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Article by Martin Kenney & Elizabeth O'Brien

Financing Litigation Generally

The cost of large scale asset recovery inquiries and associated litigation is a factor which often deters victims of economic crime from pursuing their rights, preferring instead to abandon any hope for recovery. It is ironic that in civil suits against those who have misappropriated assets, the key to success for the wrongdoer is often access to large amounts of ill-gotten laundered cash with which to pay for the very best in legal and asset protection services that money can buy. Thus, wrongdoers use their victims' resources to intimidate them into going away.

In many asset location and recovery litigations, the process is very expensive because:

  1. the assets misappropriated have typically been transferred through several jurisdictions, many of them offshore financial centres, before arriving in their current physical location;

  2. there is usually a need for work to be carried out by forensic accountants, investigators and lawyers in a number of jurisdictions;

  3. the defendants are often able to use the misappropriated monies to hire experienced defence legal teams. Even in circumstances where they find 'their' assets tied up pursuant to a Mareva injunction or other similar restraining order, there will, absent exceptional circumstances, be a generous provision or allowance to enable the defendant to mount a defence ;

  4. the litigation will typically need to be conducted in a number of jurisdictions simultaneously, and appropriate use will need to be made of interim reliefs such as freezing and tracing orders and their equivalents; and

  5. courts may require the posting of substantial security to support cross-undertakings in damages or costs, particularly in the case of litigants from overseas, to permit interim relief such as freezing injunctions to stay in place pending a final end to the litigation.

The cost of mounting a legal action for the recovery of assets may be divided into legal costs, court fees and the costs of evidence gathering by forensic accountants and investigators. In smaller cases, lawyers may agree with their client not to be paid until the outcome of the case is known, but few firms of lawyers are likely to be able to take on larger cases, on a one-off basis, without being paid by their clients on an ongoing basis, given the investment of human and financial capital required.

In addition, the costs incurred in respect of forensic accountants and investigators are likely to be incurred at the beginning of any inquiry, when the evidence and assets are being sought. Again these professionals will expect payment early on either from the client or from the instructing lawyer, which is an additional reason why a funding mechanism should be put in place at the outset. 1

Larger firms of lawyers, forensic accountants and other professionals may be prepared to carry out some initial work, particularly of an investigative nature, in exchange for a fixed or reduced fee, in order to begin to ascertain whether their client's case has any reasonable prospect of success – if they believe that the case may ultimately prove to be profitable. However, the extent of such initial work is likely to be limited. There are very few firms which specialize in the field.

The market for the finance of concealed asset claims is inefficient because of the absence of a wide acceptance or understanding that something meaningful can be done to manage the risks of the asset recovery process. Thus, capital is scarce. The failure of most asset recovery projects is due to their under-capitalization with the right people and the right amount of money. The authors' experience shows that the risks can be managed – and very substantial assets recovered – if sufficient resources are committed to a project.

Assuming initial investigations show that assets of a meaningful value are capable of being discovered to levy against, it will be necessary to put in place funding to bring the investigation and litigation processes through to completion. Methods of funding asset recovery actions include the following:

  1. conditional fees (U.K.);

  2. contingent fees (U.S. and Canada);

  3. after the event litigation costs insurance (U.K.);

  4. venture capital / third party investment; and

  5. sale of shares in a company that owns the right to litigate.

There are many examples that show that a sustained commitment to establishing the facts and the whereabouts of the proceeds of a fraud has taken what, at the beginning, looked like a very difficult situation, into one that was righted. With the right team of people and commitment from a claim holder or his backers, each stake-holder in the case can take confidence in the process.

The recovery of concealed assets involves the need to manage risk. Experience has taught the authors the following about risk:

  1. Investigations conducted in a factually tangled and difficult environment, and directed towards a person who has conducted himself (or herself) in a dishonest and harmful manner over a long period, represent very complex and dynamic work.

  2. To be effective, the work must be undertaken within a fluid and lateral-thinking environment. Restated, the work must move laterally around the dishonest obligor's strengths. Such an obligor expects to see a conventional or orthodox approach – devoid of imagination, sustained financial commitment and the unexpected. The rigours of budgetary projections for this type of work are not applied easily. However, breaking an inquiry down into elements and phases helps to establish sign posts and decision points to manage risk.

  3. The quantum of the cost of the process is not a function of the measure of value of the obligation sought to be enforced, or the economic size of the problem – once the amount of value 'handled' by the subject exceeds, say, $10 million. Thus, the cost of pursuing an inquiry involving the apparent mis-management or misappropriation of $10 million is often roughly the same, in absolute terms, as the cost of pursuing a US$100 million one.

  4. In general terms, as more capital is spent on the process, the risk associated with a complete failure in the investigation declines. In other words, with each step, there is ordinarily greater access to objective fact with which to support moving forward to the next step. The process of mitigating the risk of a total failure in the inquiry is thus incremental.

  5. The cost of locating $10- to $100 million of wealth most usually ranges between $250,000 and $2.5 million. Most of the capital that is required to recover substantial value is not spent on the critically important 'finding' and 'attribution' of concealed wealth part of the process (which is the most speculative aspect). Rather, the most substantial resources are spent in the recovery litigation that follows from the freezing of value. Seen in this light, risk is a prism. Looking into the prism of risk from the beginning of a concealed asset case, most analysts experience fear and concern – as it is hard to discern where we are going and how we are going to get there. Thus, the cost of finding and attributing the assets (so as to ready them for the pre-emptive freeze), may look to some to be a foolish and highly speculative wager. However, once the initial phases have been completed, that prism of risk is flipped-over onto it head. To the inexperienced analyst, it is as if the risk profile of the process moves from the highly speculative to the highly rational, on the sudden. The day of execution of pre-emptive asset freezing orders granted worldwide – freezing, say, $100 million of value is, objectively, a transforming event. Risk has now moved to a point where all who are involved can more readily measure the probability of success.

  6. Thus, where it once looked daunting to spend $2 million of capital to locate and be in a position to pre-emptively preserve $100 million of concealed wealth – all who are involved in the process can say that it is rational to spend upwards of $5- or $6 million in litigation costs to complete the process of obtaining a judgment and liquidating the value thus frozen.

  7. However, although the date of execution of pre-emptive relief to freeze concealed wealth is, to a non-expert in the field, a sudden and transforming event to the risk profile of the case; to those who understand how results are achieved in our work, it is accepted that the process of managing risk is truly an incremental one –that the big result is built on a multitude of minor ones flowing out of a long series of sequential steps.

There exists an inefficient market for 'distressed' claims, judgments and debts. Claims fall into the 'distressed' category when, in part, it would appear that assets have been misappropriated by fraud, and concealed from the claim holder.

The market for this type of claim is inefficient because:

  1. those who own and value such claims lack an appropriate multi-jurisdictional, critical analytical framework, for properly discerning their value. Restated, those who are responsible for concluding that a claim is effectively unenforceable have, as a general rule, little or no learning in multi-jurisdictional asset location, arrest and recovery. Such claim administrators are often too quick to abandon claims on a wholesale basis. Thus, there persists a perception, in particular within the confines of financial institutions and government bureaucracies, that when a recalcitrant debtor or fraudsman claims that he has no assets, or is perceived to have hidden assets offshore, no viable method of recovery exists. Often, this conclusion is wrong. Very substantial sums of wealth are squandered through the wholesale abandonment or write-down of complex, high-value claims. The recovery profile of the world's leading financial institutions and companies is very poor, where an obligor chooses to launder wealth offshore, either because he deliberately stole the money, or, after legitimately borrowing it, hid it to avoid his obligation to repay; and

  2. historically, in the English-speaking world, the law of champerty and maintenance has effectively blocked the creation of an open market for claims that will involve contentious litigation or unliquidated damages. 2 These prohibitions, to a lesser or greater degree, continue to present a barrier to the creation of an efficient market for substantial value 'distressed' claims and paper.

Substantial opportunities exist in the market for those willing to invest the time and energy into learning how to manage the risk associated with the process, and to inculcate themselves in the language of concealed asset recovery model building, investigation and enforcement.

In addition, the same logic and rationale that supports the use of the portfolio model of risk management in respect of the investment of capital in stocks, bonds and other investment securities – applies with equal force in respect of concealed asset paper and claims. Based on the experience of the authors, approximately 50% of all concealed asset recovery investigations that successfully make it past an initial phase of inquiry of a cost of approximately $250,000 are successful in achieving their objective of locating and attributing very substantial value in anticipation of a pre-emptive asset freeze. Equally, somewhere around one in every three matters are successfully able to make it past this initial approximate $250,000 'spend,' decision point – in the risk assessment journey. If a portfolio of substantial value claims were to be analyzed in the aggregate – and if the very best were to be selected from the bunch – the performance of the capital invested should improve on the foregoing performance figures – as they are based on a purely random experience (e.g., with disparate clients bringing completely unrelated claims to us for the purpose of critical examination and review – to assess risk – and advise on how to proceed).

The balance of this paper seeks to set-out a summary description of the rules that govern a number of primary methods that exist in the United Kingdom and the United States to support the finance of the pursuit of concealed asset or 'distressed' claims, as well as other forms of litigation. The law of finance and purchase and sale of claims is a somewhat muddled and misunderstood area. Thus, there is value in gaining some familiarization with the base principles.

Conditional and Contingency Fees.

Contingency fee agreements have always been permitted for non-contentious (meaning corporate and commercial, or extra-litigation), legal work in England and Wales. Indeed, Section 57(2) of the Solicitors Act 1974 specifically authorises percentages and commissions as a means of charging for non-contentious work.

The essential, although simplistic, distinction between contentious and non-contentious work is whether proceedings have been begun in a court.

In the civil courts of England and Wales, a true contingency fee arrangement under which lawyers for the plaintiff would be rewarded by a percentage of what is recovered could not be entertained. This stands in stark contrast to the position in the United States where success fees expressed in terms of a percentage of the value of recovery are commonplace and indeed have lead to hugely disproportionate earnings for lawyers in high value class action law suits.

In the U.K., until the Courts and Legal Services Act 1990, any form of contingency funding was contrary to the common law doctrine of champerty 3 and was unenforceable (but not unlawful) by means of litigation.

The 1990 Act introduced the concept of conditional fee agreements, the essential elements of which are:

  • the statute authorises retainer agreements that provide no fee for the solicitor if the case is lost – and a fee if the client wins equal to an hourly rate enhanced by up to 100% as a success fee;

  • the client has to fund their own disbursements and in particular court fees and experts' fees but can of course seek a separate conditional fee agreement to cover trial counsel's (or the barrister's) fees; and

  • in most litigation, after the event insurance is desirable in support of the conditional fee agreement to protect the client against the risk of losing.

This provides indemnity in respect of the opponents' costs and the client's own disbursements.

Section 27 of the Access to Justice Act 1999 substituted a new Section 58 of the Courts and Legal Services Act 1990. All contingency fee type arrangements are now lumped together under the generic description of "conditional fees":

"A conditional fee agreement is an agreement with the person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances."

The Act provides that a conditional fee agreement which does not satisfy all of the conditions specified in Section 58 "shall be unenforceable".

Divisional Court decisions of British Waterways Board v. Norman 4 and Aratra Potato Co Ltd v Taylor Joynson Garrett 5 held, respectively, that the client must be under a liability to pay their lawyers whether they won or lost and that the lawyers could not offer to discount their fees in the event of a loss. The Court of Appeal decision in Thai Trading v Taylor 6 distinguished these arrangements as 'contingent fee' agreements. The Access to Justice Act has now provided them with statutory recognition.

The Access to Justice Act, 1999 also includes the much-heralded provisions for possible recovery of success fees and insurance premiums. The relevant provisions are set out below:

Section 29:

"Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy."

The explanatory notes confirm that this is not limited to insurance policies taken out alongside a conditional fee agreement.

New Section 58A(6) of the Courts and Legal Services Act 1990 provides that:

"A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include a provision requiring the payment of any fees payable under a conditional fee agreement which provides for a success fee."

It is important to remember that Courts in the U.K. follow the English costs rule – whereby the loser pays a substantial portion of the winner's legal costs in most cases (called 'party-party costs'), and nearly 100% of the winner's costs (called 'solicitor-client costs'), where a plaintiff has been found to have mis-conducted himself in the litigation. Historically, no 'success fee' or litigation insurance premium would be recoverable by the successful party against the loser. However, this has been reformed. In the U.K., from 1st April 2000, both a success fee and the insurance premium can be recovered from an unsuccessful opponent, although they can, in certain circumstances, challenge the amount of the success fee. That part of a success fee which is considered to be solely referable to the economic cost of the postponement of payment of fees is not recoverable, but that which relates to the complexities of the case and the risk, is.

There are a number of interesting considerations which arise in the context of conditional fee negotiations, in commercial litigation. Both lawyers and clients should be aware of the following:

  • risk sharing between lawyer and client gives rise to an inherent conflict of interest: two parties are buying and selling a product;

  • there may very well therefore be a need for negotiation and independent advice upon the terms of the conditional fee agreement itself;

  • in particular, the definition of "success" may be a matter for considerable negotiation. What if judgment is obtained but is not capable of being enforced on a cost-effective basis? There needs to be careful discussion over the possible outcomes of the litigation;

  • what protection do the lawyers have if the client decides to withdraw instructions before success is achieved? Most conditional fee agreements in routine litigation provide that the client would then become liable for all of the work done at the basic hourly rate. That assumes that the client will be in a position to pay. In addition, it would be inadequate remuneration for the carrying of risk and absence of funding in a case where success had become assured and the client changed to other lawyers on an ordinary funding basis to conclude the litigation;

  • solicitors operating Conditional Fee Arrangements ("CFAs") in commercial litigation place increased reliance on a client's credibility on matters of fact. Warranties should be sought and responsibility formally allocated. The clients in CFA litigation need to be advised that they will compromise their own control of the proceedings. Solicitors expect to be able to terminate the retainer at any stage if they become concerned and no longer believe that the prospects justify their continued involvement and investment; and

  • under a conditional fee agreement, in many instances, clients are really seeking funding when what they should be purchasing is quality, independent advice. Are solicitors best placed to act as a bank or an insurance company in litigation? If the expectation is that solicitors will fund major disbursements on the basis of any sort of direct return in the event that the case is successful, there may be Consumer Credit Act difficulties.

Contingency Fees (U.S.).

People often confuse conditional fees with contingency fees. In English law, contingency fees are only available where a case is settled before Court proceedings are started. In the event that Court proceedings do become necessary, the contingency fee element of the agreement comes to an end and some other form of case funding must be agreed upon.

In the U.S., however, contingency fees are not confined to non-contentious work. In a contingency fee agreement, lawyers charge an agreed percentage of the compensation that the client recovers. This percentage will cover both fees and expenses. From an ethics perspective, these types of arrangements are often criticized as they provide a potential windfall for attorneys which does not bear any relation to the actual work or risk involved. On the other hand, however, attorneys are also open to the risk that no award or a minimal award may be made. Some would argue that the risks inherent in all litigation counterbalance the potential for windfall recovery of fees. However, Professor Lester Brickman of the Benjamin N. Cardozo School of Law in New York has written extensively on this topic. He is a well-known critic of the arbitrary way in which contingency fees are fixed or measured. He developed his "corollary proportionality proposition," in his article, 'Contingent Fees Without Contingencies: Hamlet Without the Prince of Denmark?' 37 U.C.L.A. L.Rev. 29 (1989). This proposition holds that, for a contingency fee to be valid under the attorney ethics principle that all lawyers' fees must be reasonable, there must be an actual 'contingency.' This requires the presence of a real risk of non-recovery. The measure of the success (or contingency) fee must thus be proportionate to the risks involved. Accordingly, it is a nonsense to Professor Brickman, for all contingent fees to be in the 30% - 40% range. Many should be much lower, and some higher – depending on the risks involved.

A contingency type fee can be negotiated to take account of the type of risk involved, the degree of expertise of the lawyer, the level of support that lawyer can expect from the client and the possibility that recovery may exceed expectations. Thus for example a staggered percentage rate could be agreed, the percentage declining in line with any increase in compensation above certain defined thresholds.

The advantage of contingency fee type arrangements is that the lawyer acquires an added incentive to succeed, and to increase that success. It is well documented that employees who benefit from a profit sharing or performance related pay structure, outperform those who do not. Many argue however that a lawyer's duty to his client is such that an incentive is irrelevant. Lawyers are duty bound to protect the best interests of their clients and to use due skill and diligence in exercising that duty. Nonetheless, lawyers are human, and there can be abuses. The reality is that contingency type fees have, in the main, proved a successful way of promoting access to justice in the United States. 7

On the other hand, contingency fees involve a potential pitfall insofar as attorneys who become a partner in the litigation so to speak, lose their impartiality and may be more inclined to advocate or support positions which, from an impartial perspective, they ought not.

After the Event Litigation Costs Insurance (U.K.).

'After the event' litigation costs insurance covers the insured claimant against contingent liability for 'own-costs' and disbursements and for the contingent risk of incurring liability for the costs and disbursements of the defendant.

In the U.K., if there is a conditional fee agreement, then a claimant may only wish to insure against the contingent risk of incurring liability for the defendant's costs and disbursements. Even if there is a conditional fee agreement in place, the claimant or his solicitor may still wish to insure a proportion of the claimant's basic costs which will be unpaid in the event that the litigation is unsuccessful (as well as the adverse party's costs – payable by the client should he be unsuccessful due to the operation of the English costs rule).

As a matter of professional practice, solicitors in England and Wales are now required to advise clients on whether the client's liability for their own costs may be covered by insurance, and whether the client's liability for another party's costs may be covered by pre-purchased insurance or, if not, whether it would be advisable for the client's liability for another party's costs to be covered by after the event insurance (including in every case where a conditional fee or contingency fee arrangement is proposed). 8

Practice Rule 15 also requires English solicitors to discuss with their clients whether the likely outcome in a matter will justify the expense or risk involved, including, if relevant, the risk of having to bear an opponent's costs. This involves the solicitor in undertaking a cost/benefit analysis. In order to do this he will need to assimilate the information that is required in an after the event costs proposal form.

The reasons for taking out a policy covering after the event litigation costs insurance may include the following:

  • Accounting certainty;

  • An incentive for the defendant to settle as, if he loses, he must reimburse the plaintiff for the cost of the litigation insurance;

  • Security for costs; and

  • Raising finance to fund the litigation.

Once a premium has been agreed and paid, a claimant knows that his liability for his 'own-costs' and for the contingent risk of being liable to pay the costs of the defendant (should he be unsuccessful), are capped at the level of the premium, subject to the limit of indemnity. This is particularly important where the claimant may be publicly accountable for the costs of the litigation or where liquidators may be personally liable. Increasingly, litigation costs insurance may be seen as prudent public accounting.

A defendant knows when a claimant is sensitive to the issue of costs. A defendant's classic tactic in an action of this type is to obfuscate and delay, thereby causing the claimant to increase legal expenses and to exert pressure on the claimant to withdraw the action or settle. A policy of 'after the event insurance' sends a message to the defendant that underwriters are confident in the claimant's ability, not only to prosecute the litigation to a successful conclusion, but also to achieve a recovery of assets. The policy of insurance also puts the defendant on notice that the claimant is in the litigation for the duration and cannot be subjected to political and/or financial pressure with regard to the costs being incurred, both in respect of his own costs and in respect of his contingent liability for the costs of the defendant.

If the claimant has to provide security for costs, then it is possible for the policy of insurance to be linked to a bond which will stand as security for costs in place of a payment into Court. The cost of the bond will normally be approximately 3% of the value of the bond. The value of the bond will normally be less than the amount insured for the defendant's costs and disbursements.

If a loan is needed in order to fund a party's own costs and disbursements, it is now possible for a lender to be a named insured in the policy of insurance and to lend on the basis that the policy acts as security for the loan. The lender may advance up to 80% of the amount of own-costs insured. The lender's risk is that the insurers will avoid making a payment in the event that there is a claim under the policy. The answer to this is for the lender to take out a separate policy of insurance insuring against the risk that insurers of the primary policy may not pay out. The cost of this supplemental policy is approximately 5% of the amount of the loan. Part of the loan may be used to pay the insurance premiums. The lender will wish to recover interest at an agreed commercial rate in addition to the principal sum loaned.

Premiums for Policies Covering Own-Costs and Disbursements and Defendants' Costs and Disbursements (Litigation Expense Insurance) (U.K.).

Premiums for this type of policy of insurance in the U.K. are calculated as a percentage ("the rate on line") of the total amount of costs insured ("the limit of indemnity"). The rate on line generally varies between 15% and 30% of the limit of indemnity. Quotes should be obtained from more than one insurer. Rates on line will vary as different insurers may assess the risk differently. The credit rating of the insurers may also influence the choice of insurer. If a case is worth insuring, then it should be possible to place the risk at a rate on line not in excess of 30%.

Underwriting Considerations (U.K.).

There are few underwriting considerations that are unique to civil actions brought in England and Wales that involve tracing assets. As with any civil matter, part of the underwriting process will involve an analysis of the issues, the strengths and weaknesses of the claimant's case and the likelihood of recovering the assets to which the claimant alleges he is entitled. Underwriters will look at the merits and look at whether, on balance, the claimant is likely to be able to establish liability against the defendant, and where the defendant can be made to pay an adverse costs order. In many ways this is similar to the cost benefit analysis that solicitors are required to provide for clients pursuant to the Solicitors Practice Rule 15. The underwriting process should be helpful to clients and their solicitors. Clients spending public or creditors' money will not wish to embark upon litigation that may prove fruitless. English litigation insurance, in the context of a serious fraud case, should probably be purchased, when available, but only after sufficient assets have been located and frozen pending trial – so as to justify the cost and provide the necessary showing to the insurance underwriters that, if the plaintiff is successful, the defendant will be made to pay. There will normally be a fee payable for the underwriting process. This will vary according to the quality and detail of the legal advice available and the complexity of the issues. Fees for underwriting reports can vary from as little as £1,000 up to £25,000 for the more complex cases.

Litigation Insurance and Proceedings in Jurisdictions Outside England and Wales.

There is no reason, in principle, why a policy of insurance cannot be written or extended to cover proceedings outside of England and Wales that involve tracing against the same defendant. Underwriting considerations dictate that it will be helpful if the other jurisdictions have similar rules regarding the risk of incurring costs (i.e. costs will normally follow the event – meaning the result achieved in the case); however, this is not necessarily essential. Normal policy wording provides that assets recovered or damages awarded have to be utilised before any claim can be made under a policy of insurance for own-costs or for any liability for costs of the defendant. This means that, if a policy was taken out in respect of proceedings in England and Wales and costs were incurred and no recovery was made, and assuming that the policy was extended to proceedings tracing assets in other jurisdictions and assets were recovered in those jurisdictions, such assets would be brought into a "hotchpot" in order to avoid any claim being made under the policy. Premiums paid for a policy to cover costs in foreign proceedings may not be recoverable from the defendant, subject to the rules of that jurisdiction.

Footnotes

1. In fact, many American states have statutes that require the licensing of private investigators. Under many of these statutes, such as New York's, private investigators are prohibited from providing their services in exchange for a contingent or success fee, in whole or in part. The policy basis underlying this proscription appears to be that many state legislatures do not want investigators, who are in the 'coal-face' of the evidence procurement process in civil justice matters, to have their testimony swayed because they have a substantial economic interest in the outcome of the matter.

2. Since the late 19th Century, however, and generally speaking, claims sounded in debt or of a liquidated (meaning an easily-fixed or ascertainable sum), can be bought and sold readily – just as if they were a bale of goods.

3. For a brief discussion of this doctrine see Section 17.9 infra.

4. (1993) TLR 11 November.

5. SJ 16 June 1994, 587.

6. [1998] 3 All ER 65.

7. Although the writers suggest that it has also contributed to the United States' record as the most litigious nation in the world. To an extent, contingency fees have promoted litigation which would be considered vexatious or frivolous in other jurisdictions.

8. See, U.K. Solicitors Practice Rule 15.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To view Part 2 please click on the 'Next Page' link below

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