Emergence of the Mareva by Letter: Banks' Liability to Non-Customer Victims of Fraud

摘要

In this article, leading practitioners in international fraud recovery from Canada, the United States, the British Virgin Islands and Switzerland discuss the emerging liability of banks to non-customers and the ability to seek the freezing of assets by letter. The authors note that the issue of a letter to a bank that provides sufficient particulars and evidence of fraud can, in certain situations, give rise to a de facto Mareva injunction. Accordingly, with the growth of fraudulent activity occurring through bank services, financial institutions ought to be prepared to investigate and be proactive in their assessment of the merits of a letter as an evidentiary foundation for knowledge of fraud and weigh the risks of compliance and non-compliance with a request to freeze customer accounts in appropriate circumstances. The authors argue that with rising bank compliance with such letters, alongside the mounting legal responsibility for fraud prevention evident in the case law, the apparent benefits to fraud victims in utilising a Mareva by Letter as the first step in recovering their assets must not be overlooked.