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Published : November 16, 2010 | Author : samridha
Category : Banking and Finance laws | Total Views : 5635 | Unrated

  
samridha
Samridha Neupane Vth Year NALSAR University of Law Hyderabad
 

Money Laundering: Current Issues And Challenges

In recent years, and especially since the terrorist attacks of September 11, 2001, worldwide efforts to combat money laundering and the financing of terrorism have assumed heightened importance. Money laundering and the financing of terrorism are global problems that not only threaten security, but also compromise the stability, transparency and efficiency of financial systems, thus undermining economic prosperity.[1] Money laundering, the process by which criminals hide, disguise, and legitimize their ill-gotten gains, is a daunting international problem.[2] The International Monetary Fund estimates that laundered money generates $590 billion to $1.5 trillion per year, which constitutes approximately two to five percent of the world's gross domestic product.[3]

Money laundering and the financing of terrorism can have devastating economic and social consequences for countries, especially those which are developing countries or those with fragile financial systems.[4] Financial institutions that accept illegal funds cannot rely on those funds as a stable deposit base since large amounts of laundered funds are likely to be transferred to other financial markets as part of the laundering process, thereby threatening the institution's liquidity and solvency.[5]

The term "money laundering" describes the process of concealing the true owners of illegally obtained funds.[6] This process gives legitimacy to criminal funds by "washing" them through various institutions "so that they can be used without detection of the illegal activity that produced them." Each phase of money laundering, also known as a "washing cycle," removes a "layer of the taint or criminal staining from those funds."[7]

Generally, the money laundering process consists of three phases: placement, layering, and integration of money.[8] The first phase, placement, occurs when funds derived from criminal activity are introduced for the first time to a legitimate financial institution. During the second phase, layering, funds are transferred to and from various financial institutions in order to make it difficult for authorities to trace those funds to the location of their initial deposit. Finally, the integration phase legitimizes the "dirty" funds by transferring them to legitimate business enterprises.[9]

While "primarily a paperless crime, without physical violence directed at individuals," money laundering can have a widespread detrimental impact on a nation's economy.[10] Laundering undermines and manipulates legitimate businesses by allowing considerations other than sound business practice to influence decisions. It corrupts public officials, perhaps even entire governments, by buying votes and influencing the actions of politicians and career officials. It distorts 1390 macroeconomic estimates, skews currency markets, and destabilizes financial institutions through the creation of illegal economies.[11]

Money laundering may even destabilize the global economy.[12] While the foregoing comments reflect strong criticisms of money laundering, one commentator suggests that efforts to prevent money laundering "all have in common that they view money laundering not as a reprehensible activity in itself, but as part of a larger criminal activity which is harmful to society."[13] Drugs and money laundering are inextricably linked. Drug trafficking and abuse now plague the global community. Few individuals will dispute that narcotics trafficking has become one of the most lucrative underground economies, generating billions of dollars annually[14]. The war against drugs has risen to such a paramount concern that it has brought law enforcement officials around the world together in an effort to control drug trafficking[15].

Law enforcement organizations are attempting to curb the escalating levels of narcotics trafficking by gaining some control over money laundering practices[16]. Law enforcement officials hope that if the proceeds of drug trafficking cannot find their way back to narcotics producers, and then the importation of drugs may decline[17]. As a result, countries heavily involved in narcotics trafficking are slowly instituting anti-money laundering statutes in an effort to combat narcotics trafficking and abuse. India is no exception to this trend[18]. India is currently suffering from a burgeoning narcotics trade and the crimes associated with it. This project will describe the nature of money laundering as well as various international and national attempts to combat it. It further explores arguments for and against India's use of anti-money laundering legislation as a method of controlling the growing heroin trade.

2. Background To Money Laundering
While no two money laundering systems are the same, the money laundering process essentially consists of three stages, namely the placement of money, the layering of money, and the integration of money[19]. Placement refers to the physical disposal of illicitly obtained cash into a financial institution. The layering of money refers to the movement of money through several accounts or institutions in an effort to separate the money from its illegal source. Integration refers to the re-introduction of funds into the legitimate economy. In the placement stage, the money launderer transforms illicit funds into more flexible and less suspicious forms[20]. Once transformed, the money launderer deposits the funds into a financial institution. The money laundering process is particularly vulnerable to recognition by law enforcement authorities during the placement stage. The largest hurdle faced by the money launderer in this stage of the money laundering process is the practical one of how to move the money into the layering stage. Cognizant of the preference among money launderers for depositing such large sums, those countries that have instituted anti-money laundering statutes have focused on requiring banks and various deposit taking bodies to report unusual transactions. Such statutes compel professional money launderers to find alternative methods to introduce the funds into the mainstream financial system.
As a result of continually evolving modern technology and the ever increasing scope of global banking, the layering phase of money laundering has proven to be far more resistant against law enforcement efforts. Layering illicit funds is often accomplished through wire transferring funds through offshore banking havens such as Mauritius, Austria, and Hong Kong[21]. When funds are placed in a country that has stringent bank secrecy laws, the origin of the funds becomes extremely difficult to trace[22].

There are various other methods through which money launderers can hide the origin of illicitly earned money. As banks in several countries are compelled to report currency transactions over a certain amount, money launderers often use wire transfers to hide the source of funds. Real estate transactions provide yet another method of repatriating illicitly earned cash into the legitimate economy. Other methods include the establishment of boutique banks[23] and front companies[24].
There are also several mechanisms by which an individual engaged in money laundering activity can disguise his identity. A fairly common vehicle for money laundering operations is the use of numbered accounts in certain foreign countries with stringent bank secrecy policies. Once sufficiently layered through a series of complex transactions, the illegally obtained funds can be integrated into the legitimate financial world. There are a number of ways in which these funds can reenter the financial world. Once the funds are integrated back into the financial system, the money is accessible from anywhere in the world, while the original source of the funds remains unknown.

2.1 Stages In Cleaning "Dirty Money": The Laundry Cycle And Law Enforcement Obstacles
The cycle of money laundering has three steps: placement, layering, and integration.[25] At each step, launderers take action to subvert existing impediments to money laundering.[26]

1. Placement
Placement, the first step in the money laundering process, occurs when dirty money first enters the legitimate financial system by being deposited into financial institutions.[27] This initial step is the most vulnerable to law enforcement detection because it involves the physical disposal of cash.[28] While cash is anonymous - an attractive quality for criminal proceeds - it is bulky and difficult to physically transport. For example, 44 pounds of cocaine worth $1 million equates to 256 pounds of street cash worth the same amount; the cash weighs more than six times the drugs.[29]

Transferring that same $1 million through a series of international transactions is much simpler and more discreet than the logistical nightmare of moving that much cash. In addition, cash is easily lost, stolen, or destroyed.[30] Even where the placement is effected by wire transfer or other non-cash transaction, money launderers face additional problems in the placement stage: financial institution policies and reporting requirements. In recent years, countries have recognized that financial institutions are in a unique position to combat money laundering[31] because traffickers use them to deposit illegal profits.[32] Therefore, countries have instituted programs that require financial institutions to "know their customers,"[33] meaning banks and other institutions should only conduct transactions, such as accepting deposits from or opening accounts for, customers who show identification.[34] By requiring potential launderers to verify their identity and thus relinquish their anonymity, banks aid in deterring money laundering.[35]

Also, many jurisdictions have implemented reporting requirements for financial institutions. In the United States, for example, financial institutions must file Currency Transaction Reports for each transaction that involves more than $10,000. Additionally, individuals must file a Report of International Transportation of Currency and Monetary Instruments when they transport more than $10,000 into or out of the United States.[36] A final measure that financial institutions must implement in many countries is filing Suspicious Activity Reports (SARs) when they suspect a transaction is illegal.[37]

To counter those measures, however, launderers engage in "structuring."[38] This occurs when traffickers hire many people to make small deposits totaling slightly less than the mandatory reporting amount. Launderers will also have family, friends, or acquaintances who are trusted in the community conduct business on the launderers' behalf, thereby disguising the source of the illicit funds.[39] Other launderers use a cash-intensive business, such as a restaurant, to justify large deposits that exceed reporting requirements.[40]

2. Layering
The second step of the money laundering process, layering, occurs when the launderer separates the illicit proceeds from their source through a series of financial transactions.[41] This step is called "layering" because the layers of financial transactions disguise the drug proceeds' owner and obscure the money trail. Layering is the most international and complex step of the laundry cycle because funds are typically moved from one foreign account to another.[42] The Cayman Islands' primary connection with money laundering is in the layering stage, due to the Caymans' large offshore financial sector.[43]

Law enforcement finds that detecting money laundering is particularly difficult when the countries involved in the layering process are tax havens or strict bank secrecy jurisdictions.[44] An example of a layering process is when a money launderer sends funds electronically from one bank to a different bank in another country, then invests and moves the funds within an overseas market to avoid detection.[45] Each transaction that a launderer makes creates an additional layer that law enforcement must analyze in order to follow the paper trail, and "[t]he deeper the 'dirty money' gets into the international banking system, the more difficult it is to identify the origin."[46]

3. Integration
The third and final step of the money laundering process is integration.[47] During integration, the illicit funds return to the legal economy and appear as legitimate business proceeds. For example, after being deposited in a U.S. bank account and wire transferred through Cayman financial institutions, laundered drug proceeds arrive in a bank account in Colombia. The Colombian trafficker then withdraws the money from the bank account and spends it in the legitimate economy on such items as cars or guns.

The paper trail created through the layering process complicates law enforcement's task of determining which funds within the legitimate economy are illegal.[48] Unless law enforcement has established an audit trail during the first two stages of the laundry cycle, the funds' illicit origin will not be discovered.[49] For this reason, the launderer may use the funds for whatever purpose he chooses, including buying luxury goods, such as automobiles or aircraft, and investing in legitimate business enterprises, [50]such as tourism or real estate ventures.[51]

2.2 Hawala System
Within India, the system of money laundering is further complicated by the ancient underground form of banking known as Hawala[52]. Hawala, which means providing a code, was established centuries before the financial systems of the West. Created as a means to facilitate the secure and convenient flow of funds, the system has become increasingly popular over the past few decades. Under the present-day Hawala system, a person wishing to transfer funds to another country deposits the money with a Hawala dealer. The depositor also gives the dealer a code, which must be given by anyone trying to access the funds. Through the use of corporate accounts, the dealer is able to move the funds to one of the dealer's agents in another country. Armed with the code, the intended recipient of the money is able to obtain it from the dealer's agent.

With its lack of governmental supervision, the Hawala system allows individuals to make deposits and withdrawals through Hawala dealers rather than financial institutions. Traditionally, Indians living abroad used the Hawala system to funnel money back to their families. As the Hawala system avoids the use of traditional financial institutions, those who use it are able to avoid fees charged by banks for wire transfers. In recent years, however, the Hawala system has become increasingly susceptible to the laundering of illicit funds. As anti-money laundering legislation had proliferated around the world, the unregulated Hawala system had become a more appealing alternative for money launderers. Regardless of the type of financial intermediary that is used, it is inevitable that a financial institution will be necessary for any successful money laundering operation. It, therefore, seems almost inescapable that law enforcement authorities will focus on financial institutions that are actively involved, albeit often unintentionally, in money laundering. Authorities hope that if all financial institutions are required to report their suspicions, then potential money launderers will find the crime that much harder to commit.

The rise in global money laundering has created an emerging criminal class who are uninvolved with the underlying crimes that generate the illicit proceeds. This new class of criminals consists of professional money launderers who aid and abet criminals through financial activities. For these individuals, money laundering is a lucrative practice, whereby they can earn proceeds ranging from anywhere between two and twenty percent of the cash they launder. It is because of these inherent dangers to the financial services sector that governments are now targeting the financial industry. Many governments fear that when credit and financial institutions are used to launder the proceeds of crime, the stability of the system as well as consumer confidence will systematically erode.

3. International Efforts To Combat Money Laundering
International regimes attempt to monitor or regulate certain international relations and activities.[53] By establishing norms, rules, and procedures agreed to in order to regulate money laundering, international regimes reduce the disparities between divergent legal systems. Members of international money laundering regimes obtain benefits through explicit or tacit cooperation with each other.[54] The United Nations Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances[55] is an example of an international effort that established a new international legal regime for combating drug trafficking. In addition, intergovernmental groups such as the Financial Action Task Force have created a general framework for countries to follow in establishing an anti-money laundering regime. Organizations such as the Basle Committee on Banking Regulations and Supervisory Practices have also aided in the international fight against money laundering by providing a framework for financial institutions to follow.[56] Finally, international law enforcement organizations such as the International Criminal Police Organization have proven instrumental in combating money laundering by promoting mutual legal assistance among law enforcement authorities around the world.[57]

3.1 United Nations Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances
India's urgent need to control drug trafficking reflects growing awareness within the international community that drug trafficking and money laundering must be suppressed. The United Nations has played an integral role in the global community's fight against illicit drug trafficking and money laundering.[58] In 1988, the U.N. passed the U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ("Vienna Convention"). Superseding the Single Convention on Narcotic Drugs of 1961[59], the Vienna Convention is an important new weapon against narcotics trafficking and money laundering. The Vienna Convention created internationally acknowledged drug trafficking offenses to be criminalized under the domestic laws of signatory countries. Moreover, the Vienna Convention has embraced a framework for international cooperation that seeks to penalize drug traffickers as well as those who accept drug trafficking proceeds.

In the Vienna Convention, the U.N. requests that its members to adopt a system of criminal offenses under their domestic laws that address all facets of illicit drug trafficking[60]. Included among this provision's list of offenses are matters such as the manufacture, distribution, or sale of illicit drugs and the organization, management, or financing of illicit trafficking activities[61]. Article 3(1)(b) of the Vienna Convention specifically addresses the problem of money laundering, requiring all parties to the agreement to formally establish money laundering as a criminal offense[62]. This provision also criminalizes the conversion or transfer of property derived from drug related money laundering, as well as the concealment or disguise of its true nature or source. The obligation to establish these money laundering related offenses is, however, subject to the constitutional principles and legal systems of each member state.[63]
In addition, Article 5 of the Vienna Convention requests that members empower their courts and other relevant authorities to freeze or seize the proceeds or converted property derived from drug trafficking[64]. This article further proposes that signatories authorize their courts and other competent authorities to order that bank, financial, or commercial records are available to law enforcement authorities[65]. Under this provision, a party who fails to make such records available to law enforcement authorities faces the penalty of seizure. The Vienna Convention also calls for its members to afford one another the widest measure of mutual legal assistance possible in investigations, prosecutions, and judicial proceedings relating to drug trafficking and money laundering offenses[66].

3.2 Financial Action Task Force On Money Laundering
Intergovernmental groups have also taken action against the rising levels of global money laundering. The creation of the Financial Action Task Force on Money Laundering ("FATF") by the G-7 countries is yet another example of a globally orchestrated effort to curb the occurrence of money laundering. The FATF currently consists of twenty-six countries[67] and two international organizations[68]. The FATF is an intergovernmental organization whose purpose is to develop and promote policies to counter money laundering. In an effort to create anti-money laundering policies that cover all relevant aspects of money laundering, the FATF created the Forty FATF Recommendations. The Recommendations are measures that all member countries of the FATF have agreed to implement, and that all other countries are encouraged to adopt[69]. Designed to be universal in application, the recommendations set forth a general framework for anti-money laundering efforts. The Recommendations reflect the fact that different countries have diverse legal and financial systems and cannot implement identical measures. The Recommendations constitute principles for action in the area of money laundering prevention which countries can tailor to their particular constitutional frameworks. This allows countries a degree of flexibility rather than stipulating every detail.

3.3 Basle Committee Minimum Standards
The Basle Committee on Banking Regulations and Supervisory Practices[70] ("Basle Committee") consists of officials from the central banks and supervisory authorities of eleven major industrialized nations and Luxembourg.[71] In 1988, the Basle Committee adopted a statement of principles that targeted money laundering. Through the issuance of the Statement of Principles, the Basle Committee sought to raise existing sub-par banking regulations in order to meet the increasing risk of financial crisis caused by the globalization of banking.

The Basle Committee announced that banks should attempt to find the true identity of their clients. This principle is commonly known as the know-your-customer rule.[72] The rule gives money launderers less incentive to use banks because domestic and international banks require information regarding a customer's true identity and the nature of the funds being deposited.

In 1992, the Basle Committee issued new minimum standards with respect to governmental supervision and regulation of international banks[73]. The distinguishing elements of the New Minimum standards are that all international banks and banking groups should receive consolidated supervision by a home country regulator, international banks should obtain the prior consent of both host and home regulators before opening a branch or other banking establishment in a foreign country, banking regulators should have the right to collect information from international banks, if a bank fails to meet the minimum standards, a host regulator may impose sanctions against the bank, and information exchanges between banking regulators in different countries should continue to be encouraged. Albeit a vast improvement in the area of bank regulation, the New Minimum Standards contain gaps that banks could exploit in an effort to escape regulation[74]. One such weakness is the fact that the standards target the creation new branches, but do not explicitly apply to existing branches.

Moreover, the New Minimum Standards are not a treaty and consequently lack the force of law. As a result, the Basle Committee must rely on regulators' moral authority and informal pressure to enforce the standards. Finally, the New Minimum Standards encourage countries to implement standards independently, thus making it difficult for continuity to develop among nations.

3.4 Interpol
International organizations aimed at combating global crimes now also play a larger role in drug and money laundering enforcement. National governments often fail to comprehend or appreciate the role played by international organizations in the enforcement of money movement. This lack of understanding results, in part, from the fact that the political rewards for developing a framework for international cooperation with respect to criminal activity are few. Domestic governments have also avoided the work of international criminal organizations because of a widely held misperception that such organizations attempt to undermine governmental enforcement mechanisms. Recently, however, several governments have come to appreciate the need for building a strong global framework in combating money laundering and other financial crimes. This awareness has resulted in a proliferation of legislation, supporting strengthened multilateral cooperation. The International Criminal Police Organization ("Interpol") is an international organization that promotes mutual assistance among criminal police authorities around the world. Established in 1923, Interpol has continued to grow over the years and now has a membership of 177 member countries[75]. Through its expanded membership and vast resources, Interpol has increased its activities to effectively combat the crime of money laundering. In recent years, Interpol has proven instrumental in combating money laundering in areas such as the Caribbean and Latin America. Interpol provides training and technical assistance to law enforcement officials, in order to better educate them about money laundering. Its current initiatives in this area include the development of a new criminal information system which will include increased information on topics such as money laundering and other financial crimes. Interpol plans to link all 177 member countries to the criminal information system, giving member countries greater access to information than they may be able to obtain through nationally maintained databases[76].

Interpol's thirteen member executive committee, to which India is a member, decided to undertake a special study dedicated to money laundering in Asia[77]. Known as Asia watch, the study placed a strong emphasis on money laundering in the Indian subcontinent. The study also included a detailed look at commercial and trade activities that may be closely linked with money laundering. In addition, the Criminal Funds Investigation Group at Interpol also intends to launch a year long study on Hawala the underground banking system that has been in place in India for centuries.

4. The Indian Position On Money Laundering
India has enacted a variety of measures to counter narcotics trafficking and money laundering. In recent years, India has become a significant money laundering concern for law enforcement officials.[78]

4.1 The Heroin Problem
Over the past two decades, India has become a major transit point for narcotics trafficking, particularly for heroin. Situated between what are known as the Golden Crescent[79] to the west, and the Golden Triangle[80] to the east, the world's two largest opium poppy producing areas, India has unwittingly become a major transit point in the heroin trade. Every day, from points such as New Delhi and Bombay dozens of kilograms of pure grade heroin are shipped out of India, bound for destinations in Western Europe and the United States.
India's involvement in the heroin trade with the Golden Crescent, which is comprised of Iran, Turkey, Pakistan, and Afghanistan, dates back to the late 1970s and early 1980s[81]. The preference for routing the heroin through India rather than by land into Western Europe resulted from strict border patrol in the area. As a consequence of the wars under way in the region, borders activity in these countries was strictly monitored.
The countries of the Golden Crescent have begun to establish other avenues for their heroin rather than routing it through India. The decline in heroin entering India from the southwest, however, has not led to a decline in narcotics trafficking in India. As the heroin traffic from the Golden Crescent countries decreased, the amount of heroin entering India from its eastern neighbors increased exponentially. To the east of India lies the Golden Triangle. The countries of the Golden Triangle form the largest opium producing region in the world[82].

In the past, the heroin produced in this Southeast Asian region was sent to the west from Thailand. Until recently, heroin flowed freely through the Thai borders, especially from Myanmar. Stricter patrol of the Thai borders, however, has resulted in a decline in the amount of heroin entering the country. As an alternative to Thailand, the drug lords of Southeast Asia have chosen India as the transit point for their large scale narcotics operations. Aided by Rangoon's military regime, the State Law and Order Restoration Council ("SLORC"), opium travels freely in Myanmar towards the Indian border. Once in India, the heroin is shipped to destinations throughout the globe.
A significant amount of the heroin remains within the country. India's growing role in the global narco-trade has given rise to a generation of people who have grown up with easy access to heroin. In a country that has long suffered from severe poverty, heroin is so cheap that it is accessible to even the poorest income groups. Drug abuse now plagues the Indian subcontinent.

4.2 Pre 2002 Initiatives To Combat Money Laundering
There was a reluctance on the part of Indian bank's to depart from their stringent bank secrecy policies, and this further enabled individuals to launder money in India. The money laundering problem in India is even further complicated by the ancient underground banking system of Hawala. In an effort to eliminate money laundering, the Indian government drafted the Money Laundering Prevention Bill ("MLPB")[83]. It has also entered into agreements with certain countries to assist each other in money laundering investigations.

4.3 Prevention Of Money Laundering Act, 2002.
In 2002, the Bill was passed, and The Prevention of Money Laundering Act came into existence. This Act came into force with effect from July 1st, 2005. Expansive in its scope, the Act prohibits the laundering of the proceeds of a number of crimes. Modeled after the Criminal Justice Act of the United Kingdom, the Act imposes criminal liability on those who know or suspect that someone is involved in laundering the proceeds of crime and fail to report it. Whoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of the offence of money-laundering.[84] Section 4 of the act prescribes the punishment for the offence of Money Laundering as described in section 3. A rigorous imprisonment of 3 to 10 years has been prescribed. The culprit can also be fined up to 5 Lakh Rupees.

Chapter III of the Act lays down provisions regarding attachment, adjudication and confiscation. Section 9 provides for absolute vesting in the central government of all rights and title of the confiscated property free from all encumbrances. Section 10 provides for the appropriate procedure for management of the confiscated property.

Chapter IV of the Act deals with the obligations of Banking Companies, Financial Institutions, and Intermediaries. They are to maintain records of transactions of the prescribed nature and value, furnish it to the director, verify and maintain of records of the identity of the customers in prescribed manner, etcetera.

Chapter V of the Act deals with summons, searches and seizures, and is the source of very wide powers. Section 16 of the act empowers the authority to carry out a survey of the premises where he has reason to believe that offence of money laundering has been committed. The powers conferred are similar to 133A of the Income Tax Act. Section 17 of the act empowers the director where he has reasonable belief which is to be recorded in writing, that any person has committed any act of money laundering, or is in possession of proceeds of the crime or is in possession of records relating to money laundering, to authorize any officer to search premises, seize record or property found, make inventory and examine person in control on oath.

The other provisions of the act provide for establishment of Appellate tribunal (Chapter VI), Special Courts (Chapter VII), Authorities under the act (Chapter VIII), Reciprocal arrangement for assistance in certain matters. (Chapter IX) and Miscellaneous provisions (Chapter X)

There are four authorities under the Act, namely:
(a) Adjudicating authority,
(b) Appellate Tribunal,
(c) Special Court,
(d) Director, Financial Intelligence Unit.

The Act contains a total of 75 sections, and it imposes a good deal of responsibility upon financial institutions. It proposed the enactment of a currency transaction reporting requirement under which banks would be required to report any transaction in excess of Rs.10 million. The Indian government included this provision in the Act despite the Reserve Bank of India's vehement disapproval. In addition, banks will be responsible for reporting any transactions which they suspect may represent the proceeds of crime, or are at all suspicious.

4.4 Establishment Of Bilateral Agreements
In attempting to accomplish the stated objectives of the Vienna Convention and the FATF recommendations, India has recently began entering into bilateral agreements aimed at controlling drug trafficking and money laundering. In April of 1995, India signed an agreement with Egypt to join efforts in combating drug-related money laundering in the two countries. The agreement allows for the exchange of operational intelligence, as well as the identification, freezing, and forfeiture of property used in connection with narcotics related money laundering. The Indian government entered into a similar, yet more comprehensive agreement with the Pakistani government in 1997. The countries agreed to institute several cooperative measures to control drug trafficking and money laundering, including the fast and efficient exchange of information. The governments also agreed to establish mechanisms for conducting joint financial investigations and information exchanges. The two countries recently underwent discussion on entering into a new agreement that would include other nations within the region[85].

4.5 Mutual Legal Assistance Treaties
India has begun to enter into mutual legal assistance agreements with other countries as well. In 1997, the Indian government entered into an extradition treaty and mutual legal assistance agreement with Russia[86]. Mutual legal assistance agreements facilitate the investigation of money laundering operations in these countries by compelling the production of a wide array of information often vital in money laundering prosecutions. This agreement will no doubt prove invaluable in future investigations, given the growing amount of narcotics smuggled from India through Eastern Europe.
The Indian government held a regional conference on money laundering, bringing together many of the countries of Southwest and Southeast Asia[87]. The conference was the product of a joint effort between the Indian government, the Global Program against Money Laundering and the United Nations International Drug Control Program. One stated objective of the conference was to increase commitment within the region to combat money laundering by introducing the necessary countermeasures. The conference also sought to promote the harmonization of domestic strategies. The fact that India was one of the co-sponsors of the conference demonstrates to its neighboring countries its determination to combat money laundering.

Many groups have widely criticized the Indian government's initiatives in developing its anti-money laundering regime, particularly for the role the government intends to assign to banks. In requiring banks to report all transactions that exceed a certain limit or that appear suspicious, Indian banks will have to eliminate or radically alter their long established tradition of bank secrecy. In fact, virtually all countries that have enacted comprehensive anti-money laundering legislation have drastically reduced a person's right to financial privacy.

5. Conclusion And Suggestions
In addition to creating laws that criminalize the laundering of the proceeds of crime, India must also enact strict compliance programs for the financial industry that make it more difficult to launder money. Financial institutions must be compelled to report suspicious transactions, as such reporting requirements increase the probability that law enforcement officers will detect money laundering operations. Furthermore, financial institutions should train employees to spot potentially suspicious activity. The placement stage of the money laundering process is the most vulnerable to detection. As such, if bank employees are able to identify the characteristics of money laundering transactions, they will detect more transactions. Such training could enable law enforcement authorities to apprehend and convict an even larger percentage of money launderers.
In addition, financial institutions within India should institute identification requirements similar to the know-your-customers rules. Financial institutions should be required to obtain substantial information about their clients in order to ensure that they are engaged in legitimate business activity. Such a system would allow banks to discover suspicious transactions with greater ease.

The creation of a strict regulatory regime for financial institutions will require financial institutions to abandon their polices of customer confidentiality. In order to establish comprehensive anti-money laundering legislation, India must limit the scope of the right to financial privacy. If banks are to comply with strict governmental regulation, they must be able to do so without the fear of future actions against them for breach of contract or defamation.

Finally India must negotiate additional Mutual Legal Assistance Treaties with other countries. MLATs are invaluable to international judicial assistance. They supplement existing international agreements and will enable law enforcement officials to obtain information in a form admissible in Indian courts. In addition, the enactment of MLATs will enable India to tailor its anti-money laundering regime to specific problems that the government faces. If India intends to curb its escalating drug problem, it must take an aggressive stance with respect to money laundering.
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[1] Ian Kaminski, ‘International Banking and Money Laundering’ 23 Ann. Rev. Banking & Fin. L. 210, available at Westlaw (Last accessed on 21st August, 2010)
[2] Alison Bachus, ‘From Drugs to Terrorism: The Focus Shifts in the International Fight Against Money Laundering After September 11, 2001’, 21 Ariz. J. Int'l & Comp. L. 835, available at Westlaw (Last accessed on 19th August, 2009)

[3] Anti-Money Laundering and Combating the Financing of Terrorism: Regional Video Conference Southeast Asia Region; World Bank and IMF Global Dialogue Series at vii (2003), http:// www1.worldbank.org/finance/html/amlcft/docs/aml_sar01.pdf. (Last accessed on 21st August, 2010) as referred to, Supra n. 1.
[4] Ibid.
[5] Id.

[6] Taking the Profit Out of Drug Trafficking: The Battle against Money Laundering: Hearing Before the Subcomm. on Crime of the House Comm. on the Judiciary, 105th Cong. 118-27 (1997), (statement of Brendan T. Hewson, Senior V.P., Int'l Investigations, NationsBank), microformed on CIS No. 99-H521-48 (Cong. Info. Serv.) As referred to, Steven Melnik, ‘The Inadequate Utilization of the Accounting Profession in the United States Government's Fight against Money Laundering’, 4 N.Y.U. J. Legis. & Pub. Pol'y 143, available at Westlaw (Last accessed on 24th August, 2010)

[7] Ibid.
[8] Annunzio-Wylie Anti-Money Laundering Act, Pub. L. No. 102-550, 106 Stat. 4044 (1992) (codified in scattered sections of 12 U.S.C., 18 U.S.C., and 331 U.S.C.); as referred to Id.
[9] Id.
[10] Shawn Turner, ‘U.S. Anti-Money Laundering Regulations: An Economic Approach to Cyber laundering’, 54 Case W. Res. L. Rev. 1389, available at Westlaw (Last accessed on 24th August, 2009)

[11] Ronald K. Noble & Court E. Golumbic, ‘A New Anti-Crime Framework for the World: Merging the Objective and Subjective Models for Fighting Money Laundering’, 30 N.Y.U.J. Int'l L. & Pol. 79, 90-91 (1998). As referred to Ibid. (Last accessed on 25th August, 2010)

[12] Todd Doyle, ‘Cleaning Up Anti-Money Laundering Strategies: Current FATF Tactics Needlessly Violate International Law’, 24 Hous. J. Int'l L. 279, 285 (2002) (asserting that “money laundering destabilizes the global economy”). As referred to Id. (Last accessed on 25th August, 2010)

[13] Guy Stessens, ‘Money Laundering: A New International Law Enforcement Model 89’ (2000) (asserting the “impossibility” of accurately estimating the amount of money laundered). As referred to Id. (Last accessed on 25th August, 2010)

[14] See Peter J. Quirk, ‘Money Laundering: Muddying the Macro economy, Finance and Development’, Mar. 1997, at 8 (stating that approximate US$500 billion of illicitly obtained funds pass through international banking system annually), as referred to Supra n. 2.

[15] See, e.g., ‘The United Nations Convention Against Illicit Traffic in Narcotics Drugs and Psychotropic Substances’, UN doc. E/CONF. 82/15, reprinted in 28 I.L.M. 493 (1989) [hereinafter Vienna Convention]. The Vienna Convention represents an international response to the awakened need for "concerted and more effective action" to harness money laundering. as referred to Supra n. 2.

[16] Abraham Abramovsky, ‘Money Laundering and Narcotics Prosecution’, 54 Fordham L. Rev. 471, 472 (1986) discusses how U.S. government is trying to gain some control over money laundering practices in effort to combat illegal importation of narcotics into United States. As referred to Kavita Natarajan, ‘Combating India's Heroin Trade Through Anti-Money Laundering Legislation’, 21 Fordham Int'l L.J.2014, available at Westlaw (Last accessed on 28th August, 2010)

[17] Ibid.
[18] Letter From the USA President to the Chairmen and Ranking Members of the House Committees on Appropriations and International Relations and the Senate Committees on Appropriations and Foreign Relations, Nov. 10, 1997, available in Westlaw WL 702614, citing India as one among group of major illicit drug-producing or drug-transit countries. As referred to Supra. n. 16

[19] Nicholas Clark, ‘The Impact of Recent Money Laundering Legislation on Financial Intermediaries’, 14 Dick J. Int'l L. 467, 469 (defining money laundering as "the process by which the proceeds of crime or fraud are made to appear as if they have emanated from a legitimate source)

[20] See Scott Sultzer, Note, ‘Money Laundering: The Scope of the Problem and Attempts to Combat It’, 63 Tenn. L. Rev. 143, 149 (1995). (This discusses various techniques used by money launderers during placement stage of money laundering process. During the placement stage, money launderers often convert illicit proceeds into negotiable instruments such as money orders or cashier's checks. The ability to transform a large quantity of cash into a smaller quantity of negotiable instruments renders the illicit proceeds easier to smuggle. Perhaps even more importantly, once the cash has been converted into negotiable instruments, it can be readily deposited into the mainstream financial system without setting off any alarms that money laundering enforcement techniques are designed to detect.)

[21] See New MLATs Extend U.S. Laundering Effort, Money Laundering Alert, June 1, 1997, available in Westlaw, WL 9476403 (stating that U.S. has recently signed Mutual Legal Assistance Treaties with Austria and Hong Kong, both of which are pending ratification). When and if ratified, it is likely that wire transfers to these countries as a method of layering funds will decrease.

[22] Supra n. 19, Bank Secrecy laws generally preclude a bank from providing information on a customer's account to anyone, including law enforcement agencies, without the specific authorization of the client.

[23] Supra n. 19, stating that boutique banks interact with larger commercial banks and wire money through several accounts in order to avoid recognition by law enforcement authorities.

[24] Supra n. 19, stating that front companies used by money launderers are often exempt from currency reporting requirements, and consequently are able to take in large amounts of drug money. The use of companies exempt from currency reporting requirements has enabled banks to become the unwitting accomplices to money laundering. Once the funds are taken in by a front corporation, they are intermingled with funds from other legitimate business ventures. Once the drug proceeds are mixed with the legitimate funds, they are then placed in financial institutions.

[25] See Off. on ‘Drugs and Crime, U.N., The Money Laundering Cycle’, at http://www.unodc.org/unodc/money_laundering_cycle.html (Last accessed on 29th August, 2010)
[26] Roger C Malander et al., ‘Cyber payments and Money Laundering’ 5 (1989), http://www.rand.org/publications/MR/MR965/MR965.pdf/MR965.chap2.pdf (Last accessed on 29th August, 2010)
[27] Supra n. 25
[28] Supra n. 26
[29] Supra n. 26

[30] The Money Laundering Cycle, Supra n. 25, For instance, $40 million in cash was found rotted in a California basement because its owner, a Colombian drug kingpin, could not move it through the laundry cycle quickly enough. Henry B. Gonzalez, ‘New and Continuing Challenges in the Fight Against Money Laundering’, 20 Fordham Int'l L.J. 1543, 1545 (1997).

[31] See Financial Action Task Force on Money Laundering, Report of Feb. 6, 1990, reprinted in International Efforts to Combat Money Laundering 4, 17 (W. C. Gilmore ed., 1992) [hereinafter FATF 1990 Report] (noting that financial institutions have the ability to “screen undesirable customers”).

[32] Supra n. 26
[33] Cuellar, these laws are often called “know-your-customer” laws. ‘Fighting Dirty Money: Governments Claim Progress in the War against Money Laundering’, Economist, June 23, 2001, 2001 WL 7319487 as referred to Supra n. 2

[34] Guy Stessens, ‘Money Laundering: A New International Law Enforcement Model 11 (2000)’. Money laundering was first addressed by the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature Dec. 19, 1988, 28 I.L.M. 493 as referred to Supra n. 2 (This know-your-customer policy is necessary given the sheer volume of financial transactions that occur everyday. For example, over 465,000 wire transfers (totaling more than $2 trillion) occur daily in the United States)

[35] Ibid.
[36] Supra n. 26
[37] Bureau for Int'l Narcotics and Law Enforcement, U.S. Dep't of State, International Narcotics Control Strategy Report (2002), http:// www.state.gov/documents/organization/8703.pdf (Last accessed on 30th August, 2010)
[38] Supra n. 33
[39] Financial Action Task Force on Money Laundering, Report on Money Laundering Typologies 3 (2003), http://www.fatf-gafi.org/pdf/TY2003_en.pdf (Last accessed on 1st September, 2010)
[40] Supra n. 33
[41] Supra n. 26
[42] Supra n. 25
[43] Supra n. 37
[44] Supra n. 26
[45] Supra n. 25
[46] Off. of Drugs and Crime, U.N., Money Laundering and Globalization, at http://www.unodc.org/unodc/en/money_laundering.html (Last accessed on 1st September, 2010)
[47] Supra n. 25
[48] Supra n. 26
[49] Supra n. 26
[50] Supra n. 25
[51] Supra n. 43

[52] Such underground banking systems are known to rival conventional banking systems in terms of efficiency and capability

[53] Bruce Zagaris and Sheila M. Castilla, ‘Constructing an International Financial Enforcement Subregime: the Implementation of Anti-Money Laundering Policy’, 19 Brook J. Int'l L. 871, 881 (1993) (discussing purpose of international regimes aimed at controlling money laundering).

[54] Ibid.

[55] United Nations Convention Against Illicit Traffic in Narcotics and Psychotropic Substances; see also International Efforts, (stating that Convention represents major breakthrough in effort to address concerns involved with international cooperation in drug money laundering cases).

[56] Initiative by the Organization of American States to Prepare Model Regulations on the Laundering of Property and Proceeds Related to Drug Trafficking: Articles Considered by the Inter-American Group of Experts, Dec. 9-13, 1991, OEA/Ser. L/XIV, 4.4, CIDAD/GT. Lavex/doc. 20/19 [hereinafter OAS Laundering Regulations], reprinted in International Efforts To Combat Money Laundering 4 et seq (Dr. W.C. Gilmore, ed., 1992)

[57] Duncan E. Alford, ‘Anti-Money Laundering Regulations: A Burden On Financial Institutions’, 19 N.C. J. Int'l & Com. Reg. 437, 437 (1994) (offering definition of money laundering); see also Nicholas Clark, ‘The Impact of Recent Money Laundering Legislation on Financial Intermediaries’, 14 Dick J. Int'l L. 467, 469 (defining money laundering as “the process by which the proceeds of crime or fraud are made to appear as if they have emanated from a legitimate source.”)

[58] Ibid.
[59] Single Convention on Narcotic Drugs of 1961, entered into force Dec. 13, 1964, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 U.N.T.S. 151.
[60] Vienna Convention, Article 3(1)(a). Article 3 of the Vienna Conference, hailed by several as the "cornerstone of the Convention," represents the end-product of detailed deliberations as to which specific elements should be encompassed in an effective regime aimed at countering drug trafficking.

[61] Vienna Convention, Article 3(1)(a)(i) prohibits: The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance

[62] Vienna Convention, Article 3(1)(b)(ii) prohibits: The concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from an offen[se] or offen[ses] established in accordance with [Article 3(1)(a)]... or from an act of participation in such an offen[se] or offen[ses].

[63] Vienna Convention, Article 3(1)(c), 28 I.L.M. at 500. This limitation upon the requirements of Article 3(1)(b) is due largely to the difficulties encountered between the negotiators at the Vienna Conference in designing precise definitions that were acceptable to differing legal systems.

[64] Vienna Convention, Article 5(4)(b) provides that upon request by another party having jurisdiction over an offense established in accordance with Article 3(1) that the requested party shall "take measures to identify, trace, and freeze or seize proceeds, property instrumentalities ... for the purpose of eventual confiscation."

[65] Under this provision, a party may not decline to comply with this paragraph on the grounds of bank secrecy. The inclusion of this affirmative obligation has been characterized by many as a major breakthrough in anti-money laundering legislation.

[66] From the law enforcement perspective, perhaps the most significant provision of the Vienna Convention can be found in Article 7(5) which prohibits signatories from declining to provide mutual legal assistance on the grounds of bank secrecy. Thus, bank secrecy may not be used as a justification for refusing to provide legal assistance under the Vienna Convention or any of the bilateral treaties affected by its provisions.

[67] The member countries of Financial Action Task Force on Money Laundering ("FATF") are: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong, Iceland, Ireland, Italy, Japan, Luxembourg, the Kingdom of the Netherlands, New Zealand, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States

[68] International organizations that are members of FATF are European Commission and Gulf Cooperation Council
[69] As the Recommendations represent minimal standards that members should adhere to, members may institute more stringent standards if they so choose.

[70] The collapse of the Herstatt Bank in Germany in 1974 led to the establishment of the Basle Committee on Banking Regulations and Supervisory Practices ("Basle Committee") and the issuance of the Basle Concordat, the Basle Committee's first agreement on bank supervision.

[71] The Basle Committee consists of banking regulators from: Belgium, Canada, France, Germany, Italy, Japan, Luxembourg, the Netherlands, Sweden, Switzerland, the United Kingdom, and the United States.

[72] Statement of Principles further suggested that banks should explicitly state that they will refuse to conduct business with customers lacking adequate identification. The "know your customer" rule further suggests that when banks suspect that a deposit is the proceeds of criminal activity, they should take appropriate measures. Such measures include severing relations with the customer, or freezing or closing the affected accounts.

[73] The Basle Committee created the New Minimum Standards as a result of the closure of the Bank of Credit and Commerce International ("BCCI") on July 5, 1991. The closure of the US$20 billion bank represents one of the largest bank failures in international banking history. The immediate reason for the closure of BCCI was a report received by the Bank of England, which was prepared by Price Waterhouse, detailing massive fraud allegedly committed by senior officials at BCCI. The bank suffered tremendous losses. In order to cover these losses, senior managers at BCCI siphoned off deposits to cover these losses. The report also stated that several senior officials at BCCI made fictitious loans, failed to record deposits, and dealt in their own shares in an effort to manufacture profits. BCCI officials hid the losses caused by fraudulent practices, bad trades, and unpaid loans by shifting assets between subsidiaries. All Things to All Men, Economist, July 27, 1991, at 67-68 (describing events leading to BCCI failure).

[74] Under the New Minimum Standards, a host country regulator is only required to institute restrictions which it deems are "necessary and appropriate" on a financial institution. For example, a host regulator can choose to permit a foreign banking institution to operate in the country in spite of the home country regulator's non-compliance with the Minimum Standards.

[75] C.T. Mahabharat, ‘India Hooks into Interpol, Newsbytes News Network’, Mar. 24, 1997, available in Westlaw, 1997 WL 10170139.
[76] Ibid.
[77] Vinay Kumar, ‘Focus on Money Laundering in Asia’, The Hindu, Sept. 19, 1997
[78] Asset forfeiture legislation allows for the freezing of assets in domestic crimes. India also freezes deposits of individuals convicted of narcotics trafficking in foreign countries. See Narcotics Drugs and Psychotropic Substances Act (1985)(India). Under the provisions of the Narcotics Drugs and Psychotropic Substances Act, law enforcement officials may freeze the assets of an individual convicted of narcotics trafficking. Although India has an asset forfeiture law in place, it contains several loopholes and requires several years to prosecute as a criminal matter. As a result, the law is virtually ineffective.

[79] See Senthil Ratnasabapathy, ‘Drugs-Afghanistan: Plant Something Else U.N. Tells Growers, Inter Press Service’, Nov. 18, 1996, available in Westlaw 1996 WL 13589229 (identifying Golden Crescent as opium producing region of Southwest Asia, comprised of Turkey, Iran, Afghanistan, and Pakistan).

[80] See Rone Tempest, ‘India emerging as a Major Hub of Heroin Trade’, L.A. Times, June 22, 1986, at 2 (identifying Golden Triangle as opium producing area situated to Southeast of India, comprised of Myanmar (formerly known as Burma), Laos, and Thailand)

[81] As this region of the world remained war torn for years, several of its poor turned to poppy cultivation as a means of sustenance in an era of economic strife. The wars had destroyed much of the other agricultural products in the area, thereby making poppy cultivation one of the only ways for farmers to generate enough income. As the violence and turbulence continued to plague the area, an increasing number of people turned to poppy cultivation. For example, in 1978 opium production in Afghanistan was at 200 metric tons per year. By 1994, opium production had reached a staggering level of 3500 metric tons. According to the United Nations Drug Control Program, there are in excess of 200,000 families in Afghanistan involved with opium production.

[82] Golden Triangle is comprised of 38 million hectares of poppy cultivated land, constituting over 60% of global opium supply
[83] See ‘India: Cabinet Approves Money Laundering Bill, Business Line’ (The Hindu), Nov. 21, 1997
[84] Section 3, Prevention of Money Laundering Act, 2002
[85] ‘India: Money Laundering: Talks With Pakistan for Sharing Information, Business Line’ (The Hindu) Mar. 5, 1998.
[86] Vladimir Radyuhin, ‘Ahmadi for Close Judicial Interaction with Russia’, The Hindu, Feb. 20, 1997, at 14.
[87] The Conference brought together approximately 30 government experts from Bangladesh, Bhutan, Iran, India, Maldives, Myanmar, Nepal, Pakistan, Sri Lanka, and Thailand.

Authors contact info - articles The  author can be reached at: samridha.neupane@legalserviceindia.com




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Posted by madhu on November 21, 2010
well-couched article on money laundering; great.

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