“‘external confiscation order’ means an order made by a court in a country or territory outside Jersey – (a) for the purpose of recovering property obtained as a result of or in connection with criminal conduct; (b) for the purpose of recovering the value of property so obtained; (c) for the purpose of depriving a person of a pecuniary advantage so obtained; or (d) for the purposes of recovering property used in or intended to be used in such conduct or in predicate conduct outside Jersey or recovering property of equal value to such property;”
“15 Cases in which saisies judiciaires may be made (1) The powers conferred on the Court by Article 16 are exercisable where – (a) proceedings have been instituted in a country or territory outside Jersey and have not been concluded, and – (i) an external confiscation order has been made in the proceedings, or (ii) it appears to the Court that there are reasonable grounds for believing that such an order will be made in the proceedings; or (b) it appears to the Court that proceedings are to be instituted against the defendant in a country or territory outside Jersey, and that there are reasonable grounds for believing that an external confiscation order will be made in those proceedings. (2) Where the Court has made an order under Article 16 by virtue of paragraph (1)(b), the Court shall discharge the Order if proceedings have not been instituted within such time as the Court considers reasonable.”
“16 Saisies judiciaires (1) The Court may, subject to such conditions and exceptions as may be specified in it, make an order (in this Part referred to as a saisie judiciaire) on an application made by or on behalf of the Attorney General on behalf of the government of a country or territory outside Jersey. (2) An application for a saisie judiciaire may be made ex parte to the Bailiff in chambers. (3) A saisie judiciaire shall provide for notice to be given to any person affected by the order. (4) Subject to paragraph (5), on the making of a saisie judiciaire – (a) all the realisable property held by the defendant in Jersey shall vest in the Viscount; (b) any specified person may be prohibited from dealing with any realisable property held by that person whether the property is described in the order or not; (c) any specified person may be prohibited from dealing with any realisable property transferred to the person after the making of the order, and the Viscount shall have the duty to take possession of and, in accordance with the Court’s directions, to manage or otherwise deal with any such realisable property; and any specified person having possession of any realisable property may be required to give possession of it to the Viscount. (5) Any property vesting in the Viscount pursuant to paragraph (4)(a) shall so vest subject to all hypothecs and security interests with which such property was burdened prior to the vesting. (6) A saisie judiciaire – (a) may be discharged or varied in relation to any property; and (b) shall be discharged when the proceedings in relation to which it was made are concluded. (7) An application for the discharge or variation of a saisie judiciaire may be made to the Bailiff in chambers by any person affected by it and the Bailiff may rule upon the application or may, at the Bailiff’s discretion, refer it to the Court for adjudication. (8) Where it appears to the Court that any order made by it under this Article may affect immovable property situate in Jersey, it shall order the registration of the order in the Public Registry. (9) For the purposes of this Article, dealing with property held by any person includes (without prejudice to the generality of the expression) – (a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and (b) removing the property from Jersey. (10) Where the Court has made a saisie judiciaire a police officer may, for the purpose of preventing the removal of any realisable property from Jersey, seize the property. (11) Property seized under paragraph (10) shall be dealt with in accordance with the Court’s directions.”
“‘property’ means all property, whether movable or immovable, or vested or contingent, and whether in Jersey or elsewhere, including – (a) any legal document or instrument evidencing title to or interest in any such property; (b) any interest in or power in respect of any such property; (c) in relation to movable property, any right, including a right to possession, and for the avoidance of doubt, a reference in this Law to property being obtained by a person includes a reference to any interest in that property being obtained;”
“2(1) In this Law, ‘realisable property’ means – (a) in relation to an external confiscation order in respect of specified property, the property that is specified in the order; (b) in any other case – (i) any property held by the defendant, (ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Law, and (iii) any property to which the defendant is beneficially entitled. … (4) Subject to the following provisions of this Article, for the purposes of this Law the value of property (other than cash) in relation to any person holding the property means the market value of the property. … (9) A gift (including a gift made before the commencement of the Enforcement Regulations) is caught by this Law if – (a) it was made by the defendant at any time after the conduct to which the external confiscation order relates; and (b) the Court considers it appropriate in all the circumstances to take the gift into account. (10) For the purposes of this Law – (a) the circumstances in which the defendant is to be treated as making a gift include those where the defendant transfers property to another person directly or indirectly for a value that is significantly less than the value provided by the defendant; and (b) in those circumstances, the preceding provisions of this Article shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in sub-paragraph (a) bears to the value provided by the defendant.”
“However, the principle underlying Article 16(5) is very clear. What is intended to be caught by a saisie and to be available for confiscation in the event of registration of an external confiscation order is the equity in the asset. The operation of the Modified Law is not intended to prejudice the position of a bona fide lender, such as a bank, which holds security over the asset in question. Lenders such as banks should be able to realise their security and obtain repayment of what they are owed, with only the equity in the property remaining available for confiscation. Similarly, when property has been realised by the Viscount, the court should exercise its power under Article 20(1) to direct that the bank should first be paid out of the sale proceeds with only the balance (reflecting the offender's equity in the property) being applied towards satisfaction of any external confiscation order.”
“79 In conclusion, the Court's powers under the Modified Law are not limited to property within its jurisdiction as contended by the Representor. Properly construed, the Modified Law empowers the Court to regulate the conduct of a person, over whom it has personal jurisdiction, in relation to property that person owns outside the jurisdiction, in this case over H1 and the property it ultimately owns in Singapore.”
“(b) any specified person may be prohibited from dealing with any realisable property held by that person whether the property is described in the order or not;”
“(a) all the realisable property held by the defendant in Jersey shall vest in the Viscount.”
“…the obvious and natural meaning of Article 16(4)(a) is that the power conferred thereby can be exercised only in respect of property which is located in Jersey whereas the obvious and natural meaning of the power conferred by Article 16(4)(b) contains no such geographical limitation.”
“The definition of ‘property’ is broad and unambiguous namely all property ‘....whether situated in Jersey or elsewhere ...’ It is significant that it is only Article 16(4)(a) that restricts thiswide definition of property to realisable property held by the defendant ‘in Jersey’ which ‘shall vest in the Viscount’, presumably because it is only property within this jurisdiction that the Modified Law could purport to directly vest in the Viscount. Sub-paragraphs (b) and (c) of Article 16(4) have no such geographical restriction, and as a matter of ordinary reading the wide definition of ‘property' must apply to them.”
“They offer the court the equivalent of a Mareva jurisdiction, which may take effect worldwide in the sense that a specified person can be prohibited from doing certain things outside the jurisdiction. Such prohibitions are unlikely to be issued against non-Jersey residents because of the difficulty of enforcement, but no territorial limitation by residence of specified persons (any more than by location of their assets) is expressed in the Modified Law.”
“50 The purpose of the Modified Law is to facilitate international co-operation in the recovery of assets from criminals. This statutory purpose is supported by important considerations of domestic and international public policy. Provisions based on this public policy are contained in a number of treaties. The interpretation which is most in accord with this statutory purpose is that which makes it easier for Jersey to co-operate and recover assets when requested to do so by foreign governments…”
“The purpose of the Modified Law and analogous legislation is to comply with Jersey’s international obligations to assist in the fight against cross-border financial crime, and it would be surprising if this legislation did not apply to assets held through the very structures for which Jersey is most known. It would also be surprising if a defendant could use a common feature of such structures to argue that certain assets were beyond the Court’s reach.”
“Unless the contrary intention appears … an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters”
“These provisions amount to a clear and coherent scheme. From first to last, the powers conferred by that part of the Order that relates to England and Wales can only be exercised in relation to property in England and Wales. Furthermore, no machinery is provided for exercise of those powers outside England and Wales.”
“… a recovery order operates in rem to transfer title to the property to the trustee. That is the usual, although not invariable, sense in which the concept of vesting is employed, and that sense is consistent with the power to sever the property, and with the power of the trustee to sell the property and his function of realising its value.”
“It is … inherently unlikely that such a result could have been intended by Parliament: in such circumstances, there would be no reason for the holder of the property to submit to the jurisdiction of the courts of this country, and no likelihood that any order granted by those courts without appearance would be given effect overseas.”
“(4) The statutory scheme in England and Wales is differently worded, though it has one feature similar to the scheme in Guernsey - the wide definition of ‘property’ in an omnibus interpretation section, which in my judgment (as in the English courts) must give way to the context in and wording of Part I of the 1999 Law.”
“62. It would not be appropriate for me to question the Guernsey Court’s interpretation of its own legislation, but I am not persuaded that the decision of the Guernsey Court in King v HM Procureur provides good reasons for saying that the decision of this Court in Re Kaplan was wrongly decided.”
“This power, I apprehend, is based upon the doctrine that the Court acts in personam. The Court does not, and cannot attempt by its order to put its own officer in possession of foreign property, but it treats as guilty of contempt any party to the action in which the order is made who prevents the necessary steps being taken to enable its officer to take possession…”
“If an order is made appointing a receiver over assets abroad, on the grounds that the defendant may otherwise dissipate the assets, it will ordinarily contain an express provision directed to the defendant to give up possession of the assets to the receiver or his agent. The court has power unders.37(1) of the Senior Courts Act 1981 to order the defendant to deliver up specified chattels to the receiver or to provide the receiver with particular funds or their proceeds held by the defendant.”
“The drug trafficker and other acquisitive criminal alike are tempted more and more by the idea of placing their assets outside the jurisdiction. Accordingly, the court has made orders requiring a defendant or even a third party holding realisable property of the defendant to bring it within the jurisdiction. The issue is not where the property might be located but it is whether the person against whom the order is sought is himself subject to the jurisdiction of the High Court. Thus, a person who has realisable property abroad but is himself within the jurisdiction can be ordered to bring that property back to or within the jurisdiction or face an application to be committed to prison for failing to comply with the repatriation order… … Again, like much of the development of the restraint regime the power to order repatriation is not unique to the legislative scheme of restraint within the Acts. In conventional civil proceedings the Court of Appeal first concluded that the jurisdiction of the High Court was not based on the location of assets but more on the unlimited nature of the power of the court to be able to make any orders relating to persons who were properly parties to the proceedings before it.”
“31 Mr Perry submitted that there was good reason why the scope of the Order should be restricted to property within the jurisdiction. If a country wishes assistance from other countries in preserving or recovering property that is related to criminal activity, it makes sense for its request to each of those other countries to be restricted to the provision of assistance in relation to property located within its own jurisdiction. If each country were requested to take steps to procure the preservation or recovery of property on a worldwide basis, this would lead to a confusing, and possibly conflicting, overlap of international requests for assistance. Not only would such multiplication of activity be confusing, it would involve significant and unnecessary multiplication of effort and expense. 32 There is obvious force in these submissions…”
“the saisies judiciaires imposed upon the realisable property of Mr Robert Tantular do not prevent Credit Suisse assigning to a third party its rights under the credit facility dated 9 June, 2008, and the legal mortgage secured on the property 26 Cuscaden Road, Singapore dated 24 November, 2008.” (Emphasis added).
“It follows that, in our judgment, the starting point where the court is satisfied that the application is being made by a bona fide, arm's length third party with security over foreign property which is subject to a saisie, should be that the saisie should be varied so as to allow the secured party to enforce its security in accordance with its terms. We see no reason not to adopt that approach in the present case. Jonzelle is in default. The Bank has been seeking to recover its money for some time. It should now be permitted to realise its security over the Property in accordance with such rights as it has under the documents creating the mortgage and Singapore law.”
“… the Mortgage does not form part of the realisable property of the Settlor and, [Advocate Hanson] said, the Bank is free to dispose of it as it wishes. It can do so without reference to Jonzelle or to the Court.”
“The [variation] application by the Bank to the Court last year was required because the Bank intended to exercise its powers of sale over the Property which did form part of the realisable property of the Settlor.”
“16. The prospect of Credit Suisse assigning the credit facility and mortgage secured on the Cuscaden Property to Mr Koswara is a matter of grave concern to the Government of Indonesia. In view of Mr Koswara’s long-standing friendship with Mr Robert Tantular and his willingness to be ‘flexible’ in his dealings with the Beneficiaries, the Government of Indonesia does not consider it unreasonable to suspect that Mr Koswara is no more than a nominee or ‘front man’ for Mr Robert Tantular and his family and that Mr Koswara could seek to, or will at the very least be in a position to, hinder or even thwart the restraint and confiscation process in respect of the Cuscaden Property.”
“20. Although the Beneficiaries assert that Mr Koswara should be allowed to replace or simply ‘step into the shoes’ of Credit Suisse, the differences between Credit Suisse and Mr Koswara could not be more clear-cut. Credit Suisse is a regulated global financial institution acting at arm's length to Mr Robert Tantular and the Beneficiaries, which has scrupulously sought to comply with the saisies judiciaires, and which can be expected to preserve the net proceeds of the sale of the Cuscaden Property after discharge of the mortgage. In contrast, Mr Koswara is a ‘family friend’ of the Tantulars, who has no regulated status, and who wants ‘to help an old friend out’ by being ‘flexible’ in his dealings with the friend’s family (i.e. the Beneficiaries). Given that Mr Koswara is resident in Indonesia … there would be significant difficulties in bringing enforcement proceedings against him should he breach the saisies judiciaires.”
“In its [variation judgment] the Court found … that the saisies extended to the whole of the Property and that for the Bank to exercise its power of sale over the Property would be to deal with it; hence the need for a variation. In our view any assignment of the Mortgage, which brings with it the power to sell the Property, is equally to deal with it. We agree with Crown Advocate Belhomme's submission that to take any action which will or may materially affect the realisable property held under restraint is to deal with the same. Accordingly the saisies do prevent the assignment of the Mortgage and we are unable to make the declaration sought.”
“the Court felt able in the [variation judgment] to vary the saisies so as to allow the Bank to exercise that power, because it was a bona fide arm’s length third party, and indeed, as Mr Muzhar points out, a regulated global financial institution that would be acting at arm’s length to the Settlor and the Applicants. What is now proposed is that this same power will be assigned to Mr Koswara, an old friend of the Settlor, who resides in Indonesia (where the Settlor also resides) outside the jurisdiction of both this Court and the courts of Singapore. There has been no disclosure of the communications between the Settlor and Mr Koswara, or between Mr Koswara and the Applicants, or as to the source of the$4.6m that would be used to acquire the Mortgage. The Court has no confidence that it knows the full terms of the arrangements and it is manifest that placing Mr Koswara into that position of power over the Property could be highly prejudicial; Crown Advocate Belhomme described such a possibility as ‘unconscionable’.”
“the saisies restrain any dealing with the property which they specify as being ‘realisable property’ but that the Bank’s interest in the mortgage cannot be so regarded.”
“In our judgment it is all but incontrovertible that the commencement of this process should be characterised as an institution of proceedings by the Ministry, albeit with the assistance of the Attorney General. As we have indicated, the Attorney General could not have instituted such proceedings on his own mere motion or caprice. Further, as the Conventions make clear, whilst mutual legal assistance may be refused, the relevant circumstances are restricted as, otherwise, the likelihood of true mutuality could readily be defeated.”
“Mr Muzhar and other Indonesian officials came to Jersey in August 2014 for the purpose of the hearing to take place before the Royal Court, gave detailed instructions to the Crown Advocate including as to whether to seek an adjournment and, when it became clear that there were difficulties with the application, engaged in telephone discussion with the Indonesian Attorney General to obtain consent to the making of a supplementary request based upon further information. In ordinary characterisation, the Crown Advocate was giving assistance to the Ministry in the presentation of the applications and the Ministry was directly involved in deciding how the applications were going to be progressed.”
“1 General immunity from jurisdiction (1) A State is immune from the jurisdiction of the courts of the Bailiwick except as provided in the following provisions of this Part of this Act. (2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question. 2 Submission to the jurisdiction (1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the Bailiwick. … (3) A State is deemed to have submitted – (a) if it has instituted the proceedings; or (b) subject to subsections (4) and (5) below, if it has intervened or taken a step in the proceedings. … (5) Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable. … (7) The head of a State’s diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; …”
“1. States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States. 2. Nothing in this Convention entitles a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.”
“The Act empowers the Secretary of State to direct an application to the English courts pursuant to the Australian request. That request, by one government to another, cannot in our judgment amount to the initiation of proceedings for the purposes of Article 32[(3)]. Neither the Superintendent nor his government had power to make the relevant application to the English court. While the Superintendent gave evidence, and may even have acted as advocate, the application was made, as it had to be, by the United Kingdom police, who thereby initiated the proceedings.”
“10 … Here, the Australian government did not itself apply to our courts for assistance but instead invoked its rights under the Extradition Treaty by applying to the executive branch of our government. Australia’s invocation of its extradition treaty rights, unlike Argentina’s direct engagement of our courts in Siderman, cannot constitute an implied waiver of sovereign immunity. 11. … The power to extradite derives from the President’s power to conduct foreign affairs. (citations omitted). Thus, the nation seeking extradition does not directly contact the courts of the requested country. Rather, the foreign government makes its extradition request to the U.S. Department of State. … After the request has been evaluated by the State Department to determine whether it is within the scope of the relevant extradition treaty, a United States Attorney, if so instructed, files a complaint in federal district court seeking an arrest warrant for the person sought to be extradited. Thus, all extradition-related judicial proceedings are initiated and conducted by the U.S. Department of Justice. The executive branch conducts the procedure on behalf of the foreign sovereign. The foreign sovereign makes no direct request of our courts, and its contacts with the judiciary are mediated by the executive branch.”