Читать книгу Anti-Money Laundering State Mechanisms - Michele Sciurba - Страница 13

Very early on, the US worked on establishing US legislation with extraterritorial effect. One of the first pieces of legislation having extraterritorial effect was the Trading with the Enemy Act 1917⁶⁰, which gave the US President extensive powers to prohibit any form of trading with the enemies of America, such as North Korea or Cuba. Today, the Patriot Act provides expanded control, monitoring and sanction mechanisms for US authorities and courts to establish extraterritorial jurisdiction. The international financial system strongly depends on the US as a clearing location, as the USD is the lead currency. With this in mind, the OFAC and the Patriot Act have implemented a US-centred control and sanction policy that is repeatedly in conflict with international agreements at the UN and EU levels. As a US reference is often impossible to avoid for international financial institutions, the US authorities de facto force those institutions to agree on settlements to prevent losing access to the US financial market.⁶¹ Against this background and the unpredictable nature of the Trump Administration, financial institutions outside the US are currently very cautious and reserved when dealing with Iran, despite the transactions in question being legal within the EU.⁶²

Above all, the Patriot Act has overridden significant principles of the rule of law. Notably, the Act has given the US investigative authorities, including the US intelligence services, a considerable range of powers, in evident violation of international law. All the more striking is that the International Convention for the Suppression of the Financing of Terrorism 1999⁶³ already comprehensively regulates AML/CTF matters and obligations of financial institutions, such as the KYC requirements and the freezing of assets. Yet, in contrast to the Patriot Act, the relevant UN Conventions are consistent with human rights law and international humanitarian law.

1 MJ Anderson and TA Anderson, ‘Anti-Money Laundering: History and Current Developments’ (2015) JIBLR 30(10) 522.

2 [1927] 274 U.S. 259.

3 R Quedenfeld, ‘Grundlagen der Geldwäschebekämpfung’ in R Quedenfeld (ed), Handbuch: Bekämpfung der Geldwäsche und Wirtschaftskriminalität (4th edn, ESV 2017) 23.

4 Bank Secrecy Act of 1970 (BSA) (Pub. L. 91-508).

5 EJ Gouvin, ‘Bringing out the Big Guns: the USA PATRIOT ACT, Money Laundering, and the War on Terrorism’ (2003) Baylor L Rev 55, 963.

6 Right to Financial Privacy Act of 1978 (RFPA) (Pub. L. 95-630).

7 D Cox, Handbook of Anti-Money Laundering (1st edn, Wiley 2014) 15.

8 ECOSOC UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (20 December 1988, entered into force 11 November 1990) 1582 UNTS 27627.

9 P Alldridge, ‘Money Laundering and Globalization’ (2008) Journal of Law and Society 35(4) 438.

10 WH Muller, ‘Anti-Money Laundering – A Short History’ in WH Muller, CH Kalin and JG Goldsworth (eds), Anti-Money Laundering: International Law and Practice (Wiley, Chichester 2007) 6.

11 Proceeds of Crime Act 2002 (POCA 2002) (c 29).

12 Terrorism Act 2000 (c 11).

13 Anti-terrorism, Crime and Security Act 2001 (c 24).

14 Directive 2001/97/EC of the European Parliament and of the Council Amending Council Directive 91/308/EEC on Prevention of the Use of the Financial System for the Purpose of Money Laundering (2nd AMLD) [2001] OJ L 344/76.

15 EJ Gouvin, ‘Bringing out the Big Guns: the USA PATRIOT ACT, Money Laundering, and the War on Terrorism’ (2003) Baylor L Rev 55, 963.

16 Money Laundering Control Act of 1986 (Pub. L. 99-570).

17 MJ Anderson and TA Anderson, ‘Anti-Money Laundering: History and Current Developments’ (2015) JIBLR 30(10) 523 f.

18 R Quedenfeld, ‘Grundlagen der Geldwäschebekämpfung’ in R Quedenfeld (ed), Handbuch: Bekämpfung der Geldwäsche und Wirtschaftskriminalität (4th edn, ESV 2017) 23. – The fight against criminal organisations that operate all over the world, especially drug cartels, has required cross-border cooperation among all states. This led to the adoption of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances in 1988 and the founding of the Financial Action Task Force (FATF) in 1989 with its 40 recommendations on combating money laundering issued in 1990.

19 D Cox, Handbook of Anti-Money Laundering (1st edn, Wiley 2014) 687.

20 EJ Gouvin, ‘Bringing out the Big Guns: the USA PATRIOT ACT, Money Laundering, and the War on Terrorism’ (2003) Baylor L Rev 55, 964.

21 In Germany, for example, bank secrecy towards investigating authorities, courts or other authorities has been lifted with the introduction of §24c of the Banking Act (KWG) in 2005. These authorities can access the customers’ account data at any time without their knowledge. Comparable legislation has been implemented across the G20 countries. See N Johannesen and G Zucman, ‘The End of Bank Secrecy? An Evaluation of the G20 Tax Haven Crackdown’ (2014) American Economic Journal: Economic Policy 6(1) 66 ff.

22 See the Comprehensive Crime Control Act 1984 (Pub. L. 98-473) and the Anti-Drug Abuse Act of 1988 (Pub. L. 100-690). – The Comprehensive Crime Control Act provides a number of additional tools that enable investigators to take actions against drug trafficking, including money laundering, and corrupt organisations. The Anti-Drug Abuse Act classifies also car dealers and real estate closing agents as financial institutions and obliges them to report transactions above USD 3,000. See further MJ Anderson and TA Anderson, ‘Anti-Money Laundering: History and Current Developments’ (2015) JIBLR 30(10) 523 ff.

23 See the Annunzio-Wylie Anti-Money Laundering Act of 1992 (Pub. L. 102-550), the Money Laundering Suppression Act of 1994 and the Money Laundering and Financial Strategy Act of 1998 (Pub. L. 105-310). – The Annunzio-Wylie Anti-Money Laundering Act has resulted in a significant expansion of powers in the fight against money laundering and established the Bank Secrecy Act Advisory Group (BSAAG), which consists of 30 members who advise the Treasury Department on the development of AML programs. Furthermore, the Act provides whistle-blower immunity for financial institutions filing SARs. The Money Laundering Suppression Act aims to strengthen the control of money service businesses (MSBs) and expands the concept of financial institutions. For this extended group, immunity applies as well. The Money Laundering and Financial Strategy Act requires the Department of Treasury and other authorities to develop national AML strategies. See MJ Anderson and TA Anderson, ‘Anti-Money Laundering: History and Current Developments’ (2015) JIBLR 30(10) 524 f.

24 Financial Crimes Enforcement Network (FinCEN), ‘BSA Timeline’ <https://www.fincen.gov/resources/statutes-and-regulations/bank-secrecy-act/bsa-timeline> accessed 26 August 2017.

25 JW Moscow, ‘USA’ in WH Muller, CH Kalin & JG Goldsworth (eds), Anti-Money Laundering: International Law and Practice (Wiley, Chichester 2007) 111.

26 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PARTIOT Act) (Pub. L. 107-56).

27 See in particular sections 312-314, 319(b), 325-326, 351-352, 356, 359 and 362.

28 Financial Crimes Enforcement Network (FinCEN), ‘USA PATRIOT Act’ <https://www.fincen.gov/resources/statutes-regulations/usa-patriot-act> accessed 26 August 2017.

29 U.S. Department of the Treasury, ‘Treasury Order 180-01’ <https://www.treasury.gov/about/role-of-treasury/orders-directives/Pages/to180-01.aspx> accessed 26 August 2017.

30 D Cox, Handbook of Anti-Money Laundering (1st edn, Wiley 2014) 690 ff.

31 JW Moscow, ‘USA’ in WH Muller, CH Kalin & JG Goldsworth (eds), Anti-Money Laundering: International Law and Practice (Wiley, Chichester 2007) 113 f.

32 Directive (EU) 2015/849 of the European Parliament and of the Council on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, Amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and Repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (4th AMLD) [2015] OJ L 141/73.

33 Financial Action Task Force (FATF), ‘FATF 40 Recommendations’ (20 June 2003).

34 FATF, ‘FATF IX Special Recommendations’ (22 October 2004).

35 Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 (USA Freedom Act) (Pub. L. 114-23).

36 B Zagaris, ‘The Merging of the Anti-Money Laundering and Counter-Terrorism Financial Enforcement Regimes after September 11, 2001’ (2004) Berkeley J. Int’l L. 22(1) 124.

37 Council Directive 91/308/EEC on Prevention of the Use of the Financial System for the Purpose of Money Laundering [1991] OJ L 166/77.

38 See United States Senate ‘Hearings before the Committee on Banking, Housing, And Urban Affairs’ (S. Hrg. 108-802) (2004) <https://www.gpo.gov/fdsys/pkg/CHRG-108shrg20396/html/CHRG-108shrg20396.htm> accessed 30 August 2017.

39 B Zagaris, ‘The Merging of the Anti-Money Laundering and Counter-Terrorism Financial Enforcement Regimes after September 11, 2001’ (2004) Berkeley J. Int’l L. 22(1) 131.

40 ibid 129.

41 Legal Information Institute, ‘31 U.S. Code §5318A – Special Measures for Jurisdictions, Financial institutions, International Transactions, or Types of Accounts of Primary Money Laundering Concern’ <https://www.law.cornell.edu/uscode/text/31/5318A> accessed 30 August 2017.

42 B Zagaris, ‘The Merging of the Anti-Money Laundering and Counter-Terrorism Financial Enforcement Regimes after September 11, 2001’ (2004) Berkeley J. Int’l L. 22(1) 133.

43 EJ Gouvin, ‘Bringing out the Big Guns: the USA PATRIOT ACT, Money Laundering, and the War on Terrorism’ (2003) Baylor L Rev 55, 971 f.

44 B Zagaris, ‘The Merging of the Anti-Money Laundering and Counter-Terrorism Financial Enforcement Regimes after September 11, 2001’ (2004) Berkeley J. Int’l L. 22(1) 133.

45 Legal Information Institute, ‘31 U.S. Code §5318 – Compliance, Exemptions, and Summons Authority’ <https://www.law.cornell.edu/uscode/text/31/5318> accessed 30 August 2017

46 B Zagaris, ‘The Merging of the Anti-Money Laundering and Counter-Terrorism Financial Enforcement Regimes after September 11, 2001’ (2004) Berkeley J. Int’l L. 22(1) 133.

47 Office of Counterterrorism, ‘Terrorist Exclusion List. Fact Sheet’ (December 2004) <https://2001-2009.state.gov/s/ct/rls/fs/2004/32678.htm> accessed 30 August 2017.

48 Gramm-Leach-Bliley Act (GLBA) of 1999 (Pub. L. 106-102).

49 EJ Gouvin, ‘Bringing out the Big Guns: the USA PATRIOT ACT, Money Laundering, and the War on Terrorism’ (2003) Baylor L Rev 55, 983.

50 R Garver, ‘Will USA Patriot Act Prove A Recipe for Trouble?’ (2002) American Banker 167(77) 10.51

51 Financial Crimes Enforcement Network (FinCEN), ‘USA PATRIOT Act’ <https://www.fincen.gov/resources/statutes-regulations/usa-patriot-act> accessed 30 August 2017.

52 B Dolar and WF Shughart, ‘Enforcement of the USA Patriot Act’s Anti-Money Laundering Provisions: Have Regulators followed a Risk-Based Approach?’ (2011) Global Finance Journal 22(1) 22. – These immense costs that banks have to bear themselves in terms of the increased requirements of monitoring and reporting by AML/CTF policy has resulted in bank officers filing SARs frequently without reasonable grounds in order to avoid possible liability both in the US and the UK. In addition, accounts of bank clients with migration background, which usually have low incomes, are terminated or not opened at all if it is not profitable in the bank’s view. The rationale is to avoid costs for AML compliance under the new de-risking policy. See further G Lilienthal and N Ahmad, ‘Terrorism and Bank Secrecy: Has this Time-Honored Duty Been Abridged?’ (2015) JIBLR 30(10) 553.

53 B Zagaris, ‘The Merging of the Anti-Money Laundering and Counter-Terrorism Financial Enforcement Regimes after September 11, 2001’ (2004) Berkeley J. Int’l L. 22(1) 135.

54 ibid.

55 EJ Gouvin, ‘Bringing out the Big Guns: the USA PATRIOT ACT, Money Laundering, and the War on Terrorism’ (2003) Baylor L Rev 55, 981 f.

56 See O Thränert, ‘Ein historischer Durchbruch? Obama und das Atomabkommen mit dem Iran’ (2017) Z Außen Sicherheitspolit 10(2) 155 f.

57 W Blair, R Brent and T Grant, Banks and Financial Crimes: The International Law of Tainted Money (2nd edn, OUP 2017) 504 f.

58 U.S. Department of the Treasury, ‘Guidance relating to the Lifting of Certain U.S. Sanctions Pursuant to the Joint Comprehensive Plan of Action on Implementation Day’ (16 January 2016). – In general, export controls for goods are also required as well as a special license for the export or reimport of goods to Iran. It is further prohibited to mediate or provide advice on a wide range of financial transactions affecting Iran. See Iranian Assets Control Regulations, 31 CFR pt 535 and Iranian Stabilization and Insurgency Sanctions Regulations, 31 CFR pt 576.

59 Council Regulation (EC) No. 2271/96 Protecting against the Effects of the Extra-Territorial Application of Legislation Adopted by a Third Country, and Actions Based Thereon or Resulting Therefrom [1996] OJ L 309/1.

60 Trading with the Enemy Act of 1917 (TWEA) (Pub. L. 65-91).

61 Here, see ‘Settlement Agreement between the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and BNP Paribas SA (BNPP) (COMPL-2013-193659)’ of 2014 and ‘Settlement Agreement between the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and Commerzbank AG (Commerzbank) (FAC No. 713262)’ of 2015.

62 SK Dehghan, ‘Europe’s Big Banks Remain Wary of Doing Business with Iran’ (The Guardian, 24 January 2016) <https://www.theguardian.com/world/2016/jan/24/europes-big-banks-remain-wary-doing-business-with-iran> accessed 30 August 2017.

63 UNGA International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999, opened for signature 10 January 2000, entered into force 10 April 2002) (2000) 39 ILM 270. – See in particular Article 18(1) in terms of KYC requirements and SAR filing, and Article 18(2) in terms of the obligation of signatory states to cooperate on preventing TF.