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Interim Relief in Cyprus Assists Creditors to Pursue Stolen or Hidden Assets

Cyprus has become a financial hub for companies and trusts managing assets of foreigners, particularly Russia. However, creditors should not be perturbed because the courts in Cyprus exercise powers in relation to asset freezing, discovery and tracing in aid of foreign judicial proceedings.

The Civil Procedure Rules are identical to rules applicable in England prior to Cyprus' independence from British colonial rule in 1960, thus benefiting from considerable legal authority that clarifies the scope, method and result of legal process. Civil courts in Cyprus have jurisdiction to issue interim orders in support of judicial proceedings pending in Cyprus and pending before national courts of any EU member, excluding Denmark.

The Supreme Court in Seamark Consultancy Services Limited v. Joseph P Lasala et al(2207) 1 AA^ 162, found in 2007, that freezing orders with worldwide effect can be issued. These freezing orders can be as to tangible, immovable property if situated in Cyprus and intangible assets such as bank funds, deposits, corporate shares and goods. Cyprus courts can also issue interim orders preventing acts or events such as implementation of corporate resolutions. Further Chabre interim orders can be issued based on TSB Private Bank International v. Chabre (1992) 1 WLR 231, essentially a freezing order directed to a party against which the claimant does not have a substantive claim. Since the principal defendant controls a third party, it indirectly controls the assets of the third party. Such assets should be considered to belong to the third party and subject to freezing.

Cyprus courts also allow for interim orders to preserve evidence. Anton Piller orders permit evidence to be preserved, but it must first be identified.

Cyprus courts can also issue discovery orders for a) the purpose of obtaining a disclosure on oath as to the location and value of specific assets or b) for tracing purposes, the disclosure of information and documents regarding assets stolen from the applicant to enable the identification of the person who committed the tort. Under Section 32 of the Courts of Justice Law, a litigant must show 1) that a wrong has been carried out, 2) an intention to commence proceedings against the ultimate person committing the tort, 3) that a discovery order will assist in pleading and proving a claim, identifying the wrongdoer and tracing stolen assets, 4) the person against whom the discovery order is sought has been innocently involved with the wrongdoing and is likely to be able to provide the requested information, and finally, 5) that there are no alternative means to obtain the information.

In appropriate circumstances, an interim receiver can be appointed, but a bank guarantee of the fees of the receiver must be secured.

Thus, Cyprus can be a creditor-friendly jurisdiction to enforce or support recovery efforts.

© Horwood Marcus & Berk Chartered 2022. All Rights Reserved.National Law Review, Volume V, Number 182
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About this Author

Rick Rein, Creditor's Rights Attorney, Horwood Marcus & Berk Law Firm
Partner

RICK REIN is chair of Horwood Marcus & Berk's Litigation Group and focuses his practice on creditor's rights, loan enforcement and creditor bankruptcy representation. He regularly advises secured creditors in workout and restructuring transactions, including forbearance agreements. He also assists secured creditors in recovering pledged collateral through Uniform Commercial Code sales and commercial mortgage foreclosures, in prosecuting claims based on fraud, non-performing loans, intercreditor disputes and loan commitment litigation and in defending creditors...

312-606-3227
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