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Ad Can Be Removied Soon to be implemented in the UK, the 5th Anti- manage their CDD in various scenarios: how, can the dealer go about that when the agent for example, will they respond to a new cli- will wish to keep the identity of their client Art Business Money Laundering Directive looks set to have ent wishing to make an impulse purchase at secret so that they do not get cut out of the a significant impact on the British art market. an art fair. £100 billion transaction? It is hoped the government will AML legislation Art businesses will need systems in place to POCA contains additional offences appli- provide useful guidance to the sector. cable to those in the regulated sector, which will Estimated extent of Auction houses, art dealers, agents and combat money laundering – and they should also become relevant to art-market participants. other art intermediaries need to start planning Sarah Barker already be preparing to meet the new obligations Most notably, if a person working in a business money laundered now and educating themselves in relation to in the regulated sector knows or suspects or has their enhanced obligations. They will likely reasonable grounds for knowing or suspecting that annually through the need to put in place systems and controls and another person is engaged in money laundering adopt comprehensive AML policies. Putting and fails to disclose that to the National Crime UK financial system in place the requisite systems and controls, Agency, then they can commit a crime. (This and then complying with CDD and reporting failure to disclose offence could attract 5 years obligations on an ongoing basis, may be bur- in prison and/or a fine.) This offence includes an densome for the industry. However, as with objective test (i.e. whether a reasonable person other regulated industries, the imposition of would have concluded that there are reason- regulation may be the precursor to a culture able grounds for knowing or suspecting that 10 January 2020 change across the sector. the arrangements concern proceeds of crime). Making appropriate enquiries and keeping Ignorance is no defence. Deadline for the 5th records should mean that dealers are better There are many questions as to what these able to avoid committing money laundering new laws will mean for art-market participants Anti-Money Laundering offences. Even as the law currently stands, it t has been estimated that at least £100 There are currently two main UK acts that legislation are still awaited. Nevertheless, on a practical basis. One of the key issues will Directive to pass into would be best practice to make appropriate billion is laundered through the UK finan- deal with anti-money laundering (AML). The based upon the current obligations to which be how they are to deal with CDD on ultimate enquiries, so that dealers do not inadvertently I cial system every year. That is twice the three primary money laundering offences regulated-sector businesses are subject, the clients. If an art agent comes to a newly regu- UK law assist criminals in their money-laundering size of Panama’s whole economy. are set out in the Proceeds of Crime Act 2002 impact on art-market participants is likely to lated dealer to buy a valuable artwork, that endeavours. In addition to the potential In July 2018 the 5th Anti-Money Launder- (POCA), and, very broadly, they are committed be significant. A senior auction-house lawyer dealer must do CDD on that agent. However, reputational damage associated with such ing Directive (MLD5) was adopted by the EU by anyone who knows or suspects that they has predicted that this will be the biggest if the dealer has reason to think that the agent unwitting assistance, the moral arguments as part of the Juncker Commission’s response are or may be involved with the transfer or legal change ever to affect the UK art market. must be buying on behalf of another person for rooting out serious organised crime – the to the terrorist attacks of 2015 in Paris and acquisition of criminal property, or that they Art-market participants carrying out busi- (the agent’s principal) because that agent social and economic costs of which are said Belgium, the Panama Papers scandal, and are facilitating such an arrangement. There- ness in the UK will be required to have certain would be unlikely to have the funds to buy the to cost the UK in excess of £37 billion pounds increased scrutiny of free ports following fore, under the current law, if a dealer does not systems and controls in place to combat money artwork on their own account, what does the €10,000+ each year – are profound. o the Yves Bouvier affair. The UK has until 10 know or suspect at the time (on a subjective laundering and terrorist financing; failure to newly regulated dealer do about undertaking January 2020 to transpose MLD5 into national basis) that they are involved in an arrangement comply with these requirements could carry CDD on that ultimate client? Will the dealer Value of art-market Sarah Barker is Partner and Head law. Theresa May’s government confirmed involving proceeds of crime, they are unlikely a penalty of two years’ imprisonment, a fine, be able to rely on the fact that the agent will of the Art Group at law firm Lee & the UK will implement MLD5 despite Brexit. to be found guilty of a money-laundering or both. The systems and controls required also be regulated and therefore should be transactions to which Thompson LLP. Money laundering can take many forms, offence (albeit they may not deliberately ‘turn will likely include: undertaking an internal doing their own CDD on their principal, or as funds derived from criminal activities a blind eye’). risk assessment and creating an internal AML must the dealer conduct CDD on the agent’s the new laws will apply The contents of this article are not are passed through corporate entities, busi- The Money Laundering Regulations 2017 policy; undertaking initial and ongoing cli- principal too? The dealer will likely need to legal advice and cannot be relied upon nesses, bank accounts and/or assets in order (MLRs) impose certain additional obligations ent due diligence (CDD); documenting CDD understand the source of funds, the transac- as such. Specific legal advice should be to disguise their true origins. In the art sector upon those deemed to be part of the ‘regulated carefully and maintaining records; training tion and the identity of the principal, but how sought on a case by case basis. examples might include a criminal exchang- sector’. Currently, high-value dealers (those staff; and appointing a nominated officer to ing ‘tainted’ funds for high-value assets that art dealers accepting cash payments above a make reports to the National Crime Agency. are then returned to the dealer, with ‘clean’ certain value) are the only art-market players Broadly speaking, CDD means identify- funds refunded, or simply buying an artwork within the regulated sector under the MLRs. ing clients (including beneficial owners of with the proceeds of crime at a very high price MLD5 has extended the scope of the corporate clients) and verifying those iden- and then anonymously selling it to a third party existing legislation to certain art-market tities using independent documentation. The Apollo podcast (possibly at an undervalue). Another example participants who will, when MLD5 is imple- Additionally, it means that regulated busi- might involve borrowing ‘clean’ money using art mented, become part of the ‘regulated sector’ nesses must form an understanding of the Interviews with William Kentridge, purchased with proceeds of crime as collateral. irrespective of payment method accepted. source of funds and the transaction (which It is said that the art sector could be fer- These are defined as ‘persons trading or act- includes understanding who all the parties tile ground for money laundering due to the ing as intermediaries in the trade of works of to the transaction are, determining whether Mark Gatiss, Andria Zafirakou, extremely high value of some artworks, their art, including when this is carried out by art the whole transaction makes sense or whether inherent portability, and the secrecy that is galleries and auction houses’ and ‘persons there are elements of it that the dealer is not RussellAD Tovey and many more customary in the industry. Use of art agents storing, trading or acting as intermediaries aware of, and understanding things that do and intermediaries, offshore companies and in the trade of works of art when this is car- not immediately add up, such as circular free ports can lend itself to the creation and ried out by free ports’. In each case there is a transactions or transactions at an under- or preservation of secrecy. This secrecy can of threshold for applicability, where the value of overvalue). CDD is conducted on a risk-based CAN BE REMOVIED course be for entirely legitimate reasons. How- the transaction (or a series of linked transac- analysis (considering the overall risk profile ever, it is also helpful to those who have more tions) amounts to €10,000 or more. of the business, the client and the particular nefarious intentions – which seems to be how At the time of going to press, the govern- transaction) and should typically be carried Follow us on iTunes the European Commission saw it after the ment’s response to its consultation on the out prior to carrying out the transaction. Deal- leak of the Panama Papers. implementation of MLD5 and the draft UK ers will need to give thought as to how to 114 OCTOBER 2019 APOLLO APOLLO OCTOBER 2019 115.
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