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Restructuring & Insolvency Breakfast Series | Developing Claims and Seeking Recoveries in Distressed Situations // Monday 4 November 2019

21 November 2019
DWF (Middle East) LLP in conjunction with Alvarez & Marsal and Thomson Reuters hosted the second session of their Restructuring and Insolvency Breakfast Series on Monday 4 November 2019 which focused on Developing Claims and Seeking Recoveries in Distressed Situations. 

Investigations and asset recovery specialists James Daniell of Alvarez & Marsal and James Fox of DWF Middle East examined the potential claims that typically arise from a restructuring or liquidation. For example, will shareholders be able to bring a claim against management for negligent running of the company? Litigation funder, Dilip Massand of SAS Asset Recovery, added his insight into the types of claims that funders will typically be prepared to fund.

Moderator: Umera Ali, DWF Middle East - Partner// Head of Banking & Finance (Middle East)
Panellists:

  • James Fox, DWF Middle East - Partner // Head of Dispute Resolution (Middle East)
  • James Daniell, Alvarez & Marsal – Managing Director 
  • Dilip Massand, SAS Asset Recovery – Managing Director 

A summary of the key takeaway points from the discussion:

  1. Investigation: The first step in the types of claim the panel considered is to carry out an investigation to establish the facts. This will involve preserving data relating to the outstanding amounts (i.e. correspondence, reports, bank statements), carrying out a detailed review of all data, interviewing employees, obtaining witness statements/affidavits, collating information in the public domain and asset tracing.
  2. Considering Possible Recovery: Following the investigation, it is necessary to consider the amounts owed, potential assets (i.e. property, cash etc.) ownership of assets, jurisdiction, collectability, potential cost and time frame, in order to decide if there is a credible claim.
  3. Asset Tracing: Asset tracing is a key consideration because it is important to consider where assets might be and whose name the assets are in (i.e. spouse, children, siblings, parents etc.).  In the scenario described in the session the asset tracing discovered a property (in the CFO's wife's name) in France and a further property in the USA. The panel considered how it would be possible to make a recovery against the property held in the name of the wife (a common scenario in this type of case). 
  4. Jurisdiction: Jurisdiction is also a key concern. The scenario provided that funds had been distributed to four jurisdictions; UK, USA, Switzerland and Malaysia. The panel considered the impact of assets being held in different jurisdictions and which jurisdictions had higher prospects of recovery. The panel also considered the different disclosure regimes in the different jurisdictions and how jurisdiction will impact the likelihood of recovery and the necessary steps to recover the amounts owed.  
  5. Further Practical Steps: Other practical steps were also be considered, such as whether it helped to commence a claim in one jurisdiction to assist an action (such as discovery) in another jurisdiction.
  6. Litigation Fund: The following litigation funding considerations were identified: credibility of the claim; jurisdiction; quantum; collectability; and time.  

 

Watch our expert panellists discuss their main takeaways from the seminar.