Tracing Is Not Recovery

"One of the most common misconceptions is assuming that Asset Tracing and Asset Recovery are the same. They are not."

That sentence sits in a side note on this firm's own page describing the constituencies it serves. It is formatted as a caution. It is better read as a thesis, because the distinction it draws is not terminological. It is a question of who controls what.

Tracing is an act of enquiry. Recovery is an act of enforcement. Between the two stand four gates: an available legal remedy, a forum with authority over the asset, the continued availability of the asset, and the enforceability of whatever judgment results. Each is a separate failure point. Not one of the four is controlled by the person doing the tracing.

That last clause is the argument. Everything else follows from it.

The four gates, and who holds each

The remedy. Whether a wrong is actionable at all, whether the claim is proprietary or merely personal, whether limitation has run, whether the loss is recoverable in a forum you can reach — these are questions of law in each relevant territory. They are answered by counsel, and they are answered before the investigation is worth commissioning rather than after it concludes. An investigator who does not ask which remedy the findings are meant to feed is producing a document, not evidence.

The forum. A court must have authority over the asset, or over the person who controls it, or over an intermediary that can be compelled. Assets sit where they sit, and they sit there under the law of that place. The gate is held by a court, and courts are not persuaded by the quality of an investigative file. They are persuaded by jurisdiction.

Availability. An asset identified is not an asset restrained. The interval between discovery and restraint is the interval in which assets move, and it is the only gate held by the counterparty — the one actor in the sequence whose interests are opposed to yours and who can act without giving notice. Every hour of that interval is a decision about risk that the client, not the investigator, is bearing.

Enforceability. This is the gate most often waved through, and the one where the calendar has recently moved. The 2019 Hague Judgments Convention entered into force for the United Kingdom on 1 July 2025, following deposit of the instrument of ratification on 27 June 2024. It had entered into force on 1 September 2023 for the European Union — all member states other than Denmark — and for Ukraine, for Uruguay on 1 October 2024, for Albania and Montenegro on 1 March 2026, and for Andorra on 1 June 2026. The United States and Russia have signed and not ratified.

Two features of that instrument matter more than its arrival. It applies only to judgments given in proceedings commenced after the Convention was in force in both contracting states, so it does nothing for a matter already running. And it does not extend to interim measures such as injunctions. The instrument that improves the position of a claimant seeking to enforce a final judgment across a border therefore does nothing for the freezing order — which is the measure that determines whether there is anything left to enforce against by the time the judgment arrives.

That is the shape of the enforceability gate in general. It improves on a schedule set by treaty ratification, not by the merits of a case, and it improves last where it is needed first.

What tracing does deliver

A serious tracing mandate produces identification of assets and the structures holding them, corporate network and beneficial-ownership mapping across jurisdictions, fund-flow analysis, the identification and location of witnesses, evidence that sits outside the scope of formal discovery, and an assessment of an opponent's interests, priorities and vulnerabilities. Applied properly, it critically affects the strategy and advice a client receives from their lawyers and other advisers. That is a real product and it is frequently decisive.

It delivers one further thing, less often stated: an accurate estimate of whether the four gates are open. A tracing exercise that concludes recovery is improbable, and says so in the third week rather than the ninth month, has done its job. It has converted an unbounded loss into a bounded one, which is what the client actually needed and rarely what they asked for.

The argument

Mandates that merge tracing and recovery into a single deliverable are mispriced, and the mispricing runs against the client in three ways.

First, it transfers risk. Four gates the investigator cannot control are folded into one outcome the investigator is judged on. The investigator prices that risk — into the fee, the scope, or the caveats — and the client pays for the transfer of a risk that did not need transferring, because it was always going to be borne by whoever owns the litigation strategy.

Second, it corrupts reporting. A firm measured on recovery has a standing incentive to keep an unpromising trail warm. The incentive does not require dishonesty to operate; it operates through emphasis, through the length of the section on what might yet be found, through the meeting that is scheduled rather than the letter that is written. Honest reporting on a dead trail is the single most valuable output of this discipline and the one most easily suppressed by the wrong mandate structure.

Third, it displaces counsel. Three of the four gates are legal questions. A structure that positions the investigator as the party responsible for the outcome quietly demotes the people who hold the instruments that produce it.

The obvious objection is that clients want an outcome rather than a report, and that separating the two is self-serving — it lets an investigator be paid for finding nothing. That objection has force, and the answer to it has to be symmetrical to be worth anything. Separation is only defensible if the tracing mandate carries a corresponding obligation: to state in writing, and early, when the gates look closed, and to recommend stopping. A firm that wants to be paid for enquiry rather than for outcome has to accept the duty to end the enquiry. That is the cost of the position, and a firm unwilling to pay it should not take the position.

What can honestly be said

Tracing may unlock a high degree of transparency. It does not guarantee the successful recovery of assets, and no private firm can, because recovery depends on legal remedies, jurisdictional authority, the availability of the assets, timing and the enforceability of legal claims — and a private firm holds none of those. A firm that promises otherwise is not promising more capability. It is promising authority over a court, a jurisdiction and an adversary that it does not have.

The useful question at the outset of a matter is therefore not "can you find it". It is "if you find it, which court, under what remedy, restrained how, and enforceable where". Where those four answers exist, tracing is among the highest-leverage work available. Where they do not, the honest deliverable is a short document that says so.

Nothing here is legal advice, and none of it describes the position in any particular jurisdiction; the remedies, limitation periods and enforcement routes that apply to a specific matter are questions for counsel in each relevant territory.

Where the four gates are open, the work that opens them is set out under Litigation Support & Evidence and Corporate Intelligence & Investigations Group.