foreign orders General principles: 1. The judgment of a foreign court has no direct operation in another jurisdiction 2. A foreign judgment may be recognized and/or enforceable in another jurisdiction by claim at common law or under a statute Lord Collins of Mapesbury, Dicey, Morris and Collins on the Conflict of Laws, 15th ed (London, UK: Sweet & Maxwell, 2012) at p. 664

ÂŠ2017 WeirFoulds LLP

Mutual Assistance (Criminal Matters) Act (“MACMA”)

•

Domestic legislation that facilitates the provision of assistance to foreign states in investigations and proceedings related to a criminal matter

•

For a comprehensive overview of the MACMA regime, including a stepby-step summary of how a request for assistance from a foreign state is considered and executed, see: Hinds (Norton Wordworth) et al v. Director of Public Prosecutions, [2017] JMCA Civ 17

•

Assistance that may be provided pursuant to MACMA includes: –

Examination of and taking the testimony of witnesses

–

Production of documents and other records

–

Search and seizure of property in Jamaica

–

Service of documents

–

Freezing assets in Jamaica

–

Tracing, seizure and forfeiture of property in Jamaica

MACMA: What countries can request assistance? •

Requests may be accepted from a “relevant foreign state” – “designated Commonwealth state”: a Commonwealth state designated by the Minister in an order made under s. 31(1) for the purposes of this Act – “treaty state”: a state that is party to a relevant treaty and in respect of which an order under s. 31(1) is in force •

“relevant treaty”: –

–

(a) a treaty, convention or other international agreement (whether made before or after the 14th day of July, 1995) that is in force and to which Jamaica is a party, the purpose of which is to provide for mutual legal assistance in criminal matters; (b) any of the Conventions set out in the Second Schedule

•

See also: The Mutual Assistance (Criminal Matters) (Designated Commonwealth States) (Amendment) Order, 2012

•

Non-Commonwealth and non-treaty countries may be able to receive assistance that does not require any intrusive methods of investigation (i.e. a search warrant or access to financial records)

MACMA: How can a foreign state freeze property in Jamaica? 1. Request the registration and enforcement of a foreign: 1. Forfeiture order against tainted property that is believed to be in Jamaica; 2. Pecuniary order, where some or all of the property available to satisfy the order is believed to be in Jamaica; or 3. Restraint order made in respect of a criminal offence against property that is believed to be in Jamaica

2. Request that a restraint order be issued in Jamaica 41

ÂŠ2017 WeirFoulds LLP

MACMA: Request by foreign state for enforcement and issue of orders (s. 27) (1) Where a relevant foreign state requests the Central Authority to make arrangements for the enforcement of— (a) a foreign forfeiture order against tainted property that is believed to be located in Jamaica; or (b) a foreign pecuniary penalty order, where some or all of the property available to satisfy the order is believed to be located in Jamaica, and the Central Authority is satisfied that— (c) a person has been convicted of an offence to which the foreign forfeiture order or foreign pecuniary penalty order relates, being an offence in respect of which, if it had been committed in Jamaica, a forfeiture order or pecuniary penalty order could be made by a court in Jamaica; and (d) the conviction and the order are not subject to further appeal in the relevant foreign state, the Central Authority may, in its discretion, apply for the registration of the order in the Supreme Court. (Continued…) 42

MACMA: Request by foreign state for enforcement and issue of orders (s. 27) (2) Where a relevant foreign state requests the Central Authority to make arrangements for the enforcement of a foreign restraint order, made in respect of a criminal offence against property that is believed to be located in Jamaica, the Central Authority may, in its discretion, apply for the registration of the order in the Supreme Court. (3) Where the Central Authority applies to the Supreme Court for registration of a foreign order in accordance with this section, the Court may register the order accordingly if it is satisfied that the circumstances so warrant. (4) A foreign forfeiture order, foreign pecuniary penalty order or foreign restraint order registered in the Supreme Court in accordance with this section has effect, and may be enforced, as if it were a forfeiture order, pecuniary penalty order or restraint order made by a court in Jamaica in respect of a prescribed offence. (5) The Central Authority may, in its discretion, apply to the Supreme Court for cancellation of the registration of a foreign forfeiture order, foreign pecuniary penalty order or foreign restraint order, as the case may be. (Continuedâ&#x20AC;Ś) 43

ÂŠ2017 WeirFoulds LLP

MACMA: Request by foreign state for enforcement and issue of orders (s. 27) (6) Without prejudice to the generality of subsection (5), the Central Authority may make an application under that subsection if the Central Authority is satisfied thatâ&#x20AC;&#x201D; (a) the order to which the application relates has ceased to have effect in the relevant foreign state in which that order was made; (b) cancellation of the registration of the order is appropriate having regard to the arrangements entered into between Jamaica and the relevant foreign state in relation to the enforcement of orders of that kind. (7) Where the Central Authority applies to the Supreme Court for cancellation of the registration of an order referred to in subsection (5) the Court shall, if satisfied as to the matters specified in paragraphs (a) and (b) of subsection (6), cancel the registration accordingly. (8) Upon a request by a foreign state the Central Authority may in its discretion and on behalf of that stateâ&#x20AC;&#x201D; (a) apply to the Supreme Court for a forfeiture order or pecuniary penalty order under the Proceeds of Crime Act in relation to property that is believed to be located in Jamaica; and (b) make arrangements for the enforcement of any order so made. 44

ÂŠ2017 WeirFoulds LLP

MACMA: The registration of a foreign restraint order • There is little case law discussing MACMA s. 27 • Antigua’s Mutual Assistance in Criminal Matters Act, 1993 is very similar to Jamaica’s MACMA • For a discussion of the registration of a foreign restraint order from a treaty state, see: The Supervisory Authority (Under the Money Laundering (Prevention) Act 1996) v. The Liquidators of Eurofed Bank (In Liquidation), [2010] ECSCJ No 267, aff'd [2011] ECSCJ No 251, HCVAP2010/051 (CA)

How to challenge the registration of a foreign restraint order • Consider whether the registration complied with MACMA s. 27 – Was the request made by a designated Commonwealth state or a treaty country? – Did the request include the particulars enumerated in the First Schedule? – Was full and frank disclosure made on the ex parte application? (Caveat: failure to make full and frank disclosure may not be sufficient to set aside the registration)

How to challenge the registration of a foreign restraint order • Consider applying for release of a portion of the restrained assets to pay legal fees (i.e. to fund the challenge) • Consider if your client needs access to the restrained assets for living expenses • Consider jurisdiction issues – should your client apply to vary or discharge the restraint order in the requesting country?

QUESTIONS?

Thank you Nadia Chiesa WeirFoulds LLP T: (1) 416-947-5084 E: nchiesa@weirfoulds.com