Search results

The purpose of this paper is to provide some empirical findings on the predicaments of lawyers’ anti-money laundering (AML) compliance in Malaysia and the rationales for such predicaments.

This paper adopts a qualitative research in which the primary data are obtained from seven case studies involving legal firms within the Klang Valley, Selangor, Malaysia, which is triangulated with the data from the Central Bank and the Malaysian Bar Council.

The authors contend that despite the vulnerability of their profession to money laundering, the level of awareness of the AML obligations amongst Malaysian legal practitioners is rather minimal. Also, the imposition of obligations upon them in policing their clients and regulating money laundering is not only onerous but also contrary to the ethics of their profession.

This paper fills the gap in providing the empirical evidence on lawyers’ compliance to their statutory AML obligations in Malaysia. Also, this paper could be a useful source of information for practitioners, academicians and students. It could also be a beneficial guide for policymakers for any possible future amendments to the law.

The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC).

This article focuses heavily on understanding the nature of international anti-money laundering (AML) law-making process. The approach towards this question is interdisciplinary and looks at the treaty and non-treaty AML obligations through a prism of two theoretical lenses (legal positivism and liberal/legal process theory) to explain the role of soft law in the area.

Current international effort to combat money laundering (ML) is fragmented (as evident in the enormous variety of law-making processes), despite the role of soft law. Part of the problem is the divergent nature of domestic criminal legislation, which is reflected in the choice of predicate crime and a lack of procedural rule to identify and enforce the law at the state level. To address the limit of current efforts, the paper will propose a uniform codification of AML law directed by a more representative body or commission of experts offering means of restating, clarifying and revising the law authoritatively and systematically.

The research is focused mainly on the theoretical issues relating to the subject of ML and less on any empirical case study.

The paper will focus on the role of soft law as a technique for repressive and preventive AMLC. Based on current analyses of the role of soft law as an alternative to hard law or as a complement to hard law (leading to greater cooperation), it attempts to outline the possible advantages and disadvantages that soft law could have in the context of AMLC. For example, the use of soft law promotes harmonisation of international AML standards through the Financial Action Task Force, while the role of the FATF remains unclear in international law. This is important for the purpose of responsibility, as the law on state responsibility clearly states when a State is responsible, in the event of a breach, and the consequence in international law.

The implication of the paper is that it contributes to the on-going debate about the increasingly role of soft law-making in international law.

The research perspective to the study of ML is theoretical and focuses on the nature of the law.

The purpose of this paper is to analyse those obligations to share information and deliver assistance which flow from the legislation intended to prevent the money laundering as contained in the Law 19/2003 of the 4 July, which transposes into Spanish law the provisions of Directive 2001/97/EC, which provisions set out the obligations of notaries, registrars, lawyers and court attorneys and their compatibility with their duties of professional privilege.

The new law has provoked a debate centred in the compatibility of the obligations of disclosure with legal professional privilege and the rights of the defence. This issue is discussed in the paper.

With regard to lawyers there arises a conflict between the duty to maintain client confidentiality and the obligations of disclosure in the prevention of money laundering which must be resolved in favour of the former, it being established in Spain by a law of superior status. This means that if a lawyer transfers the information concerning his suspicion he should therefore be punished as committing the crime of disclosure of confidential material.

Only Spanish literature is used.

With respect to the lawyers, the carrying out of the obligations of disclosure imposed by the new Spanish Law 19/2003 breaches the duty of client confidentiality. For notaries, registers and court attorneys the problem does not exist.

An overall view is offered of the difficult situation in which some legal professionals find themselves in light of the prevention of money laundering in Spain.

The purpose of this paper is to examine the inclusion of lawyers in Kenya’s anti-money laundering regime and the role they can play towards assisting in detection and gate-keeping of potential money laundering activities. Kenya is a transit point for trade-based money laundering. Accordingly, it is vulnerable to money laundering that can be facilitated by legal professionals, through their misuse by criminals. These professionals can be both enablers and perpetrators.

The study is secondary in nature. It is based on reviewing relevant literature and analysing the Proceeds of Crime and Anti-Money Laundering Act and the Proceeds of Crime and Anti-Money Laundering Regulations. The legislation and the rules form the core of Kenya’s anti-money laundering regime.

The omission of legal professionals from Kenya’s anti-money laundering regime constitutes a big gap under its preventative mechanisms. Further, it makes them attractive to criminals because they are under no legal obligation to report potential money laundering activities. Ultimately, the inclusion of lawyers as DNFBPs is necessary. This would seal the extant regulatory gap and ensure enhanced awareness amongst the legal professionals of the money laundering risks that they face.

Given Kenya’s money laundering susceptibility, it is necessary and prudent to critically consider the inclusion of legal professionals in its anti-money laundering mechanisms. The paper seeks to make a practical and scholarly contribution in considering the issue and possibly trigger further discussions, as well as the necessary legislative and policy changes. This would positively enhance the success of Kenya’s anti-money laundering regime in detecting money laundering activities.

The purpose of this paper is to assess the balance between anti-money laundering reporting obligations and the doctrine of advocate–client confidentiality for legal practitioners.

The methodology adopted for this research is secondary research and analysis.

The doctrine of confidentiality between advocates and clients and reporting obligations under the anti-money laundering regime are relevant issues today more than ever. The equitable doctrine of confidentiality seeks to protect confidential information provided by one party to another in circumstances that import an obligation not to disclose that information or to use it for unauthorised purposes. The Constitution guarantees fair trial. Money laundering is a menace that should be fought from all fronts. Self-regulation is the best bet to address money laundering for legal practitioners.

This paper is the work of the author and has not been submitted for publication elsewhere.

It will be recalled that the last monograph treated the significance of the collective agreement in society. If solely a function in society, (though having a legal basis), were to be attributed to the collective agreement, this would mean that no rights or obligations whatsoever would be created between the parties to it. This is not so in practice. It is of course a fact that no legally enforceable rights and obligations normally accrue, and as already indicated, those are moral ones and are only enforceable in honour, i.e. a gentleman's agreement. Nevertheless, this does not necessarily mean that the collective agreement has no juridical significance. Even agreements which are binding in honour only, as for example the kind of agreement found in Balfour v. Balfour, have a known juridical nature. Furthermore, though the collective agreement is only binding in honour, its incorporation into the individual contract of employment makes its terms legally enforceable even though recourse to the courts is seldom had. As a source of rights and obligations of considerable importance the collective agreement must therefore have some juridical significance and cannot remain entirely in the realms of society.

This paper aims to examine the money laundering vulnerability of private legal practitioners in Tanzania, the involvement of these practitioners in money laundering activities and their role in preventing, detecting and thwarting money laundering and its predicate crimes.

The paper applies the “black-letter” law research approach to describe, examine and analyze the anti-money laundering law in Tanzania. It also uses the “law-in-context” research approach to interrogate the anti-money laundering law and to provide an understanding of factors impacting on the efficacy and readiness of private legal practitioners in Tanzania to tackle money laundering. The review of literature and analysis of statutory instruments and case law, reports of the anti-money laundering authorities and agencies and media reports-generated data are used in this paper. This information was complemented by data from interviews of purposively selected private legal practitioners.

Private legal practitioners in Tanzania are vulnerable to money laundering. There is an emerging evidence that indicates the involvement of some private legal practitioners in the commission of money laundering and/or its predicate crimes. The law designates the legal practitioners as reporting persons and imposes on the obligation to fight against money laundering. Law-related factors and practical challenges undermine the capacity of the legal practitioners to curb money laundering. Additionally, certain hostile perceptions contribute to the legal practitioners’ unwillingness, indifference or opposition against the fight against money laundering.

The paper underscores the need for Tanzania to reform its policy and legal frameworks to create enabling environment for anti-money laundering gatekeepers, including private legal practitioners to partake efficiently in the fight against money laundering. It also underlines the importance of incorporating the principles that govern the private legal practise to enable the practitioners to partake effectively in tackling money laundering.

This paper generates useful information to private legal practitioners, policy makers and academicians on issues relating to money laundering and its control in Tanzania and presents recommendations on possible policy and legal reforms that can be adopted and applied to augment the role of the legal practitioners in Tanzania to combat money laundering.

The purpose of this study is to consider the complementarity of ethics and law with regard to the problem of their common existence in society through the identification of common and different characteristics in the philosophy of I. Kant.

This study is based on the observation that in modern society ethics and law remain the main social regulators and their co-existence requires the definition of their interaction and complementarity. Also, as this problem is closely related to issues of freedom and obligation, it is necessary to show their role in ethics and law.

The results show that the complementarity of ethics and law is due to the obligation that unites them, and the categorical imperative is the only postulate of ethics and the rights to execute, which allows a person to always remain worthy of his name. Ethics also has the meaning of legal capacity, and law means the recognition of people moral independence by public authorities. Thus, the law must protect a person not only from arbitrariness on the part of other people but also from the state power.

This paper uses a philosophical approach, the utility of which is that ethics and law are studied as elements of normative regulation system of the society in terms of the phenomenal and noumenal nature of a man. It is proposed to consider ethics and law not only as different social regulators, which have their own specifics but also as complementary elements of a single social being, which should exist together and not attempt to substitute one another.

Marriage is often compared to a “contract.” This analogy purports to proceed from a settled concept called “contract,” under which legitimate obligations derive from consent. The analogy creates confusion when applied in the legal context. In law, “contract” refers to a broad category of legal obligation. Many legal theorists believe “contractual” enforceability should be based solely on consent. But as a matter of positive legal doctrine, consent is neither necessary nor sufficient to establish enforceability. A contract's enforceability also depends on its relationship to public welfare.

Thus the “contract” analogy does not constitute a legal justification for an approach to marriage based solely on the consent of the parties. It merely expresses a normative preference for a consent-based approach. The chapter illustrates this point using examples of current marriage-related issues, such as covenant marriage, prenuptial agreements, and same-sex marriage.

The paper aims to extend deliberation on legal and political aspects of debate over globalisation versus cosmopolitanism into the field of jurisprudence – philosophy of law. It gives particular attention to questions of the legitimacy of international law and emerging forms of economic governance for business enterprises, soft law, rule of law, accountability and human rights.

In terms of research method, the paper proceeds from normative, as opposed to empirical studies. The paper develops arguments connected with cosmopolitan jurisprudence, a value-based frame of reference for corporate social responsibility. In legal and moral philosophy, normative statements derive from arguments concerning what states of affairs ought to be, how they are to be valued, which things and actions are good or bad. Normative claims contrast with positive (descriptive or explanatory) claims with respect to types of theories, beliefs or propositions. Value is both independent of fact and, at the same time, of an objective nature.

A cosmopolitan jurisprudence frame of reference for economic governance treats human communities as interdependent and takes seriously the human rights obligations and ethical and legal responsibilities of international business enterprises presupposed by international rule of law. In contrast to globalisation jurisprudence, the cosmopolitan philosophy of international law seeks justificatory ground, not only exclusively for traditional forms of centralised governmental authority but also for decentralised, polycentric, private and hybrid public–private forms of authority.

The paper demonstrates the insufficiency of just describing, as political science and economics does, the emergence of new arrangements for global economic governance. As well, it is insufficient for management theory to propose instrumental strategies for managing various stakeholder interests at play in emerging forms of governance. Efforts of empirical researchers in documenting, classifying and providing empirical analysis of power shifts do not provide moral justifications or groundings of legitimacy from human rights and rule of law. The paper shows how a cosmopolitan jurisprudence standpoint is a fertile theoretical source for addressing such justificatory issues.

In the context of a rapidly globalising economy, the justification of responsible business conduct across borders and cultures is more and more becoming a pressing practical concern. Increasingly, private actors are operating in authoritative positions, fulfilling governing functions once perceived to be the exclusive domain of nation-states.

The paper suggests that more important than focusing exclusively on descriptive, coercive and instrumental features of law, and seeking some overarching sanctions system that would necessitate pledging allegiance to a global super-sovereign, is cultivating social awareness of the importance of non-instrumental internal dispositions of actors to respect the normative obligatory nature of norms. The intrinsic value of rule of law and human rights provides a vital intellectual pathway for surmounting legitimacy gaps in global economic governance.

The paper breaks new ground by developing a cosmopolitan jurisprudence as an alternative to globalisation jurisprudence. This new articulation of cosmopolitan jurisprudence serves to provide analysis of philosophical justifications for emerging soft law syndicates that purport to establish obligations for business enterprises and other participants towards soft law regimes touching upon sustainability and human rights responsibilities.