Tracing and Retrieving Crypto Assets in Insolvency

Giambrone & Partners’ insolvency lawyers have recognised that the compound effects of lockdown and the challenges surrounding overseas trading have created shrinking margins in businesses that often leave them with little resilience to commercial difficulties. The expert lawyers in Giambrone & Partners’ insolvency team strongly urge businesses to take advice immediately when they realise that they may be heading towards financial difficulties as it is often possible to devise and introduce a turnaround strategy to save the company.

Our lawyers have also noted the steady inextricable rise of cryptocurrency, since its inception in 2009. Consequently, insolvency practitioners are now increasingly addressing such abstract assets when dealing with liquidations. Recent case law has established that crypto assets are property under the law of England & Wales (AA v Persons Unknown) and regarded as intangible assets (Fetch.ai Ltd and another v Persons Unknown Category A and others). There is a growing trend for crypto assets to be involved when companies become insolvent and the recovery of cryptocurrency both in the jurisdiction of England & Wales and worldwide has to be efficiently addressed to enable the maximising of an insolvent company’s assets and disburse them across the relevant creditors.

In 2022 the liquidation rate for active companies was the highest seen since 2015 with one in 202 companies entering insolvent liquidation according to national statistics of the Insolvency Service

Giambrone & Partners’ lawyers in both the banking and financial fraud litigation department and the insolvency team within the corporate and commercial department work closely to recover digital assets. 

Olu Ajasa, Partner, commented “there are a number of unique issues that are faced in the recovery of crypto assets. Not the least is the volatility of the crypto market which means that speed is of the essence to unravel custodians from the actual owners and securing the private keys to remove digital assets before third-party dissipation of the assets or a dramatic drop in value as seen in recent market crashes.” Olu further stated “the recovery process can be lengthy as it is necessary to navigate through what is a unique sector. Access to cryptocurrency is not always straightforward.” 

Cryptocurrency, its largely unregulated status as well as its capriciousness together with the anonymity that often surrounds ownership, makes legal accountability sometimes hard to establish. One of the attractions of cryptocurrency is its decentralised structure that remains partly outside the financial services regulations. This enables individuals and businesses holding cryptocurrency to transfer their crypto assets instantly, bypassing the restrictions that apply to banks and other financial institutions. Insolvency professionals should investigate any speedy transactions that have taken place very close to liquidation to establish whether they may be voidable enabling the assets involved to be returned and divided between the relevant creditors.

Demetri Bezaintes, an associate, pointed out “businesses in distress may attempt to hide their crypto assets from their creditors, however, these can be traced by expert analysts and legal action can be taken to recover the assets from the recipient wallet addresses. Blockchain technology provides insolvency professionals with new tools, such as serving court orders via a non-fungible token (NFT) through the blockchain upon the anonymous recipients of the assets (D’Aloia v Persons Unknown & Others).” Demetri further commented “the Financial Conduct Authority (FCA) stated that “regulation of cryptocurrency is inevitable”. Whilst for some this will limit its attraction, it will make less of a legal “Wild West show”.

Giambrone & Partners is one of the leading law firms in the byzantine sector of crypto assets, our lawyers have a wealth of expertise in assisting our clients when involved in contentious matters involving cryptocurrency and together with our experienced insolvency lawyers we are well-placed to assist companies or creditors to get the best out of a deteriorating situation where insolvency threatens.

Olu has extensive experience and expertise in all types of alternative dispute resolution for commercial issues, as well as commercial litigation. Olu advises on complex, high-value, domestic and multi-jurisdiction matters. He has a reputation for assisting clients in complex cross-border commercial disputes, shareholder disputes, partnership disputes, contractual disputes, loan facility agreements, secured lending, both corporate and insolvency relating to individuals, including preparing and responding to statutory demands, winding-up petitions, investigating company directors and also assists with all aspects of corporate insolvency litigation.

Olu is highly regarded by his clients for his resoluteness in satisfactorily concluding complex disputes swiftly and in line with their commercial objectives.

Demetri Bezaintes has a thorough knowledge of investment fraud and fund tracing. He works tenaciously for our clients, advising on cryptocurrency, Forex trading disputes and regulatory investigations. He draws his expertise in investment law from his experience in the banking sector and his studies in banking and financial services regulation. Before joining Giambrone & Partners Demetri worked at an international bank, where his main focus was the enforcement of freezing orders and third-party debt orders. He approaches cross-border jurisdiction matters with a comprehensive view, based on his knowledge of both civil and common law. 

If you would like to learn more about Giambrone & Partners restructuring and insolvency services please contact us at clientservices@giambronelaw.com or click here.