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Part V Financial Wrongdoing and Private International Law, 18 Conspiracy »

Zachary Douglas QC, Andrew Bodnar
From: Banks and Financial Crime: The International Law of Tainted Money (2nd Edition)
Edited By: William Blair, Richard Brent, Tom Grant
This chapter analyses the situation of conspiracy. A claim in tort for unlawful means conspiracy requires the claimant to establish that, firstly, he has suffered a loss, secondly, that it was as a result of unlawful action, which was thirdly, taken pursuant to a combination or agreement between the defendant and another person or persons, fourthly, to injure the claimant by unlawful means. The intention to injure does not have to be the sole or predominant purpose of the defendant’s actions. The chapter then looks at a real scenario of a case of conspiracy. It also looks at the relevant jurisdiction and applicable law, including cases where the defendants are domiciled in England, in another Member State, or in a non-Member State and cases where the defendants are domiciled in different locations from each other.

Part V Financial Wrongdoing and Private International Law, 17 Deceit »

Zachary Douglas QC, Andrew Bodnar
From: Banks and Financial Crime: The International Law of Tainted Money (2nd Edition)
Edited By: William Blair, Richard Brent, Tom Grant
This chapter considers issues connected to deceit. For a claim in tort for deceit, the claimant must establish that, firstly, the defendant made a representation which was false, secondly, knowingly or recklessly and, thirdly, the claimant acted upon that representation. If the claim in deceit is established, the defendant is liable for all consequential loss flowing from the deceit regardless of whether the claimant was negligent in failing to discover the falsity of the representation. The chapter then looks at a real scenario of a case of deceitful behaviour. It also examines the relevant jurisdiction and applicable law, including cases where the defendant is domiciled in England, in another Member State, or in a non-Member State.

Part V Financial Wrongdoing and Private International Law, 16 Dishonest Assistance »

Zachary Douglas QC, Andrew Bodnar
From: Banks and Financial Crime: The International Law of Tainted Money (2nd Edition)
Edited By: William Blair, Richard Brent, Tom Grant
This chapter deals with issues relating to dishonest assistance. To succeed with an equitable claim for dishonest assistance, the claimant must establish, firstly, the existence of a trust or fiduciary relationship, secondly, which has been breached, thirdly, with the assistance of the defendant, and fourthly, in circumstances where the defendant has been dishonest. The claim for dishonest assistance is not a restitutionary claim; it is a form of accessory liability based on fault, and hence the defendant’s state of mind assumes a critical role in the cause of action. If the defendant is liable for dishonest assistance, then he is personally liable to account to the claimant and hence the remedy is personal and not proprietary. Although described as an equitable claim, and notwithstanding that the quantum of damages is usually calculated by reference to the value of the breach of trust, the remedy for dishonest assistance is damages. The chapter then looks at a real scenario of a case of dishonest assistance. It also examines the relevant jurisdiction and applicable law, including the characterization of the issue of liability for dishonest assistance.

Part V Financial Wrongdoing and Private International Law, 13 Introduction »

Zachary Douglas QC, Andrew Bodnar
From: Banks and Financial Crime: The International Law of Tainted Money (2nd Edition)
Edited By: William Blair, Richard Brent, Tom Grant
Private international law plays an important role in determining whether victims of corruption and commercial fraud can obtain private redress in the national courts. If the principles and rules of private international law are incoherent or parochial in design or in application, then private remedies against fraudsters may be jeopardized merely because the fraud has transnational elements. The chapter asks: can a fraudster avoid the jurisdiction of the victim’s courts by planning and implementing the fraudulent scheme in an ‘offshore’ territory? It also asks: can a victim trace misappropriated funds which have passed through accounts in different jurisdictions if the national law of one of those jurisdictions does not recognize the victim’s right to trace such funds? The answers to such questions are provided by private international law.

Part V Financial Wrongdoing and Private International Law, 15 Knowing Receipt »

Zachary Douglas QC, Andrew Bodnar
From: Banks and Financial Crime: The International Law of Tainted Money (2nd Edition)
Edited By: William Blair, Richard Brent, Tom Grant
This chapter deals with issues related to knowing receipt. For an equitable claim for knowing receipt to succeed, the claimant must establish the disposal of his money in breach of fiduciary duty and, secondly, the beneficial receipt of that money by the defendant which is traceable as the claimant’s money where, thirdly, the defendant had the requisite degree of knowledge of the breach of fiduciary duty. This claim has been said to be the equitable counterpart of the common law action for money had and received. The chapter then looks at a real scenario of a case of knowing receipt. It also examines the relevant jurisdiction and applicable law, including the law applicable to the issue of liability for knowing receipt.

Part V Financial Wrongdoing and Private International Law, 14 Money Had and Received »

Zachary Douglas QC, Andrew Bodnar
From: Banks and Financial Crime: The International Law of Tainted Money (2nd Edition)
Edited By: William Blair, Richard Brent, Tom Grant
This chapter starts by giving an overview of the topic of money had, and money received. The common law action for money had and received requires the claimant to establish that, firstly, he originally had legal title to the money; secondly, the defendant received it and; thirdly, such receipt was unjust due to a vitiating factor. It is a claim based upon the unjust enrichment of the defendant at the claimant’s expense. The claim is one of strict liability and hence does not depend upon the fault of the defendant recipient. Actions for money had and received at Common Law are founded on the principles of following and Common Law tracing, which require the property itself to be capable of being followed or traced. However, once money is transferred through the banking system, particularly the international banking system, it very often becomes impossible to identify the particular funds which were originally received.