Ferreting Out Kleptocrats’ Buddies: The Ukrainian Solution Part I

Every kleptocrat needs a buddy.  Someone to serve as an intermediary between the corrupt official and the bankers, real estate agents, and others in London, New York, and elsewhere happy to profit from handling dirty money.  A kleptocrat can’t just walk into a bank or real estate office in the United Kingdom, the United States, or other preferred offshore haven with a pile of money to invest.  As a public official, the antimoney laundering (AML) laws would oblige the banker or real estate agent to ask searching questions about how the kleptocrat came into the money and the law would likely also require them to report the transaction or proposed transaction to the authorities.  A buddy, particularly one who has remained out of the public limelight, is the perfect solution.  So long as they don’t know a potential customer is close to a senior public official, the banker or real estate agent meets their obligation to ascertain the source of the would-be customer’s funds by asking a few pro forma questions.

To plug the buddy loophole, the AML laws require banks and real estate agents to determine if anyone wanting to do business with them is a “close associate” of a senior official — a “politically exposed person” in the inelegant term coined by AML specialists.  If a potential customer is a PEP, the bank or real estate agent must ask the same searching questions about the origins of the individual’s funds that they must ask of a senior official.  Recognizing that bankers and real estate agents can’t be expected to know whether a foreign national wanting to do business with them is a close associate of a senior official in 190 plus countries, AML regulators allow them to rely on one of the several PEP lists peddled by commercial firms.  So long as the potential customer doesn’t appear on whatever PEP list they use, the banker or real estate agent need not conduct a detailed inquiry (“enhanced due diligence” in AML-speak) into where their money came from.

So how well do these commercial PEP lists do at identifying kleptocrats’ buddies?  Continue reading

Should There Be a Public Registry of Politically Exposed Persons?

Under the “Know Your Customer”-oriented regulatory regime endorsed by organizations like the Financial Action Task Force (FATF), financial institutions and similar entities must apply heightened scrutiny to so-called “politically-exposed persons” (PEPs), as well as their family members and close associates. FATF defines PEPs as individuals who are or have been entrusted with prominent public positions (such as heads of state or government, senior politicians, senior government, judicial, or military officials, senior executives of state-owned companies, and important political party officials), as well as their family members and close associates. (For simplicity, here I’ll use the term PEP to include both the PEPs themselves, and their family members and close associates, as the FATF recommendations make clear that the latter should be covered by the same heightened due diligence rules.) The rationale behind FATF’s recommendation of more stringent due diligence for PEPs is the idea that PEPs are higher-risk customers, because they have more opportunities than ordinary citizens to acquire assets through unlawful means like embezzlement and bribe-taking. Thus, FATF’s Recommendation 12 (which many countries have adopted) advises that countries should require financial institutions to employ additional due diligence measures for foreign PEPs in order to establish the source of the PEP’s assets, and to conduct enhanced ongoing monitoring of the business relationship with the PEP.

That all seems like a good idea. But how, exactly, is a bank supposed to determine whether a prospective client is a PEP? Here, the FATF recommendations say only that financial institutions should “have appropriate risk-management systems to determine” whether a prospective customer is a foreign PEP. In practice, financial institutions rely on a relatively small number of private providers—like World Check (Thompson Reuters), World Compliance (Lexis-Nexis), and a handful of others—to screen prospective clients to see if they are in a database (generated and maintained by the private service providers) of known PEPs. Presumably (though I haven’t been able to figure out whether this is true) financial regulators in countries that have adopted the FATF recommendations on PEP screening will treat a bank’s use of one of these reputable services as satisfying the bank’s responsibility to take reasonable measures to determine whether a client is a PEP, even if in fact the service failed to accurately identify a given customer as a foreign PEP—though the bank might still be on the hook for other legal violations in connection with the PEP’s account.

So, keeping track of who’s a PEP has been entrusted to the private market. There is no “official” PEP list maintained by any national government or inter-governmental organization like FATF, nor does any government (to the best of my knowledge) directly monitor or regulate the private providers like World Check and World Compliance to ensure their PEP lists are accurate and up to date. Is this a problem? Should we be happy leaving PEP screening entirely to the private market, or should there be greater government and/or civil society involvement in generating, maintaining, and revising PEP lists?

This issue came up last month at the “Tackling Corruption Together” conference held the day before the London Anticorruption Summit. David Lewis, the Executive Secretary of FATF, gave a presentation that emphasized (among other things) the importance of due diligence on PEPs. During the Q&A someone from the G20 Research Group (whose name I didn’t catch) asked Mr. Lewis about whether there was the need (and political will) to create public PEP registries, noting both the importance of accurate PEP lists, as well as the inefficiency of individual banks paying private services for screening individual names one at a time. Mr. Lewis replied, quite forcefully, that the creation of public PEP registries would be a “terrible idea.” He knows far more about this issue than I do, and I don’t know nearly enough to come out in favor of public PEP registries, but I have to say, I didn’t really find Mr. Lewis’s reasoning all that persuasive. Continue reading

Guest Post: The UK Should Fight Corruption Using “Unexplained Wealth Orders”

Nick Maxwell, Head of Advocacy and Research at Transparency International-United Kingdom, contributes the following guest post:

UK Prime Minister David Cameron has made the fight against global corruption a high priority for his government, declaring that corruption is the cancer that is at the root of many of the world’s problems. But as much as we should applaud the UK’s efforts to support anticorruption measures and good governance abroad, it is equally important that the UK ensure that it is not a safe haven for the proceeds of corruption stolen throughout the world. Yet here the UK has fallen short: We have only seen limited asset restraint and recovery against the proceeds of corruption, especially against those currently associated to power. While estimates of total extent of the problem vary, it is generally agreed that large amounts of unexplained suspicious wealth enter the UK each year and are invested in the British financial system, in property, in luxury goods or in other areas of the economy. And despite the fact that UK law enforcement has the necessary expertise on this issue, the rate of asset recovery by UK agencies of the proceeds of grand corruption is undeniably very low compared to the scale of the problem.

Given the scale of the problem and the inadequacy of the government’s response to date, Transparency International’s UK chapter (TI-UK) established a taskforce of experts to review the legislation in place to deter grand corruption and recover stolen assets that have made their way into or through the UK. The results of the taskforce’s deliberations were published last month as a discussion paper entitled Empowering the UK to recover corrupt assets: New approaches to illicit enrichment and asset recovery; the paper sets out a new proposal for UK law enforcement: the use of an Unexplained Wealth Order (UWO), which would allow UK law enforcement to start proactively questioning suspicious unexplained wealth associated with foreign public officials, and to start civil recovery proceedings against the relevant assets.

Continue reading

The Golden Handshake: Background Rules and the Choice of Restoring Money or Doing Justice

The anticorruption community has recently put more emphasis on freezing, seizing, and repatriating the assets of corrupt kleptocrats. But while this move is in many ways welcome, it is still the case that essentially none of the most infamous kleptocrats have ended up behind bars. Even when governments go after the illicit assets of these kleptocrats, their cronies, and other “politically exposed persons” (PEPs), the governments seeking asset recovery often find themselves put to an uncomfortable choice: either to accept the return of only a part (sometimes a small part) of the looted wealth in a settlement, or to continue to pursue their attempts, often in vain, to seize and repatriate all (or at least most) of the stolen assets.

Sophisticated PEPs know this, and usually take advantage of the slowness of the asset recovery process (as well as their ability to use their ill-gotten wealth to hire top-notch legal talent to wage a protracted legal battle), to the point where the governments are willing to allow the PEP to secure the “golden handshake” of a favorable settlement. Nothing illustrates this better than the attempts to recover the assets of former Nigerian President Sani Abache and of former Kenyan President Daniel Arap Moi. Abache’s family’s lawyers stiff resistance to asset recovery efforts eventually led to a settlement whereby the Abache family returned $1 billion–but got to keep $300 million. In the latter case, the Kenyan authorities insisted on recovering the full amount–and have ended up with nothing. The Kenyan experience has served as a cautionary tale, inducing for example many of the Arab Spring countries to accept settlements they would have never accepted two years ago. This result frustrates the foundational principle of penology that a criminal who gets caught should end up worse off than he would have been if he did not commit the crime. A corrupt official who knows that the worst that can happen is that he might have to give back half or two-thirds of the money he stole is unlikely to be deterred.

At the moment, it does not seem realistic to expect more severe criminal punishment for many kleptocrats, so reliance on settlement will continue for a while. Accordingly it is important to figure out how to use settlements to guarantee the maximum restoration of assets. The two most important factors that shape the content of a settlement are national and foreign justice. Consider each in turn. Continue reading