Trevor has been an integral part of the development of PCB over the last 20 years into one of the leading asset recovery firms in the world. He jointly leads a team of highly skilled junior partners and associates, capable of handling the largest and most complex asset recovery cases. Trevor’s strengths are his lateral thinking and legal analysis, which enable him to develop creative strategies to tackle challenging cross-border cases.
What motivated you to specialise in asset recovery?
The cases are often highly complex, involving issues of jurisdiction, choice of law, proprietary and tracing claims, ancillary proceedings in multiple jurisdictions and opaque structures. Developing innovative strategies and coordinating a cross-border team in its implementation provides challenging and stimulating work.
How has the market changed since you first started practising?
Structures through which assets are controlled by fraudsters, yet are said not to be owned by them, have become more prevalent, which presents increasing challenges to asset recovery lawyers. There has also been an increase in the number of jurisdictions being used for such structures beyond the usual offshore jurisdictions, which again presents challenges in selecting the best available lawyers and creating a suitable strategy.
What makes PCB Litigation stand out from its competitors in the market?
A combination of experienced partners and high-quality associates, with skill sets that blend well together to provide strategic and legal innovation, together with the necessary deep factual analysis and hard graft. As such, PCB is able to point to a track record of instructions on substantial and ground-breaking asset recovery cases that few, if any, other firms are able to match.
Sources have noted increasing proactivity from state banks to recover assets. How do you expect this trend to affect your practice?
PCB has significant experience in acting on behalf of state-owned banks and failed banks, where the state has taken control in substantial asset recovery cases. As such we are well placed to work with state banks in formulating asset recovery strategies and working with funders to facilitate the pursuit of those claims.
You have highlighted to us that litigation funding for asset recovery cases seems to be increasing. Why do you think this is, and how is this impacting the market?
There is an increasing amount of money in the litigation funding market, driven by the potentially significant returns available, and this means that funders are having to look beyond the limited pool of “vanilla” cases to the more risky, but potentially very rewarding, large asset recovery cases. We have seen much greater appetite among funders for such cases in the last two to three years.
Your practice focuses on developing the strategy for an asset recovery litigation. How do you go about deciding what approach to take for a case?
While no two cases are alike, one tends to look at what is known about the potential defendants, their locations and their assets, as well as the underlying wrongdoing. These will inform as to what further steps might be required to gather evidence; the jurisdiction(s) in which to proceed; what claims can be brought; and what interim relief might be available. Then there are factors such as whether assets are at imminent risk of being moved, and whether the likely benefit of certain steps will justify the costs. Fitting the known pieces together to work out the strategy, often where there is a need to move incredibly quickly, comes with experience.
How do you see the practice area developing over the next five years?
I expect there will be increasing use of the cross-border insolvency regulations, as many asset recovery cases are likely to involve liquidators and trustees in bankruptcy, particularly given the current state of the global economy. I can see an increasing need for insolvency practitioners to call upon the skill sets of asset recovery lawyers to obtain a return for creditors.
There also seems to be a big increase in cyberfraud, with money being quickly moved to jurisdictions where tracing and enforcement may be problematic. This is likely to bring into focus the role of banks and the relationship between failure to comply with anti-money laundering regulations and accessory liability to victims.
You have enjoyed a distinguished career so far. What would you like to achieve that you have not yet accomplished?
PCB has a number of highly talented junior partners and associates, and I would like to help them to develop further as leading asset recovery lawyers, and to gain more market recognition. As well as high-calibre lawyers, and quality work, we also have a collegiate environment that I would like to nurture, so as to be the firm that all aspiring asset recovery lawyers wish to join. That way we can broaden our talent base and consolidate the firm’s reputation as one of the best asset recovery firms in the world.
Trevor Mascarenhas wins extensive plaudits from market commentators who single him out as “a very clever practitioner” with extensive litigation expertise.
Trevor has a track record of successfully acting in large, complex and often ground-breaking asset recovery cases. He combines depth of legal knowledge with creative, strategic thinking in order to provide clients with winning solutions. Adept at obtaining freezing and disclosure orders in multiple jurisdictions, Trevor’s expertise has been recognised by the main directories. He was invited by UNCITRAL as an expert in the field, to its inaugural colloquium on asset recovery in December 2019.
What do you enjoy most about working in asset recovery?
I thrive on the challenge of solving complex problems presented by the sophisticated multi-jurisdictional structures used by fraudsters, and building the evidential picture required. The cases enable you to be legally creative, pushing at the boundaries of the law. It is particularly rewarding when you navigate a way through for the client that no one else has been able to do, and winning cases considered by many to be unwinnable.
How important is it to take a global perspective when taking on a cross-border asset recovery case?
Cross-border cases will often involve structures with layers of entities in different jurisdictions, and assets can be dissipated at different layers. It is therefore important to coordinate the whole team to ensure as far as possible that assets are appropriately locked down. This requires a good understanding of the local procedural and substantive law position, and a good relationship with the local lawyers, as well as having the vision to see how everything fits together.
What are the main challenges for enforcement agencies around the world today?
Lack of resources, coupled with the time it takes for mutual assistance to take effect, means that the process of freezing and recovering assets by enforcement agencies can be delayed, and assets may be lost. However, they can play a very important role in asset recovery cases. For example, in certain jurisdictions, the steps that enforcement agencies are able to take may lead to better information about assets and the freezing of such assets.
In your opinion, how will digital advancements such as the rise of cryptocurrency affect the kind of work asset recovery specialists receive in the next few years?
Cryptocurrencies raise huge issues for practitioners, both in terms of cases involving theft of such assets (where complex issues of choice of law and jurisdiction may arise given the nature of cryptocurrencies) and in terms of how effectively to freeze such assets and police the freezing order. Lawyers will have to work closer than ever with experts in technology to find effective ways to freeze these assets.
To what extent are clients shying away from arbitration as a method of asset recovery?
I do not think that they are shying away from arbitration. It is rare that a party is going to choose whether they are going to include an arbitration clause in a contract on the basis that they may have to bring an asset recovery case against their counterparty. Rather, what I think we are seeing is that clients are looking to asset recovery specialists for enforcing arbitration awards, or for dealing with injunctive relief in support of arbitrations. That is entirely natural as there are different skill sets involved.
What role are you currently seeing third-party funding playing in asset recovery litigation?
Funding asset recovery cases seems very much to have been on the increase. The sums in question can be large, which is attractive to funders, but there is a significant element of risk, which funders seem to be more comfortable taking than they have done previously. We are currently working on a number of funded asset recovery cases, where funders have sought our specialist expertise post-judgment.
What is the most memorable case you have worked on?
Jenington v Assaubayev is one that sticks in the memory as it featured many aspects of a complex international asset recovery case: freezing orders served simultaneously in four jurisdictions; search orders executed simultaneously with service of the freezing orders at three premises; numerous hearings over a period of several months against some of the largest firms in the world acting for the defendants; allegations of deceit, breach of fiduciary duty and proprietary claims; resisting fortification of the cross-undertaking in damages; and one of the leading judgments on cross-examination as to assets. It was a very intense few months leading this case before it settled, and it was great to have the experienced team at PCB to support me, as well as excellent overseas lawyers and barristers.
What advice would you give to younger lawyers hoping to one day be in your position?
I think that in order to succeed in this practice area, you have to live and breathe your cases, spending time thinking how you are going to solve the complex problems that arise, and trying to work with and gain knowledge from other experienced practitioners.
Trevor Mascarenhas is a leading name in the UK for asset recovery issues, and advises both claimants and defendants in a wide variety of commercial disputes.
Trevor is a senior partner of PCB Litigation and has been dealing with complex international asset recovery cases throughout his career. As such he brings a wealth of experience in freezing, search and disclosure orders, and has been at the cutting edge of many of the major developments in common law jurisdictions.
His expertise has been reflected in rankings in the major directories, which praise his strategic thinking, legal knowledge and creativity. Trevor has been at the forefront of developing and implementing the asset recovery strategy in numerous multi-jurisdictional cases, co-ordinating with lawyers in civil and common law jurisdictions in order to obtain effective freezes over complex asset holding structures.
His cases include Abela v Fakih, in which the first reasoned judgments were given as to the jurisdiction to grant a search order against a third party to proceedings; Jenington v Assaubayev, a case in which Trevor obtained freezing orders served simultaneously in five jurisdictions along with search orders at three premises, culminating in the leading judgment on cross-examination as to assets and VTB Capital v Universal Telecom Management, in which the Cayman Court of Appeal confirmed the jurisdiction of the Cayman Court to grant free-standing freezing orders in support of foreign proceedings.
Trevor has also had cases in the House of Lords, Supreme Court and Privy Council, and has authored numerous articles on asset tracing and other aspects of commercial disputes. In December 2019 he was invited by UNCITRAL to participate in its inaugural colloquium on asset tracing as an acknowledged expert in the field.
Trevor is a senior partner of PCB, a conflict-free specialist commercial dispute resolution firm. Winner of the Client Choice Award for 2019 for Arbitration and ADR in the UK, Trevor has been recommended by the main directories for civil fraud, asset recovery, banking litigation and commercial litigation. He is lauded for coming up with creative solutions for clients and for his command of complicated facts and law.
His practice also spans contentious insolvency, real estate litigation and professional negligence; and a variety of industry sectors including banking and finance, natural resources, private equity, real estate, telecommunications, automotive, and sports and leisure.
Two of Trevor’s cases have been identified as top 20 cases of the year by The Lawyer: acting for the first defendant to a US$1 billion Bahraini banking and Saudi real estate claim, and acting for 34 of the 48 respondents to a €1 billion claim brought by the liquidators of a Greek telecommunications company. Both cases ended successfully with the claims being discontinued against Trevor’s clients mid-trial.
Other cases include successful appeals to the House of Lords in a landlord and tenant case; to the Supreme Court in the leading case about service of proceedings out of the jurisdiction; and to the Privy Council about the limits of the jurisdiction of the BVI Court in a shareholder dispute.
Trevor has authored numerous articles for publications such as the Journal of International Banking Law and Regulation, Trust Law International, International Company and Commercial Law Review, European Lawyer, New Law Journal, Legal Business and the E-Commerce Law Reports.