Courts in offshore jurisdictions have started to adopt the decisions of the English Courts when granting relief with respect to the dissipation and recovery of crypto-assets. One example is the recent decision in ChainSwap v Persons Unknown where the BVI court granted a freezing order over assets held by persons unknown in relation to a crypto fraud and follows similar decisions in the UK and other commonwealth countries where such relief is now commonly granted. Therefore, we consider the recent English decision in D'Aloia v Persons Unknown and Others [2022] EWHC 1723 (Ch) which highlights the possibility that the controllers and operators of a crypto exchange may be considered a trustee of misappropriated assets flowing through any crypto wallet that it maintains and that it would therefore have a duty to account to victims of the misappropriation for any unauthorized profits or gain made as trustee.
Background
The case concerns an application by Mr Fabrizio D'Aloia for interim injunctive relief and disclosure against a number of defendants, arising out of what he alleged to be the fraudulent misappropriation of cryptocurrency in the form of approximately 2.1 million USDT, and 230,000 USDC by persons unknown. Mr D'Aloia alleged he was induced, by way of fraudulent misrepresentation, to transfer USDT and USDC from his Coinbase and Crypto.com wallets to the operators of the "tda-finan" website, who were persons unknown. By using crypto investigation specialists, Mr D'Aloia confirmed that some 2.175 million of USDT and USDC was transferred to a number of private addresses and wallets operated by, or under the control of, various cryptocurrency exchanges. The decision importantly considers the satisfaction of the test for injunctive relief as it relates to crypto assets, including whether the English courts are the most appropriate forum for such an application with reference to the lex situs of the crypto assets in question and where the damage occurred.
Can an exchange can be responsible for the proceeds lost?
One of the most significant developments from the decision stems from the Court's ruling that there was a good arguable case that Mr D'Aloia has a claim not only against the fraudsters who stole his cryptocurrency, but also against the controller and operator of one of the exchanges which controlled the wallets through which it was possible to trace the crypto assets stolen from Mr D'Aloia. In doing so, it highlighted the possibility that an exchange with sufficient control over wallets that it maintains will be considered a trustee of misappropriated assets flowing through those wallets and in turn have a duty to account to victims of the misappropriation for any unauthorized profits or gain made as a result of its role as trustee. It remains to be seen whether Mr D'Aloia's claim in this regard will be successful at trial. Nonetheless, the fact that such a claim has been allowed to proceed is a significant decision not only in the England and Wales, but also offshore and specifically in the Cayman Islands and the BVI where such decisions are highly persuasive and likely to be followed.
Practical consequences
The decision in D'Aloia v Persons Unknown is significant as it demonstrates the possibility for victims of crypto fraud to have direct claims against the controllers and operators of crypto exchanges for equitable compensation where a constructive trust claim is made out. In circumstances where taking action against the fraudsters is ordinarily very difficult given the pseudonymous nature of crypto assets and the associated difficulty of identifying the fraudsters, victims of crypto-related fraud will now consider the availability of direct claims against crypto exchanges, as the known parties, where those exchanges have been notified that they are in possession of fraudulently misappropriated crypto-assets. Where crypto-assets are the subject of a potential dispute, a Court may make an order requiring that such assets be properly ring-fenced and not withdrawn. Crypto exchanges in the Cayman Islands and the BVI will need to consider best practice, including the level of control they exercise over wallets, and the procedures needed to mitigate against the risk of misappropriated funds being held in wallets maintained by the exchange.
For more information on this issue, or if you require advice such matters or any other Cayman Islands or BVI legal issues, please contact any of the primary contacts from the Dubai Insolvency and Dispute Resolution team listed below.
Read this article:
- Home | Discover Oil & Gas | Rigzone - December 8th, 2016 [December 8th, 2016]
- Offshore - Wikipedia - December 8th, 2016 [December 8th, 2016]
- EscapeArtist - Live, Work, Travel, Retire & Invest Overseas - December 15th, 2016 [December 15th, 2016]
- Offshore installation manager - Wikipedia - December 30th, 2016 [December 30th, 2016]
- Offshore Energy 17 - January 12th, 2017 [January 12th, 2017]
- Offshore Drilling and Exploration - The New York Times - February 2nd, 2017 [February 2nd, 2017]
- Offshore - novenco-marine.com.php56serv2.webhosting.dk - February 5th, 2017 [February 5th, 2017]
- Further decline in North Sea offshore supply work - BBC News - February 7th, 2017 [February 7th, 2017]
- Japan ignores protests, begins offshore construction work on ... - RT - February 7th, 2017 [February 7th, 2017]
- Offshore Drillers Are Still Seeking Recovery Enjoyed by Shale - Bloomberg - February 7th, 2017 [February 7th, 2017]
- Offshore Profits and US Exports - Council on Foreign Relations (blog) - February 8th, 2017 [February 8th, 2017]
- Diamond Offshore Surprises Everyone With a Fourth Quarter Earnings Gain - Madison.com - February 8th, 2017 [February 8th, 2017]
- Dems: Don't repeal offshore tax rules - The Hill - February 8th, 2017 [February 8th, 2017]
- Offshore Wind Moves Into Energy's Mainstream - New York Times - February 8th, 2017 [February 8th, 2017]
- Trump's Plan to Tap Offshore Profit for Infrastructure Gains an Ally - Bloomberg - February 8th, 2017 [February 8th, 2017]
- China Regulator Urges Insurers to Avoid 'Reckless' Offshore ... - Insurance Journal - February 9th, 2017 [February 9th, 2017]
- Perriello comes out against pipeline and, in a shift, says he is skeptical of offshore drilling - Washington Post - February 9th, 2017 [February 9th, 2017]
- AGL to head offshore amid limited growth options locally - The Sydney Morning Herald - February 9th, 2017 [February 9th, 2017]
- Should Diamond Offshore (DO) Stock Be in Your Portfolio? - Zacks.com - February 9th, 2017 [February 9th, 2017]
- Wind Overtakes Coal Power in Europe as Turbines Head Offshore - Bloomberg - February 9th, 2017 [February 9th, 2017]
- Cuba Eager to Develop Offshore Oil Reserves | OilPrice.com - OilPrice.com - February 10th, 2017 [February 10th, 2017]
- Eni starts production of East Hub Development Project, offshore Angola - Offshore Technology - February 10th, 2017 [February 10th, 2017]
- 'Fifty Shades Darker' Unmasks $22M In Offshore Foreplay International Box Office - Deadline - February 10th, 2017 [February 10th, 2017]
- Statoil looks to Newfoundland offshore after selling off all oilsands assets - Globalnews.ca - February 10th, 2017 [February 10th, 2017]
- Coalition urged to charge 10% royalty on offshore oil and gas projects - The Guardian - February 10th, 2017 [February 10th, 2017]
- Israel Puts Off License Award In First Offshore Oil, Gas Bid Round - OilPrice.com - February 10th, 2017 [February 10th, 2017]
- Cost Impact of Immigration and Visa Reform to US Customers Using Offshore Services - Forbes - February 10th, 2017 [February 10th, 2017]
- These Offshore Drilling Stocks Are Up Big as Earnings Season Starts - Fox Business - February 10th, 2017 [February 10th, 2017]
- Offshore projects help raise profile of wind power in US, Europe - WorkBoat (blog) - February 11th, 2017 [February 11th, 2017]
- Shares of Seadrill Went in the Exact Opposite Direction of Other Offshore Drillers in January - Motley Fool - February 11th, 2017 [February 11th, 2017]
- After selling off all oilsands assets, Statoil looks to Newfoundland offshore - Calgary Herald - February 11th, 2017 [February 11th, 2017]
- Oil and Gas Stock Roundup: The Outlook for Offshore Drilling Continues to Dim - Fox Business - February 11th, 2017 [February 11th, 2017]
- Diamond Offshore Surprises Everyone With a Fourth Quarter ... - Motley Fool - February 12th, 2017 [February 12th, 2017]
- Diamond Offshore Is A Hold - Seeking Alpha - February 12th, 2017 [February 12th, 2017]
- Trudeau: Arctic offshore drilling too dangerous - The Independent Barents Observer - February 12th, 2017 [February 12th, 2017]
- Don't Overlook This Cost-Effective Alternative To Offshore Services - Forbes - February 14th, 2017 [February 14th, 2017]
- Legislation could mean an economic boost in New Bedford offshore wind projects - SouthCoastToday.com - February 14th, 2017 [February 14th, 2017]
- Ontario signals extension on offshore wind project moratorium - BNN - February 14th, 2017 [February 14th, 2017]
- Oil Majors' Plans - No Relief For Offshore Drillers - Seeking Alpha - February 14th, 2017 [February 14th, 2017]
- Director hits back at offshore worker blacklisting claims - BBC News - February 14th, 2017 [February 14th, 2017]
- OPEC Report: Pressure On Offshore Drilling Remains - Seeking Alpha - February 15th, 2017 [February 15th, 2017]
- UK Offshore Wind Construction Had Bumper Year In 2016, Barbour ABI - CleanTechnica - February 16th, 2017 [February 16th, 2017]
- Trump urged to back offshore - Offshore Wind | reNEWS ... - reNews - February 16th, 2017 [February 16th, 2017]
- Russian Spy Ship Spotted Offshore From Connecticut; Congressman Says Goal Is To Test US - CBS Local - February 16th, 2017 [February 16th, 2017]
- Australia Accused Of Committing Crimes Against Humanity In Offshore Detention Centres - BuzzFeed News - February 16th, 2017 [February 16th, 2017]
- US Wind Secures Cabling Partner For MD Offshore Project - North American Windpower - February 16th, 2017 [February 16th, 2017]
- Professional Diversity Network: Offshore Investment Fund, Dropping ... - Seeking Alpha - February 16th, 2017 [February 16th, 2017]
- Vineyard Power vying for offshore wind farm - News - capecodtimes ... - Cape Cod Times (subscription) - February 16th, 2017 [February 16th, 2017]
- Liquidity Warnings Send Hornbeck Offshore Services, Inc.'s Stock Plunging - Motley Fool - February 16th, 2017 [February 16th, 2017]
- Will Offshore Stymie Oil States? - Seeking Alpha - February 16th, 2017 [February 16th, 2017]
- Enbridge Partners with EnBW on 497-MW German Offshore Wind Project - Marketwired (press release) - February 17th, 2017 [February 17th, 2017]
- JDR lands US offshore bounty - reNews - February 17th, 2017 [February 17th, 2017]
- Natural gas leaks from offshore pipeline in Alaska - Press Herald - February 17th, 2017 [February 17th, 2017]
- Halliburton's GRIP delivers rapid response to offshore source-control incidents - WorldOil (subscription) - February 18th, 2017 [February 18th, 2017]
- Model advances analysis of offshore BOP closure during extreme conditions - WorldOil (subscription) - February 18th, 2017 [February 18th, 2017]
- IRS Cracks Down on Offshore Tax Cheats - CPAPracticeAdvisor.com - February 18th, 2017 [February 18th, 2017]
- Vineyard Power vying for offshore wind farm - Cape Cod Times (subscription) - February 18th, 2017 [February 18th, 2017]
- Offshore Yuan Exposed to Onshore Risks as Spread Narrows - DailyFX - February 18th, 2017 [February 18th, 2017]
- Offshore Somalia: East Africa's Oil Frontier - Midnimo Information Center - February 20th, 2017 [February 20th, 2017]
- Emas Offshore refinancing deal delayed - Splash 247 - Splash 247 - February 20th, 2017 [February 20th, 2017]
- The Offshore Markets: 2016 In Review - Hellenic Shipping News Worldwide - February 20th, 2017 [February 20th, 2017]
- Court Declines to Halt Long Island Offshore Wind Lease - RTO Insider - February 20th, 2017 [February 20th, 2017]
- Fuel the American economy with offshore energy - The Detroit News - February 20th, 2017 [February 20th, 2017]
- Congress says won't renew liquor licenses of offshore casinos in Goa - Times of India - February 20th, 2017 [February 20th, 2017]
- An offshore deal for Indigenous people? - Policy Options (registration) - February 20th, 2017 [February 20th, 2017]
- Exclusive: Petronas considers $1 billion stake sale in offshore gas project - sources - Reuters - February 20th, 2017 [February 20th, 2017]
- JDR wins US offshore wind farm work - OE Digital - February 20th, 2017 [February 20th, 2017]
- Offshore Drilling - 2 Floaters Needed In The Verbier Field And In The Partridge Prospect In UK North Sea - Seeking Alpha - February 20th, 2017 [February 20th, 2017]
- Rystad Energy Believes That Offshore Projects Are Becoming Competitive Again - Seeking Alpha - February 20th, 2017 [February 20th, 2017]
- EnBW Hohe See 500 MW Offshore Wind Farm To Proceed With Siemens & Enbridge - CleanTechnica - February 20th, 2017 [February 20th, 2017]
- Offshore catering staff reject offer after phone ballot - BBC News - February 21st, 2017 [February 21st, 2017]
- Child abuse inquiry to hold limited public hearings into offshore ... - The Guardian - February 21st, 2017 [February 21st, 2017]
- Iberdrola Completes Installation Of First Turbine At 350 Megawatt ... - CleanTechnica - February 22nd, 2017 [February 22nd, 2017]
- Offshore drilling opponents re-gear for new round of battles | News ... - Charleston Post Courier - February 22nd, 2017 [February 22nd, 2017]
- Hornbeck Offshore Services: Too Many Problems Will Drag The Stock Further Down - Seeking Alpha - February 22nd, 2017 [February 22nd, 2017]
- US grid can handle more offshore wind power, cutting pollution and power costs - Science Daily - February 22nd, 2017 [February 22nd, 2017]
- Fugro to conduct natural leakage survey in offshore Kenya ... - Offshore Technology - February 23rd, 2017 [February 23rd, 2017]
- Russia inks second Turkish Stream pipe offshore construction contract - New Europe - February 23rd, 2017 [February 23rd, 2017]
- Trump to seek jobs advice from firms that offshore US work - Reuters - February 23rd, 2017 [February 23rd, 2017]
- W&T Offshore Expected to Reduce Net Losses in 4Q16 - Market Realist - February 24th, 2017 [February 24th, 2017]