Search results

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 study aims to explore the challenges of developing jurisdictions like Pakistan in achieving significant mutual legal assistance from the international community, especially for sharing financial information.

A qualitative approach of semi-structured interviews was adopted to complete the study’s objective. The selection of financial experts for interviews was based on purposive sampling.

This study concluded that Pakistan is facing several challenges, including mistrust of the international community; political disinterestedness and instability; delaying tactics in implementation, capacity and resources of law enforcers; and proximity with hostile neighbours.

Rare studies discussed this issue in the Pakistani context.