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EBA says Payments Institutions do not Manage ML/TF Effectively

The European Banking Authority (EBA)  published its Report [Date 16/06/2023] on money laundering and terrorist financing (ML/TF) risks associated with EU payment institutions.

Its findings suggest that ML/TF risks in the sector may not be assessed and managed effectively by institutions and their supervisors.

In 2022, the EBA assessed the scale and nature of ML/TF risk in the payment institutions sector. It considered how payment institutions identify and manage ML/TF risks and what supervisors do to mitigate those risks when considering an application for the authorisation of a payment institution and during the life of a payment institution.

The EBA’s findings suggest that institutions generally do not adequately manage ML/TF risk.

AML/CFT internal controls in payment institutions are often insufficient to prevent ML/TF, despite the high inherent ML/TF risk to which the sector is exposed.

The EBA’s findings also suggest that not all competent authorities do enough to supervise the sector effectively.

As a result, payment institutions with weak AML/CFT controls can operate in the EU, for example, by establishing themselves in Member States where authorisation and AML/CFT supervision processes are less stringent to passport their activities cross-border afterwards.

Failure to manage ML/TF risks in the payment institutions sector can impact the integrity of the EU’s financial system. The EBA’s work on access to financial services further suggests that failure to address those risks will also undermine efforts to improve access by payment institutions to payment accounts.

Several of these findings relate to issues addressed in EBA Guidelines. A more robust implementation by supervisors and institutions of provisions in these guidelines will mitigate the sector’s exposure to ML/TF risks.

Legal basis and background

Article 9a(5) of Regulation (EU) 1095/2010 (‘EBA founding regulation’) mandates the EBA to perform risk assessments on significant ML/TF risks affecting the EU’s financial sector.

The EBA drew on several sources to inform this risk assessment. These include the findings of the EBA peer review on the authorisation of payment institutions under PSD2, data extracted from the EBA’s AML/CFT database, EuReCA (available here), questionnaire responses, bilateral interviews with selected EU supervisors, national and supervisory assessments of ML/TF risks in the sector, and any other information available to EBA through its work on ML/TF risks and supervision.

The findings of this risk assessment will feed into the EBA’s bi-annual ML/TF risk assessment exercise under Article 6(5) of Directive (EU) 2015/849.

In line with its legal duty to lead, coordinate and monitor the AML/CFT efforts of all EU financial services providers and supervisors, the EBA remains committed to holistically tackling ML/TF risks across all economic sectors within its remit.  

DOCUMENTS

Report on ML TF risks associated with payment institutions

https://www.eba.europa.eu/sites/default/documents/files/document_library/Publications/Reports/2023/1056453/Report%20on%20ML%20TF%20risks%20associated%20with%20payment%20institutions.pdf

LINKS

Anti-Money Laundering and Countering the Financing of Terrorism

https://www.eba.europa.eu/regulation-and-policy/anti-money-laundering-and-countering-financing-terrorism

UK/US data sharing and the impact on financial crime

Speed read: On 3 October 2019 the UK and US signed a new data sharing agreement. So far, its benefits to the fight against terrorism and child exploitation have been in the spotlight. The agreement, however, casts the net widely when defining ‘serious crime’.

Offences of money laundering, fraud, tax evasion and market abuse are squarely captured. This piece assesses the potential of the agreement to be relied upon to further financial crime investigations with a cross-border dimension.

A new UK-US data sharing agreement signed on 3 October 2019 after four years of negotiation has implications for international money laundering and wider financial crime investigations. Although awaiting ratification by US Congress and UK Parliament, when implemented it will enable UK enforcement authorities including the Serious Fraud Office, HM Revenue and Customs, Financial Conduct Authority and accredited financial investigators, such as those at the National Crime Agency, to bypass the protracted Mutual Legal Assistance (MLA) system and directly request from US communication service providers (CSPs) electronic data to further an investigation into a ‘serious crime’. Defined as a crime with a maximum of at least three years’ imprisonment, offences of money laundering, fraud, tax evasion and market abuse are squarely captured.

Until now, enforcement authorities have had little choice but to rely on the MLA pathway, a process which, the Explanatory Memorandum to the agreement highlights, ‘can be years’ and may yield nothing. A frequent barrier is that access to data in the US is possible where there is an ‘exigent threat to life’, typically not the case even in the most complex of financial crime cases.1

The dawn of data sharing?

In the future, data that will be able to be sought directly from US CSPs such as Apple, Facebook and WhatsApp will include any data stored electronically, such as information identifying a customer or subscriber of a CSP, telephone records, electronic communications and records of payment means. The value of this information to a financial crime investigation is immense and the ability to approach CSPs directly will see investigations expedited. Still, there is a clear limit to the usefulness of the agreement and it is not carte blanche for enforcement authorities. Nothing compels a CSP in either jurisdiction to comply with the request. Enforcement authorities in the UK must also to seek judicial approval under the Crime (Overseas Production Orders) Act 2019 before a request is made. Approval will only be granted by a judge if there are reasonable grounds to believe that the information to be sought will be of ‘substantial value’ to the investigation.2 It follows that the enforcement authority must specify in the application the data that is sought. Further, there is potential for judicial review of the decision to grant the order that underpins a subsequent data request. ‘Any person’ affected by the order, which would include the American CSP itself, may apply to revoke the order.3

The agreement is also explicitly neutral when it comes to the thorn in the side of law enforcement and does not compel CSPs to remove encryption. The tension between privacy protection and investigation of crime remains. Important measures aimed at protecting the privacy of individual users, which Facebook and the applications it controls are set to enhance following a March 2019 proposal to expand end-to-end encryption, will continue to serve as a barrier to data sharing.

Continuing impediments

A spike in data-driven financial crime investigations therefore is not on the horizon even though CSPs could hold vital evidence. In March 2017, for example, the Financial Conduct Authority imposed a regulatory penalty on a former investment banker for sharing confidential information over WhatsApp. That case, however, did not require WhatsApp to share any data as full admissions were made at an early stage during an interview under caution and access to the device in question was provided.4 In August 2017, an IT professional pleaded guilty in the US to participation in a US $3 million insider trading scheme based on his provision to a group of traders of material non-public information that he misappropriated from his investment bank employer. The information had often been sent via encrypted self-destructing messages using a smartphone messaging application.5 His cooperation was similarly pivotal to the wider insider trading investigation which has since concluded. These two cases suggest that in the context of a financial crime investigation, data held by CSPs could be crucial but in the absence of cooperation by the suspect, will be very difficult to obtain.

Future developments

Negotiation of a similar data alliance between the US and Australia is underway. But, if the alliance is forged, the stakes for US CSPs are likely to be higher if the passage of recent Australian legislation is an indicator. In December 2018, Australia passed the highly controversial Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 which granted enforcement authorities sweeping powers to issue CSPs, including those not based in Australia but who provide services to an end-user in Australia, with notices requiring the provision of decrypted data. Civil penalties apply in the event of non-compliance. The Act is an early model for decryption legislation but its reach in practice is untested.

In the UK, discussion of the new data sharing agreement has focused on the benefits to anti-terrorism and anti-child exploitation efforts. Its potential use in financial crime matters, however, should not be overlooked. There is a limit to the value of the bilateral agreement whilst the tensions between privacy and law enforcement continue but the future bypassing of MLA processes is a step forward in cross-border financial crime investigations.

[1] Paragraphs 2 and 3.

[2] Section 4.

[3] Section 7.

[4] See Final Notice to Christopher Niehaus published by the Financial Conduct Authority on 29 March 2017.

[5] See US Department of Justice press release published on August 16 2017 and relatedly US Securities and Exchange Commission v Rivas et al complaint.

To read original article please click here 

 

 

Bashar al-Assad, sanction busting and Russian property

ASSAD HENCHMEN’S RUSSIAN REFUGE

How some of the top financers and human rights abusers of the Syrian regime are funnelling money out of Syria into Russia, and possibly beyond

Global Witness estimates that prominent members of the powerful Makhlouf family, cousins of dictator Bashar al-Assad, own at least US$40 million worth of property across two Moscow skyscrapers. Some of the same family members have been key in maintaining al-Assad’s grip on power.

Several Makhlouf family members, close cousins and accomplices of Syrian dictator Bashar al-Assad, have purchased tens of millions of dollars’ worth of properties in Moscow’s prestigious skyscraper district.

Headed by al-Assad’s uncle, Mohammed Makhlouf, the Makhloufs are considered to be Syria’s richest and second most important family. Before 2011, they controlled 60 percent of the Syrian economy, ostensibly acquired through years of corruption and intimidation.

The discussion has grown about the Makhloufs fortunes suffering in Syria’s war-time political realities because of new players on the scene. However the Makhloufs have almost all been sanctioned by the European Union and United States for their various roles in al-Assad’s campaign of violence against his own people.

Global Witness exposé of the Makhloufs’ properties is rare supporting evidence that lends substance to rumours of regime money being funnelled out of Syria throughout the war. Information about the regime’s assets and finances is notoriously scarce due to the terror fostered by al-Assad’s apparatus at home and abroad.

Global Witness investigation further shows that the loans secured against some of the properties could be for the purposes of laundering money from Syria into Moscow.

This opens the possibility that the money could then be moved into other jurisdictions, such as the EU, where members of the family are sanctioned.

Of the newly-revealed Moscow property purchases, the largest amount was bought by Hafez Makhlouf, one of Bashar al-Assad’s first cousins.

Hafez is accused of overseeing the killings and torture of detainees and protestors. Most of Hafez’s purchases were arranged using an opaque Lebanese loan structure that bears several hallmarks of money laundering, possibly with the purpose of moving the money beyond Russia.

Five other Makhlouf family members, including the wife of Syria’s richest man, Rami Makhlouf, have also purchased property in the luxurious Moscow International Business Centre skyscraper district, also known as ‘Moscow City’, where several Russian multinationals, banks and government departments have their offices.

Global Witness estimates the Makhlouf family owns at least US$40 million worth of property across two Moscow skyscrapers. The properties were bought in various stages between December 2013 and June 2019.

Each of the sanctioned Makhlouf family members has challenged the European Council sanctions against them, but the European Court of Justice has repeatedly rejected their claims and affirmed the need for sanctions.

Russia has been a key ally of the al-Assad family over its almost 50-year rule. It intervened on their side of the war in Syria in 2015, turning it in their favour through airstrikes and land offensives on opposition-controlled territory.

Reports of Russian banks aiding the Syrian regime surfaced in 2012 and 2013 after Western sanctions hit and the more powerful family members were stripped of European visas and their EU and Swiss bank accounts were frozen. Now it seems that the Syrian regime has been using Moscow as an alternative safe haven, and possibly a potential gateway for its ill-gotten gains to enter the wider financial system.

MASTERMIND OF 2011 CRACKDOWN

Hafez Makhlouf, who purchased US$22.3 million worth of property in Moscow’s ‘City of Capitals’ towers, was head of the Damascus  ‘Section 40’ of Syria’s infamous General Intelligence Directorate until late 2014. This is the Syrian agency charged with quelling internal dissent, formerly and popularly known as the State Security service. As Damascus is the capital, this was already an important role, but Hafez appears to have had a great deal more authority than this official title reflects.

He was sanctioned by the EU in 2011 for being involved in ‘violence against demonstrators’, much of which took place outside the capital. Pre-existing sanctions against him in the US were expanded in 2011 to include his involvement in killing demonstrators in Daraa, the initial protest hotspot, which is located in southern Syria.

Testimony collected by Syrian human rights groups about Hafez’s Section 40 and its command branch, the Al-Khatib Branch, as well as wider testimony collected by journalists about the systemic use of torture by Syria’s intelligence services, points to how Hafez would have potentially overseen the detention of  thousands of Syrians and their subsequent abuse, and, in some cases, even murder.

Moreover, multiple regime defectors have since testified, in a 2019 book by journalist Sam Dagher, that Hafez was a hard-line member of Bashar al-Assad’s inner circle and one of his most influential advisers. According to the testimony, Hafez was one of two main advocates for crushing the demonstrations in 2011. Dagher’s book includes testimony from witnesses who saw Hafez shooting civilians in Douma and giving shoot-to-kill orders on hundreds of peaceful protestors in Daraa and Homs.

Hafez Makhlouf did not respond to several requests to comment made through companies connected to him and his known legal representatives.

SUSPICIOUS FLOWS OF MONEY INTO MOSCOW

When buying the Moscow office space in 2016, Hafez Makhlouf’s Russian-registered property companies took out loans using 11 of the properties as collateral. The complex structure of these loans disguises Hafez’s connection to the funds. This is characteristic of money laundering and could have been designed to establish money flows between Russia and Syria which would appear unconnected to Hafez, raising the possibility that the ultimate aim is to move the money out of Russia.

Man in debris – Idlib, Syria

A man shouts over the debris of his house after airstrikes on Idlib by Syrian and Russian forces, July 27 2019. Photo credit: Muhammed Said/Anadolu Agency via Getty Images

The loans were provided to Hafez’s Russian companies by a Lebanese company called Nylam SAL Offshore. The company is classified as ‘offshore’ in Lebanon; while Lebanese ‘offshore’ companies do not hide their owners like offshore companies in so-called secrecy jurisdictions like the British Virgin Islands, these companies do benefit from enhanced banking secrecy. The exact amount loaned by Nylam is unknown.

Hafez has close ties to the individuals who run and own Nylam. Two of the directors and shareholders of Nylam are Haytham Abbas and Hassan Sharif, who are brothers of Mohamed Abbas and Ammar Sharif, two prominent Syrian businessmen sanctioned by the US and EU respectively for supporting the al-Assad regime. Hafez is a cousin of the Abbas brothers, and Mohamed Abbas was specifically sanctioned for acting as a front for Hafez’s brother, Rami Makhlouf, and for using Lebanese offshore companies to do so.

Furthermore, Global Witness understands that Ammar Sharif is married to the sister of Rami’s wife Razan Othman, making him Rami’s brother-in-law.

Like members of the Makhlouf family, Ammar Sharif has had his appeal against European Union sanctions rejected.

In 2018, two years after the property purchases, Hafez, the sole shareholder of his three Russian companies, passed his shares to Briana SAL Offshore, a Lebanese company with identical shareholders, directors and address as Nylam. Russian corporate records for the Russian property companies contain details about Briana because it is a shareholder. These records show that Briana states its country of business as Syria.

Consequently, the ultimate obligation for the Nylam loans passed from Hafez himself to Briana. This means that the loans are now between two companies, Nylam and Briana, which are owned and run by the same people, all of whom are seemingly part of Hafez’s network. However, on paper at least, neither company would seem to be connected to Hafez.

Makhlouf Russia Syria connection diagram

The loan agreements and any subsequent re-mortgage agreements between two supposedly independent and private companies, Nylam and Briana, not known to be linked to Hafez, could be used as a pretext with banks for money moving from Syria and Lebanon to Russia or vice versa.

Letters requesting comment from Haytham Abbas, Hassan Sharif, Briana and Nylam in Lebanon were undeliverable, while attempts to reach Abbas and Sharif through the three Russian companies they own went unanswered.

Hafez would not, on the face of it, appear to need to disguise his identity to do business in Russia. The Makhloufs are not sanctioned by Russia, and there is evidence that Hafez has lived and operated in Russia freely for several years. Hafez and his wife appear to have spent time in Moscow from at least August 2013, when their Russian driving licenses were issued. They bought a three-bed property not far from the Moscow skyscrapers in September 2015. They registered a Porsche Cayenne and Mercedes GL350 to that address, property documents and leaked traffic databases unearthed by Global Witness show, indicating that they lived in the apartment.

Given the Makhloufs’ ability to operate freely in Russia, the use of a complex loan structure that obscures the origin of the money seems unnecessary if the funds were intended to simply stay in Russia, suggesting the money may be moving through Russia and into other jurisdictions.

THE RUSSIAN BANK

Russia’s biggest bank, Sberbank, provided banking services for at least one of the Russian property companies formerly owned by Hafez and now owned by Briana, a Russian corporate database shows.

As the loans from Nylam to Hafez’s Russian companies were international (coming into Russia from Lebanon), it is feasible that they were transacted in US dollars, which is the commonly used international currency. If that were the case, the money could have transited through Sberbank’s SWIFT payment system, which, according to anti-money laundering expert Graham Barrow, could risk breaching the terms of the US sanctions against Hafez Makhlouf.

The convoluted nature of the loans taken against the properties should have raised red flags with Sberbank, but it is unclear what due diligence was carried out on the loans.

Sberbank’s dealings with the Makhloufs are part of a broader pattern of major Russian banks helping the Syrian regime. In 2012 and 2013, both Reuters and Wall Street Journal reported that the al-Assad regime held accounts at Gazprombank and VTB, two of Russia’s largest banks, which, like Sberbank, have extensive international correspondent banking relationships.

While Sberbank in Russia is not bound by EU or US sanctions law, it does have branches in major European and US financial centres, including London, Frankfurt and New York. Sberbank also has dozens of correspondent banking relationships, and Euro and US dollar clearing accounts.

Sberbank’s business with the Makhlouf-linked companies could present compliance risks to other banks transacting with Sberbank and should be a red flag to regulators in the jurisdictions in which the Makhloufs are sanctioned and Sberbank has a presence.

Sberbank did not respond to a request for comment. In past comments to the media, Sberbank has said that “professionalism, transparency and integrity are the bank’s core values” and “the bank has zero tolerance for those who act contrary.”

THE MAKHLOUFS’ OTHER PROPERTIES

Several other Makhlouf family members purchased property in Moscow skyscrapers between 2013 and 2019. Razan Othman, the wife of Hafez’s brother Rami Makhlouf and daughter of the Syrian Ambassador to Romania, purchased one of the first office spaces in December 2013 in the ‘City of Capitals’ towers, according to Russian property records. Razan has been under EU sanctions since 2012 because of her marriage to Rami.

Rami was sanctioned in 2011 by the EU for being the ‘principal financer’ of al-Assad and ‘bankroll[ing] the regime allowing violence against demonstrators’. He had already been sanctioned in 2008 by the US for acquiring his wealth through kleptocratic means. Rami owns Syriatel, Syria’s national telecommunications company, as well as several large holding companies with interests in oil, gas and aviation. He was dubbed ‘the king of Syria’ due to his huge sway over the country’s politics and economy.

Rami’s adult children, who are not sanctioned, openly flaunt their wealth on social media, offering a glimpse into their luxury lifestyles. They regularly post pictures on Instagram of their expensive cars, private jet, and their holidays in Europe, Dubai, Moscow and Syria. Rami’s eldest son, Mohammed Rami Makhlouf, is seemingly trying to establish an international image for himself as a millionaire entrepreneur and philanthropist at the age of 21. A PR agency was used to place articles in English language publications promoting Mohammed Rami Makhlouf’s future business plans and discussing his taste in private jets.

This August Rami’s two sons spent around a month partying in Mykonos, Greece and France, while al-Assad and Russia rained bombs down on Idlib, displacing even more Syrians in a conflict which has already led to millions of refugees being forced to flee the country.

Rami Makhlouf’s children must have received visas from an EU state in order to travel freely in Europe, but it is unclear which country issued them. Among EU states, only Romania, Bulgaria and the Czech Republic have maintained relations with the Syrian regime, though other member states are apparently looking to re-establish them.

In addition to Hafez’s and Rami’s wife’s property acquisitions, Iyad and Ihab Makhlouf, twins and the youngest of the four Makhlouf brothers, used a Russian-registered company to purchase half a floor in in Moscow’s ‘Federation’ tower in February 2019, worth US$9.5 million. The two men also bought one property in their own names and two parking spaces in ‘City of Capitals’ in June 2017.

Mohammad Rami Makhlouf

Mohammad Rami Makhlouf (pictured) is Rami Makhlouf’s eldest son. He and his brother publicly flaunt their luxury lifestyles.

Iyad is a serving Lieutenant-Colonel in the General Intelligence Directorate. As an officer he holds command responsibility which means he is answerable for the actions of his subordinates. He was sanctioned in 2011 by the EU for ‘violence against the civilian population’.

Iyad’s twin, Ihab, is vice-president of Syriatel, and was sanctioned by the EU in 2011 for ‘directly supporting the regime’ and for funding it, as Syriatel transfers a ‘significant part of its profits to the Syrian government’. The US sanctioned the twins in 2017: Iyad for helping the Syrian government evade international sanctions, and Ihab for helping his brother Rami evade international sanctions and move his assets overseas.

Rami Makhlouf

Only one of the 20 Makhlouf skyscraper properties in Moscow has been rented so far, according to Russian property records, indicating that most of the properties are not being used commercially.

Ihab and Iyad Makhlouf did not respond to several requests to comment made through their companies and known legal representatives. Razan Othman also did not respond to a request for comment through her known legal representative.

Of all the family members, only Rami has previously commented on the sanctions against him. In 2008, regarding the first US sanctions against him, he said that he had been “unfairly targeted”.

SOURCE OF THE MONEY

The source of the funds for property purchases is unknown. It could be from the Makhloufs’ own private wealth, accumulated over years of acting as powerful enablers and profiteers of the regime in Syria, including under al-Assad’s father Hafez al-Assad.

Alternatively, it could be funds looted from Syria by other members of the al-Assad regime, stashed abroad by the Makhloufs. Mohammed Makhlouf, the elderly father of the Makhlouf brothers and Bashar al-Assad’s uncle, was widely known to act as the banker to the al-Assads. It seems, according to US and EU sanctions that accuse them of moving money on behalf of the regime, that his sons have inherited some of this role.

Two of the directors of the Russian companies incorporated by Hafez Makhlouf and his twin brothers in order to buy the Moscow properties appear to be connected to the Syrian Embassy in Moscow and the Syrian Army, according to Global Witness’ research.

While this does not conclusively prove a link between the property purchases and the al-Assad regime, the Syrian Embassy in Moscow (like Syrian Embassies elsewhere), is known to act as little more than an extension of al-Assad family interests. It is unlikely that embassy officials would be involved in the transactions unless they aligned with the interests of the al-Assad regime.

Whether the funds are the Makhlouf’s private wealth or cash that they are funnelling out on behalf of the regime, there is little doubt that the money is tied to grave human rights abuses in Syria.

The Makhlouf’s roles have made them complicit in some of the worst atrocities of the 21st century. Those crimes include weekly indiscriminate bombing of civilian areas, including strategic targeting of hospitals; laying siege to civilian areas; the arbitrary detention of civilians; mass executions of prisoners and defectors, their torture and rape; and the regular use of chemical weapons on civilians.

The older Makhloufs avoid publicity. Most have no pictures of themselves online or in the press. Family members did not respond to request for comment from Global Witness. In a rare interview given by Rami in 2011, he claimed he was sanctioned purely for being Assad’s cousin and that Assad did not need his money. In PR materials, one of the younger Makhlouf family members claimed that the family wealth comes from their business interests in Syria.

However, the family’s links to the Syrian regime call into question the legitimacy of their business interests. All financial institutions must ensure that robust due diligence processes are in place to prevent tainted money, like that of the Makhloufs, entering the global financial system. Weaknesses in such processes allow abusive and kleptocratic rulers to enjoy the spoils of their illegal actions while the victims of such regimes, including the citizens of Syria, continue to suffer without recourse to justice.

To read original article please click here 

OFAC adds Guptas to Global Magnitsky sanctions list

OFAC has sanctioned, pursuant to Executive Order 13818 (asset freeze and travel ban), members of a South African family, Ajay, Atul and Rajesh Gupta, and their business associate Salim Essa for engaging in “significant corruption”.

Sigal Mandeleker, Treasury Under Secretary for Terrorism and Financial Intelligence, said that the family

“leveraged its political connections to engage in widespread corruption and bribery, capture government contracts, and misappropriate state assets […] at the expense of the South African people”.

The alleged schemes included paying sums to government officials in exchange for the appointment or dismissal of officials so as to benefit the family’s business interests. OFAC Notice and Treasury Press Release.

To read original article please click here and here 

 

Captain Kirk & money laundering? The final frontier for financial crime!!!

SURPRISE SURPRISE, the financial system provides the first alleged crime in outer space. Captain kirk, “eat your heart out”!!!

Some background

  1. There are five national or international space agencies involved in the ISS – from the US, Canada, Japan, Russia and several European countries – and a legal framework sets out that national law applies to any people and possessions in space.
  2. So if a Canadian national were to commit a crime in space, they would be subject to Canadian law, and a Russian citizen to Russian law.
  3. Space law also sets out provisions for extradition back on Earth, should a nation decide it wishes to prosecute a citizen of another nation for misconduct in space.
  4. As space tourism becomes a reality, so might the need to prosecute space crime, but for now the legal framework remains untested. Nasa officials told the New York Times that they were not aware of any crimes committed on the space station.

The story

  1. The US National Aeronautics and Space Administration [Nasa] is reported to be investigating a claim that an astronaut accessed the bank account of her estranged spouse from the International Space Station, in what may be the first allegation of a crime committed in space
  1. Anne McClain acknowledges accessing the account from the ISS but denies any wrongdoing, the New York Times reports.
  2. Her estranged spouse, Summer Worden, reportedly filed a complaint with the Federal Trade Commission.
  3. Ms McClain has since returned to Earth. And the astronaut told the New York Times through a lawyer that she was merely making sure that the family’s finances were in order and there was enough money to pay bills and care for Ms Worden’s son – who they had been raising together prior to the split.
  4. “She strenuously denies that she did anything improper,” said her lawyer, Rusty Hardin, adding that Ms McClain was “totally co-operating”.
  5. The astronaut, Anne McClain, involved completely denies any wrongdoing. Nonetheless, it provides an interesting starting point to consider the exercise of criminal jurisdiction in space.

The following post sheds some light on the in’s and out’s of space criminal law 

To read original article please click here

New rules brought in for non-UCITS retail schemes

The FCA has brought in new rules for certain open-ended funds investing in inherently illiquid assets, like property and real estate. The new rules will not apply to UCITS and other funds which already have restrictions in place.

Instead these rules cover non-UCITS retail schemes (NURSs).

The new rules mean that investors must be given clear and obvious information on the risks associated with liquidity, and the fund must be transparent about the circumstances where access to funds may be restricted. Managers of these funds will now be obligated to maintain plans to manage liquidity risk.

The rules aim to protect investors’ interests, especially during stressed market conditions.

The regulator wants to reduce the potential for some investors to gain at other investors’ expense, and to reduce the possibility of runs on funds, which can lead to a ‘fire sale’ of assets, harming fund investors. Such a situation came about shortly after the 2016 EU referendum when several property funds had to suspend dealing.

Under the new rules, the FCA has introduced a new category of ‘funds investing in inherently illiquid assets’ (FIIA). These funds will have to follow extra requirements, including:

  1. Increased transparency and disclosure on how they manage liquidity
  2. Standard risk warnings in financial promotions
  3. Enhanced depositary oversight
  4. Providing liquidity risk contingency plans.

However, these requirements will not apply where a fund matches the dealing frequency of its shares to the liquidity of its assets.

NURSs that invest in inherently illiquid assets will have to suspend dealing if the independent valuer decides there is material uncertainty around the value of more than 20% of the fund’s assets, under the new rules. But the FCA has said that, following feedback, it will allow fund managers to continue to deal when they have agreement from the fund’s depositary that this is in the investors’ best interests.

Though these rules do not include UCITS, the high-profile suspension of a recent UCITS fund highlights the wider importance of effective liquidity management in open-ended funds, according to the regulator.

To read original article please click here

Improving the suitability of financial advice – Fact finding and reporting

Improving the suitability of financial advice – Fact finding and reporting

The following Speech by Debbie Gupta, Director of Life Insurance and Financial Advice Supervision at the FCA, delivered at Money Marketing Interactive Conference 2019, Harrogate addressed the thorny issue of Improving the suitability of financial advice – Fact finding and reporting

The full speech is linked below, and the following extract provides some thought leadership on financial advice – Fact finding and reporting

The foundation of suitable advice is getting to know your client and understanding their circumstances and motivations. In practical terms, this means:

  1. Spending sufficient time getting detail on a client’s needs and objectives provides a secure foundation for the advice process.
    1. A good fact-find records the client’s objectives – why it’s their objective and what achieving their objective means for them. So, for example, instead of recording the client wants flexibility, record something more specific such as the client wants to semi-retire, set up a part-time consulting business, and this will give them more free time to spend on their allotment.
  2. Capture and record essential information. Although COBS 9 and 9A may not give you a list of what this means, it is better to record everything that is relevant to the advice being given.
    1. For example, we still see DB transfer files where the adviser has not recorded details of other pensions, the state pension due, or the client’s expected income in retirement. This is essential information.
  3. Capture and record soft facts.
    1. They add context and help tell the story. Most importantly they demonstrate how your advice is right for the client.
    2. A recent case contained a fact-find which recorded the client’s heath as good. When we fed back to the firm our rating of unsuitable, the firm challenged this. Why?
    3. From reviewing the file we could see the client had a hereditary heart condition and was concerned as family members had died early.
    4. This was a main motivation for the client but was not recorded anywhere.
  4. Think about different fact-finds for different clients or different types of advice.
    1. Make sure you are asking the appropriate questions and recording sufficient detail. For certain types of advice, more detailed information on expenditure will be necessary.
    2. For example, advice on drawing an income in retirement is likely to need more detailed information than for a client in their 30s wanting to switch ISAs.
    3. That detailed information should demonstrate that you have considered essential and non-essential spending, and how this might change in the future.
  5. Consider recording client interactions.
    1. This isn’t a requirement, but we have come across many firms who have invested in this. New and innovative technology means this is not a prohibitively expensive option. Recordings provide the most robust evidence available for a firm to make its case in the event of a complaint. Even if you aren’t recording the meeting, your client’s voice should still come through the fact-find loud and clear.
    2. Consider using the client’s own language and phrase. When we looked at the advice given to British Steel scheme members in 2017, this was very evident. The files where the client’s genuine feelings were recorded in their own words often resulted in better quality advice. This is because the adviser could understand and empathise with the client and tailor the advice to the individual client. Under challenge, or scrutiny, it helped explain the context in which the advice was given, and provided insight into what the client really wanted and needed.
  6. Be brave. Challenge clients. Offer alternatives.
    1. It’s not your role just to follow client orders. Clients may have misunderstandings or misconceptions. Advisers should challenge these misconceptions and correct the client if there are misunderstandings. For example, many clients will have little understanding of longevity or the effects of inflation. The client may have based their initial decisions on false assumptions.
    2. The workings and role of the Pension Protection Fund (PPF) are a mystery to most clients, and we have seen the PPF presented as an option to avoid at all costs. But this is not a fair reflection of the significant value it provides to many people. Challenging misconceptions and client education is core to good advice. It is valuable. You are the experts. You will always know more than your client. And we expect your expertise to support your clients in this way. It is what we expect of the services you are paid to provide.

So that summarises some of the do’s based on the practice we have observed.

What about the don’ts? Here are my top 7 tips on what not to do.

  1. Don’t provide templated objectives for the client to tick. Each fact-find should be as individual as the client.
  2. Don’t use shortcuts and assumptions. The information you use should be up to date and accurate – for example, calling the scheme trustees to clarify the early retirement factors, or waiting a few more weeks for a state pension forecast.
  3. Don’t approach this with bias. Think about the language you use and the way things are presented to the client.
    1. We have seen a number of instances of bias, especially in DB transfers. In one case, we saw an adviser paint a picture that DB pensions are old fashioned and restrictive as the client has no freedom or control and that utilising the pension freedoms is nothing but positive.
    2. Let me be clear. Our view is that the starting presumption for financial advisers should be that transferring out of a DB pension is unlikely to be in the consumer’s best interests. So consider the way you present information and whether this could be influencing the client to take a certain course of action rather than giving them what they need to make an informed decision.
  4. Don’t see fact finding as just a regulatory requirement. It is essential to demonstrating suitability and the best way to demonstrate you fully understand your client. It also provides you with cover for your recommendations and advice.
  5. Don’t rely on the same fact-find you have used for years. Times change and your fact finding should change with it.
  6. Don’t rely on ‘I just know my client’ as a reason not to record key information. One of the most effective safeguards in the event of a file review/complaint is a robust file. This is a file which captures all the client information and can clearly demonstrate why the recommendation meets the client’s needs and objectives.
  7. Most importantly, don’t give advice if the client is unable/unwilling to give you all the information you need. If this information is missing, you will struggle to demonstrate and evidence that your advice is suitable. And that is a regulatory requirement!

Matching your recommendation to a client’s attitude to risk

I’ve offered some top tips on fact finding and recording. Now let me turn to what we’ve learned about evidencing that your recommendation is aligned to the client’s attitude to risk.

  1. Your client’s ‘voice’ should still come through the fact find loud and clear.
  2. One of the main causes of unsuitable advice is where the risk level of the recommended solution does not match the risk the client is willing or able to take.
    1. We still see advice where the proposed solution is not aligned with the client’s attitude to risk.
    2. If you’re dealing with a client considering a DB transfer, we expect you to consider investment risk. This can sometimes be a slight discrepancy in asset allocation. But we also see files where cautious investors are put into unregulated and non-mainstream investments.
  3. We expect to see an alignment between the client’s attitude to risk and your recommendation, including an assessment of how prepared they are to give up a guaranteed lifetime income for one which comes with no guarantees about value or sustainability. Make your records clear.
    1. For a client considering a DB transfer you will be also be assessing their attitude to transfer risk.
    2. We consider this assessment should be binary: yes, they have the attitude to accept the risk of transfer, or no they don’t.
    3. We don’t think the client’s attitude to transfer risk can be measured in percentage terms or using a scale such as cautious, balanced or adventurous.
  4. Consider the limitations of the tools you use and the outputs they give.
    1. Third-party providers are increasingly providing risk profile questionnaires, cashflow modelling tools, model portfolios and asset allocation tools for advisers.
    2. It’s important that there is due diligence undertaken to understand the limitations of these tools. And to make sure all the inputs and outputs are aligned. There’s a real risk of miscalibration without such due diligence.

Evidencing the client’s attitude to risk should include separate assessments of all relevant factors, before they are combined to given an overall attitude to risk:

  1. Attitude to risk – the client’s emotive response to risk. How do they feel?
  2. Capacity for loss – the client’s ability to take risk. Can they afford it?
  3. Risk need – do they need to take a risk to meet certain objectives? And should they?
  4. clients’ risk tolerance and ability to bear losses – We have seen some comments in the trade press about whether capacity for loss is a valid metric to use. Our suitability rules require firms to consider clients’ risk tolerance and ability to bear losses. So we would expect to see this in every file. For example:
    1. We have seen evidence that a client is heavily reliant on a product or investment to meet their income throughout retirement, and cannot afford to lose any value. But this was not evidenced as the clear driver for the recommended solution.
    2. 2 clients may have the same benefits from a DB scheme but very different financial circumstances. The client who has significant other assets has a higher capacity for loss. This is because the income from the scheme is one of many sources of income. The other client has no other assets and the DB scheme is their main source of income in retirement. Their capacity for loss would be very low. Capacity for loss in each case would be evidenced and assessed differently, even though the clients present as similar.
  5. Aim for consistency. We would expect to see a clear link between the information given to the client such as asset allocation and the recommended funds/portfolio.
    1. For example, where a firm sets out the type and proportional split of assets someone would be investing in, we expect to see a recommendation in line with that risk score. But we are seeing evidence that it is not.
  6. Consider the client’s knowledge and experience. This may sound obvious, but it demonstrates understanding. Remember, the client should be able to understand the nature of the risks that they are signing up to and for DB transfers, the benefits of what they might be giving up. Consider how to do this bearing in mind the client’s knowledge and experience.
    1. For example, descriptions with financial jargon may be inappropriate for those with less knowledge and experience. Diagrams, graphs, etc showing ‘what if’ scenarios could be more effective.
  7. Make sure the scenarios that you use are realistic and effective. It is hard to assess if the risk profile is suitable if all the scenarios shown are positive. It is much more effective to stress test people’s reactions to a negative scenario.

And finally, it’s not just clients’ knowledge and experience. It’s yours too. Acknowledge and recognise the limitations of your own knowledge. Do you really understand the products and services you may be recommending? We would expect to see evidence of the due diligence carried out on products and services to mitigate this.

Improving the suitability of financial advice [Speeches Published: 19/09/2019 Last updated: 19/09/2019]

To read original article please click here 

CIFO latest complaint numbers

Complaint numbers for April – June 2019 have been published on the website of the Channel Islands Financial Ombudsman (CIFO). Brief headlines are given here, for further information please see the report.

In the second quarter of 2019, CIFO received 106 complaints and opened 27 new case files – these are complaints that are within CIFO’s remit as set by law.

Of the new case files opened this quarter, the top two products remain consistent from the previous quarter:

  • current accounts (33%) and
  • investments (26%).

The top issues complained about were

  • poor administration or delay (30%),
  • mis-selling (22%),
  • closure of account (19%) and
  • refusal of service (11%).

In the second quarter of the year, 82 complaints were closed, of these:

  • 61% could not be dealt with as they were outside the scope of CIFO’s  mandate as set by law;
  • 31% were mediated or determined by the Ombudsman; and,
  • 9% were withdrawn by the complainant after coming to CIFO.

Score

  • 14 of the 25 mediated or determined complaints were found in favour of the complainant,
  • 11 of the 25 found in favour of the financial services provider.

For more information, please see the raport 

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