The State of NAFTA
The North American Free Trade Agreement
was implemented starting in January 1, 1994. The Agreement created the world’s
largest free trade area which is comprised of the United States, Canada and
Mexico. This area has approximately 450 million people and produces
approximately $17 trillion of goods and services. As of January 1, 2008 the North
American Free Trade Agreement was completely free of duties and restrictions
between the three countries.[i]
The
objectives of NAFTA are to:
“a)
eliminate barriers to trade in, and facilitate the cross-border movement of,
goods and services between the
territories of the Parties;
b) promote
conditions of fair competition in the free trade area;
c) increase
substantially investment opportunities in the territories of the Parties;
d) provide
adequate and effective protection and enforcement of intellectual property
rights in each Party's territory;
e) create
effective procedures for the implementation and application of this Agreement,
for its joint administration and for the resolution of disputes; and
f)
establish a framework for further trilateral, regional and multilateral
cooperation to expand and enhance the benefits of this Agreement.” [ii]
In 2012
the most recent data provides that $1.2 Trillion in U.S. goods and services
trade occurred. In 2012 Exports from the U.S. in the North American Free Trade region
was approximately $597 billion while imports in the region were $646 billion
resulting in a U.S. trade deficit $49 billion. In 2013 Exports from the U.S. in
the North American Free Trade region was $527 billion while imports were $613
billion resulting in a U.S. trade deficit of $86 billion.[iii]
In 2012 services exports from the U.S. in
the North American Free Trade region were approximately $89 billion while
services imports were approximately $45 billion resulting in a U.S. services
surplus of $44 billion.[iv]
U.S. foreign direct investment in North
American Free Trade countries was approximately $452.5 billion in 2012. U.S.
foreign direct investment is led by non-bank holding companies, manufacturing,
and finance/insurance sectors.[v]
Foreign direct investment in the U.S. by
North American Free Trade countries was approximately $240.2 billion in 2012.
Foreign direct investment in the U.S. by North American Free Trade countries is
led by the finance/insurance, banking and manufacturing sectors.[vi]
Money Laundering,
the Financial Action Task Force and NAFTA
“Money Laundering is the process of making
illegal gained proceeds appear legal.”[vii]
There are generally three elements to money laundering: placement, layering and
integration. Placement is bringing the illegally gained funds in to the
legitimate financial system. Layering is the process of moving the illegally
obtained money around so as to make the origins of the money more difficult to
ascertain. The illegally obtained money is then filtered/integrated through a
legitimate business to make the money appear clean or legally earned. This
process allows for criminally obtained funds to be used in the market place.[viii]
In the United States the Financial Crimes
Enforcement Network of the United States Department of the Treasury is tasked
with preventing money laundering of illegally obtained funds into the U.S.
Market place.[ix]
In Canada the Financial Transactions and Reports Analysis Centre of Canada is
tasked with the role of preventing money laundering into the Canadian market
place.[x]
In Mexico the “National Banking and Securities Commission (Comision Nacional
Bancaria Y De Valores)” which is under the Mexican “Secretary of Finance and
Public Credit (Secretaria de Hacienda Y Credito Public)”, is charged with this
responsibility.[xi] These
countries participate in an inter-governmental body known as “the Financial
Action Task Force” which was established in 1989 to combat money laundering,
terrorist financing and other threats to the international financial/monetary
system.[xii]
In 1989 the G-7 summit in Paris
established the Financial Action Task Force as a response to money laundering
that was occurring throughout the world’s financial systems. The summit
recognized that there was a threat to the world’s banking and financial
institutions so the heads of state of the G-7 member states as well as the
European Commission and 8 other states joined together in the formation of the
Task Force. Today the Financial Action Task Force has 36 member states including
the NAFTA states: the Unites States, Canada and Mexico. [xiii]
The Financial Action Task Force was
organized with the purpose of examining the techniques and trends that were
being used nationally and internationally to combat money laundering. The Task
Force has the goal of determining what techniques and measures were being taken
that were effective, which ones were lacking and what new techniques and
measures should be taken in the future. In April of 1990 the Task Force release
its first set of forty recommendations that were intended as a comprehensive
plan to help prevent and catch money laundering.[xiv]
The Task Force was assigned the additional
goal of developing standards to prevent terrorism financing in 2001. The Task
Force issues eight recommendations in October of 2001 in response to this new
goal of preventing terrorism financing. In June 2003 the Task Force revised its
original forty recommendations in response to new developments in the financial
institutions in dealing with money laundering. An additional nine special
recommendations were released by the Task Force in October 2004 that were designed
to prevent terrorism financing. The forty recommendations and the nine special
recommendations are known as the 40 + 9 recommendations.[xv]
The Task Force released its Revised
Financial Action Task Force Recommendation in February 2012. The revision of the
Task Force’s Recommendation integrated the nine special recommendations on
terrorism financing into the forty recommendations of the Task Force. The 2012
Revisions were expanded to deal with new threats including the financing of the
proliferation of weapons of mass destruction, enhance transparency and is
harsher on corruption.[xvi]
In Paris on February 22, 2013 the Task
Force released its new “Methodology for Assessing Technical Compliance with the
FATF Recommendations and the Effectiveness of AML/CFT systems”. (AML:
“Anti-Money Laundering.” CFT: “Countering the Finance of Terrorism.”) This
Methodology sets out how the Task Force will determine if countries are in
compliance with the Financial Action Task Force Recommendations and whether the
AML/CFT systems of those countries are working effectively in the prevention of
money laundering and preventing the financing of terrorism. The Methodology of
the Task Force will also be used by other Financial Action Task Force style
regional bodies (FSRBs) as well as the International Monetary Fund (IMF) and
the World Bank. [xvii]
In 2014 the Task Force is starting a
fourth round of mutual evaluations of the member states with regards to the
FATF Recommendations using the “Methodology for Assessing Compliance and the
with the FATF Recommendations”.[xviii]
The Financial Action Task Force decision
making body, the FATF Plenary, meets three times a year. The Task Force
monitors the progress of its member states in the implementation of
recommendations and measures. The Task Force reviews techniques and counter
measures of the member states used to combat money laundering and terrorism
financing. The Task Force also promotes the adoption of anti-money laundering
and terrorism financing on a global level by including regions with associate
members such as the Asia/Pacific Group on Money Laundering (APG), the Caribbean
Financial Actin Task Force (CFATF) , the Council of Europe Committee of Experts
on the Evaluation of Anti-Money Laundering Measures and the Financing of
Terrorism (MONEYVAL), the Eurasian Group (EAG), Eastern and Southern Africa
Anti-Money Laundering Group (ESAAMLG), the Financial Action Task Force on Money
Laundering in South America (GAFISUD), Inter Governmental Action Group Against
Money Laundering in West Africa (GIABA), Middle Eastern and North Africa
Financial Action Task Force (MENAFATF). There are also a number of Financial
Action Task Force Observers which has a specific anti-money laundering or
anti-terrorism financing mission or function which includes many international
banks, financial institutions, criminal justice organizations such Interpol,
organizations within the United Nations, and regional development
organizations.[xix]
The Egmont Group
In 1995 the Egmont Group started when a
group of Financial Intelligence Units met at Egmont Arenberg Palace in
Brussels, Belgium for the purpose of establishing an informal network of
Financial Intelligence Units that would cooperate and share information for the
enforcement of Anti-money laundering laws and anti-terrorist financing laws.
The Egmont Group meets regularly for the development of Financial Intelligence
Units specifically ways to improve cooperation and information sharing.[xx]
As of 2013 the Egmont Group was comprised
of 139 Financial Intelligence Unit members. The 2012 Financial Action Task
Force recommendations state that Financial Intelligence Units should become
members of the Egmont group which should result in the increase Financial
Intelligence Units which become members.[xxi]
The Egmont Group “Charter Review Project
Team” developed a charter, a set of principles and a guidance manual that
complement the Financial Action Task Force Forty Recommendations. These are
known as the revised “Egmont Charter (2013)” and “Egmont Principles for
Information Exchange” and “Operational Guidance for FIUs”.[xxii]
The Egmont Group “Egmont Charter” states
that the members of the Egmont Group Resolve to:[xxiii]
·
Improve
information exchange among Financial Intelligence Units to combat money
laundering and terrorism financing when such information is requested in a timely,
efficient and effective manner.
·
Mutual
training of the cooperating Financial Intelligence Units based on their unique
experiences such as to improve the effectiveness of cooperating member units.
·
Facilitate
member units in training, operational and technical assistance, establishing
secure communication technology among the member units and the promotion of
Financial Intelligence Units autonomy
·
Cooperate
legally with regards to the principles laid out in the charter.
The “Egmont Principles for Information
Exchange” states that:[xxiv]
·
Cooperation
between the Financial Intelligence Units of differing countries should be
encouraged based on mutual trust.
·
It
should be realized that differing cases require unique solutions to problems
and that not all cases should be handled in the same manner.
The “Egmont Operational Guidance for FIU
Activities and Exchange of Information” states:[xxv]
·
The
document should evolve and strengthen best practices among member units of the
Egmont Group.
·
Egmont
studies and projects for operational guidance are encouraged to be used by
Egmont member Financial Intelligence Units to improve the efficiency and
effectiveness of information exchange and cooperation for prevention of money
laundering and terrorism financing.
The goals of the Egmont Group include:[xxvi]
·
Increasing
the exchange of information related to money laundering and terrorist financing
among international Financial Intelligence Units and increasing the cooperation
of the groups.
·
Employee
training and encouraging personnel exchanges between different Financial
Intelligence Units to improve the capabilities of agents in differing units.
·
Improving
the communication technology security so to prevent the compromise of
information, privacy of individuals, and encourage more dialogue between units.
An example is the Egmont Group has established the Egmont Secure Web (ESW)
which was established for this purpose.
·
Improving
and increasing the support and coordination among the differing Financial
Intelligence Units operational units which are members of the Egmont Group.
·
Lobbying
for Financial Intelligence Units operational autonomy.
·
Encouraging
the establishment of Financial Intelligence Units in countries that comply with
the Financial Action Task Force Anti-Money Laundering (AML) and Counter the
Finance of Terrorism (CFT) programs.
The Financial
Action Task Force and Mexico
Mexico adopted its third “Mutual
Evaluation Report” (MER) in 2008. A Mutual Evaluation Reports provides a
summary of the Anti-Money Laundering (AML) and Countering Finance of Terrorism
(CFT) measures are in place. It determines the level of compliance with FATF’s
forty recommendations and the country’s effectiveness of AML/CFT system in
place. The Report also states how the system could be strengthened.[xxvii]
Mexico was required to be part of a
regular follow up process. The first follow up report was submitted by Mexico
to the Financial Action Task Force in October 2010, a second was in October
2011, a third was in October 2012 and a fourth in February 2013. After the
fourth follow up report the Financial Action Task Force Plenary (decision
making body) determined that progress had been made in some areas, but other
areas were lacking and therefore required target enhanced follow ups for the
areas that Mexico was deemed lacking in. Under these enhanced targeted follow
up reports Mexico submitted a fifth follow up report in June 2013 and a sixth
in October 2013. The seventh follow up report was in February 2014 and is basis
for the latest evaluation of Mexico’s compliance with the Financial Action Task
Force Forty Recommendations.[xxviii]
The follow up report is required as part
of the process for the country, in this case Mexico, to be removed from the
follow up process. The Report contains an analysis of the actions taken by
Mexico to implement core and key recommendations of the Financial Action Task
Force. For each of these core and key recommendations of the Task Force Mexico
was given a rating of Compliant (C), Largely Compliant (LC), Partially
Compliant (PC), and Non-Compliant (NC). Mexico would have to receive a rating
of Compliant or Largely Compliant on all the core and key recommendations to be
removed from the follow up process.[xxix]
The follow up report is not as extensive
as a Mutual Evaluation Report as it focuses on the deficiencies found in the
original Mutual Evaluation Report. The follow up report made the following
conclusions and recommendations to the Financial Action Task Force Plenary.[xxx]
As
of February 12, 2014, when this follow up report was adopted, legislative
amendments were adopted in Mexico consistent with the requirements of the
Financial Action Task Force that will allow Mexico to automatically discontinue
the Financial Action Task Force follow up process when the amendments are
enacted.[xxxi]
Financial
Transactions and Reports Analysis Center of Canada (FINTRAC)
The Financial Transaction and Reports
Analysis Center of Canada, also known as “FINTRAC”, was created in 2000 and is
an independent agency in which reports to Canada’s Minister of Finance. The
Minister of Finance is responsible to the Canadian Parliament for the actions
of FINTRAC.[xxxii]
FINTRAC has the mandate “to facilitate the
detection, prevention and deterrence of money laundering and the finance of
terrorist activities, while ensuring the protection of personal information”.[xxxiii]
FINTRAC seeks to fulfill its mandate with the following tasks:[xxxiv]
·
The
receipt of voluntary and financial transaction reports on money laundering and
terrorist financing while safeguarding personal information.
·
Enforcing
reporting entity compliance with money laundering and terrorist financing laws
and regulations.
·
Developing
intelligence for the investigations of money laundering and terrorist
financing.
·
Pattern
recognition and data analysis as it relates to money laundering and terrorist
financing.
·
Registering
business in the money services industry and maintaining a data base of such
businesses.
·
Educating
the public on money laundering and terrorist financing.
FINTRAC also has the 6 following strategic
priorities which it intends to implement from 2014 to 2015:[xxxv]
·
Developing
intelligence with regards to money laundering and terrorist financing for law
enforcement agencies.
·
Improving
the effectiveness and efficiency in developing the quality and quantity of
financial intelligence data and compliance programs.
·
Lobby
for stronger and more effective money laundering legislation and regulations.
·
Improve
the information technology used to track and detect money laundering and
terrorist financing activity and patterns.
·
Improve
talent recruitment and employee development and retention.
·
Improve
FINTRAC’s security to prevent the sensitive and classified information from
being compromised.
FINTRAC has the mission of protecting the
integrity of the Canadian financial system the welfare and safety of Canadian
citizens. FINTRAC also has the vision to be a world class intelligence agency
with regards to money laundering and terrorist financing.[xxxvi]
FINTRAC has signed information sharing
treaties with the Financial Intelligence Units of other countries as much of
the money laundering and terrorist financing that occurs is transnational. This
allows international financial intelligence agencies to cooperate more
effectively in tracking and stopping money laundering and terrorist financing.[xxxvii]
FINTRAC discloses relevant information to
law enforcement agencies and intelligence agencies when it determines that
there are reasonable grounds to suspect that the information would lead to the
prosecution or investigation of money launderers or terrorist financers.
Investigations and prosecutions are then carried out by the respective law
enforcement or intelligence agency. FINTRAC is also a member of the Egmont
Group of Financial Intelligence Units.[xxxviii]
FINTRAC and the
Role of Accountants
FINTRAC enforces the “Proceeds of Crime
(Money Laundering) and Terrorist Financing Act” (PCMLTFA). The PCMLTFA
establishes the compliance standards and requirements for identifying clients
and the keeping of a record database for the purpose of preventing money laundering
and terrorist financing. Movement of funds from one country or jurisdiction to
another must be reported in compliance with standards developed to identify
suspicious behavior. The Act also created FINTRAC.[xxxix]
Accountants are required by the PCMLTFA to
follow certain reporting requirements when engaging in the following
activities:[xl]
·
Transfer
of funds;
·
Buying
and selling of securities, business assets and real property; or
·
Any
transfer of funds and securities regardless of the method by which the transfer
occurs.
Accountants are required to report
suspicious transactions when there reasonable grounds to believe that money
laundering or terrorist financing is occurring.[xli]
“Reasonable grounds” is based on circumstance including normal business
practices and systems within the industry.[xlii]
Business transactions should be appropriate for the industry in which they
occur. Behavior that does not appear to follow that of people normally engaged
in that industry is enough to be considered “reasonable grounds”. Transactions
do not need to be completed, but merely attempted. There is also no monetary amount
that necessarily qualifies as money laundering or terrorist financing. The
money laundering or terrorist financing could occur in relatively small
amounts.[xliii]
An accountant is also required to submit a
report if he or she has knowledge that property in his or her possession
belongs to a terrorist or terrorist organization. What is considered property
includes real, personal and intangible property. Intangible property includes
that right to receive funds and financial assets.[xliv]
Accountants must also report cash
transactions involving $10,000 in cash or more. These transactions can be in a
single transaction of $10,000 or more or in multiple small transaction of less
than $10,000 that occur with 24 hours of each other that total $10,000 or more.[xlv]
If the transaction is in a foreign currency than the accountant should, for
this purpose only, use the last noon rate available from the Bank of Canada.[xlvi]
PCMLTFA requires that accountants maintain
these records:[xlvii]
·
Records
of cash transaction of $10,000 or more (“large cash transactions”)
·
Records
of the receipt of funds which is when you receive cash or non-cash funds in the
amount of $3,000 or more. If the accountant has a large cash transaction this
does not have to be duplicated.[xlviii]
·
Copies
of official corporate records
·
Copies
of suspicious transactions reports
·
Records
that exist for the purpose of determining the nature of the business
relationship with the client when financial transactions occur.[xlix]
This occurs when you engage in two or more transactions where you have to
ascertain the identity of the individual or the existence of the entity.[l]
·
Records
developed to monitor the ongoing nature of the business relationship
particularly when there is suspicious activity. High risk clients need to be
monitored more frequently and clients should be regularly evaluated for change
in risk behavior.[li]
Accountants must identify the identity of
individuals or entities when the following factors occur:
·
“Large
cash” transaction are made.
·
Whenever
a suspicious transaction report needs to be made.
·
Whenever
receipt of funds records need to be made.
Accountants are required under Canadian
law to inform their clients that personal information is being collected about
them, but the accountant does not need to inform the client in which reports
the information is obtained and when it is submitted.[lii]
When a “large cash” transaction ($10,000
or more) occurs accountants need to determine if the transaction is being made
on behalf of a third party. Such a determination is made based on who the
individual making the transaction is being directed by not who the money
belongs to.[liii]
Accountants should establish a compliance
regime as part of internal control. A compliance regime should include the
following:[liv]
·
Appointing
a compliance officer;
·
Written
compliance policies and procedures;
·
Risk
assessment and mitigation procedures for such risks;
·
Compliance
training of employees and staff;
·
Regular
review of the effectiveness of the compliance regime.
When an accountant or accounting entity is
not in compliance with PCMLTFA criminal penalties may be imposed including:[lv]
·
$2
million and/or 5 years in prison for failure to report suspicious transactions;
·
$500,000
fine or the first offence of failure to report a large cash transaction or
electric funds transfer. $1,000,000 fine for subsequent failures to report;
·
$500,000
and/or 5 years in prison for not maintaining required records;
·
$500,000
and/or 5 years in prison for not assisting or providing information in a
compliance examination;
·
Up
to 2 years in prison for informing a client that a suspicious transaction
report was made or what was in the report for the purpose of prejudicing
prosecution or investigation of the client by authorities.
Financial Crimes
Enforcement Network of the U.S. Treasury
The Financial Crimes Enforcement
Network (“FinCEN”) was originally created in 1990 and operates as part of the
United States Department of the Treasury. The purpose of FinCEN is to protect
the financial system and institutions of the United States and prevent money
laundering. FinCEN operates by collecting financial data that is collected from
financial institutions and determining patterns and trends that it then shares
with law enforcement agencies and other financial intelligence units.[lvi]
FinCEN operates primarily in
compliance with the Bank Secrecy Act. The Bank Secrecy Act is comprehensive
money laundering and anti-terrorism financing legislation. The Bank Secrecy Act
authorizes the Department of the Treasury to establish anti-money laundering and
anti-terrorist financing programs and to collect financial data to carry out
this mission. The Secretary of the Treasury has delegated this role to FinCEN.[lvii]
FinCEN engages in the following
actions to carry out its obligation to protect the U.S. financial system
against money laundering, terrorist financing and other abuses:[lviii]
·
Regulations
that are authorized by the Bank Secrecy Act are issued and interpreted by
FinCEN;
·
Established
compliance mechanisms to be followed in accordance with the authorized regulations;
·
Analyzes
compliance data from Federal regulators;
·
Manages
FinCEN’s reporting data;
·
FinCEN’s
data is accessible government wide via a service FinCEN manages;
·
Investigations
and prosecutions by law enforcement are supported by FinCEN;
·
Recommends
resource allocation to high risk financial areas;
·
Cooperates
and shares anti-money laundering and terrorist financing data with other
Financial Intelligence Units to help stop international financial crime;
Summary
The North American Free Trade
Agreement as broken down trade restriction between the United States of
America, Canada and Mexico. While make trade easier has had notable economic
benefits it has also made it easier for money to be laundered internationally
between the three countries. Many countries have become very concerned with
protecting their financial systems against money laundering and an
international effort began to coordinate the efforts of the complimentary
Financial Intelligence Units (FIUs) many countries and regions. The Financial
Action Task Force (FATF) and the Egmont Group are two of the leading bodies helping
to coordinate anti-money laundering and anti-terrorist financing efforts. These
groups in particular have help Mexico establish its anti-money laundering and
anti-terrorist funding efforts.
The Financial Transaction and
Reports Analysis Center of Canada (FINTRAC) is the established agency that also
coordinates with the Financial Action Task Force, the Egmont Group to prevent
money laundering and terrorist financing. These groups work with the Financial
Crimes Enforcement Network (FinCEN) which is the agency of the United States
Department of the Treasury that is dedicated to anti-money laundering and anti-terrorist
financing efforts. The coordination and efforts of these international
Financial Intelligence Units allows for NAFTA to protect the financial systems
of the member states.
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