English Law Day Forum in Kyiv

Transcription

1 English Law Day Forum in Kyiv 22 March 2018 Supported by

2 Welcome Sergei Ostrovsky, Member of the International Committee, the Law Society of England and Wales Helen Fazey, Deputy Head of Mission, British Embassy Kyiv Lidiya Izovitova, President, Ukrainian National Bar Association Yuri Botiuk, Vice Chair, British-Ukrainian Law Association

3 Session 1 Private Wealth recent developments in the UK Moderator: Oksana Voynarovska, Head of the Private Clients practice group, Vasil Kisil, Kyiv Panel members: Christopher Coffin, Partner, Withers, London Alina Plyushch, Partner, Sayenko Kharenko, Kyiv Izzy Walsh, Senior Associate, Dawson Cornwell, London Dmitry Zapol, Partner, IFS Consultants, London

4 Success defending your interests London l Geneva l Milan l Padua l New Haven l New York l Greenwich l San Francisco l Los Angeles Rancho Santa Fe l San Diego l Singapore l Hong Kong l Tokyo l Sydney l British Virgin Islands 4

5 Ukrainian Bar Association: English Law Day 2018 Unexplained Wealth Orders Christopher Coffin, partner, litigation and arbitration 22 March 2018 London l Geneva l Milan l Padua l New Haven l New York l Greenwich l San Francisco l Los Angeles Rancho Santa Fe l San Diego l Singapore l Hong Kong l Tokyo l Sydney l British Virgin Islands

6 Unexplained Wealth Order (UWO) The new regime came into force on 31 January key conditions to be satisfied: The respondent holds an asset with a value greater than 50,000 There are reasonable grounds for suspecting the known sources of the respondent s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the assets The respondent is a non-eu Politically Exposed Person, or there are reasonable grounds for suspecting the respondent is or has been involved in serious crime Only relevant enforcement authorities can apply for a UWO London l Geneva l Milan l Padua l New Haven l New York l Greenwich l San Francisco l Los Angeles Rancho Santa Fe l San Diego l Singapore l Hong Kong l Tokyo l Sydney l British Virgin Islands 6

7 Consequences of being served with a UWO A respondent will be required to explain the source of the wealth: the nature and extent of their interest in particular property; and how the property was obtained, where there are reasonable grounds to suspect that the respondent s known lawfully obtained income would be insufficient to allow the respondent to obtain the property Consequences for non-compliance with a UWO: failure to respond 'without reasonable excuse' will result in the property being presumed to be recoverable property under PoCA 2002; a respondent who recklessly or knowingly makes a false or misleading statement can be convicted of an offence London l Geneva l Milan l Padua l New Haven l New York l Greenwich l San Francisco l Los Angeles Rancho Santa Fe l San Diego l Singapore l Hong Kong l Tokyo l Sydney l British Virgin Islands

8 Unexplained Wealth Order: Powers Civil power and an investigation tool allowing the asset to be recovered through the civil regime under PoCA 2002 which does not require a conviction and carries a lower standard of proof UWO may be coupled with an interim freezing order preventing a respondent from dealing with the property in question if the High Court finds that there is a risk that any later civil recovery order might be frustrated through dissipation of the property under consideration. UWOs have an international reach: a respondent does not need to be a UK resident, and property can be located outside the UK London l Geneva l Milan l Padua l New Haven l New York l Greenwich l San Francisco l Los Angeles Rancho Santa Fe l San Diego l Singapore l Hong Kong l Tokyo l Sydney l British Virgin Islands

9 Concerns regarding UWOs Reversal of the burden of proof No conviction is required Standard of proof what are reasonable grounds? Subject to challenge Risk of widening the civil law Impact on financial institutions London l Geneva l Milan l Padua l New Haven l New York l Greenwich l San Francisco l Los Angeles Rancho Santa Fe l San Diego l Singapore l Hong Kong l Tokyo l Sydney l British Virgin Islands

10 Q&A Christopher Coffin Partner Phone: London l Geneva l Milan l Padua l New Haven l New York l Greenwich l San Francisco l Los Angeles Rancho Santa Fe l San Diego l Singapore l Hong Kong l Tokyo l Sydney l British Virgin Islands

11 Our locations offices London l Geneva l Milan l Padua l New Haven l New York l Greenwich l San Francisco l Los Angeles Rancho Santa Fe l San Diego l Singapore l Hong Kong l Tokyo l Sydney l British Virgin Islands Clifford Chance

12 Tea and Coffee Break 12:00-12:30

13 Session 2 The use of English law on joint ventures and as the governing law for shareholder agreements Moderator: Sebastian Lawson, Partner, Freshfields, Vienna Panel members: Anna Babych, Partner, Aequo, Kyiv Roman Filatov, Managing Partner, FJM Lawyers and Solicitors LLP, London Sergei Ostrovsky, Partner, Ashurst, London Olga Watson, Counsel, Dechert, London & Moscow

14 Lunch 13:30-14:30 Bistro Cote

15 Session 3: Arbitrating or Litigating in English courts jurisdictional traps for the unwary Moderator: Artem Doudko, Partner and Head of Russia & CIS Disputes, Osborne Clarke, London Panel members: Yulia Atamanova, Counsel, LCF, Kyiv Louis Flannery QC, Partner, Stephenson Harwood, London Ben Wells, Solicitor, Shepherd and Wedderburn, London Julia Zagonek, Partner, White and Case, Moscow

16 Tea and Coffee Break 12:00-12:30

17 Session 4 Recovering assets through bankruptcy and liquidation Moderator: Yuri Botiuk, Partner, Candey, London Panel members: Robert Dougans, Partner, Bryan Cave, London Iryna Kalnytska, Head of tax practice, Attorney at Law, GOLAW, Kyiv Sergey Litovchenko, Associate, Pinsent Masons, London James Popperwell, Partner, MacFarlanes, London

18 Session 4: Recovering assets through Background Scenario (1) bankruptcy and liquidation Sergey owns Sergey s Solutions a Lviv based IT company. Sergey needs to expand Sergey s Solutions and approaches PeoplesBank for a loan. PeoplesBank provides a loan of 100 million USD. PeoplesBank has a personal guarantee from Sergey and guarantees from Sergey s Siphon Cyprus and Sergey s Fun Fund BVI. Sergey s Solutions defaults on the loan. PeoplesBank obtain a judgment in Ukraine with respect to Sergey s personal guarantee. Sergey says that he has no money. Sergey s family often travel together to the same properties in France, England and Turkey. Sergey is divorced from his wife Tatiana. Tatiana lives in a house in London owned by the BVI company Nothing to See Hear Limited.

19 Session 4: Recovering assets through Background Scenario (2) bankruptcy and liquidation Sergey is divorced from his wife Tatiana. Tatiana lives in a house in London owned by the BVI company Nothing to See Hear Limited. Nothing to See Hear Limited has not filed PSC register documentation. Sergey s children (Slava and Chrystyna) attend a summer school in London, English for Peps Peeps Ltd. Sergey s mother in law (Pani Hryvnia) has no income but appears to own property in Turkey. Sergey s best friend, Pavlo Boroda, seems to have made a lot of money just after the PeoplesBank loan was drawn down by Sergey s Solutions. Sergey is in the Rada and is a member of the Peoples Personal Profit Party. Sergey s English lawyers are Monet Laundry LLP and they set up all of Sergey s structures.

20 Session 4: Recovering assets through Sergey s Assets/Structures bankruptcy and liquidation Sergey has mortgage on Ukrainian real estate, the disputes under the mortgage agreement shall be resolved in London Court of International Arbitration. In order to avoid foreclosure in real estate Sergey (i) initiates restructuring of the real estate (ii) files a suit in the Ukrainian court seeking a declaration that the mortgage agreement invalid and (iii) initiates voluntary liquidation. Sergey s Fun Fund BVI Limited is the 100% shareholder in Sergey s Siphon Cyprus. Sergey s Fun Fund BVI is owned by the English company Sergey s Safe Limited. Sergey used have an English company in his holding structure, Sergey s Safe Limited but this was dissolved.

21 Session 4: Recovering assets through bankruptcy and liquidation Sergey s Safe Limited (English)(dissolved) 100%. Sergey s Fun Fund BVI Limited 100%. Sergey s Siphon Cyprus 100%. Sergey s Solutions Ukraine.

22 Cast of characters: Session 4: Recovering assets through bankruptcy and liquidation Sergey owner of Sergey s Solutions through the above structure Tatiana Sergey s ex wife Pani Hryvnia Sergey s ex mother in law Slava and Chrystyna Sergey s Children Palvo Boroda Sergey s best friend Nothing to See Hear Limited owns London property that Tatiana lives in English for Peps Peeps Ltd. English language school in London Peoples Personal Profit Party Sergey is a member of this party in the Rada What can PeoplesBank do?

23 Closing remarks Yuri Botiuk, Vice Chair, British-Ukrainian Law Association

24 Networking reception 17:05 19:30 Bistro Cote