C.7. Applicability of Non-Conviction Based Asset Forfeiture Orders • It is unclear whether and under what circumstances foreign civil forfeiture orders may be enforced against funds or assets in the Cayman Islands. In certain cases (Montesinos-Torres, Re Codelco, Canadian Arab Financial Corporation and others v. Player), the Court allowed for the enforcement of civil forfeiture orders, whereas In the Matter of Falcone, the court did not interpret domestic legislation to allow the enforcement of civil forfeiture judgments. C.8. Confiscation of Legitimate Assets Equivalent in Value to Illicit Proceeds As discussed in sections 16, 18, 19, 44(a)–45, 133–135, 70–71, 78–79, and 45(2) of the Proceeds of Crime Law (2008), similar to the United Kingdom, it is common in the Cayman Islands to restrain all assets during criminal investigation, even beyond the amount alleged in the crime, because not only can the Cayman Islands recover from legitimate assets but there are occasions when the defendant may be required to prove that all assets acquired in the previous six years are from legitimate sources; otherwise, the assumption is that they are the proceeds of crime. Even legitimate gifts in certain circumstances can be restrained and confiscated. The Court ultimately conducts an exercise where it determines the “recoverable amount” (the amount representing the proceeds of crime) and the “available amount” (the asset base, legitimate or illicit, of the person from which the recoverable amount can be taken).
D. Types of Informal Assistance • Informal assistance may be provided by CAYFIN (FIU) (http://www.fra.gov.ky/), the Cayman Islands Monetary Authority (CIMA) (http://www.cimoney.com. ky/), as well as the police and customs and tax authorities.
Appendix B
Book 1.indb 121
I
121
5/11/11 4:21:09 PM