The Asset Recovery Hub recently caught up with Tom Glasgow, Chief Investment Officer (Asia) of IMF Bentham, and Bruno Vickers, Senior Director of Investigations at GPW Asia to discuss enforcing legal awards in Asia.

Q: When and why should claimants think about enforcement?

汤姆格拉斯哥：As a funder of commercial disputes, recovery is first and foremost in our case assessment. Most of our funding is ‘non-recourse’, which means if there is no recovery from the action, we do not receive a return on our investment. The same applies to a claimant funding their own case – if there is no ultimate recovery, the claimant may be left with significant costs and no meaningful returns.

你知道关于被申请人,越多越好you can strategize and assess the probable outcome in a case. This includes the likely parameters for any settlement. For example, you might have a case against a party for 100 million, but they have limited financial means and insurance cover of only 10 million. The best strategy then might be to seek an early settlement to recover as much of the insurance cover as possible, before it is used up in respondent’s defence of the claim. Similarly, some cases may not be worth pursuing at all because the likely recoveries will not justify the costs. In other cases, investigation of the respondent has helped us identify strategic assets which, when targeted for enforcement, bring strong leverage for settlement.

因此，我们在评估案例时总是牢记“终点”。这意味着确定被告是否能够满足任何裁决或和解，如果能够，在多大程度上满足。如果做不到这一点，我们需要确定在一个可以在合理时间和成本内执行的司法管辖区是否有可供执行的资产。如果存在被调查者试图隐藏资产的风险，那么我们也会考虑保留资产的选择。

Too often in my experience, these matters are the last to be considered by claimants and lawyers advising on prospective claims. In many cases submitted to us for funding, there has been little or no assessment of the respondents’ financial position or the practicalities of enforcement. This mindset needs to change. It is not commercial. A great legal case is worthless if there is no meaningful end point. I always say, ‘Start where you want to end up and work backwards’. Seek a view on recovery as a first step. The cost of confirming the respondent’s financial position upfront is far less than fruitless legal proceedings and the strategic insights you gain can be extremely valuable.

Q: What are some particular challenges related to enforcement and asset recovery in Asia?

Bruno Vickers:Our principal role as it relates to recovery on legal cases is investigating and mapping the asset position of counterparties. A significant challenge for such investigations in Asia is that the public record differs enormously by country and is generally quite thin relative to more developed economies. Formal record keeping on legal and detailed corporate matters, where it exists, can be incoherent, poorly maintained and not easily searchable online. Other public sources, such as corporate websites, local press and social media, can also be misleading or prone to sensationalism or censorship.

So knowing what information is available in each country and where to get it is vital. It is also important to go beyond conventional online resources; for example, in a country like Indonesia where online information is limited we’ve cracked open cases by finding valuable hard copy documents hidden in obscure archives tucked away in remote rural registries.

We also need to think laterally and probe outside the public record. This means finding human sources to generate leads, corroborate data and fill information gaps – whether it’s a disgruntled former employee, a supplier who has not been paid, a neighbouring or competing business, these sources can be an invaluable source of insight into companies about which little information is available publicly.

横向思考也意味着超越国内固定资产，如房地产，寻找可移动资产，如现金、船舶、海外账户中的金融工具或海外供应商的应收贸易款。就像人们最喜欢的水坑一样，整个地区的个人和公司都喜欢某些资产和控股结构。GPW的经验使我们能够利用这些倾向；例如，中国人喜欢在BVI中加入，在香港购买房产，而印度国民更喜欢在毛里求斯持有公司或UAE的房地产，而印度尼西亚人则在新加坡购买房产和子女上学。

在这一地区成功恢复的最后一个考虑因素是超越争端的管辖范围或交易对手的所在地。任何在中国或印度等国试图执行法院判决的人都会知道，执行很少是直截了当的。幸运的是，发现一个主权国家、公司或个人只在一个司法管辖区运作是不寻常的，而且，在新加坡、香港或澳大利亚等国家，执法更为容易的因素也使它们成为投资和持有资产的有吸引力的地方。

Q:您在亚洲的纠纷、资产追查和执法方面看到了哪些趋势和发展？

Bruno Vickers:我认为亚洲在执法和资产调查方面有三个重要和积极的发展。

Firstly, it is encouraging to see the growing use of Asian dispute centres to resolve regional matters. Singapore and Hong Kong are now ranked third and fourth most preferred seats globally. This may be due in part to the marked increase in disputes emanating from some of the fastest growing regional markets. Many investors rushed in to countries like Vietnam and Indonesia without undertaking proper due diligence – i.e. doing more than box ticking compliance checks to look at the reputation, track record and solvency of customers, investment targets or joint venture parties. With growing trade friction and a likely global economic slowdown in the next couple of years, we expect the number of these disputes will only increase.

第二，我们看到一些国家正在朝着提高透明度的方向发展，尽管还有很长的路要走。例如，印度的一些州，如德里，现在有了可公开搜索的财产登记簿，而在中国，虽然只有中文，但现在可以从网上登记处获得基本的公司信息。

A final trend is the introduction of litigation funders into the market here. Funding in enforcement has been a game changer by allowing more claimants to pursue cases they may not otherwise have the means – or expertise – to carry out. We find that funders are generally more conscious of the importance of recovery from the outset and are willing to invest resources into assessing this at the outset. From our perspective this approach is an enormous benefit to claimants and to the successful management of a case.

汤姆格拉斯哥：I agree with Bruno; the extent and complexity of international commercial disputes is on the rise in Asia. This is not surprising given the extent of cross-border investment into and within the region, especially in the energy, infrastructure, resources and technology sectors. China’s Belt and Road Initiative is an often-cited example, but there are many more.

While global economic interests shift towards Asia, the cultural diversity in the region and a range of economic pressures gives rise to disputes, many of which result in international arbitration or cross-border insolvencies. The disputes are often complex, costly and may involve multi-jurisdictional enforcement strategies in developing countries. These are difficult matters for commercial parties navigate – they must balance the potential high costs and risks of failure against the importance of projecting a strong position and pursuing the interests of the business. Very often good claims are left aside or settled unfavourably – the risk and uncertainty is considered too high.

与所有这些相关的是争议融资行业的一个明显趋势：我们看到，公司对争议融资的使用在稳步增加，这并不是因为他们缺乏追诉案件的财务手段，但因为他们希望通过分担争端的成本和受益于国际货币基金组织边沁（IMF Bentham）等老牌基金组织的国际专长来降低风险。从本质上讲，公司可以将纠纷的重大成本转移给我们，消除账面上的下行风险，同时保留大部分潜在的上行空间，积极追求公司利益。在某些情况下，我们正在帮助企业跨跨国纠纷投资组合这样做，因为创新的GCs和CFO越来越了解纠纷融资的风险缓解和现金流好处。