An Analysis of the Effectiveness of Anti-Money Laundering and Counter Terrorist Funding Legislation and its Administration in the UAE Tatyana Gibbs Thesis submitted in accordance with the requirements for the degree of Doctor of Philosophy of the University of London March 2017 Institute of Advanced Legal Studies, School of Advanced Study, University of London Declaration of Authorship I, Tatyana Gibbs, confirm that the work presented in this doctoral thesis is my own and it has not been submitted, in whole or in part, in any previous application for a degree. Where information has been derived from other sources, it has been properly acknowledged and referenced in the thesis. Full Name: TATYANA GIBBS Signature: ____________________________________ Date: 8 March, 2017. 2 Abstract: This doctoral thesis develops a methodology to assess the effectiveness of anti money laundering and counter-financing of terror efforts in the United Arab Emirates by applying five “markers of success” (as determined by AML/CFT professionals) to the UAE’s AML/CFT framework. The markers are Robust Regulatory Framework; AML Legislation Enforcement; AML Legislation Awareness; Private Sector Commitment and Cooperation; and Transparency. The analysis chapters attempts to measure these criteria using a variety of sources, including UAE laws of 2002 and 2004 and their amendments and replacements of 2014; various regulatory documents and policies enacted by the UAE Central Bank and other UAE bodies; expert opinion when available; and other materials from both official bodies and the country’s media. The findings show generally uneven progress and sometimes-inconclusive results. During this period, the UAE, driven by external pressure coupled with internal self-interest, established an AML/CFT regime. As part of its AML/CFT framework, the UAE also created an outreach program via official bodies, and there is some evidence of its effectiveness in encouraging private sector compliance. However, measuring enforcement is problematic given the lack of hard and publicly available statistical data for much of this period. Efforts made to encourage a culture of transparency and accountability have run up against limited availability and accessibility of data. Accordingly, the UAE remains perceived as a largely non-transparent jurisdiction when it comes to financial crimes. Recent (2016) legislative developments underscore the UAE’s effort to change this, as it is due for a new FATF evaluation in 2019. 3 Table of Contents Preface 10 1. Introduction 12 UAE “Expected Results” 12 Rationale for Studying the UAE 13 The UAE Legal System: An Overview 23 AML/CFT Efforts in the UAE 24 Literature Review 27 UAE-Specific Texts 27 Broader Texts on Economic Crime 29 Efforts at Assessing Effectiveness 30 Assessing AML in International and Nation-Specific Contexts 32 Methodology Overview 36 2. Character and Significance of Transnational Money Laundering Today 38 The Term and the Concept 39 Significance as a Transnational Problem 42 Characteristics of Money Laundering 56 Conclusion 57 3. The Traditional Money Laundering Model and Standard Typologies 58 Observations 60 ML Typologies (Techniques) and Areas of Concern 61 ML Using the Financial System and Financial Institutions 61 Electronic Fund Transfers (EFT) 61 Structuring/Smurfing 64 Correspondent Banking 65 Payable-Through Accounts 67 Private Banking 68 Beneficial Ownership and Politically Exposed Persons (PEP) 70 Shell Companies 74 Remittance and Exchange systems, and Hawala 77 Complicity among Professionals (Bank Employees, Attorneys, etc.) 84 Physical Movement of Money 85 ML Using Trade-Based Techniques and Non-Financial Businesses and Professions 88 Black Market Peso Exchange (BMPE) 90 Real Estate 91 ML Using Charities and Non-Profits 94 Conclusion 95 4. International Initiatives Against Proceeds of Transnational Money Laundering 97 The First Phase: The 1970s 98 The Second Phase: The 1980s 100 4 The Third Phase: 1989-2001 103 a) “Customer identification and record keeping rules” 104 b) “Increased diligence of financial institutions” 105 c) “Measures to cope with the problem of countries with no or insufficient anti-money laundering measures” 105 d) “Other measures to avoid currency laundering” 105 e) “Implementation, and role of regulatory and other administrative authorities” 105 f) “Administrative cooperation” 106 g) “Cooperation between legal authorities” 106 Observations 106 The Fourth Phase: Post 9/11- 2010 108 New FATF Recommendations 113 The Fifth Phase: 2010 to Present 115 The Foreign Account Tax Compliance Act (FATCA) 119 OECD: Common Reporting Standards (CRS) 121 The UK Criminal Finance Bill 2016-2017 121 Stronger Powers For Tax Authorities 122 Relevance to the UAE 122 The Current (2012) Forty Recommendations 124 AML/CFT Policies and Coordination (Recommendations 1 and 2) 125 Money Laundering and Confiscation (Recommendations 3-4) 125 Terrorist Financing and Financing of Proliferation (Recommendations 5-8) 126 Preventive Measures (Recommendations 9-23) 126 Transparency and Beneficial Ownership of Legal Persons and Arrangements (Recommendations 24-25) 128 Powers and Responsibilities of Competent Authorities and Other Institutional Measures (Recommendations 26-35) 128 International Cooperation (Recommendations 36-40) 129 Conclusion 130 5. Economic Implications of Transnational Money Laundering on the UAE and the World at Large 131 UAE Background, Strength, and Vulnerabilities 132 Some Implications of Money Laundering 135 Effect on Development 138 Warnings for Developing Countries Still Relevant 139 Increased Crime and Corruption 140 International Consequences and Foreign Investment 145 Weakened Financial Institutions 146 Compromised Economy and Private Sector 147 Damaged Privatization Efforts 148 The Cost of Failure 148 5 The Cost of Terrorism 150 Conclusion 151 6. Development of a Methodology to Assess the Relevance and Effectiveness of UAE AML/CFT Efforts 153 Stage One (Survey and Interviews) 154 Breakdown of Stage One Survey/Interview Results 155 Stage Two: Survey to Determine Top Five Chosen Markers of Success 156 Stage Three 162 AML Legislation Enforcement and Robust Regulatory Framework 162 AML Legislation Awareness and Private Sector Commitment and Cooperation 163 Transparency 164 7. The Evolution of a Regulatory/Legislative Framework and SubseQuent AML/CFT Regulation/Legislation Enforcement in the UAE, 1987-2014 165 AML Regulatory Framework, 1987-2001 166 Post-9/11 AML Regulatory Framework 170 Federal Law No. (4) of 2002: Regarding Criminalization of Money Laundering 173 Response to the New AML Law 175 AML Legislation Enforcement, 2002-2003 176 Regulating Hawala 179 The Shift Toward CFT 183 Federal Law No. (1) of 2004 (“On Combating Terrorism Offenses”) 184 AML Legislation Enforcement, 2004-2008 185 Compliance Assessments in 2008 191 Meeting the Action Plan: Regulatory and Legislative Responses to the 2008 MER (to early 2014) 193 AMLSCU Quantitative Data on AML/CFT in the UAE, 2010-2013 198 Examples from Media Reports 201 Federal Law No. (9) of 2014 and the 20th MENA/FATF Plenum 202 Conclusion 206 8. AML Legislation Awareness and Private Sector Commitment and Cooperation in the UAE, 2002-2008, and 2009-2014 207 Compliance vs. Commitment 207 Official AML Legislative Awareness/Outreach, and the Growth of Private Sector Commitment/Cooperation 213 Private Sector Commitment and Cooperation 219 DIFC/DFSA 219 ACAMS 222 Other Professional Programs 224 Thomson Reuters 225 6 The Institute of International Finance 225 Academy and Finance 226 Legal Week 226 An Abundance of Outreach 226 Conclusion 227 9. Toward Transparency in the UAE 228 Transparency 228 Words and Actions 229 UAE Standards and Perceptions 231 Low Numbers as Proof of Effectiveness 232 Transparency and Public Disclosure 233 The Abu Dhabi Accountability Authority 244 Media Themes 246 Work in Progress 247 Conclusion 248 10. Conclusion 249 Observations/Evaluations 250 Markers 1 and 2: Robust Regulatory Framework and AML Legislation Enforcement 252 Markers 3 and 4: AML Legislative Awareness and Private Sector Commitment and Cooperation 253 Marker 5: Transparency 254 Bibliography 257 7 List of Tables and Charts Chapter 6 Table 1: Top 5 Chosen Markers of Success 156 Table 2: Place of Work 157 Table 3: Work Duration 157 Table 4: Professional Position 157 Table 5: Area of Work 158 Table 6: High Significance Between Markers of Success and Profession 159 Table 7: Moderate Significance between Markers of Success and Profession 160 Table 8: Low Significance between Markers of Success and Profession 160 Table 9: High Significance between Markers of Success and Area of Work 160 Table 10: Moderate Significance between Markers of Success and Area of Work 161 Table 11: Low Significance between Markers of Success and Area of Work 161 Table 12: High Significance between Markers of Success and Length of Work in AML 161 Table 13: Moderate Significance between Markers of Success and Length of Work in AML 162 Table 14: Low significance between Markers of Success and Length of Work in AML 162 Chapter 7: Table 1: Annual Number of STR Reports, 2004-2013, AMLSCU 187 Table 2: Annual Number of STRs by Financial Institutions, 2004-2006, MENA/FATF 188 Table 3: Annual Number of STRs, 2004-2006, AMLSCU 189 Table 4: Areas in which UAE was Deemed Compliant 191 Table 5: Areas in which UAE was Deemed Largely Compliant 191 Table 6: Areas in which UAE was Deemed Partly Compliant 192 Table 7: Areas in which UAE was Deemed Non-Compliant 192 Table 8: ML/TF-Related STRs, Financial Sector, 2010-2013,