Category: Anti-Money Laundering

The Santiago Principles

The International Working Group of Sovereign Wealth Funds created a set of 24 best practices called the Generally Accepted Principles and Practices (GAPP) or the Santiago Principles:

  • GAPP 1. Principle
    The legal framework for the SWF should be sound and support its effective operation and the achievement of its stated objective(s).

    • GAPP 1.1 Subprinciple The legal framework for the SWF should ensure the legal soundness of the SWF and its transactions.
    • GAPP 1.2 Subprinciple The key features of the SWF’s legal basis and structure, as well as the legal relationship between the SWF and the other state bodies, should be publicly disclosed.
  • GAPP 2. Principle
    The policy purpose of the SWF should be clearly defined and publicly disclosed.
  • GAPP 3. Principle
    Where the SWF’s activities have significant direct domestic macroeconomic implications, those activities should be closely coordinated with the domestic fiscal and monetary authorities, so as to ensure consistency with the overall macroeconomic policies.
  • GAPP 4. Principle There should be clear and publicly disclosed policies, rules, procedures, or arrangements in relation to the SWF’s general approach to funding, withdrawal, and spending operations.
    • GAPP 4.1 Subprinciple The source of SWF funding should be publicly disclosed.
    • GAPP 4.2 Subprinciple The general approach to withdrawals from the SWF and spending on behalf of the government should be publicly disclosed.
  • GAPP 5. Principle
    The relevant statistical data pertaining to the SWF should be reported on a timely basis to the owner, or as otherwise required, for inclusion where appropriate in macroeconomic data sets.
  • GAPP 6. Principle
    The governance framework for the SWF should be sound and establish a clear and effective division of roles and responsibilities in order to facilitate accountability and operational independence in the management of the SWF to pursue its objectives.
  • GAPP 7. Principle
    The owner should set the objectives of the SWF, appoint the members of its governing body(ies) in accordance with clearly defined procedures, and exercise oversight over the SWF’s operations.
  • GAPP 8. Principle
    The governing body(ies) should act in the best interests of the SWF, and have a clear mandate and adequate authority and competency to carry out its functions.
  • GAPP 9. Principle
    The operational management of the SWF should implement the SWF’s strategies in an independent manner and in accordance with clearly defined responsibilities.
  • GAPP 10. Principle
    The accountability framework for the SWF’s operations should be clearly defined in the relevant legislation, charter, other constitutive documents, or management agreement.
  • GAPP 11. Principle
    An annual report and accompanying financial statements on the SWF’s operations and performance should be prepared in a timely fashion and in accordance with recognized international or national accounting standards in a consistent manner.
  • GAPP 12. Principle
    The SWF’s operations and financial statements should be audited annually in accordance with recognized international or national auditing standards in a consistent manner.
  • GAPP 13. Principle
    Professional and ethical standards should be clearly defined and made known to the members of the SWF’s governing body(ies), management, and staff.
  • GAPP 14. Principle
    Dealing with third parties for the purpose of the SWF’s operational management should be based on economic and financial grounds, and follow clear rules and procedures.
  • GAPP 15. Principle
    SWF operations and activities in host countries should be conducted in compliance with all applicable regulatory and disclosure requirements of the countries in which they operate.
  • GAPP 16. Principle
    The governance framework and objectives, as well as the manner in which the SWF’s management is operationally independent from the owner, should be publicly disclosed.
  • GAPP 17. Principle
    Relevant financial information regarding the SWF should be publicly disclosed to demonstrate its economic and financial orientation, so as to contribute to stability in international financial markets and enhance trust in recipient countries.
  • GAPP 18. Principle
    The SWF’s investment policy should be clear and consistent with its defined objectives, risk tolerance, and investment strategy, as set by the owner or the governing body(ies), and be based on sound portfolio management principles.

    • GAPP 18.1 Subprinciple The investment policy should guide the SWF’s financial risk exposures and the possible use of leverage.
    • GAPP 18.2 Subprinciple The investment policy should address the extent to which internal and/or external investment managers are used, the range of their activities and authority, and the process by which they are selected and their performance monitored.
    • GAPP 18.3 Subprinciple A description of the investment policy of the SWF should be publicly disclosed.
  • GAPP 19. Principle
    The SWF’s investment decisions should aim to maximize risk-adjusted financial returns in a manner consistent with its investment policy, and based on economic and financial grounds.

    • GAPP 19.1 Subprinciple If investment decisions are subject to other than economic and financial considerations, these should be clearly set out in the investment policy and be publicly disclosed.
    • GAPP 19.2 Subprinciple The management of an SWF’s assets should be consistent with what is generally accepted as sound asset management principles.
  • GAPP 20. Principle
    The SWF should not seek or take advantage of privileged information or inappropriate influence by the broader government in competing with private entities.
  • GAPP 21. Principle
    SWFs view shareholder ownership rights as a fundamental element of their equity investments’ value. If an SWF chooses to exercise its ownership rights, it should do so in a manner that is consistent with its investment policy and protects the financial value of its investments. The SWF should publicly disclose its general approach to voting securities of listed entities, including the key factors guiding its exercise of ownership rights.
  • GAPP 22. Principle
    The SWF should have a framework that identifies, assesses, and manages the risks of its operations.

    • GAPP 22.1 Subprinciple The risk management framework should include reliable information and timely reporting systems, which should enable the adequate monitoring and management of relevant risks within acceptable parameters and levels, control and incentive mechanisms, codes of conduct, business continuity planning, and an independent audit function.
    • GAPP 22.2 Subprinciple The general approach to the SWF’s risk management framework should be publicly disclosed.
  • GAPP 23. Principle
    The assets and investment performance (absolute and relative to benchmarks, if any) of the SWF should be measured and reported to the owner according to clearly defined principles or standards.
  • GAPP 24. Principle
    A process of regular review of the implementation of the GAPP should be engaged in by or on behalf of the SWF.

There is also a Full Report on the Santiago Principles (.pdf).

Committee on Foreign Investment in the United States

The Foreign Investment and National Security Act of 2007, Pub. L. 110-49, which amends section 721 of the Defense Production Act of 1950 (50 USC §2170) authorizes the President to review merger, acquisitions and takeovers by or with any foreign person which could result in foreign control of any person engaged in interstate commerce in the United States to determine the effects of such transaction on the national security of the United States.

FINSA codifies the structure, role, process and responsibilities of the Committee on Foreign Investment in the United States. Previously, CFIUS had existed only by executive order. FINSA establishes CFIUS in statute.

FINSA provides for a 30 day review period of a “covered transaction” to determine the effect of the transaction on national security.

The system is based on voluntary notices to CFIUS by parties to a transaction, although CFIUS can review a transaction regardless of whether it has been notified.

The term ‘control’ has the meaning given to such term in regulations which the Committee shall prescribe.

The term ‘covered transaction’ means any merger, acquisition, or takeover that is proposed or pending after August 23, 1988, by or with any foreign person which could result in foreign control of any person engaged in interstate commerce in the United States.

The term ‘foreign government-controlled transaction’ means any covered transaction that could result in the control of any person engaged in interstate commerce in the United States by a foreign government or an entity controlled by or acting on behalf of a foreign government.

The Department of the Treasury issued proposed regulations for the CFIUS on April 21, 2008. You can also get the comments on the proposed CFIUS regulations.

The key part of the proposed regulations is section 800.302(c) (on page 54) stating that a “transaction that results in a foreign person holding ten percent or less of the outstanding voting interests in a U.S. business (regardless of the dollar value of the interests so acquired), but only if the transaction is solely for the purpose of investment” is not a covered transaction.

Section 800.203 helps to clarify “control.” Even though an investor has some investor protection rights associated with their investment, that does not necessarily create “control” under section 800.203(c). Having the power to limit insider deals and selling the company’s assets do not in themselves confer control of the entity.

Section 800.224 expands the term transaction to include the acquisition of an ownership interest in an entity, the formation of a joint venture and certian types of long term leases.

Sovereign Wealth Funds Adopt Voluntary Best Practices

Adam O. Emmerich of Wachtell Lipton Rosen & Katz put together a summary published on The Harvard Law School Corporate Governance Blog on the Santiago Principles and the potential impact of these on investments by sovereign wealth funds: Sovereign Wealth Funds Adopt Voluntary Best Practices.

Intended to demonstrate that SWFs are soundly established and that investment decisions will be made on an economic and financial basis, the Santiago Principles address three broad areas of concern regarding SWFs: (i) their legal structure and relationship with the state, policy and investment objectives, and degree of coordination with their sovereign’s macroeconomic policies; (ii) their institutional structure and governance mechanisms; and (iii) their investment and risk management framework. While much will turn on how SWFs actually implement these aspirational guidelines (and it is worth noting that all of the principles are well caveated and subject to home country laws, regulations, requirements and obligations), the Santiago Principles may help reduce political influence in SWF investing and encourage the flow of sovereign wealth across borders.

Effects of FinCEN’s Withdrawal of Rule-Making on Anti-Money Laundering

Last week, FinCEN withdrew a proposed rulemaking for anti-moneylaundering procedures for unregistered investment companies. [See: FinCEN Withdraws Proposed Rulemaking for Unregistered Investment Companies]
FinCEN warned that they have not abandoned plans for rule-making. They merely felt that after six years the notice had gone stale. FinCEN may come out with AML program rule proposal, but would only do so after allowing for public comment that could take into account developments since the initial proposal.

Other existing AML obligations may limit the practical effect of this FinCEN action. First, the action does not alter the reach of the U.S. criminal money laundering laws, which still may apply in cases of “knowing” or “willfully blind” participation in money laundering schemes. Second, the FinCEN action does not affect the obligation of the subject entities to comply with the U.S. sanctions programs, which are administered by the U.S. Office of Foreign Assets Control (“OFAC”). Third, many advisers, unregistered investment companies, and commodity trading advisers likely will continue to be required by their investors, banks, prime brokers, and other counterparties to adopt AML programs, regardless of the scope of applicable legal standards. Entities may also be subject to AML regulation in non-U.S. jurisdictions where they conduct business or investment activities.

“Proceeds” From Money Laundering

In US v. Santos (06-1005), the United States Supreme Court sent confusion into what is required for a conviction under the federal money laundering statue: 18 U.S.C. 1956.The problem is the use of the word “proceeds” in 18 U.S.C. 1956(a)(1). Does “proceeds” meean gross receipts or profits?

The justinces could not get together in a clear decision with “Justice Scalia announced the judgment of the Court and delivered an opinion, in which Justice Souter and Justice Ginsburg join, and in which Justice Thomas joins as to all but Part IV,” with Justice Stevens in a concurring opinion.  The result was to dismiss the money laundering charge against Efrain Santos and Benedicto Diaz.

But it is unclear if the government needs to find profits for a conviction. Proving profits would mean comparing gross receipts against expenes and seeing there was a profit. As the government argued, criminals do not keep good records.

Politically Exposed Person

Politically Exposed Person “PEP” is a person who may be or recently acted in the political arena of a country or has held a position in the recent past. These individuals must be tracked by financial institutions as they pose potential risk.

PEP-specific compliance legislation underlines the link between corrupt politicians, money laundering and the financing of terrorism. More than 100 countries have changed their laws related to financial services regulation, with the fight against political corruption playing a foundational role.

The Financial Action Task Force (FATF) definition of a Politically Exposed Person:

  • current or former senior official in the executive, legislative, administrative, military, or judicial branch of a foreign government (elected or not)
  • a senior official of a major foreign political party
  • a senior executive of a foreign government owned commercial enterprise, being a corporation, business or other entity formed by or for the benefit of any such individual
  • an immediate family member of such individual; meaning spouse, parents, siblings, children, and spouse’s parents or siblings
  • any individual publicly known (or actually known by the relevant financial institution) to be a close personal or professional associate.

Specially Designated Nationals and Blocked Persons List Updated

The Office of Foreign Assets Control has just updated the Specially Designated Nationals and Blocked Persons List.

It is a big list. The .pdf file is 404 pages long. The separate file of additions in 2008 is 106 pages long.

Here are the new bad guys added on October 30, 2008:

ABDELRAHIM, Abdelbasit (a.k.a. ABDUL RAHIM, Abdul Basit Fadil; a.k.a. ABDULRAHIM, Abdulbasit; a.k.a. ABOU BASSIR; a.k.a. ABU BASIR; a.k.a. ADBULRAHIM MAHOUD, Abdulbasit Fadil; a.k.a. AL ZAWY, Abdel Bassit Fadil; a.k.a. AL-ZAWI, ‘Abd Al-Basit Fadhil; a.k.a. AL-ZWAY, ‘Abd Al-Basit Fadil; a.k.a. MANSOUR, Abdallah; a.k.a. MANSOUR, Abdullah; a.k.a. MANSUR, ‘Abdallah), undetermined; DOB 2 Jul 1968; POB GDABIA, LIBYA; alt. POB Ajdabiyah, Libya; nationality United Kingdom (individual) [SDGT]

ABU MU’AWIYA (a.k.a. AL USTA, Abdelrazag Elsharif; a.k.a. AL-MULAY, ‘Abd; a.k.a. ALUSTA, ‘Abd Al-Razzaq Al-Sharif; a.k.a. ELOSTA, Abdelrazag Elsharif; a.k.a. SHARIF, ‘Abd al- Razzaq), undetermined; DOB 20 Jun 1963; POB SOGUMA, LIBYA; nationality United Kingdom (individual) [SDGT]

AL HAK, Al Haj Abd (a.k.a. AL MABROOK, Muftah; a.k.a. AL-FATHALI, Al-Mabruk; a.k.a. AL-FATHALI, Al-Mabruk Muftah Muhammad; a.k.a. EL MABRUK, Muftah; a.k.a. EL MOBRUK, Maftah; a.k.a. ELMABRUK, Maftah Mohamed; a.k.a. ELMABRUK, Mustah; a.k.a. MAFTAH, Elmobruk; a.k.a. “AL HAQQ, Al Hajj Abd”; a.k.a. “AL-HAQ, Haj ‘Abd”; a.k.a. “AL-HAQQ, Al-Hajj ‘Abd”), undetermined; DOB 1 May 1950; POB Libya; nationality Libya (individual) [SDGT]

FinCEN Programs for Mutual Funds

Here are links to the text of some FinCEN program for mutual funds:

31 CFR 103.130 Anti-money laundering programs for mutual funds(.pdf)

each mutual fund shall develop and implement a written anti-money laundering program reasonably designed to prevent the mutual fund from being used for money laundering or the financing of terrorist activities and to achieve and monitor compliance. . .

31 CFR 103.131 Customer identification programs for mutual funds(.pdf)

A mutual fund must implement a written Customer Identification Program (‘‘CIP’’) appropriate for its size and type of business that, at a minimum, includes each of the requirements of
paragraphs (b)(1) through (5) of this section.

FinCEN Withdraws Proposed Rulemaking for Unregistered Investment Companies

On September 26, 2002, Financial Crimes Enforcement Network issued a notice of proposed rulemaking, proposing to require unregistered investment companies” to establish and implement anti-money laundering programs. (Anti-Money Laundering Programs for Unregistered Investment Companies, 67 FR 60617 (Sep. 26, 2002))

In that notice of proposed rulemaking, FinCEN proposed to define the term “unregistered investment company” as (1) an issuer that, but for certain exclusions, would be an investment company as that term is defined in the Investment Company Act of 1940, (2) a commodity pool, and (3) a company that invests primarily in real estate and/or interests in real estate. FinCEN proposed requiring these companies to file a notice so that FinCEN could readily identify such companies and require them to establish and implement anti-money laundering programs.

Today they gave notice under 31 CFR Part 103 Withdrawal of the Notice of Proposed Rulemaking for Anti-Money Laundering Programs for Unregistered Investment Companies. FinCEN is not abandoning the possibility of pursing the rulemaking. Given the six year span since the notice, they feel it has gone stale. If (or when) they decide to proceed with an anti-money laundering program requirement for unregistered investment companies, they will publish a new notice.