Asset Recovery Handbook A Guide for Practitioners Jean-Pierre Brun Larissa Gray Clive Scott Kevin M. Stephenson Asset Recovery Handbook Asset Recovery Handbook A Guide for Practitioners Jean-Pierre Brun Larissa Gray Clive Scott Kevin M. Stephenson © 2011 The International Bank for Reconstruction and Development / The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org E-mail: feedback@worldbank.org All rights reserved 1 2 3 4 13 12 11 10 This volume is a product of the staff of the International Bank for Reconstruction and Development / The World Bank. The findings, interpretations, and conclusions expressed in this volume do not necessarily refl ect the views of the Executive Directors of The World Bank or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. The maps in this book were produced by the Map Design Unit of The World Bank. 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All other queries on rights and licenses, including subsidiary rights, should be addressed to the Office of the Publisher, The World Bank, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2422; e-mail: pubrights@worldbank.org. ISBN: 978-0-8213-8634-7 eISBN: 978-0-8213-8635-4 DOI: 10.1596/978-0-8213-8634-7 Library of Congress Cataloging-in-Publication Data Brun, Jean-Pierre, 1962- Asset recovery handbook : a guide for practitioners / Jean-Pierre Brun and Larissa Gray. p. cm. Includes bibliographical references and index. ISBN 978-0-8213-8634-7 — ISBN 978-0-8213-8635-4 (electronic) 1. Forfeiture—Criminal provisions. 2. Searches and seizures. I. Gray, Larissa. II. Title. K5107.B788 2011 345’.0773—dc22 2010048779 Contents Preface xi Acknowledgments xiii Acronyms and Abbreviations xv Introduction 1 Methodology 2 How the Handbook Can Be Used 3 1. Overview of the Asset Recovery Process and Avenues for Recovering Assets 5 1.1 General Process for Asset Recovery 5 1.2 Legal Avenues for Achieving Asset Recovery 9 1.3 Use of Asset Recovery Avenues in Practice: Three Case Examples 14 2. Strategic Considerations for Developing and Managing a Case 19 2.1 Gathering Facts: Initial Sources of Information 19 2.2 Assembling a Team or Unit, Task Forces, and Joint Investigations with Foreign Authorities 22 2.3 Establishing Contact with Foreign Counterparts and Assessing Ability to Obtain International Cooperation 25 2.4 Securing Support and Adequate Resources 27 2.5 Assessing Legislation and Considering Legal Reforms 28 2.6 Addressing Legal Issues and Obstacles 29 2.7 Identifying All Liable Parties 34 2.8 Specific Considerations in Criminal Cases 34 2.9 Implementing a Case Management System 38 3. Securing Evidence and Tracing Assets 41 3.1 Introducing a Plan and Important Considerations 41 3.2 Creating a Subject Profile 43 3.3 Obtaining Financial Data and Other Evidence 43 3.4 Identifying Relevant Data: Examples from Commonly Sourced Documents 61 3.5 Organizing Data: Creating a Financial Profile 71 3.6 Analyzing Data: Comparing the Flows with the Financial Profile 72 3.7 Garnering International Cooperation 74 vi I Contents 4. Securing the Assets 75 4.1 Terminology: Seizure and Restraint 75 4.2 Provisional Order Requirements 76 4.3 Pre-restraint or Pre-seizure Planning 79 4.4 Timing of Provisional Measures 85 4.5 Exceptions to Restraint Orders for Payment of Expenses 86 4.6 Ancillary Orders 87 4.7 Third-Party Interests 87 4.8 Alternatives to Provisional Measures 89 5. Managing Assets Subject to Confiscation 91 5.1 Key Players in Asset Management 92 5.2 Powers of the Asset Manager 93 5.3 Recording Inventory and Reporting 94 5.4 Common Types of Assets and Associated Problems 95 5.5 Ongoing Management Issues 99 5.6 Consultations 101 5.7 Liquidation (Sale) of Assets 101 5.8 Fees Payable to Asset Managers 101 5.9 Funding Asset Management 102 6. Mechanisms for Confiscation 103 6.1 Confiscation Systems 105 6.2 How Confiscation Works 107 6.3 Confiscation Enhancements 114 6.4 Third-Party Interests 118 6.5 Confiscation of Assets Located in Foreign Jurisdictions 119 6.6 Recovery through Confiscation for the Victims of Crime 119 6.7 Disposal of Confiscated Assets 120 7. International Cooperation in Asset Recovery 121 7.1 Key Principles 122 7.2 Comparative Overview of Informal Assistance and MLA Requests 127 7.3 Informal Assistance 131 7.4 MLA Requests 138 7.5 Cooperation in Cases of Confiscation without a Conviction 156 7.6 Cooperation in Civil Recovery (Private Law) Cases 157 7.7 Asset Return 158 8. Civil Proceedings 159 8.1 Potential Claims and Remedies 160 8.2 Bringing a Civil Action to Recover Assets 169 8.3 Final Dispositions 173 8.4 Formal Insolvency Processes 174 Contents I vii 9. Domestic Confiscation Proceedings Undertaken in Foreign Jurisdictions 177 9.1 Jurisdiction 177 9.2 Procedure for Beginning an Action 178 9.3 Role of the Jurisdiction Harmed by Corruption Offenses in Foreign Investigation and Prosecution 179 9.4 Ensuring Recovery of Assets from the Foreign Jurisdiction 183 Appendix A. Offenses to Consider in Criminal Prosecution 187 Appendix B. Explanation of Selected Corporate Vehicles and Business Terms 193 Appendix C. Sample Financial Intelligence Unit Report 199 Appendix D. Planning the Execution of a Search and Seizure Warrant 201 Appendix E. Sample Document Production Order for Financial Institutions 203 Appendix F. Serial and Cover Payment Methods in Electronic Funds Transfers 209 Appendix G. Sample Financial Profile Form 213 Appendix H. Possible Discussion Points with Contacts—Informal Assistance Stage 235 Appendix I. Mutual Legal Assistance Template and Drafting Tips 237 Appendix J. Web Site Resources 241 Glossary 249 Boxes 1.1 Legal Framework for Asset Recovery 10 1.2 Alternative Means of Recovering Assets 15 2.1 Role and Contribution of FIUs in Asset Recovery Cases 21 2.2 Obstacles to International Cooperation 26 2.3 Strategic Decisions in Peru—Legislation Allowing Plea Agreements 28 2.4 Prosecution of Accounting, Records, and Internal Control Provisions in the United Kingdom and the United States 36 2.5 Examples of Challenges in Establishing the Elements of the Offense 37 3.1 Checklist for Collection of Basic Information 44 3.2 Tracing and Recovering Assets—Efforts in the United Kingdom 46 3.3 Elaborating Sufficient Grounds for a Search Warrant 55 3.4 Important Items to Seize 56 3.5 Documentation to Be Requested from Financial Institutions 58 3.6 Retention Orders 59 3.7 Forms and Documents Related to the Wire Transfer Process 65 viii I Contents 3.8 Red Flags in Contracts, Payment Documentation, Payment Records, and Payment Mechanisms 69 4.1 Drafting Affidavits 78 4.2 An Example of Pre-restraint Planning Decisions in Practice 83 6.1 Historical Background and Recent Developments in Confiscation 104 6.2 Issues Encountered in Determining the Proceeds of Crime—A Case Example 110 6.3 Using “Related Activities” to Capture the Full Benefit 118 7.1 Connecting With People—A Case Example from Peru 124 7.2 Contact Points for International Cooperation 125 7.3 Disclosure Obligations—A Barrier to MLA Requests 127 7.4 Investigative Jurisdiction in France, Switzerland, the United Kingdom, and the United States 133 7.5 Facilitating Informal Assistance 134 7.6 Spontaneous Disclosures from Switzerland 137 7.7 Selecting a Legal Basis to Include in an MLA Request 139 7.8 Overcoming Dual Criminality—Illicit Enrichment and Corruption of Foreign Public Officials 142 7.9 Bank Secrecy and Fiscal Offenses—A Ground for Refusing MLA? 146 7.10 Avoiding Rejections of MLA Requests That Are Overly Broad 149 7.11 Worldwide Orders in the United Kingdom 153 7.12 Requirements for Direct Enforcement of MLA Requests for Confiscation in the United Kingdom and the United States 154 7.13 Asset Recovery Pursuant to an MLA Request in France 158 8.1 Case Examples of Proprietary (Ownership) Claims 160 8.2 The U.S. Racketeer Influenced and Corrupt Organizations (RICO) Statute 163 8.3 Compensation for Damages Where Assets Are Misappropriated 164 8.4 Fyffes v. Templeman and Others (2000) 166 8.5 World Duty Free Company Limited v. The Republic of Kenya (2006) 167 8.6 Disgorgement of Profits—Practice in the United States 168 8.7 Circumstantial Evidence Considered in Federal Republic of Nigeria v. Santolina Investment Corp., Solomon & Peters, and Diepreye Alamieyeseigha (2007) 170 8.8 Requirements for Restraint Orders in France, Panama, and the United Kingdom 171 8.9 The Ao Man Long Case 173 8.10 Enforcement of Judgments When the Defendant Is Absent from the Proceeding 174 9.1 Establishing Jurisdiction Where Limited Acts Have Occurred in the Territory 179 9.2 Establishing Jurisdiction over Nationals in the United Kingdom and the United States 180 9.3 Jurisdiction to Prosecute Money Laundering Offenses in France, the United Kingdom, and the United States 181 9.4 Confiscation Proceedings Initiated by Foreign Authorities 182 Contents I ix 9.5 Important Role of the Jurisdiction Harmed by Corruption— A Case Example from Haiti 183 9.6 Direct Recovery in Practice 185 9.7 Asset Return Options Available in Switzerland 186 A.1 Illicit Enrichment Provisions in France 190 F.1 Hiding Originating Customer Information 211 F.2 Monitoring Records from Financial Institutions 211 I.1 MLA Drafting and Execution Tips 240 Figures 1.1 Process for Recovery of Stolen Assets 6 2.1 Standards of Proof 33 2.2 Criminal Charges to Consider 35 3.1 Five Effective Questions to Use in an Investigation 48 3.2 Preliminary Information Available from Other Government Agencies 49 3.3 Basic Cross-Border Wire Transfer Process 63 3.4 Sample SWIFT Message Format and Code Interpretation 68 3.5 Sample Flow Chart 72 3.6 Sample Chart of Relationships and Assets 73 5.1 Seized Motor Vehicles Left Outdoors 97 6.1 Confiscation of an Asset in a Foreign Jurisdiction 120 7.1 Phases of Asset Recovery and Integrating International Cooperation 122 7.2 Flow Chart of International Cooperation 130 7.3 Informal Assistance and Formal MLA Requests— What Can Be Requested? 131 7.4 Flow of an MLA Request in the Presence of a Treaty or Domestic Legislation 155 A.1 Criminal Charges to Consider 187 F.1 Serial/Sequential and Cover Payment Methods 210 Tables 4.1 Considerations in Partial Control or Limited Restraint 84 7.1 Differences between Informal Assistance and MLA Requests 129 Preface Developing countries lose between US$20 to US$40 billion each year through bribery, misappropriation of funds, and other corrupt practices. Much of the proceeds of cor- ruption find “safe haven” in the world’s financial centers. These criminal flows are a drain on social services and economic development programs, contributing to the fur- ther impoverishment of the world’s poorest countries. The victims include children in need of education, patients in need of treatment, and all members of society who con- tribute their fair share and deserve assurance that public funds are being used to improve their lives. But corruption affects us all by undermining confidence in governments, banks, and companies in both developed and developing economies. The international community has responded to the challenge and, in principles and through international agreements, is now moving forward. The G20 has put the fight against corruption at the forefront of its efforts to improve global integrity and account- ability. The Stolen Asset Recovery (StAR) Initiative was launched in September 2007 by the World Bank and the United Nations Office on Drugs and Crime (UNODC) to pro- mote the ratification and implementation of the United Nations Convention against Corruption (UNCAC), and specifically its chapter 5, which provides the first compre- hensive and innovative framework for asset recovery. Many developing countries have already sought to recover stolen assets. A number of successful high-profile cases with creative international cooperation have demonstrated that asset recovery is possible. However, to date, only US$5 billion in stolen assets have been recovered. What we need now is more visible, tangible progress in forcefully pros- ecuting bribery cases, and systematic recovery of proceeds of corruption. However, recovering proceeds of corruption is complex. The process can be over- whelming for even the most experienced of practitioners. It is exceptionally difficult for those working in the context of failed states, widespread corruption, or with lim- ited resources. We must support their efforts as they grapple with the strategic, orga- nizational, investigative, and legal challenges of recovering stolen assets, whether through criminal confiscation, nonconviction based confiscation, civil actions, or other alternatives. We hope that the guide will prove useful for law enforcement officers, prosecutors, investigating judges, lawyers, and other experts. We also expect that it will be helpful to xii I Preface those making policy decisions regarding legislation and management of resources devoted to fighting corruption, and we look forward to using the handbook to provide technical assistance and promote capacity building in countries interested in the StAR Initiative. Ngozi N. Okonjo-Iweala Yury Fedotov Managing Director, The World Bank Executive Director, UNODC Acknowledgments Th is handbook is the result of special collaborative efforts from colleagues around the world. Their time and expertise were invaluable in developing a practical tool to assist practitioners in recovering the proceeds and instrumentalities of corruption. Th is publication was written by Jean-Pierre Brun (team leader, Financial Market Integ- rity Unit, World Bank), Larissa Gray (Financial Market Integrity Unit), Kevin Stephenson (Financial Market Integrity Unit), and Clive Scott (United Nations Office on Drugs and Crime [UNODC]), with the participation of Nina Gidwaney (Financial Market Integrity Unit). The authors are especially grateful to Jean Pesme (manager, Financial Market Integrity Unit, Financial and Private Sector Development Network) and Adrian Fozzard (Stolen Asset Recovery [StAR] Initiative coordinator) for their ongoing support and guidance on this project. The team benefited from many insightful comments during the peer review process, which was co-chaired by Jean Pesme and Tim Steele (senior governance specialist, StAR Secretariat). The peer reviewers were Raymond Baker (director, Global Financial Integ- rity), Yara Esquivel (Integrity Vice Presidency, World Bank), Frank Fariello (Legal Department, World Bank), Agustin Flah (Legal Department, World Bank), Jeanne Hauch (Integrity Vice Presidency, World Bank), Lindy Muzila (UNODC), and Mutembo Nchito (prosecutor, Zambia). As part of the drafting and consultation process, practitioners’ workshops were held in Vienna, Austria (May 2009) and Marseille, France (May 2010). Practitioners brought experience conducting criminal confiscation, non-conviction based confiscation, civil actions, investigations, asset tracing, international cooperation and asset management— from both civil and common law jurisdictions, and from both developed and develop- ing countries. The people participating (from both public and private sectors) were Yves Aeschlimann (Financial Market Integrity Unit), Jean-Marc Cathelin (France), France Chain (Organisation for Economic Co-operation and Development [OECD]), Hamza Chraiti (Switzerland), Anne Conestabile (OECD), Margaret Cotter (International Mon- etary Fund), William Cowden (United States), Maxence Delorme (France), Nick deVil- liers (South Africa), Adrian Fajardo (Mexico), Frank Filippeli (United States), Clara Garrido (Colombia), John Gilkes (United States), Dorothee A. Gottwald (UNODC), xiv I Acknowledgments Guillermo Jorge (Argentina), Vitaliy Kasko (Ukraine), William Loo (OECD), Marko Magdic (Chile), Olaf Meyer (Germany), Holly Morton (United Kingdom), Elnur Musayev (Azerbaijan), Shane Nainappan (United Kingdom), Nchima Nchito (Zambia), Jean Fils Kleber Ntamack (Cameroon), Pedro Pereira (International Centre for Asset Recovery), Stephen Platt (Jersey), Frederic Raffray (Guernsey), Linda Samuel (United States), Jean-Bernard Schmid (Switzerland), Salim Succar (Haiti), Jose Ugaz (Peru), Gary Walters (United Kingdom), Jean Weld (United States), Simon Williams (Canada), and Annika Wythes (UNODC). The handbook also benefited from the contributions of Theodore S. Greenberg (Financial Market Integrity Unit), David M. Mizrachi (Panama), and Felicity Toube (United Kingdom). A special thanks also to Thelma Ayamel for arranging the logistics of the workshops in Vienna and Marseille; and to Maria Orellano and Miguel Nicolas de la Riva for their administrative support. Jean-Pierre Brun Task Team Leader Financial Market Integrity Unit World Bank Acronyms and Abbreviations BIC Bank identifier code CARIN Camden Assets Recovery Inter-Agency Network CHAPS Clearing House Automated Payments System CHIPS Clearing House Interbank Payments System CTR Currency transaction report ECHR European Court of Human Rights EWHC (Ch.) England and Wales High Court (Chancery Division) FATF Financial Action Task Force FCPA Foreign Corrupt Practices Act Fedwire Fedwire Funds Service FIU Financial intelligence unit GDP Gross domestic product IBC International business corporation ICSID International Centre for Settlement of Investment Disputes LLC Limited Liability Company MLA Mutual legal assistance NCB Non-conviction based OECD Organisation for Economic Co-operation and Development PEP Politically exposed person PTC Private trust company RICO Racketeer Influenced and Corrupt Organizations StAR Stolen Asset Recovery Initiative STR Suspicious transaction report; Suspicious activity report SWIFT Society for Worldwide Interbank Financial Telecommunications UAE United Arab Emirates UNCAC United Nations Convention against Corruption UNODC United Nations Office on Drugs and Crime UNTOC United Nations Convention against Transnational Organized Crime WDF World Duty Free Company Limited Introduction The theft of public assets from developing countries is an immense development problem. The amount of money stolen from developing and transition jurisdictions and hidden in foreign jurisdictions each year is approximately $20–$40 billion—a figure equivalent to 20–40 percent of flows of official development assistance. 1 The societal costs of corruption far exceed the value of assets stolen by public leaders. Corruption weakens confidence in public institutions, damages the private investment climate, and ruins delivery mechan- isms for such poverty alleviation programs as public health and education. 2 Recognizing the serious problem of corruption and the need for improved mechanisms to combat its devastating impact and facilitate the recovery of corruption proceeds, the international community introduced a new framework in the United Nations Conven- tion against Corruption (UNCAC). Chapter V of the convention provides this framework for the return of stolen assets, requiring states parties to take measures to restrain, seize, confiscate, and return the proceeds of corruption. To do so, they may use various mecha- nisms, such as: direct enforcement of freezing or confiscation orders made by the court of another • state party; 3 non-conviction based asset confiscation, particularly in cases of death, flight, or • absence of the offender or in other cases; 4 civil actions initiated by another state party, allowing that party to recover the • proceeds as plaintiff; 5 confiscation of property of a foreign origin by adjudication of an offense of money • laundering or other offenses; 6 court orders of compensation or damages to another state party and recognition • by courts of another state party’s claim as a legitimate owner of assets acquired through corruption; 7 spontaneous disclosure of information to another state party without prior • request; 8 and international cooperation and asset return. • 9 1. World Bank, Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities, and Action Plan (Washington, DC, 2007), 9. 2. Ibid. 3. United Nations Convention against Corruption (UNCAC), art. 54(1)(a) and 54(2)(a). 4. UNCAC, art. 54(1)(c). 5. UNCAC, art. 53. 6. UNCAC, art. 54(1)(b) and 54(2)(b). 7. UNCAC, art. 53(b) and (c). 8. UNCAC, art. 56. 9. UNCAC, art. 55 and 57. 2 I Asset Recovery Handbook Even with this framework, the practice of recovering stolen assets remains complex. It involves coordination and collaboration with domestic agencies and ministries in mul- tiple jurisdictions with different legal systems and procedures. It requires special inves- tigative techniques and skills to “follow the money” beyond national borders and the ability to act quickly to avoid dissipation of the assets. To ensure effectiveness, the com- petent authority (“the authority”) must have the capacity to launch and conduct legal proceedings in domestic and foreign courts or to provide the authorities in another jurisdiction with evidence or intelligence for investigations (or both). All legal options— whether criminal confiscation, non-conviction based confiscation, civil actions, or other alternatives—must be considered. This process may be overwhelming for even the most experienced practitioners. It is exceptionally difficult for those working in the context of failed states, widespread corruption, or limited resources. The complexity of the process highlights the need for a practical tool to help practitio- ners navigate the process. With this in mind, the Stolen Asset Recovery Initiative, a joint initiative of the United Nations Office of Drugs and Crime and the World Bank focused on encouraging and facilitating more systematic and timely return of stolen assets, has developed this Asset Recovery Handbook: A Guide for Practitioners . Designed as a how- to manual, the handbook guides practitioners as they grapple with the strategic, organi- zational, investigative, and legal challenges of recovering assets that have been stolen by corrupt leaders and hidden abroad. It provides common approaches to recovering stolen assets located in foreign jurisdictions, identifies the challenges that practitioners are likely to encounter, and introduces good practices. By consolidating into a single frame- work the information dispersed across various professional backgrounds, the handbook will enhance the effectiveness of practitioners working in a team environment. Methodology To develop the Asset Recovery Handbook as a practical tool to help practitioners navi- gating the issues, laws, and theory, the Stolen Asset Recovery Initiative drew on those people who have practical day-to-day experience in one or more of the core areas of asset recovery. Participants included law enforcement, financial investigators, investi- gating magistrates, prosecutors, lawyers in private practice, and asset managers. They brought experience—from developed and developing jurisdictions and from civil and common law systems—in conducting criminal confiscation, non-conviction based asset confiscation, civil actions, investigations, asset tracing, international cooperation, and asset management. They have worked with other national agencies as well as with foreign counterparts. Being familiar with some of the challenges in this regard, they have developed their own methods and ideas for overcoming those challenges. The overall format of the handbook and key topics for consideration were agreed on by a group of practitioners at a workshop held in Vienna, Austria, in May 2009. 10 These 10. Participating practitioners in the May 2009 Vienna workshop brought experience from practice in Argentina, Azerbaijan, Canada, Colombia, Costa Rica, France, Guernsey, Jersey, Peru, South Africa, Switzerland, Ukraine, United Kingdom, United States, and Zambia. Introduction I 3 were developed by the authors into a draft version, and then presented and discussed at a second practitioners’ workshop held one year later in Marseille, France. 11 The second workshop was followed by additional contributions and consultations, and the final version was agreed to by the expanded group. How the Handbook Can Be Used The Asset Recovery Handbook is designed as a quick-reference, how-to manual for practitioners—law enforcement officials, investigating magistrates, and prosecutors— as well as for asset managers and those involved in making policy decisions in both civil and common law jurisdictions. Given diverse audiences and legal systems, it is impor- tant that readers keep in mind that a practice or strategy that has worked in one jurisdic- tion may not work in another. Likewise, an investigative technique that is permitted in one jurisdiction may not be permitted—or may have different procedural requirements— in another. In addition, jurisdictions may use different terminology to describe the same legal concept (for example, some jurisdictions use “confiscation” and others use “forfei- ture”) or procedure (some jurisdictions’ assets may be “seized,” whereas others’ may be “restrained,” “blocked,” or “frozen”). 12 Or different jurisdictions may assign different roles and responsibilities to those people who are involved in asset recovery: in some jurisdictions, investigations are conducted by an investigating magistrate; in others, by law enforcement authorities or prosecutors. The handbook attempts to point out these differences where they exist, and it high- lights how different concepts or practices may offer similar solutions to the same chal- lenges. However, the handbook is not designed to be a detailed compendium of law and practices. Each practitioner therefore should read the handbook in the context of his or her specific jurisdiction’s legal system, law enforcement structures, resources, legisla- tion, and procedures—without being restrained by the terminology or the concepts used to illustrate the challenges and tools for successful recovery of assets. The practi- tioner should also consider the context of the legal system, law enforcement structures, resources, legislation, and procedures of the specific jurisdiction where the asset recov- ery procedures will be sought. The primary purpose of this handbook is to facilitate asset recovery in the context of grand corruption, particularly as outlined in chapter V of UNCAC. Nonetheless, asset confisca- tion and recovery can and should be applied to a wider range of offenses—particularly, 11. Practitioners participating in the May 2010 Marseille workshop brought experience from Argentina, Azerbaijan, Brazil, Cameroon, Chile, Colombia, France, Germany, Guernsey, Haiti, Peru, South Africa, Switzerland, Ukraine, United Kingdom, United States, and Zambia. 12. For example, in South Africa’s Prevention of Organised Crime Act, 1998, “confiscation” is defined as value-based orders made pursuant to chapter V of the act. In other jurisdictions, these orders are described as “pecuniary penalty orders” (for example, in federal and many state confiscation laws in Australia). In Mexico, the term “forfeiture” is preferred because this refers to the proceeds and instrumentalities of crime; “confiscation,” on the other hand, refers to the assets of an individual. In Jersey, “forfeiture” is used with the instrumentalities of crime, and “confiscation” relates to the proceeds of crime.