Resultados de los conflictos y mecanismos de resistencia de los afectados

International regulations of AML standards are established by the FATF and implemented based on recommendations, which are evaluated by the FATF and form recommendations for countries. In the case of the UAE, the most recent assessment available is the 2008 assessment, made available by the MENAFATF319.

This includes the 40 + 9 recommendations, which were also recently used by OECD FATF assessments and the factors include:

1. Money laundering offense

2. Money laundering offense – mental element and corporate liability 3. Confiscation and provisional measures

4. Secrecy laws consistent with the recommendations 5. Customer due diligence

6. Politically exposed persons 7. Correspondent banking

8. New technologies & non face-to-face business 9. Third parties and introducers

10.Record-Keeping 11.Unusual transactions 12.DNFBP – R.5, 6, 8 – 11

13.Suspicious transaction reporting 14.Protection & no tipping-off

15.Internal controls, compliance, & audit 16.DNFBP – R.13 – 15 & 21

17.Sanctions 18.Shell banks

19.Other forms of reporting

20.Other NFBP & secure transaction techniques 21.Special attention for higher risk countries 22.Foreign branches & subsidiaries

23.Regulation, supervision & monitoring

24.DNFBP – regulation, supervision and monitoring 25.Guidelines & feedback

26.The Financial Intelligence Unit 27.Law enforcement authorities 28.Powers of competent authorities 29.Supervisors

30.Resources, integrity and training 31.National co-operation

32.Statistics

33.Legal persons – beneficial owners 34.Legal arrangements – beneficial owners 35.Conventions

36.Mutual legal assistance (MLA) 37.Dual criminality

38.MLA on confiscation and freezing 39.Extradition

40.Other forms of co-operation320

41.Implement UN instruments 42.Criminalize terrorist financing 43.Freeze and confiscate terrorist assets 44.Suspicious transaction reporting 45.International co-operation

46.AML/CFT requirements for money/value transfer services 47.Wire transfer rules

48.Non-profit organisations

49.Cross-border declaration & disclosure 321

During this assessment, many of the current laws were not in effect; however, a quasi-assessment is completed in Chapter 7 of this study, to address these changes. According to the 2008 assessment, UAE was found to be noncompliant in 11 areas, partially compliant in 18 areas, largely compliant in 15 areas, and only five areas were found to be compliant322.

The assessment was developed using materials gathered from February 28 to March 15, 2007, and does not reflect legislation and regulation implemented after this time. In addition, the materials gathered for the assessment were not able to be supported by the statistics that can be gathered from some other countries, due to the lack of availability or the lack completeness in

320 FATF International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation: The FATF Recommendations. (2012). Retrieved from http://www.fatf- gafi.org/media/fatf/documents/recommendations/pdfs/FATF_Recommendations.pdf

321 End of year gift to readers: OECD FATF country ratings as an excel file. Retrieved from https://financialsecrecymediamonitor.wordpress.com/2013/12/30/end-of-year-gift-to-readers-oecd-fatf-country- ratings-as-an-excel-file/

their delivery to the assessors. In the report, the assessors noted that overall the UAE enjoys very low crime rates as compared to most of the rest of the world, but that challenges of maintaining control of growing financial markets requires that a focus be placed on meeting the needs of that market to prevent the crime that often is included in this type of growth. Notable is other literature, which identifies that money laundering is very likely to occur when financial crimes enforcement is not strictly maintained or supported by legislation 323 or when the international growth of the country is beyond the ability of the enforcement agencies to monitor and enables errors to go uncontrolled324.

Recommendations and comments were developed for all of the areas identified by the assessors. The ratings included credit to Dubai, for advanced approaches to managing AML/CFT regulations and developing specific methods for addressing these concerns in the growing financial market; however, the assessors also noted that legislation improvements were necessary for continued success and growth in these areas. In addition, much of the current legislation during the assessment was not specific in addressing issues such as punishment for crimes, clear definition of the crimes, and methods that enable people to safely report that suspicious activities have occurred. Some changes have occurred since this assessment, in regards to the legislation and regulations, both in the UAE and in Dubai, to improve on the wording of these laws and add new legislation and regulation as recommended.

In addition, implementation was a concern that the assessors noted, such as implementation of the legal restrictions or in prosecutions, while assessors noted that much of the area experienced very low crime levels, it was also noted in research that an informal economy is in existence, which does not include only Hawala. In the case of the informal economy, it is noted that the UAE does have difficulty with employment equality, which has increased the social factors that

323 Brooks, 2004

encourage both formal and informal domestic and care work, but also informal sex work325. In addition, research in 2009 noted that the United Nations Office on Drugs and Crime (UNODC) was concerned with the growing alcohol and drug problems in the Middle East, including suggesting that the rise in substance abuse in the Arabian Gulf region was unsupported by successful models of treatment326. In the case of the UAE, it is perceived the rapid growth in this area can likely be tribute to the rapid growth of the financial market and increased number of both foreign visitors and non-nationals entering the country for work. Due to the growth in human trafficking in both the UAE and in Dubai327, it is likely that more work must be done to implement a stronger law enforcement agency in many areas of the country, including financial and other criminal activity areas.

Criminalization of AML/CFT offences was present in the 2008 assessment, and identifies that the legislation needed more work at this time. While research suggests that the largest risks of terrorism is directly related to the maritime activities, particularly because of its size328. However, this particular risk is not identified in the assessment, though it is noted that there needs to be more support for customs, due to the lack of power the customs authority had regarding investigative measures329. While the UAE has implemented a variety of different offices to manage the requirements of the legislation regarding AML/CFT, some of the difficulty that is identified is the standardization regarding investigation powers, implementation between emirates, and that these agencies are still newly formed. This assessment was conducted during

325 Mahdavi, P 2013, 'Gender, labour and the law: the nexus of domestic work, human trafficking and the informal economy in the United Arab Emirates', Global Networks, vol. 13, no. 4, pp. 425-440.

326 Tahboub-Schulte, S, Yousif Ali, A, & Khafaji, T 2009, 'Treating Substance Dependency in the UAE: A Case Study', Journal of Muslim Mental Health, vol. 4, no. 1, pp. 67-75.

327 Kelly, BC 2012, 'Gridlock: Labor, migration, and human trafficking in Dubai', Global Public Health, vol. 7, no. 5, pp. 554-555.

328 'The Terrorist Threat to the Maritime Security of the UAE', 2010, Emirates Lecture Series, no. 85, pp. 1-49. 329 Mutual Evaluation Report, p. 45.

the first years of much of these implementations, which suggests that some changes have occurred since this time.

Law enforcement was noted as having limited access to the investigative information and tools necessary in aiding the FIU to accomplish goals. In addition, the assessment noted that public awareness campaigns, as well as outreach programs, were limited and would improve upon the ability of both law enforcement and FIUs to be successful in gaining information regarding current suspicious activities. In addition, access to suspicious transactions reports appeared to be limited, which restricts the ability to acquire information during investigations in other criminal areas that may be related to these types of offences, or in addressing concerns reported. The assessors recommended that a database be implemented for improving this type of access.

In the case of other investigative measures, it was found that there were authoritative powers to obtain information using “investigative techniques including telecommunications interception, listening devices, controlled deliveries, physical and electronic surveillance, and the use of undercover officers”330. However, the ability to obtain this required that at least verbal permission be obtained, and statistics of its use were limited and did not demonstrate the expected use that might be found for a financial hub of the size located in UAE. These problems were similar throughout the documentation from the assessment, as statistical evidence of implementation was either largely missing or incomplete, and in cases where the evidence existed, it did not demonstrate the expected number that are typical for a country operating with the size financial market established in the UAE.

The primary considerations of the assessment is in addressing the areas requiring the most change, which were identified as the noncompliant areas, including customer due diligence, politically exposed persons, correspondent banking, DNFBP areas, suspicious transaction

reporting, AML/CFT requirements for money/value transfer services, wire transfer rules, and cash border declaration and disclosure. These aspects are not widely studied in other research, and legislation has been adapted since this time to bring it more into compliance with the requirements. However, other considerations still exist, in that areas of guidance and harmonization have not necessarily been completely implemented and represent areas of deficiency, which are identified as resulting in a failure to meet the full compliance necessary for the best scores in these areas.

Customer due diligence issues identified required that the UAE focus on adapting legislation that better embeds the requirements of the FATF into the documentation, and that these documents include full detailed provisions that identify all the necessary elements. In addition, the provisions regarding politically exposed persons and correspondent banking relationships were limited, and required additional attention to be brought into compliance. Finally, the recommendations insisted that it was necessary to build standardization between emirates, increase the ability to investigate these areas, provide regulation for institutions as well as DNFBPs, and to create communications that provide awareness to the population using financial services or conducting financial activity within the country.

The recommendations also noted that areas of improvement required included the reporting, strategic management of areas such as cross border transportation of cash, provisions for risk assessments, definition of authority roles, and requirements of institutions to have formal procedures. Other considerations were that increases and clarification was required in the supervisory and oversight systems for competent authorities, in the areas of duties, powers, roles, and functions. Finally, the recommendations suggested that improvement be made the processes and systems in place, as well as legislation, which enable the UAE to work cooperatively with other countries in addressing or investigation AML/CFT issues.