The Normative Development of Laws on Asset Preservation and Confiscation: An Examination of Emerging Best Practices

The practice of international asset recovery appears to be in the process of moving beyond the provisions contained in the United Nations Convention against Corruption (UNCAC). These provisions were negotiated twenty years ago, and are now insufficient given the serious, contemporary challenges involved in tracing, preserving, confiscating, and returning assets. This article focuses on the limitations of UNCAC’s provisions concerning the preservation and confiscation of foreign assets. These limitations, and the need for progressive development, appear to have been recognized by the UNCAC Review Mechanism, which monitors the implementation of UNCAC by states parties. The Review Mechanism has begun encouraging states parties to adopt ‘good practices’ that go beyond UNCAC’s minimum requirements. In doing so, however, the Review Mechanism has not offered guidance on how exactly states parties ought to go about implementing the best practices that they have identified. The asset recovery laws of Canada, Switzerland, and the United Kingdom demonstrate the need for further consideration of how domestic asset recovery laws ought to be developed. These laws illustrate some of the difficult issues raised by more flexible, informal and rapid forms of international cooperation in the asset recovery context. In particular, these laws illustrate the challenges involved in balancing the general, public interest in combating corruption and recovering stolen assets with respect for and protection of human rights.