Yves Klein

Monfrini Bitton Klein

Geneva www.mbk.law

yklein@mbk.law Tel: +41 22 310 2266

Biography

Admitted to the bars of Geneva and Switzerland since 1995, Yves Klein is an international asset recovery lawyer, and a partner at Monfrini Bitton Klein. His main activity is litigating and coordinating transnational asset recovery proceedings before civil, criminal and bankruptcy courts on behalf of victims of economic crimes. He is representative for Switzerland of ICC FraudNet, the world’s leading asset recovery network. He is fluent in French, English, Portuguese and Spanish, and speaks some Italian and German.

In what ways have asset recovery proceedings been changed by the coronavirus pandemic?

There have been fewer domestic bankruptcy cases, while remote working has led to more impersonation and cyber frauds, and whistle-blower reports.

The proceedings themselves were not really affected, save for spring 2020.

How does your role as a member of ICC FraudNet enhance your practice, and what are the goals of the organisation?

FraudNet was created in 2004 by the International Chamber of Commerce on the realisation that the transnational nature of white-collar crime required an international network of specialists who could seamlessly deploy coordinated cross-border asset recovery proceedings worldwide.

We joined FraudNet in 2005, and our membership has been invaluable to develop our asset recovery practice and to implement innovative global recovery strategies. Having worked side by side on cases for almost 20 years creates an unmatchable level of trust in each other and knowledge about the strengths and weaknesses of each jurisdiction.

If there was one reform you could implement in global asset recovery practice, what would it be and why?

I would bring more common law-like tools into civil law jurisdictions civil proceedings and more civil law-like tools into common law jurisdictions criminal proceedings.

As a lawyer from a civil law jurisdiction, I am often envious of the common law tools to obtain evidence and freeze assets through civil proceedings, such as Norwich Pharmacal, Anton Piller and Bankers Trust orders, Mareva injunctions or worldwide freezing orders, equity receiverships, pretrial discovery, disclosure order, etc.

Conversely, I have noted common law colleagues’ interest for the right of crime victims to be admitted as civil parties in criminal proceedings in civil law jurisdictions, which allows them to cooperate with law enforcement authorities, to access evidence from the criminal file, to obtain wide-reaching freeze and production orders, and to have a right to the award of damages and to forfeited assets, at relatively low cost.

Convergence is increasing, with the rise of private prosecution and crime victims’ rights in common law jurisdictions, and with the development of more efficient freezing and production orders in civil law jurisdictions.

An interesting initiative in that regard is UNCITRAL’s Working Group V (Insolvency Law) discussions on a model law or legislative guide on asset recovery.

How does the firm organise cases, and ensure effective teamwork in highly complex asset recovery matters?

We take the following steps: (i) Identify which lawyers will bring the most to the case. (ii) Promote innovation while valuing past experience. (iii) Follow and understand parallel foreign proceedings. (iv) Circulate information internally and externally. (v) Allow team members to constantly develop their skills. (vi) Give credit to whom it is due.

In what ways have frauds and Ponzi schemes evolved since you started practising, and how has this changed the practice itself?

There is no limit to fraudsters’ creativity, notably in the use of new technologies. This requires us to understand new technologies and identify how asset recovery tools must be adapted. What does not change is fraudsters’ psychology.

What are the greatest challenges posed by the enforcement of foreign judgments and arbitration awards?

The main challenge is that many litigants still only think of enforcement at the end of the main proceedings, which is often too late.

Enforcement should be considered from the beginning of a business relationship (Who are our counterparts? Do they have assets against which our claim could be enforced in case of dispute? In which jurisdiction?), upon drafting the contract (Do the other parties have assets in a jurisdiction where they can be frozen and ultimately recovered through the implementation of the dispute resolution clause?), upon the start of the dispute (Are our counterparts still solvent? Is there a risk of dissipation? Are pre-trial freeze orders or other interim measures available?), and during the main proceedings (Can the main proceedings be used to obtain evidence on the defendants’ assets, on their bad faith, or on the liability of third parties? What findings will be useful in the judgment or award to facilitate the use of asset recovery tools?).

How do you think the new Swiss cross-border insolvency regime will impact the market?

Until recently, foreign insolvency practitioners were reluctant to seek recognition in Switzerland, as they saw the process as slow and cumbersome. Consequently, there were few recognitions per year, and courts and bankruptcy offices were somewhat unfamiliar with the process, which made it even less attractive.

Since 2019, the number of recognitions of foreign insolvencies has multiplied, and consequently courts now routinely issue recognition orders in matters of weeks, and bankruptcy offices more aggressively order measures to identify claims and freeze assets. It is also possible for the foreign liquidator to apply for a waiver of the ancillary bankruptcy, and thus be authorised to directly bring proceedings in Switzerland.

What is the best piece of advice you ever received?

“The most important quality in a lawyer is tenacity”, from the late Alexandre Hauchmann, one of our partners who at the time had over 60 years of experience at the Geneva Bar.

Peers and clients say: “An absolute market leader” “One of the best asset recovery lawyers I have had the pleasure of working with” “He is very active in the field”