Crypto fugitive Do Kwon faces US and South Korean charges. Who gets him first?

NEW YORK - Terraform Labs co-founder

Do Kwon is in a jail in Montenegro,

but his ultimate destination will likely be the United States or South Korea.

Both countries have charged him in connection with an alleged cryptocurrency fraud that

wiped out US$40 billion (S$53 billion) in market value.

But which country will get first crack at the TerraUSD creator? US and South Korean prosecutors have both said they will request Kwon’s extradition.

Montenegro’s Justice Minister Marko Kovac said on Wednesday that a judge would decide how to proceed.

“Consideration will be given to the gravity of crimes, location of committed offences, sequence of requests, as well as citizenship” of the suspects, he said.

He also said Kwon might need to serve time in Montenegro, where he was arrested for travelling on fake documents, before he is extradited anywhere.

Who actually gets Kwon into a courtroom first on crypto fraud charges will likely depend on both legal and political considerations.

What is extradition?

Extradition is the legal process by which one nation turns over a person to another nation to face prosecution or punishment. The rules are typically spelt out in bilateral or multilateral treaties.

Do the US and South Korea have extradition treaties with Montenegro?

Neither the US nor South Korea has a direct extradition treaty with Montenegro, but both have access to other legal mechanisms to get their hands on Kwon.

Fugitives have previously been sent to the US under Montenegro’s Law on International Legal Assistance in Criminal Matters. South Korea and Montenegro are both signatories to the European Convention on Extradition.

How does Montenegro handle competing extradition claims?

Under Montenegrin law, if two or more countries are seeking extradition, the court will consider the seriousness of the charges brought by the countries, where the alleged crimes were committed, when each country made its extradition request, the nationality of the fugitive and other factors.

Who has the stronger claim to Kwon?

Many legal experts think South Korea would have priority as Kwon is a citizen of that nation and was first charged there. South Korean prosecutors brought a case against Kwon in September, while their US counterparts indicted him only on March 23, hours after he was arrested.

So does that settle it?

Not necessarily. Though South Korea may have stronger legal footing, the decision could be influenced by politics and diplomacy. Both Montenegro, a Nato member, and South Korea, a US defence treaty ally, may want to avoid directly challenging the US over the matter.

Could the countries reach a deal?

Yes. The US could argue that it has a better ability to prosecute Kwon and also seize any of his assets around the world. The US could agree to share the proceeds of those seizures with victims from South Korea. They could also agree that one country or the other will proceed first. Even if Kwon is sent from Montenegro to South Korea, that country could then decide to send him to the US for the first trial.

In the 1MDB case, Malaysia released former Goldman Sachs banker Roger Ng from custody so that he could be prosecuted in New York first.

Can Kwon challenge extradition?

Most countries, including Montenegro, allow extradition only for offences that are crimes in both countries. Kwon could try to focus on differences in the nations’ statutes to argue that he cannot be extradited. In some cases, extradition disputes carry on for months, even years.

But Kwon might also consider where he would spend all that time. His fellow crypto mogul Sam Bankman-Fried initially said he would fight extradition to the US on fraud charges, but changed his tune after he was taken from his luxury penthouse and locked up in a notorious Bahamian prison. He is now awaiting trial at his parents’ house in California while free on a US$250 million bail package. BLOOMBERG