The fight against money


laundering



An economic analysis of a cost-benefit


paradoxon



Hans Geiger and Oliver Wuensch



Abstract



Purpose – To provide an economic view on the costs and benefits of anti-money laundering (AML)


efforts.


Design/methodology/approach – Based on a international, comparative study conducted in


Switzerland, Singapore and Germany, the authors outline the impact of AML measures on banks and


the financial services industry. The paper discusses possible reasons for the failure of AML to fight the


predicated crimes. It also discusses the collateral damage caused by AML.


Findings – Compared with the monetary and non-monetary costs of money laundering prevention


for the society and the economy, the benefits are small. Instead of broadening and deepening the


current AML framework, a thorough review of the current approach should take place.


Research limitation/implications – Costs and benefits of AML measures are hardly quantifiable.


The authors resort to a qualitative approach, stylising possible outcomes and side effects of money


laundering prevention.


Practical implications – Useful set of arguments for discussing the benefits and shortcomings of


the current and upcoming AML measures.


Originality/value – Money laundering measures and their impact are examined using basic laws of


economy and financial intermediation.


Keywords Money laundering, Economic value analysis, Cost benefit analysis


Paper type Conceptual paper



Prologue


The Swiss Banking Institute of the University of Zurich has, in co-operation with


universities in Germany and Singapore, conducted an international survey on the


anti-money laundering (AML) measures among banks in Switzerland, Germany and


Singapore[1]. The conclusions of the survey are puzzling:



.


Banks consider the compliance with AML rules as essential and important.

.


The AML rules’ implementation is highly burdensome and causes significant

costs and efforts throughout the banks.



.


There seems to be a broad consensus amongst practitioners and scientists that

the impact of money laundering prevention on the predicate offences is small.


It is the objective of this paper to analyze the puzzle of these three findings and


formulate some theses for the future development of AML measures.


Introduction


Banks and other participants in the economy have become used to ever increasing


regulation, but constantly complain about the burden they face in fulfilling the


requirements. According to the “Banana Skin Report” in 2005[2], “the remorseless rise


in regulation has become the greatest risk facing the banking sector”. Regulators have


taken up these concerns and consider the balance between costs and benefits of


existing and upcoming regulatory requirements today[3]. This is, however, not true for


all regulatory aspects. One notable exception is the area of money laundering and


terrorism financing. Various provisions have been enacted which engage the financial


services industry in the fight against the use of the financial sector by criminals. In


contrast to other regulatory areas such as capital adequacy or risk management,


benefits and costs of AML ventures are not considered. The AML pipeline is full of


upcoming provisions, especially as the relevance of organised crime, drug trafficking


and other illegitimate ventures did not decrease in spite of the massive measures taken


during the last two decades.


When discussing with banks and other financial services providers about AML,


they mainly emphasize on the implementation costs, which place a significant burden


on the industry, especially on smaller market participants. A recent study[4] showed,


that money laundering prevention measures account for 45 per cent of the total


regulatory burden and 2 per cent of the total costs in Swiss private banking. The cost


of regulation exhibits strong economies of scale. The burden for small banks[5] is more


than twice as high than for bigger banks. Small banks are therefore heavily penalised


against larger institutions. This applies for the implementation of banking regulation


in general, and for money laundering prevention in particular. However, private banks


also regard money laundering prevention as the most important regulatory area[6].


According to the official view, the money laundering prevention measures work


along the following principle[7]: first, by depriving the criminals of their illicit assets,


the expected revenue of a predicate criminal venture declines. Second, by imposing the


necessity of laundering the assets, the transaction costs increase. Finally, the money


laundering prevention efforts increase the probability of being detected and


convicted[8].


Whilst this deterrence mechanism sounds logically reasonable, its effectiveness and


efficiency for fighting predicate crime is doubtful. Direct costs and collateral damages


are high, the benefits for reducing predicate crimes small. This paper focuses on the


“collateral damage”. We show that money laundering prevention measures leads to


undesired side effects both for the economy and for the society as a whole. They may


even counteract one of the most important objectives of the endeavor, to fight


organized crime.


The next section introduces basic economic principles and outlines their


applicability in the area of money laundering and money laundering prevention.


Applying these economic laws, the following section describes the impact AML


provisions have on the legitimate and illegitimate sphere of the economy. The strategy


of banks and states in implementing current and developing upcoming AML provision


is then discussed. The final section gives basic rules the authors deem important for


assessing and improving the AML efforts.


Economic aspects of the anti-money laundering measures


In this paper, we present a stylised view on AML prevention and its positive and


negative effects by applying basic laws of economics. We assume that the same


economic laws apply both to the legitimate and the criminal spheres of the society.


Basic principles of economics


In classical economic theory two basic forces determine the behavior of an individual.


First, every individual acts rationally and aims to maximise his personal utility. This


principle is taken into account for most decisions an individual takes. For criminal


ventures which are committed to acquire personal wealth in particular, the decisions


are governed by this principle. Second, the personal utility of an economic venture is


mainly determined by its expected costs and revenues, which in turn are governed by


the fundamental laws of demand and supply.


In this classical world of Adam Smith, it is not the individual person or company


who looks after the wellbeing of the nation:



He [the individual] generally, indeed, neither intends to promote the public interest, nor


knows how much he is promoting it. [. . .] he intends only his own security; [. . .] he intends


only his own gain, and he is in this, as in other cases, led by an invisible hand to promote an


end which was no part of his intention[9].



The state should protect its citizens from “violence” and “injustice”[10]. Adam Smith


proposed the “obvious and simple system of natural liberty”[10], where:



. . . every man, as long as he does not violate the laws of justice, is left perfectly free to pursue


his own interest his own way, and to bring both his industry and capital into competition


with those of any other man, or order of men.



But these principles only work, if the legal framework, e.g. AML rules, does not lead to


distortion of competition. Given the differences in economic law and implementation


worldwide, and also the different impact of AML rules and other regulation on the


participants of the economy, this assumption is questionable. State regulation often


actively sets competitive incentives and therefore promotes certain institutional


structures. This is dangerous, as could it retard, “instead of accelerating, the progress


of the society towards real wealth and greatness; and diminishes, instead of increasing,


the real value of the annual produce of its land and labour”[10].


Supply and demand. In an open and competitive market the invisible hand


determines the volume and the price of goods and services through the law of demand


and supply. Any good or service is available and traded on the market if there is


enough demand, if producers are willing to supply the product or service in principle,


and producer as well as customer can agree on a price.


For the supplier, the predominant objective is to create value out of his activities. In


that case, the price has to cover the production costs (raw materials, salaries, etc.),


transaction costs, and a premium for the risk and the profit of the producer.


Besides production costs, transaction costs play a decisive role for a market


economy. They represent the price for using the market mechanism and thus for the


exchange of goods and services between producers and consumers. The lower the


transaction costs are, the better the invisible hand can work to raise the wealth of


nations. Examples for transaction costs are transportation costs for a good produced,


but also fees for using the financial system to arrange the payment for the good or


service obtained. Money laundering costs are also transaction costs.


Criminals as rational beings. The modern economic theory of crime is based on the


essay “Crime and Punishment” published by Gary Becker[11]. The main purpose of the


article was “to answer [. . .] [the] questions [. . .], how many resources and how much


punishment should be used to enforce different kinds of legislation”[12]. Becker


assumes that a person commits an offense if the expected utility to him exceeds the


utility he could get by using his time and other resources at other activities:



This approach implies that there is a function relating the number of offences by any person


to the probability of detection and conviction, to his punishment if convicted, and to other


variables, such as the income available to him in legal and other illegal activities [. . .][13].



Fighting the cause by fighting the result. When applying Becker’s model to the AML


world, a peculiarity has to be considered: the prevention and punishment measures are


not taken against the predicate offence or offender, but against a consequential act of a


money launderer, who is not necessarily the same person as the predicate offender[14].


Consequently, a possible conviction of the money launderer does not automatically


imply a conviction of the predicate offender.


Ceteris paribus, tighter AML provisions lead to higher production and transaction


costs of the predicate crime. They should therefore influence predicate offender. He


may loose the assets to be laundered due to confiscation. In addition, detecting money


laundering raises the possibility of detection and conviction for the predicate offender.


Empirical evidence suggests that this relationship is only weak if verifiable at all[15].


As described below, the predicate offender has other alternatives to choose than


laundering all the criminal proceeds. He can thereby significantly reduce the money


laundering costs and risks of his venture.


Economy of money laundering prevention


For most parts of the economy, AML rules act as a cost component and influence the


profitability of illegitimate and legitimate ventures. Hence, they set incentives against


engaging in legitimate and illegitimate activities. Contrary to most other state


determined exogenous variables, AML rules are not static, but subject to constant


change and development. This section deals with the rules steering the regulation


process, i.e. the economy of money laundering prevention. The “market” participants,


i.e. states, international organisations, banks and other members economy, are


supposed to be rational decision makers.


More of everything. The world of money laundering prevention, AML regulation


and rules can be depicted along three dimensions.


(1) Criminal vs clean. There is a “clean world” (defined by the absence of predicate


offences) and a “criminal world”. Money laundering is moving money from the


criminal into the clean world or – what is essentially the same – hiding the


criminal origin.


(2) Sectors of the economy. Seen from the standpoint of the Financial Action Task


Force (FATF), there exist four different sectors of the economy:



.


Financial institutions are subject to special rules and AML supervision as

well as to criminal law.



.


Designated non-financial businesses and professions are subject to the same

special rules and supervision, and are also subject to criminal law.



.


Non-designated businesses and professions are subject only to criminal law.

No special rules and no AML supervision apply.



.


Private individuals, natural persons outside sector (a) and (b) are only

subject to criminal law.


(3) Country-specific differences. There are different countries with different


domestic laws, rules and institutions. They can be broadly categorized into:



.


Black-listed countries[16];

.


Complying countries, which can be rated further by the extent of compliance

with the FATF recommendations[17].


Over recent years, the strategy of FATF has been “more of everything”: to move the


fences in a way that the clean world shrinks and the criminal world grows (extending


the definition of “predicate offence”); to enlarge the “financial” and “designated” sectors


which are subject to special AML rules and supervision, and thus to reduce the


non-supervised part of the economy; to sharpen the rules to which the supervised


sectors are subjected; to sharpen the requirements for the countries in the AML rating


process.


Incentives for and against regulation. If state intervention into the market, such as


AML rules, affects all market participants in the same way, the relative competitive


position of a single participant is not influenced. In that case, regulation fosters or


hampers the wellbeing of the economy without changing the relative wellbeing of the


single members.


If intervention affects different market participants in different ways, certain


competitors may face an advantage or disadvantage, the relative distribution of wealth


between the members of the economy is affected. In the end, the structure of a


particular market and industry is changed. The same is valid if regulatory provisions


differ between countries or industries. Such differences lead to “regulatory arbitrage”


by rational actors, so that activities are performed in the country or by the industry


which faces least regulatory constraints and costs.


Only in the latter case, market participants have an economic incentive to try to


influence the state interventions in order to improve their position. In the area of money


laundering prevention, the following situation applies:



.


Banks and other financial service providers are against stronger regulation for

themselves or promote heavier regulation for others, as long as there are


competitors which have a better position. They are indifferent if a


level-playing-field exists. They intend “only their own security”; [. . .] they


intend “only their own gain,” [9] they do not promote the interest of the economy


as a whole. In certain cases, banks may even lobby for stronger regulation, if this


could lead to a competitive advantage.



.


Clients of banks have no or low influence on state intervention, even if their own

economic position (compliance costs are in the end paid by the client) and their


rights (e.g. privacy and other basic rights) are concerned. The client has no better


choice[18], is not thoroughly informed[19] or simply not interested[20].


What is criminal – what is not?


A pivotal issue in money laundering prevention is the decision, whether an activity, a


person or funds are legitimate or not. This is difficult to judge. The criterion of


legitimacy divides the whole economic sphere into two parts, the legitimate and


illegitimate (or “criminal”). It seems to be feasible to locate a particular good, service or


an economic entity within one of the two spheres. In reality, this is not possible. The


classification is even more difficult if several jurisdictions are involved, each with most


of the time slightly, sometimes even vastly different views on the legitimacy. The same


applies to the offences qualifying as predicate crime for money laundering[21].


Therefore, the legitimacy of a good or service cannot be judged upon the subject itself.


One has always to know the background.


The classification as (il)legitimate gets even more complicated, if not impossible at


all, when we introduce money to the model. By definition, money is a medium of


exchange and a store of value. It is, by definition, abstract, i.e. the value or function of


money, e.g. a bank note, is independent of the current, prospect or former owner and


also independent of the transaction due to which the current owner is in possession of


the money. By looking at a bank note or a gold coin, it is impossible to judge if it has


been acquired by legitimate means or not. The same applies to account entries in a


bank. In most countries bank notes and coins are the only legal tender, and they are


anonymous and abstract by definition.


The distinction between criminal and legitimate world is only feasible if an activity,


a deal, a person or a legal entity can clearly be associated with one of the two spheres.


What looks like a simple decision, is a complicated venture, which is traditionally


performed by state institutions such as prosecutors and courts. In the context of the


fight against money laundering, the judgment about the legitimacy is increasingly


transferred to private sector institutions such as banks. These, however, are not well


equipped and qualified for this task. If they have to take on police and judicial


functions, their primary function as financial intermediaries suffers. In addition,


different conditions apply to banks and the state, and the two behave differently.


Impact of anti-money laundering measures on the economy


Money laundering prevention influences both the illegitimate and the legitimate world.


Influence on the criminal world


Like any businessman, criminals are interested in keeping costs down and earnings up.


In view of rising costs for money laundering, the first and simple solution could be


backing out of predicate criminal activities which create a need for money laundering.


The current anti-money laundering framework seems to be built on this concept.


Reality shows that it does not work, though. Since, the beginning of the fight against


money laundering about 20 years ago, the targeted predicate crimes (drug trafficking


and organized crime) have grown and prospered. Empirical evidence shows that the


shadow economy gained importance during the last decades[22]. Even in developed


countries, the shadow economy has the size of 10-30 per cent of the countries’ GDP[23].


The decision to undertake a predicate crime is determined by demand and expected


gains. In the case of drug trafficking, the demand is still there, even though drug


trafficking is illegal. This means that customers exist which are willing to pay for the


good, no matter whether it is illegal or not. Consequently, there also are suppliers on


the market. While these have to bear the costs for doing illegitimate, covert activities,


they are able to cover these burdens by raising the price of the good. Certain aspects


enable them to set their prices nearly without constraints.


In legitimate markets, there (mostly) is competition, which is carried out over


product quality and price. Competition requires transparent markets, where suppliers


and demanders can acquaint themselves with the market condition. Monopolies and


other market structures hampering competition and market transparency are actively


fought against by the state. In the illegitimate world, the invisible hand of competition


does not work well. This world is dominated by other forces. Relying on the


addictiveness of the clients, suppliers are able to set the price at their discretion.


Competitors are forcefully put out of business and cartel-like arrangements are usual,


certainly in the world of organized crime.


This enables the suppliers to effectively control the revenue variable of the


profitability calculation. Even if money laundering contributes significantly to the


overall costs, suppliers are able to get significant excess profits, which in turn makes


the business financially very attractive.


Reaction of the criminal world


The AML measures have made moving money from the criminal world into the clean


world more costly. However, criminals are not forced to launder all the criminal


proceeds on a gross basis. They can choose amongst several alternatives:



.


Criminals can keep the money in anonymous form: the most important medium

where the distinction between criminal and clean is impossible are bank notes


(and coins). In most countries cash is the only legal tender, and it is perfectly


legal to store and move any amounts of cash. Although cash may have several


disadvantages compared with bank deposits, the difference may not be too


severe, especially in the case of currencies that are also accepted outside the


respective country. In addition, there are alternative and perfectly legitimate


systems for anonymous payments, such as the century old and efficient


Hawala[24] system.



.


Criminals could avoid money laundering altogether by keeping the dirty money

in the criminal world. The bigger the criminal world relative to the clean world is,


the easier and more valuable this alternative becomes. In the extreme case where


the whole world is criminal, money laundering becomes unnecessary and even


impossible.



.


Criminals may use one of the oldest and most efficient payment mechanisms:

bilateral or multilateral netting, with or without counterparty substitution. The


clearing system[25] is the most important institution for diminishing the demand


for money in the broader sense. The system was already described and


recommended by Adam Smith for the case that “gold and silver should at any


time fall short in a country”[26]. “Buying and selling upon credit, and the


different dealers compensating their credits with one another once a month or


once a year, will supply it [money] with less inconvenience”[26]. To make use of


this mechanism, criminals will “buy and sell upon credit” within the criminal


world and balance the remaining net amount by transferring it to the clean


world. They can thus reduce the amount and the total cost of money laundering


substantially.



.


Criminals may use the international financial system, thus exploiting legal,

regulatory and other differences between different countries.



.


Criminals may use “non-designated institutions” (in the FATF terminology) and

private individuals for transferring criminal money into the clean world.


Examples are the legendary pizzeria for smaller amounts, international trade[27],


real estate or corporate finance for big transactions. From the criminal’s point of


view it could be advantageous to not only use the clean institutions for


laundering criminal money, but to merge the predicate criminal activity into the


non-criminal activity of a non-designated institution. The routes through the


non-designated sectors are less liquid and thus more expensive and need


substantial resources.


All alternatives require professional resources and long-term investments. Such a


environment is typically provided by organized crime. It is conceivable that AML


measures promote large, sophisticated organized crime structures rather than fight


them.


Influence on the legitimate world


By definition, crime prevention deals with criminal actions which have not been


committed[28]. So, from a criminal law point of view, persons and legal entities are not


criminal yet, if at all. This raises the bar for acceptable costs and collateral damages.


In contrast to prosecution, which affects only alleged criminals, everyone is subject


to crime prevention and AML measures. Current money laundering law exactly


requires that, as every financial transaction could involve illicit funds.


Besides these direct cost of AML measures, there are also indirect costs in the form


of collateral damage:


(1) Damage for the society:



.


A loss of civil liberties[29], especially privacy. The AML provisions are a

threat to the privacy of the individual;



.


It is the goal of the official AML policy “to counter the use of the financial

system by criminals”. Society seems to accept that criminals use other parts


of its systems jointly with non-criminals: examples are the transportation


system, the education system, the legal system, or the health care system.


(2) Economic damage:



.


The AML mechanism increases the direct costs of legitimate market

transactions in the same way as illegitimate ones. By increasing the


transaction costs of the economy, the AML measures hinder the working of


the invisible hand and reduce the wealth of the nations. The whole economy


faces increased transaction costs for using the financial system and the


payment mechanism in particular. The effect is not limited to transactions of


the “financial sector” but it impacts also the “designated non-financial


businesses and professions” in the same way. It also increases the


production costs of most services provided by the “financial sector” and the


“designated non-financial businesses and professions”;



.


Economic sectors, actors and countries with a low sophistication of AML

systems and probably a low reputation[30] face heavy discrimination,


severely impacting chances of participating in the benefits of international


trade and co-operation;



.


The risk exists of making the “complying institutions” and “complying

countries” an exclusive club. This leads to regulation driven promotion of


monopolistic or oligopolistic structures and results in high economic costs.


Interaction between criminal and legitimate sphere


Applying the AML framework described above, the attributes “criminal” and


“legitimate” are not only given by law and courts, but actually by the private sector as


well. Because the latter applies a risk-based approach, it may judge a person or an


action as “doubtful” which is not “criminal” but “not legitimate enough” or “not


profitable enough”. Emphasis has to be put on the fact that “doubtful” for a bank does


not need to mean “criminal” in any way. The actual “criminality” of clients and their


funds is hardly recognizable. Hence, banks and other financial services providers rely


on criteria such as nationality, religious affiliation, industry and domicile of a client to


create a risk profile. Depending on the risk affinity the bank has and its regulator


allows, prospect clients may be refused because they exhibit high-risk criteria, without


any hints on the actual doubtfulness of a client.


By treating actually legitimate clients and transactions as “doubtful” they are


moved from the legitimate world to the grey one, with many consequences:



.


Many services and provisions of the legitimate world are not available any more

to all economic subjects or only available at prohibitively high costs.



.


The illegitimate world will be happy to offer these services, but to their

conditions.



.


This will firstly lead to an extension of the criminal world, and secondly to the

secluding criminalisation of persons originally acting in the legitimate world.



.


The extension of the criminal world provides new liquidity and members to

it, thus enabling the criminal world to acquire more services and products


without leaving the criminal sphere.


The results of such a shift can be severe. The more services and products can be


supplied out of the criminal world, the higher is the relative value of non-laundered


money. This reduces the need for money laundering, strengthens the illegitimate


economy and removes funds and resources from the legitimate sphere of the economy,


which is subsequently weakened. Here, the fence is not shifted by the regulators and


supervisors. Instead it moves by itself into the wrong direction.


This is especially the case when the list of predicate offences is extended. When the


predicate offence was drug dealing only, the chance to meet this criteria was very


small. Today, given the extensive list of predicate offences, it is likely that there is at


least a chance that a prospect client is engaged in such activities. Therefore, the


investigation effort rises as does the risk and cost for all client relationships.


Anti-money laundering and effectiveness: a paradoxon?


After over 20 years of money laundering prevention, the results are disappointing:


organised crime and drug trafficking still prosper. Banks face a high burden because of


their active involvement in money laundering prevention. The various prevention


schemes have weakened the basic rights of the bank clients, who have to pay for the


prevention measures. Of course, there has been some success. Compared to the direct


and indirect costs as well as to the estimated volume of organised crime, the victories


are minor and the costs are high.


However, AML regulation is going to be extended instead of being thought over.


Why does a review not take place? Who is in charge?


Role of banks and the financial services industry


Banks and the financial services industry are applying the laws and regulations they


are required to. Complying with the requirements is mandatory, as the market players


risk their license or at least the comity of regulators and supervisors. Even complaining


about the rules too loudly could be conceived as doubtful conduct.


In addition, they sometimes react with even stricter and more detailed rules defined


by themselves or industry associations. They do so mainly to foster their reputation,


prevent further regulation by state and international entities and to minimise risk.


Applying a risk-based approach. The risk aspect is arguable. Regulators, especially


in Europe, begin to apply a risk-based approach to their money laundering regulation.


The reason is that innovation on the criminal side makes it difficult for regulators and


prosecutors to keep pace and to formulate detailed money laundering criteria ex-ante.


In addition, the banks are allowed to adapt their money laundering effort along their


risk assessment of a particular client. A retail customer with few and standardised


transactions such as the salary reception and rent payment requires less caution than a


cash-intensive business or a private banking client with assets distributed


internationally.


The risk-based approach, however, places a high responsibility on the banks, as


they have to develop their own assessment framework, take sound decisions and


defend their work when problems arise. In that case, they may have to prove the ability


of their assessment framework to courts and regulators and cannot just show a filled


form with predefined check boxes, which was supplied by the regulator.


Avoiding the risk of wrong decisions. Banks are not always willing to take this


responsibility. Big banks with an extensive client base and significant assets under


management may be able to apply a very low risk affinity and to refuse clients which


raise the slightest suspicion[31]. Smaller banks, in a competitive position not so


favorable, may be inclined to accept such clients, at least if checks about the


background of the clients do not reveal problematic aspects. These checks, however,


are expensive and decrease the profitability of such a client relationship. Another


strategy of the bank may be to let the supervisor take the decision. They can achieve


that by filing suspicious activity reports (SAR), which will result in a supervisor’s


decision about the alleged legitimacy or illegitimacy of a client or transaction. If such a


decision is available, the bank minimises its risk to perform any wrongdoing ex-post.


Differences in the type of business and attitude of banks and countries regarding


SAR reports can be seen by looking at the statistics of Financial Intelligence Units


(FIUs). In Switzerland, 863 SARs were sent to the Swiss FIU in 2003. About 80 per cent


of these cases were forwarded to the prosecutors after a first investigation. In the same


year, 100,000 reports were sent to the FIU in the UK. In 2005, 195,000 reports were


filed[32]. The resource requirement to deal with this vast volume of reports on the


banks’ and the state’s side is enormous. The relationship between reports and crime is


questionable. There is a weak correlation in the area of drugs[33], but no significant


dependency to other areas of crime[34]. Furthermore, with each report, the privacy of


the client is compromised.


Compliance as quality criterion. Furthermore, bank specific compliance efforts


performed in addition to the required ones can be used to establish a quality criterion


(e.g. a certification) which in turn could result in a competitive advantage like


preferential treatment by the regulators or positive effects on reputation[35]. This could


result in a “closed shop” where some competitors form and promote a “regulatory


island”. Market participants not able to join this shop because of low sophistication,


size, upfront effort to meet the arbitrary criteria for joining or due to other factors, are


in turn penalised, although their services and products may be equally good or better


and there may be no tenable evidence that meeting the joining criteria leads to more


effective money laundering prevention. A “three-tiered” world arises:


(1) the “good” institutions;


(2) the “questionable” institutions and countries, which are not able or willing to


comply with the rules, but do not necessarily facilitate money laundering; and


(3) the “bad” institutions with a bad track record.


For a bank, the objective is to fulfil the regulatory requirements, to belong to the “good”


world and to take care that all its competitors face the same requirements and therefore


the same costs. In that case, they face no competitive disadvantage, because the rules


are the same for all of them[36]. They also have access to the global financial market,


because they comply with the international rules. Indeed, banks and financial centres


are very much preoccupied with the maintenance of “level-playing fields”. In addition,


they are able to pass the cost of compliance efforts to the client. In the end, the client


pays for the bank’s efforts to maintain its reputation.


Other goals of AML are not relevant for a bank’s decision. Banks do not take part in


discussions on the feasibility of AML, as this could hamper their reputation and


success. Banks therefore have only a weak incentive to engage in fundamental AML


discussions, as long as they are in the “good” tier of the world. If they do not, they may


put all efforts in joining the first level, rather than questioning the AML strategy.


Role of countries as regulators and policy setters


The creation, implementation and enforcement of rules in the area of criminal and civil


law as well as banking regulation and supervision is in the competence of sovereign


states, which therefore also should be the ones to address the issues of upcoming and


existing rules. The advancing globalisation of the economy in general and the financial


services business in particular lead to a different picture. In order to foster international


cooperation and prevent regulatory arbitrage, frameworks are coordinated on an


international level. Single member states of the FATF, although constituting and


taking part in the organisations, do not seem to have a significant influence on the rules


and “mandatory recommendations”. The classification outlined in the previous section


applies for states as well, as does the decision and incentive matrix. Therefore, even


most states will neither be able nor willing to question or influence the AML strategy in


a substantial way.


Challenges in the international space


Today, when crossing borders with a financial transaction (e.g. a simple payment), no


single state authority seems to be relevant anymore. This has been most impressively


proved in June 2006, when it became official that the US Government has tapped into


the S.W.I.F.T. database[37]. Many central banks, governments and industry members


have been informed. Also, the program should be seen as illegal in most of the G10


countries. However, none of the countries affected, except for the USA and Belgium,


saw itself as a responsible point of contact for the issue at all.


As long as there is no point of contact, there is no means to effectively complain


about a state’s or international organisation’s action. This is devastating, as the typical


client has no means to oppose the intrusion in his own basic rights [38].


Conclusion


The authors have performed a stylized analysis of the laws governing the cost and


benefit of anti-money laundering policies. Without recommending specific actions or


strategies, they think that the following theses should be considered:



.


Measures taken to prevent money laundering in the financial system, may it be

by state entities or the private sector, have to be judged upon their effectiveness


to achieve the stated goal.



.


Benefits should be defined in terms of predicate crime. To counter the use of the

financial system by criminals is not a viable objective.



.


There is a limit for the acceptable direct costs and collateral damage. Cost-benefit

analyses should be performed and alternatives have to be considered.



.


As a general rule, a measure should be deployed only, if the benefits achieved

exceed the costs. It is not feasible to place a high burden on the society and


economy without corresponding results.


As a common opinion, the current money laundering prevention framework fails to


reach its own original goal, which is to reduce predicate offences. It is wrong to


conclude that the current framework is not strong enough. The reason is, that the


attractiveness of criminal ventures is determined by many factors, and the cost of


money laundering is just one of them and can be compensated by others. AML


regulation has achieved a life of its own, where the objective to prevent predicate crime


has been replaced by other desires. This may not only hamper the achievement of the


original goal, but may also impose damage in the legitimate spheres of economy and


society.



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Corresponding author


Oliver Wuensch can be contacted at: wuensch@isb.unizh.ch




Credit:ivythesis.typepad.com


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