The G8's actions on 'beneficial ownership' are a breakthrough in the fight against financial crimes (Credit: James Lauritiz,Digital Vision Collection, Getty Images)
The move was momentous and, until a few weeks ago, quite unexpected. In a push to tear down the walls of corporate secrecy, the G8 has just committed to ensuring that each of its members will have immediate access to the identity of the so-called “beneficial owner” - the individual who ultimately pulls the strings behind companies- in their jurisdiction. Not very long ago talk of “beneficial ownership” was the domain of a handful of policy wonks and the odd NGO; now it’s taken center stage.
The G8’s statement represents a major breakthrough in fighting financial crime, corruption and tax evasion. Law enforcement and regulatory action have been hampered for far too long by the lack of access to information on the individuals who, ultimately, benefit from the ill-gotten gains stashed away in a variety of exotic sounding entities around the world. The seemingly impenetrable barriers of corporate secrecy have been lifted and the walls are coming down.
Asset recovery is helping to restore justice for Tunisia's citizens (Credit: European Parliament, Flickr Creative Commons)
It is welcome news that Tunisia has received $28.8 million corruptly acquired by the country’s former President Zine El Abidine Ben Ali. The money emanates from a Lebanese bank account held by M. Ben Ali’s wife, and was handed over in the form of a check to Tunisia’s current President Moncef Marzouki, by Ali bin Fetais al-Marri, Qatari attorney-general and the UNODC Special Advocate on Stolen Asset Recovery.
A hornet’s nest has been stirred up by the leak of millions of financial files by the International Consortium of Investigative Journalists (ICIJ) in collaboration with journalists around the world. The ICIJ says that its work reveals more than 120,000 offshore companies and trusts, exposing the hidden dealings involving politicians, businessmen and others. While authorities around the world are assessing the validity of these documents, the extent of the information emanating from the British Virgin Islands, the Cook Islands and elsewhere is revealing in many ways. Importantly it is a rebuff to those who claim that there is no problem with the workings and transparency of the international financial system. Whatever the veracity of the allegations contained in the ICIJ report, they reveal the extent of highly complex and secret financial and corporate structures, and their cross-border nature. These revelations have already spurred some to call for more regulation by governments.
It began as a trickle but has turned into a flood. HSBC, Barclays, Wachovia, JP Morgan, and UBS have all been engulfed by waves of scandal involving, money laundering, fixing interest rates, risky trades, and rigging the money markets. The question now is – have the banks gone bad? The claim by senior bank executives they ‘we did not know’ rings hollow, and must not be allowed to stand if they are to regain their integrity.
The banks have long resisted greater hands-on supervision of their activities, but the recent rash of publicity surrounding their bad conduct proves that left to their own devices market discipline is not enough. Their involvement in dubious transactions, including in greasing the wheels of corruption through money laundering requires the full implementation of existing rules and regulation, and empowered supervision. The World Bank’s Stolen Asset Recovery Initiative (StAR) along with Financial Market Integrity (FMI) have long pressed for the banks to do more to prevent money laundering and to fight corruption. As a rough estimate, it is believed that $20 – $40 billion is stolen from the coffers of developing countries every year. Much of it ends up being laundered through the banks, passing through financial capitals around the world en route to the beneficiaries. Mechanisms to detect illicit cash flows have long been in place, but the existing system is not working, and corruption is eating away at the foundations of the banking system.
When a modestly paid public official is suddenly able to take lavish holidays, buy a new sports car, or purchase expensive jewelry it raises eyebrows - and suspicion. Corruption may be suspected but it is often frustratingly difficult to prove – so what is the best way to deal with the sources of unknown wealth?
‘Illicit enrichment’ poses a legal and practical challenge for authorities around the world. One option is to criminalize the offence, meaning in practice that the prosecution does not have to prove that the assets come from corrupt behavior, but simply cannot be justified from legitimate sources of income. The public official then has to provide evidence of the legitimate source of the mysterious new found wealth, and if it cannot be adequately explained then suffer the legal consequences.
I grew up listening to U2, and I have followed Bono’s pioneering work raising awareness on pressing issues around poverty. My perspective was that Bono, like other very famous artists, generally leaned towards important topics that create immediate empathy, such as child malnourishment, education and health sector failures. Hence my grateful surprise when Bono yesterday singled out open data and transparency as key issues in the fight to end poverty.
Awareness about financial disclosure is growing. But why are international bodies such as the G20 pushing for them, and why should citizens care?
Financial disclosure (also known as asset declaration) refers to a system where public officials must periodically declare information on their assets, income, business activities, interests, etc. Financial disclosure systems can be used for the prevention, detection, investigation, as well as prosecution of corruption. These in turn can lead to promoting accountability among public officials, avoiding conflict of interest and increasing citizen trust in public institutions.
In December 2010, the Arab Spring began with a call for a change, which ended up becoming a reality in Tunisia, Egypt and Libya. The restoration of justice is now a priority focus in all these countries. In the minds of many citizens, justice means the return of funds looted by officials over decades of high-level government corruption. The tenor of recent news reports shows that throughout the region, the public’s patience for the process is wearing thin.
But the reality is that the asset recovery process is a long and often difficult road, one that must be traveled even long after the euphoria of regime change has dimmed. We know that from our engagements with client countries, and from many headline-making cases. For example, according to StAR’s Asset Recovery Watch, although former Philippine President Ferdinand Marcos was deposed in 1986, the attempts to recover his allegedly stolen wealth continue to the present day. Meanwhile, a new case against Nigerian Dictator Sani Abacha, who died in 1998, was launched in Luxembourg just this year.
Last week, British NGO Global Witness published Grave Secrecy, a report on how U.K. registered companies were allegedly used to launder the profits of corruption. Hundreds of millions of dollars passed through the corporate accounts of dozens of shell companies that held bank accounts at Asia Universal Bank (AUB), the largest bank in Kyrgyzstan. Although the report is based on one concrete case of alleged corruption and money laundering in that country, its relevance goes beyond that single example.
It is just one illustration of how money launderers and those involved in large-scale corruption use companies to hold criminal assets whilst ensuring that information on the control of those companies is virtually inaccessible. The essence of those schemes is to parcel out different bits of information on the company to different jurisdictions from which such information can only be obtained with difficulty (so-called secrecy jurisdictions). Indeed, how does one find relevant information on a U.K. company owned by a company registered in the British Virgin Islands with a company secretary in the Marshall Islands and a director in Panama? Criminal creativity knows no bounds.
A decade ago, prosecutions of companies for paying bribes abroad were rare. Today, you can open the business section of almost any major newspaper and find a story about a company under investigation for bribery of foreign officials.
The good news is that these prosecutions are truly on the rise globally. While the United States has continued to lead the field, the authorities in many countries have now succeeded in holding companies liable for foreign bribery or closely-related offenses. To name a few, these include the United Kingdom, Germany, Switzerland, Canada, Denmark, Italy, the Netherlands and Norway. Even some international institutions, such as the World Bank, are also moving towards such negotiated resolutions – but those private administrative actions are not the topic of this blog.
Have we seen a lot of trials? Not at all. Around the world, the preferred method of resolving foreign bribery cases is not through trials in court, but rather through shorter court procedures, plea bargains and other forms of mutual resolution. Even in civil law countries.