Abraaj founder’s lawyers argue UK is more appropriate venue for trial and cite suicide risk
Arif Naqvi attempts to have criminal case linked to the collapse of the private equity firm held outside the US, where he faces fraud and money laundering charges if extradited
Lawyers for Arif Naqvi, the founder of the now defunct private equity firm Abraaj Group, are calling on UK courts to refuse his extradition to the US, where he faces fraud and money laundering accusations, on the premise that the majority of his company’s operations were conducted in the UK. They argue that makes the UK the appropriate place, or ‘forum’ where his criminal case should be heard.
“The defence invite the court to discharge Mr Naqvi on two grounds, namely that: Mr Naqvi’s extradition is barred by reason of forum and his extradition would be incompatible with Article 3, ECHR (European Convention on Human Rights),” according to the defence’s skeleton argument seen by The National.
Citing a previous case (Love v Government of the United States) as precedent, the defence argues that article 83A of the UK’s Extradition Act 2003 stipulates a person is barred by reason of forum if the extradition would not be in the interest of justice. The section’s “underlying aim is to prevent extradition where the offences can be fairly and effectively tried here, and it is not in the interests of justice that the requested person should be extradited,” the defence wrote, citing the previous case.
Mr Naqvi, 59, was arrested in the UK last year, where he is out on bail. If extradited to the US and convicted he faces 291 years in jail, which his lawyers said "would amount to an effective life sentence."
Mr Naqvi’s lawyers go on to argue that a “substantial measure of Mr Naqvi’s relevant activity was performed in the UK”, and cite the deposition of Adnan Siddiqui, Abraaj’s former general counsel, who was with the company for 15 years.
“London was where the investor coverage team sat and produced marketing materials for investors and was where all the major new initiatives of the Abraaj Group were incubated (healthcare, real estate, special situations, energy and credit) … the majority of our external professional advisers were London-based, as were many of the Abraaj Group’s stakeholders,” Mr Siddiqui is cited as saying. “The axis of the Abraaj Group was between Dubai and London … London was where Arif [Naqvi] sat (when he wasn’t on a plane or in Dubai).”
Mr Siddiqui also explained that, “the US was of little or no significance to Abraaj although it became more important in terms of seeking investment into the Abraaj Global Healthcare Fund and the Abraaj Private Equity Fund VI”.
Abraaj, which claimed to have managed almost $14 billion (Dh51.4bn) in funds at its peak, was forced into liquidation in June 2018 after a group of investors, including the Bill & Melinda Gates Foundation, the World Bank’s International Finance Corporation and The Overseas Private Investment Corporation (Opic), a US government agency, commissioned an audit to investigate the alleged mismanagement of money in its $1bn healthcare fund.
The defence also cites Ahamed Vahid, a former senior vice president for Abraaj’s private equity business, who said: “If the group had a beating heart it was in Dubai, but its mind and control was wherever Arif was, which was often in London, which is where the main investor coverage operation was.”
Mr Naqvi’s lawyers argue that Abraaj’s Global Investment Committee, which had the last say over investment decisions, was chaired by him, and that he resided mostly in London alongside a former managing partner, Sev (Sivendran) Vettivetpillai, also in London.
Mr Naqvi’s lawyers contend that many board, shareholder and management meetings took place in London and that the largest office of the firm outside of Dubai was the UK. They also point to the company’s legal advisers being based in London.
“From 2002 onwards Abraaj always used London-based advisors including: Norton Rose Fulbright; Clifford Chance; Allen & Overy; McFarlanes; KPMG; McKinsey; PWC; and E&Y. These advisors pretty much provided the blueprint for the strategy and growth of Abraaj,” Mr Vahid is cited as saying.
Mr Naqvi’s lawyers also argue that Abraaj’s investor coverage team, which drew up the marketing material used for pitching investments to potential clients, was based in London.
Lawyers also argue that elements related to the healthcare fund, which drew the scrutiny of investors and sparked the unravelling of Abraaj, were based in London. They cite the fund’s financial controller as being based in London. They also go on to argue that Abraaj’s credit fund business was based in the UK, that the bank accounts for the company’s funds from its Generation 5 fund onwards were held with Barclays in London and Northern Trust in Ireland.
Lawyers cite the purchase of a London office by Abraaj and the intent to list the company on the London Stock Exchange as other elements that bolster their argument to quash the extradition request.
“In light of all of those features of the context in which the alleged offending took place, the defence maintain the ‘substantial measure of activity’ test is clearly met here,” Mr Naqvi’s lawyers argued.
Mr Naqvi’s counsel also questioned the domicile where the losses were incurred.
“There is a US-dimension to the losses/harm alleged, and therefore to the interests of the alleged victims of the relevant conduct,” they argued. “However, it would be wrong to suggest that the place where most of the loss or harm occurred or was intended to occur was the US. As a global group with investors and partners around the world, and its operations based in London (including in particular its Investment Committee activities) and Dubai, the alleged loss/harm/victims were similarly diverse and predominantly outside the US.”
They added that the interests of US victims “should not be over-stated”, and that there is nothing in the materials filed by the US prosecutors that suggests “there would be any impediment whatsoever to the prosecution of this case in the UK.”
They concluded that “the strength of Mr Naqvi’s connections to the UK are such that his prosecution” in the country “would clearly be in the interest of justice”. The lawyers cited Mr Naqvi’s wife and son both being educated in the UK and that the former head of Abraaj was a resident of the UK since 2003, where he’s had a home for 21 years.
Mr Naqvi’s extradition to the US should be “barred by reason of forum because it would not be in the interests of justice,” the lawyers said in closing.
The lawyers also cite the deteriorating health of Mr Naqvi, who was admitted to a hospital recently on suspicion of contracting Covid-19, which was diagnosed as multifocal pneumonia.
Separately Mr Naqvi's lawyers also argued, that should Mr Naqvi be extradited, there is evidence to suggest that the conditions of his pre-trial detention at two facilities in New York "for any material length of time (beyond a week)" violate Article 3 of the European Convention on Human Rights.
The two facilities where Mr Naqvi would be held include the Metropolitan Correctional Centre (MCC) and the Metropolitan Detention Centre in Brooklyn.
MCC is where the financier and sex offender Jeffrey Epstein was held and died. The facility came under scrutiny following Mr Epstein's death.
Mr Naqvi's lawyers said that within the MCC, the Special Housing Unit (SHU), or ‘9 South’, is a source of particularly acute concern. They cite statements from doctors, Amnesty International and a former warden of the facility.
"The impact on the mental health of those who are confined there is obvious and profound," they argued. Mr Naqvi would be "a high-risk for suicide there, given his mental health problems," they added.
Updated: June 24, 2020 09:23 PM