Chasing assets abroad: Ideas for more effective asset tracing and recovery in cross-border insolvency

Abstract

Asset tracing and recovery (ATR) has become highly challenging in the digital age, where, with the touch of computer keys, assets can be shifted through multiple jurisdictions within minutes, creating significant challenges for recovering value. While many countries have tools to enable ATR, these tools differ from jurisdiction to jurisdiction and often are not recognized across borders in a manner that keeps pace with the need for rapid ATR, particularly during insolvency. This article takes stock of the myriad ATR tools available in domestic systems to discern parameters of key ATR tools that have common objectives, features, and safeguards, and that can form the basis of more standardized understanding and application of such tools. It also explores the extent to which cross-border ATR is aided by the leading frameworks for global, cross-border insolvency—the UNCITRAL Model Laws on Cross-Border Insolvency, insolvency-related judgments, and enterprise groups—in the process, revealing gaps and uncertainties. Such uncertainties can result in losses to stakeholders affected by insolvencies of different business sizes but can be particularly detrimental in small and medium enterprise (SME) cross-border insolvencies where there are typically more limited resources to chase assets. Against this backdrop, this article proposes ideas for the enhancement of the cross-border insolvency framework, to allow for effective cross-border access to information held abroad, the freezing of assets in cross-border cases, and the cross-border recovery of assets.