Asset protection issue hasn’t lost its topicality. Perhaps, it well known fact that corporate raid is still active in Russia and other countries of CIS. Corporate raid comes from competitors, family members and even from state.
The distinct matter is asset seizure after change of political regime: recent examples are Kyrgyzstan when the same assets have changed its owners several times. Another examples could be found in Georgia and Ukraine.
Asset protection in developed countries that have gone through corporate raid period is about protection of the ‘second American dream’ (judicial seizure of one million dollars) in corporate and matrimonial disputes. For instance, Panamanian foundations can protect jointly acquired assets in divorce disputes.
Kazakhstan is familiar with the issue of corporate, matrimonial disputes and corporate raids from competitors (the latters usually operate through state bodies and courts).
Corporate raid combatting practice in CIS countries has developed its own techniques. As a rule, it’s a system of measures that include hiding of beneficial owners of business (real estate and other assets), use of bilateral investment protection treaties, incorporation of a foreign elements into corporate structure, etc.
Hiding the beneficiary owner is the most used technique of asset protection. High level of confidentiality won’t allow competitors to identify the real owner of business, accordingly to commence pretended dispute or to make the owner to surrender assets. The most remarkable example is the Domodedovo case when the Russian prosecutor general couldn’t identify the real owner of the airport (http://www.alebedev.ru/media/7668.html).
Another widely used method is so called ‘treaty shopping’. The main idea behind the treaty shopping is, apart from tax planning, a use of jurisdictions that have executed investment protection treaties with a country with high political risks. According to bilateral investment protection treaties if investors interest and rights are violated such investor may submit a claim to international arbitration. It is well known fact that the Netherlands is not only a perfect holding jurisdiction but also has a wide network of bilateral investment treaties.
As of the end of 2011 there were 3 cases related to disputes with Kazakhstan in international arbitration. Full details may be found on: http://www.s2bnetwork.org/fileadmin/dateien/downloads/Dutch_Bilateral_Investment_Treaties.pdf.
There were some cases when citizens of Czech Republic and Ukraine have incorporated parent companies in the Netherlands in order to protect their assets and arbitration awards have protected their interests.
Some of entrepreneurs are intending to protect their assets from future heirs disputes. Please see Bosh (http://en.wikipedia.org/wiki/Robert_Bosch_Stiftung) and IKEA (http://ru.wikipedia.org/wiki/Stichting_INGKA_Foundation) foundations for the reference.
Combination of tax planning actions and asset protection precautions can be achieved.