Within the newest chapter of the long-running Tantular litigation (within the matter of the Saisies Judiciaires of Robert Tantular [2020] JRC058) the Royal Courtroom has confirmed that it has the facility to freeze international belongings held by way of Jersey belief constructions.

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The query was whether or not the statutory energy to order a saisie judiciaire beneath Article 16(1) of the Proceeds of Crime (Jersey) Legislation 1999, as modified by the Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Laws 2008 (the Modified Legislation), is proscribed to property located in Jersey or, because the Royal Courtroom has held beforehand (within the matter of the illustration of Kaplan [2009] JLR 88), may lengthen to international property held by a Jersey primarily based particular person or entity.

In 2013 and 2014 the Royal Courtroom granted two saisies over the realisable property of Mr Tantular. These orders have been obtained on the request of the Indonesian authorities, following the convictions in Indonesia of Mr Tantular for fraud and cash laundering.

Mr Tantular is the settlor and a beneficiary of a discretionary belief ruled by Jersey legislation (the Belief). The one useful belongings of the Belief are the shares in a BVI firm (Jonzelle) which holds a residential property in Singapore (the Property). In two earlier judgments (Tantular v AG [2014] JRC 128 and Tantular v AG [2014] JRC 243) the Royal Courtroom held that Mr Tantular was not beneficially entitled to the Belief belongings for the needs of the Modified Legislation however that a number of items from him to the Belief fell throughout the related provisions.

Mr Tantular contended that upon a correct building the saisie was restricted to belongings in Jersey, and due to this fact didn’t lengthen to the shares in Jonzelle or the Property. This was primarily based on the well-known rule of building that laws shouldn’t be given extra-territorial attain except it incorporates clear language to that impact. In help, reliance was positioned on Jersey’s worldwide treaty obligations which, it was stated, made clear that territorial limits needs to be noticed and solely obliged Jersey to implement confiscation orders in respect of property located in Jersey, in addition to King v Director of Critical Fraud Workplace ([2009] 1 WLR 718) and King v HM Procureur (2011-12 GLR 285) by which the English and Guernsey Courts respectively declined to increase comparable laws to belongings outdoors their respective jurisdictions.

The important thing argument centred on the that means of ‘realisable property’ in Artwork 6(4)(b) (which confers the facility to grant a saisie over property within the arms of a 3rd social gathering) in gentle of the definition of that time period in Artwork 2(b)(ii) (which pertains to items made by the defendant) and the definition of ‘property’ in Artwork 1 which, save the place the context requires in any other case, covers ‘all property, whether or not movable or immovable, or vested or contingent, and whether or not located in Jersey or elsewhere’.

Mr Tantular argued that the development adopted in Within the matter of the illustration of Kaplan ([2009] JLR 88) was incorrect. This failed as a result of Arts 16(4)(b) and (c) have been held to use to property located in Jersey or elsewhere. This was in line with the unambiguous definition of property in Artwork 1 and bolstered by the opposite language of Artwork 16(4)(a), which is proscribed to property located in Jersey. The court docket referred to the choice of Lord Mance in Masri v Consolidated Contractors Worldwide (UK) Ltd (No 4) ([2010] 1 AC 90), requested itself whether or not ‘eyebrows may be raised’ on the extraterritorial impact, and held that they’d not.

In respect of King v Director of Critical Fraud Workplace the court docket held that the Modified Legislation is totally different from the English laws, and that there was no foundation for the English building to be utilized. In response to coverage arguments which discovered favour in England, the court docket accepted two factors superior by the legal professional basic: (i) that it will be opposite to Jersey public coverage to permit a defendant to learn from a construction whereas additionally establishing severe obstacles to abroad authorities with a respectable curiosity within the belongings held therein; and (ii) the court docket may solely freeze belongings outdoors Jersey in as far as it has a private jurisdiction over those that management these belongings (see paragraphs 56 to 57).

In addressing King v HM Procureur (2011-12 GLR 285), by which the Royal Courtroom of Guernsey utilized King v Director of Critical Fraud Workplace to laws which is similar to Jersey’s, the court docket famous that neither of Jersey’s two main authorities had been cited and that, on evaluation, the choice didn’t present a sound foundation to depart from Kaplan (see paragraphs 58 to 62).

Arguments primarily based on treaty obligations and battle of legal guidelines rules have been rejected on related bases, specifically that the Jersey Courtroom was exercising subject material jurisdiction however solely in respect of property managed by individuals over whom it had private jurisdiction (see paragraphs 67 to 74). In each circumstances reliance was positioned on R (on the applying of KBR Inc) v Director of the Critical Fraud Workplace ([2019] QB 675).

Whereas the substantive place in Jersey has not modified, this case is notable as a result of the Royal Courtroom thought-about probably persuasive case legislation from England and Guernsey and declined to depart from Kaplan. Had it executed so the facility of the saisie as a software for the restoration of the proceeds of crime would have been considerably decreased. Nothing is kind of settled, nonetheless, because the query could but obtain the eye of the Courtroom of Enchantment.

 

Advocate Charles Sorensen of Baker & Companions appeared for the Viscount of Jersey within the above case