From Awards to Assets: Top 5 Key Considerations for Effective Asset Tracing

Securing a favorable court judgment or arbitral award marks the formal conclusion of a dispute. However, for many winning parties, the legal victory is only the beginning. The actual challenge lies in transforming that judgment into real financial recovery.

Below we discuss five strategic considerations that should guide any serious asset recovery effort.

1. Start Tracing Early

Timing is critical. Once a defendant becomes aware of pending proceedings or an investigation, they may rapidly restructure holdings, transfer funds offshore, or otherwise frustrate enforcement efforts. Initiating asset tracing at the earliest possible stage, ideally before any formal action is commenced, significantly enhances the prospects of successful recovery and enables the use of pre-emptive legal remedies.

The first step is to conduct thorough due diligence on the counterparty, including identification of corporate affiliations, beneficial ownership structures, and any known banking or commercial relationships.

The second step involves a comprehensive contract review. Particular attention should be paid to clauses on governing law and dispute resolution, as these will directly affect the feasibility and cost of enforcement.

The third step involves a methodical review of public record sources. These may include land and corporate registries, public securities filings, litigation databases, and insolvency notices.

2. Identify and Apply Appropriate Jurisdiction-Specific Legal Tools

A sophisticated recovery strategy must consider the procedural architecture of each legal system involved. The availability and effectiveness of these tools vary significantly across jurisdictions.

2.1 Ukraine

Ukrainian law provides a somewhat limited but functional framework for asset-related discovery and interim measures. For instance, Article 81 of the Commercial Procedure Code permits a party to request the court to compel a third party to produce documents or information.[1] This procedural tool is contingent upon the applicant demonstrating prior unsuccessful efforts to obtain the evidence voluntarily. The motion must precisely describe the material sought, its evidentiary value, the presumed possession of the third party, and a substantiated need for court intervention. Even if granted, third parties retain the right to refuse compliance in the presence of valid grounds.

Provisional measures, such as asset seizure, are governed by Article 137.[2] However, freezing orders targeting third-party property or assets held abroad are generally unavailable through civil proceedings. In contrast, Article 64-2 of the Criminal Procedure Code enables prosecutors to freeze third-party assets where such property is suspected to derive from criminal activity or is otherwise connected to the case.[3]

2.2 Common Law Jurisdictions

Common law systems provide a far more flexible and expansive toolkit. Courts routinely grant disclosure and freezing orders to support asset tracing and enforcement, including against third parties who are not formal defendants to the underlying dispute.

Disclosure mechanisms include the Norwich Pharmacal Order, which compels a third party to reveal information about a wrongdoer.[4] To succeed, the applicant must show that a legal wrong has occurred, that the third party is involved in the relevant chain of events, and that the information sought cannot be obtained by other means.[5] This type of order is particularly useful in fraud cases, where claimants often do not yet know the identity of the ultimate recipient of misappropriated assets.[6]

The Bankers Trust Order is another critical disclosure device, used to trace the movement of misappropriated funds. It is typically directed at financial institutions and requires the applicant to demonstrate a strong proprietary interest in the asset, evidence of fraud, and a real risk that the asset may be lost or further transferred without immediate judicial intervention. These orders are typically granted ex parte and impose strict confidentiality obligations.[7]

Freezing injunctions, often referred to as Mareva orders, are a cornerstone of interim asset protection in common law jurisdictions.[8] Courts may issue such orders to prevent the dissipation of assets before a final judgment is rendered. To obtain a freezing injunction in England and Wales, the applicant must establish a good arguable case on merits[9], a real risk that a judgment would remain unsatisfied due to unjustified asset dissipation, and that the order would be just and convenient under the circumstances.[10] These orders may be granted on a domestic or worldwide basis, and typically include mandatory asset disclosure obligations.

Worldwide Freezing Orders (WFOs) are exceptional measures available where the defendant is subject to the court’s jurisdiction and there is a real risk of asset dissipation across borders. The criteria largely align with those for domestic freezing orders, including a good arguable case, a risk of non-enforcement, and the overall fairness of the relief.^[11]

For instance, in PJSC Commercial Bank PrivatBank v. Kolomoisky & Others, the English High Court granted a WFO in 2017 over the assets of Mr. Kolomoisky,^[12] Mr. Bogolyubov, and six companies they controlled.^[13] The order was upheld in a judgment issued on 31 January 2023 following jurisdictional and disclosure challenges.

Chabra orders extend the reach of freezing injunctions to third parties who hold assets for or on behalf of the defendant.[14] Courts may grant such relief where the third party is shown to be a nominee, conduit, or otherwise exercising possession or control over assets that are beneficially owned by the primary defendant.[15] The evidentiary threshold is high, but once satisfied, the court may restrain such assets as if they were held directly by the defendant.

2.3 United States

The United States offers unique statutory instruments that are frequently deployed in international asset tracing and enforcement.

Under 28 U.S.C. Para.1782, a party to a foreign proceeding may apply to a U.S. court for discovery against a person or entity. The discovery must be intended for use in a foreign tribunal, and the applicant must qualify as an interested party. This tool is particularly effective in tracing assets through the U.S. financial system (CHIPS) and is often used to obtain banking records, email data, or transaction details involving correspondent accounts or payment intermediaries. To obtain a §1782 discovery order the applicant must show that: (1) the target of the discovery either resides or is present in the US; (2) the discovery sought is for use in foreign court proceedings; and (3) the party seeking discovery is an interested person^[16].

Chapter 15 of the U.S. Bankruptcy Code provides a legal framework for recognizing foreign insolvency proceedings, enabling foreign representatives to access the full range of judicial remedies available in the U.S.[17] Recognition under Chapter 15 allows the foreign administrator to seek discovery, preserve assets, or stay litigation within the United States. This mechanism is especially relevant in cases involving cross-border insolvency or the enforcement of arbitral awards where dollar-denominated transactions or U.S.-based intermediaries are involved.

Both Para.1782 and Chapter 15 applications are frequently pursued ex parte, involve relatively low procedural cost, and are supported by a well-developed body of precedent. Failure to comply with discovery or asset restraint orders may result in civil or criminal contempt, monetary sanctions, or imprisonment.[18] As such, these instruments not only facilitate discovery but also generate meaningful leverage during enforcement negotiations.

3. Tech-Driven Asset Tracing

Traditional tracing relies on registries, legal orders, and institutional cooperation. These remain essential, but increasingly sophisticated concealment tactics require advanced technology.

For example, GreyList Trace analyzes email metadata to identify links between individuals and financial institutions. It can infer banking relationships, jurisdictions, and activity timelines without requiring subpoenas or court intervention. This makes it especially useful to uncover nominee structures, shell companies, and hidden control relationships in fraud, sanctions, and arbitration matters.[19]

4. Choose Enforcement Jurisdictions Strategically

Jurisdiction selection is critical in cross-border asset recovery. Legal systems vary significantly in their approach to interim relief, evidentiary standards, and enforcement mechanisms.

Common law jurisdictions offer the broadest range of remedies. Courts in England, the United States, and offshore centers such as the British Virgin Islands and the Cayman Islands routinely grant freezing orders, disclosure relief, and asset preservation measures. These jurisdictions recognize equitable principles, allow ex parte applications in urgent cases, and impose strict compliance obligations backed by contempt sanctions.

Civil law systems are typically less flexible. Interim relief may require proof of irreparable harm or a proprietary claim. There is often no equivalent to a Norwich Pharmacal or Bankers Trust Order. Disclosure is limited, and asset restraint orders may be unavailable against third parties. Procedural formalism, banking secrecy, and narrow enforcement channels can delay or defeat recovery.

These differences do matter in practice. If a debtor holds assets through offshore entities or international bank accounts, selecting a jurisdiction with effective interim measures and enforceable orders can significantly shift the balance of leverage. Strong forums can compel compliance, expedite resolution, or prompt settlement.

5. Outmaneuver Evasive Debtors

Enforcement is often the most complex and contested phase of asset recovery. Even after assets are located and interim measures granted, debtors may obstruct proceedings by challenging jurisdiction, resisting disclosure, or shielding assets through nominees, trusts, or layered structures.

One common challenge arises from jurisdictional objections. Debtors frequently dispute a foreign court’s authority to impose freezing or disclosure orders, particularly in cases involving worldwide relief.

Cross-border execution presents further difficulty. Orders granted in one jurisdiction are not automatically enforceable in another. Their recognition often depends on applicable treaties, reciprocal enforcement frameworks, or domestic private international law.

Debtors may also simply ignore orders. In WWRT Ltd. v. Tyshchenko, the English High Court issued a worldwide freezing order and disclosure obligations against the defendant, a former Ukrainian bank owner.[20] The defendant failed to comply, challenged jurisdiction, and evaded arrest for over a year. The court ultimately issued a bench warrant, leading to his arrest and bail pending cross-examination.

Conclusion

Asset tracing is no longer a peripheral function in commercial disputes. It is a core strategic component of cross-border enforcement and must be approached with the same precision, urgency, and jurisdictional awareness as the underlying litigation or arbitration itself. In an environment where high-value debtors often operate through complex international structures, rely on banking secrecy, or openly defy court orders, successful enforcement depends on more than a favorable judgment.

[1] Commercial Procedure Code of Ukraine, adopted on November 6, 1991, No. 1798-XII, https://zakon.rada.gov.ua/laws/show/1798-12 (Ukrainian text) (visited May 16, 2025), Art. 81.

[2] Id., Art. 137.

[3] Criminal Procedure Code of Ukraine, adopted on April 13, 2012, No. 4651-VI, https://zakon.rada.gov.ua/laws/show/4651-17 (Ukrainian text) (visited May 16, 2025), Art. 64-2.

[4] Nicola Sharp, Norwich Pharmacal Orders (NPOs) – An In-Depth Guide, Rahman Ravelli Solicitors (Mar. 7, 2024), https://www.rahmanravelli.co.uk/expertise/civil-fraud/articles/norwich-pharmacal-orders-an-in-depth-guide.

[5] Norwich Pharmacal Co v Customs and Excise Commissioners, [1973] UKHL 6, http://www.bailii.org/uk/cases/UKHL/1973/6.html.

[6] See supra, n. 4.

[7] Christopher Wilsher, Fraud – Freezing Orders, Norwich Pharmacal Orders, and Bankers Trust Orders, Collyer Bristow (blog) (8 December 2020), https://collyerbristow.com/longer-reads/fraud-freezing-orders-norwich-pharmacal-orders-and-bankers-trust-orders.

[8] TerraLex, Guide to Tracing Assets Around the World (2018), https://mcmillan.ca/wp-content/uploads/2021/07/TerraLex-guide-to-tracing-assets-around-the-world-2018.pdf.

[9] Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft GmbH (“The Niedersachsen”) [1983] 2 Lloyd’s Rep 600

[10] Dos Santos v Unitel SA [2024] EWCA Civ 1109.

[11] Ras Al Khaimah Investment Authority & Ors v Bestfort Development Llp & Ors [2017] EWCA Civ 1014.

[12] PJSC Commercial Bank Privatbank v. Kolomoisky & Ors, [2018] EWHC (Ch) 3308.

[13] JSC Commercial Bank PrivatBank v Kolomoisky & Ors [2023] EWHC 165 (Ch).

[14] Agathi Zervou, Asset Recovery Comparative Guide (17 July 2024), https://www.mondaq.com/cyprus/finance-and-banking/1479542/asset-recovery-comparative-guide.

[15] PJSC Vseukrainskyi Aktsionernyi Bank v Maksimov [2013] EWHC 3203 (Comm).

[16] 28 USCA § 1782, https://www.law.cornell.edu/uscode/text/28/1782.

[17] United States Courts, Chapter 15 – Bankruptcy Basics, https://www.uscourts.gov/court-programs/bankruptcy/bankruptcy-basics/chapter-15-bankruptcy-basics (last visited May 16, 2025).

[18] 18 U.S.C. § 1509 (2018), https://www.law.cornell.edu/uscode/text/18/1509.

[19] See TerraLex, Guide to Tracing Assets Around the World (2018), https://mcmillan.ca/wp-content/uploads/2021/07/TerraLex-guide-to-tracing-assets-around-the-world-2018.pdf.

[20] WWRT Limited v Tyshchenko & Tyshchenko [2021] EWHC 939 (Ch).