The Forty Recommendations (2003)

　　背景：反洗钱金融行动特别工作组(Financial Action Task Forces on Money Laundering)简称FATF于1989年成立，是一个独立的专门进行国际反洗钱的政府间组织。现有31个国家和地区成员和两个国际组织(欧洲委员会和海湾合作委员会)成员。其宗旨是制定和推动反洗钱政策。该工作组希望借助推行反洗钱政策，防止利用犯罪收益进一步犯罪，以及避免洗钱活动影响合法经济活动。

　　为了打击个人滥用金融系统进行毒品洗钱，FATF在1990年拟定了《40条建议》。该建议为反洗钱工作奠定了基本框架，是为全球而设计的。内容涉及刑事司法制度和法律执行，金融制度及其规章，以及国际合作事宜。为了适应新形势下洗钱手段的发展，1996年FATF对该建议进行了首次修订。2003年6月，FATF在对洗钱方法和技术的年度评估基础上，对《40条建议》做了进一步修订。此次修订结合《打击恐怖融资8条特别建议》，对原有的《40条建议》进行了重大修订，建立了一个更加广泛，统一和有力的反洗钱和反恐融资的国际框架。

　　下面将要介绍的就是2003年修订以后与反洗钱直接相关的6条建议

　　Introduction

　　Legal Systems

　　Scope of the criminal offence of money laundering (R.1-2)

　　Provisional measures and confiscation (R.3)

　　Measures to Be Taken By Financial Institutions and Non-Financial Businesses and Professions to Prevent Money Laundering and Terrorist Financing

　　Customer due diligence [1]and record-keeping (R.4)

　　Reporting of suspicious transactions and compliance [2](R.5-12)

　　Other measures to deter money laundering and terrorist financing (R.13-16)

　　Measures to be taken with respect to countries that do not or insufficiently comply with the FATF Recommendations (R.17-20)

　　Regulation and supervision (R.23-25)

　　Institutional and Other Measures Necessary in Systems for Combating Money Laundering and Terrorist Financing

　　Competent authorities, their powers and resources (R.26-32)

　　Transparency of legal persons and arrangements [3] (R.33-34)

　　International Co-operation (R.35)

　　Mutual legal assistance and extradition [4] (R.36-39)

　　Other forms of co-operation (R.40)

　　Introduction

　　Money laundering methods and techniques change in response to developing counter-measures. In recent years, the Financial Action Task Force (FATF) has noted increasingly sophisticated combinations of techniques, such as the increased use of legal persons to disguise the true ownership and control of illegal proceeds, and an increased use of professionals to provide advice and assistance in laundering criminal funds. These factors, combined with the experience gained through the FATF's Non-Cooperative Countries and Territories process, and a number of national and international initiatives, led the FATF to review and revise the Forty Recommendations into a new comprehensive framework for combating money laundering and terrorist financing. The FATF now calls upon all countries to take the necessary steps to bring their national systems for combating money laundering and terrorist financing into compliance with the n[FS:PAGE]ew FATF Recommendations, and to effectively implement these measures.

　　The review process for revising the Forty Recommendations was an extensive one, open to FATF members, non-members, observers, financial and other affected sectors and interested parties [5]. This consultation process provided a wide range of input, all of which was considered in the review process.

　　The revised Forty Recommendations now apply not only to money laundering but also to terrorist financing, and when combined with the Eight Special Recommendations on Terrorist Financing [6] provide an enhanced, comprehensive and consistent framework of measures for combating money laundering and terrorist financing. The FATF recognizes that countries have diverse [7] legal and financial systems and so all cannot take identical measures to achieve the common objective, especially over matters of detail. The Recommendations therefore set minimum standards for action [8] for countries to implement the detail according to their particular circumstances and constitutional frameworks [9]. The Recommendations cover all the measures that national systems should have in place within their criminal justice and regulatory systems [10]; the preventive measures to be taken by financial institutions and certain other businesses and professions; and international co-operation.

　　The original FATF Forty Recommendations were drawn up in 1990 as an initiative to combat the misuse of financial systems by persons laundering drug money. In 1996 the Recommendations were revised for the first time to reflect evolving money laundering typologies [11]. The 1996 Forty Recommendations have been endorsed by more than 130 countries and are the international anti-money laundering standard.

　　In October 2001 the FATF expanded its mandate to deal with the issue of the financing of terrorism, and took the important step of creating the Eight Special Recommendations on Terrorist Financing. These Recommendations contain a set of measures aimed at combating the funding of terrorist acts and terrorist organizations, and are complementary [12] to the Forty Recommendations.

　　A key element in the fight against money laundering and the financing of terrorism is the need for countries systems to be monitored and evaluated, with respect to these international standards. The mutual evaluations conducted by the FATF and FATF-style regional bodies, as well as the assessments conducted by the IMF and World Bank, are a vital mechanism for ensuring that the FATF Recommendations are effectively implemented by all countries.

　　LEGAL SYSTEMS

　　Scope of the criminal offence of money laundering [13]

　　Recommendation 1

　　Countries should criminalize money laundering on the basis of United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances [14], 1988 (the Vienna Convention [15]) and United Nations Convention against Transnational Organized Cri[FS:PAGE]me, 2000 (the Palermo Convention) [16].

　　Countries should apply the crime of money laundering to all serious offences, with a view to including the widest range of predicate offences. Predicate offences may be described by reference to all offences, or to a threshold linked either to a category of serious offences or to the penalty of imprisonment applicable to the predicate offence (threshold approach), or to a list of predicate offences, or a combination of these approaches.

　　Where countries apply a threshold approach, predicate offences should at a minimum comprise all offences that fall within the category of serious offences under their national law or should include offences which are punishable by a maximum penalty of more than one year's imprisonment or for those countries that have a minimum threshold for offences in their legal system, predicate offences should comprise all offences, which are punished by a minimum penalty of more than six months imprisonment.

　　Whichever approach is adopted, each country should at a minimum include a range of offences within each of the designated categories of offences [17].

　　Predicate offences for money laundering should extend to conduct that occurred in another country, which constitutes an offence in that country, and which would have constituted a predicate offence had it occurred domestically. Countries may provide that the only prerequisite is that the conduct would have constituted a predicate offence had it occurred domestically.

　　Countries may provide that the offence of money laundering does not apply to persons who committed the predicate offence, where this is required by fundamental principles of their domestic law.

　　Recommendation 2

　　Countries should ensure that:

　　a) The intent and knowledge [18] required to prove the offence of money laundering is consistent with the standards set forth in the Vienna and Palermo Conventions, including the concept that such mental state may be inferred from objective factual circumstances.

　　b) Criminal liability, and, where that is not possible, civil or administrative liability, should apply to legal persons. This should not preclude [19] parallel criminal, civil or administrative proceedings with respect to legal persons in countries in which such forms of liability are available. Legal persons should be subject to effective, proportionate [20] and dissuasive [21] sanctions. Such measures should be without prejudice to the criminal liability of individuals.

　　Provisional measures and confiscation

　　Recommendation 3

　　Countries should adopt measures similar to those set forth in the Vienna and Palermo Conventions, including legislative measures, to enable their competent authorities to confiscate property laundered, proceeds from money laundering or predicate offences, instrumentalities used in or intended for use in the commission of these offences, or property of correspo[FS:PAGE]nding value, without prejudicing the rights of bona fide third parties.

　　Such measures should include the authority to: (a) identify, trace and evaluate property which is subject to confiscation; (b) carry out provisional measures, such as freezing and seizing, to prevent any dealing, transfer or disposal of such property; (c) take steps that will prevent or void actions that prejudice the State's ability to recover property that is subject to confiscation; and (d) take any appropriate investigative measures.

　　Countries may consider adopting measures that allow such proceeds or instrumentalities to be confiscated without requiring a criminal conviction, or which require an offender to demonstrate the lawful origin of the property alleged to be liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law.

　　MEASURES TO BE TAKEN BY FINANCIAL INSTITUTIONS AND NON-FINANCIAL BUSINESSES AND PROFESSIONS TO PREVENT MONEY LAUNDERING AND TERRORIST FINANCING

　　Recommendation 4

　　Countries should ensure that financial institution secrecy laws [22] do not inhibit [23] implementation of the FATF Recommendations.

　　Customer due diligence and record-keeping

　　Recommendation 5

　　Financial institutions should not keep anonymous accounts or accounts in obviously fictitious names.

　　Financial institutions [24] should undertake customer due diligence measures, including identifying and verifying the identity of their customers, when:

　　● establishing business relations;

　　● carrying out occasional transactions: (i) above the applicable designated threshold [25]; or (ii) that are wire transfers in the circumstances covered by the Interpretative Note [26] to Special Recommendation VII;

　　● there is a suspicion of money laundering or terrorist financing; or

　　● the financial institution has doubts about the veracity [27] or adequacy of previously obtained customer identification data.

　　The customer due diligence (CDD) measures to be taken are as follows:

　　a) Identifying the customer and verifying that customer's identity using reliable, independent source documents, data or information.

　　b) Identifying the beneficial owner, and taking reasonable measures to verify the identity of the beneficial owner such that the financial institution is satisfied that it knows who the beneficial owner is. For legal persons and arrangements this should include financial institutions taking reasonable measures to understand the ownership and control structure of the customer.

　　c) Obtaining information on the purpose and intended nature of the business relationship.

　　d) Conducting ongoing due diligence on the business relationship and scrutiny of transactions undertaken throughout the course of that relationship to ensure that the transactions being conducted are consistent with the institution's knowledge of the c[FS:PAGE]ustomer, their business and risk profile [28], including, where necessary, the source of funds.

　　Financial institutions should apply each of the CDD measures under (a) to (d) above, but may determine the extent of such measures on a risk sensitive basis depending on the type of customer, business relationship or transaction. The measures that are taken should be consistent with any guidelines [29] issued by competent authorities. For higher risk categories, financial institutions should perform enhanced due diligence. In certain circumstances, where there are low risks, countries may decide that financial institutions can apply reduced or simplified measures.

　　Financial institutions should verify the identity of the customer and beneficial owner before or during the course of establishing a business relationship or conducting transactions for occasional customers [30]. Countries may permit financial institutions to complete the verification as soon as reasonably practicable following the establishment of the relationship, where the money laundering risks are effectively managed and where this is essential not to interrupt the normal conduct of business.

　　Where the financial institution is unable to comply with paragraphs (a) to (c) above, it should not open the account, commence business relations or perform the transaction; or should terminate the business relationship; and should consider making a suspicious transactions report in relation to the customer.

　　These requirements should apply to all new customers, though financial institutions should also apply this Recommendation to existing customers on the basis of materiality [31]and risk, and should conduct due diligence on such existing relationships at appropriate times.

　　(See Interpretative Notes: Recommendation 5 and Recommendations 5, 12 and 16)

　　Recommendation 6

　　Financial institutions should, in relation to politically exposed persons [32], in addition to performing normal due diligence measures:

　　a) Have appropriate risk management systems to determine whether the customer is a politically exposed person.

　　b) Obtain senior management approval for establishing business relationships with such customers.

　　c) Take reasonable measures to establish the source of wealth and source of funds.

　　Conduct enhanced ongoing monitoring of the business relationship.

　　Recommendation 7

　　Financial institutions should, in relation to cross-border correspondent banking [33] and other similar relationships, in addition to performing normal due diligence measures:

　　a) Gather sufficient information about a respondent institution [34] to understand fully the nature of the respondent's business and to determine from publicly available information the reputation of the institution and the quality of supervision, including whether it has been subject to a money laundering or terrorist financing investigation or regul[FS:PAGE]atory action.

　　b) Assess the respondent institution's anti-money laundering and terrorist financing controls.

　　c) Obtain approval from senior management before establishing new correspondent relationships.

　　d) Document the respective responsibilities of each institution [35].

　　e) With respect to "payable-through accounts [36]", be satisfied that the respondent bank has verified the identity of and performed on-going due diligence on the customers having direct access to accounts of the correspondent and that it is able to provide relevant customer identification data upon request to the correspondent bank.

　　Recommendation 8

　　Financial institutions should pay special attention to any money laundering threats that may arise from new or developing technologies that might favour anonymity [37], and take measures, if needed, to prevent their use in money laundering schemes. In particular, financial institutions should have policies and procedures in place to address any specific risks associated with non-face to face business relationships or transactions.

　　Recommendation 9

　　Countries may permit financial institutions to rely on intermediaries or other third parties to perform elements (a) (c) of the CDD process or to introduce business, provided that the criteria set out below are met. Where such reliance is permitted, the ultimate responsibility for customer identification and verification remains with the financial institution relying on the third party.

　　The criteria that should be met are as follows:

　　a) A financial institution relying upon a third party should immediately obtain the necessary information concerning elements (a) (c) of the CDD process. Financial institutions should take adequate steps to satisfy themselves that copies of identification data and other relevant documentation relating to the CDD requirements will be made available from the third party upon request without delay.

　　b) The financial institution should satisfy itself that the third party is regulated and supervised for, and has measures in place to comply with CDD requirements in line with Recommendations 5 and 10.

　　It is left to each country to determine in which countries the third party that meets the conditions can be based, having regard to information available on countries that do not or do not adequately apply the FATF Recommendations. [38]

　　Recommendation 10

　　Financial institutions should maintain, for at least five years, all necessary records on transactions, both domestic or international, to enable them to comply swiftly with information requests from the competent authorities. Such records must be sufficient to permit reconstruction of individual transactions (including the amounts and types of currency involved if any) so as to provide, if necessary, evidence for prosecution of criminal activity.

　　Financial institutions should keep records on the ident[FS:PAGE]ification data obtained through the customer due diligence process (e.g. copies or records of official identification documents like passports, identity cards, driving licenses or similar documents), account files and business correspondence [39] for at least five years after the business relationship is ended.

　　The identification data and transaction records should be available to domestic competent authorities upon appropriate authority.

　　Recommendation 11

　　Financial institutions should pay special attention to all complex, unusual large transactions [40], and all unusual patterns of transactions, which have no apparent economic or visible lawful purpose. The background and purpose of such transactions should, as far as possible, be examined, the findings established in writing, and be available to help competent authorities and auditors.

　　Recommendation 12

　　The customer due diligence and record-keeping requirements set out in Recommendations 5, 6, and 8 to 11 apply to designated non-financial businesses and professions [41] in the following situations:

　　a) Casinos when customers engage in financial transactions equal to or above the applicable designated threshold.

　　b) Real estate agents - when they are involved in transactions for their client concerning the buying and selling of real estate.

　　c) Dealers in precious metals and dealers in precious stones - when they engage in any cash transaction with a customer equal to or above the applicable designated threshold.

　　d) Lawyers, notaries, other independent legal professionals and accountants when they prepare for or carry out transactions for their client concerning the following activities:

　　o buying and selling of real estate;

　　o managing of client money, securities or other assets;

　　o management of bank, savings or securities accounts;

　　oorganisation of contributions for the creation, operation or management of companies;

　　o creation, operation or management of legal persons or arrangements, and buying and selling of business entities.

　　e) Trust and company service providers [42] when they prepare for or carry out transactions for a client concerning the activities listed in the definition in the Glossary.

　　Reporting of suspicious transactions and compliance

　　Recommendation 13

　　If a financial institution suspects or has reasonable grounds to suspect that funds are the proceeds of a criminal activity, or are related to terrorist financing, it should be required, directly by law or regulation, to report promptly its suspicions to the financial intelligence unit (FIU). [43]

　　Recommendation 14

　　Financial institutions, their directors, officers and employees should be:

　　a) Protected by legal provisions from criminal and civil liability for breach of any restriction on disclosure of information imposed by contract or by any legislative, regulatory or a[FS:PAGE]dministrative provision, if they report their suspicions in good faith to the FIU, even if they did not know precisely what the underlying criminal activity was, and regardless of whether illegal activity actually occurred.

　　b) Prohibited by law from disclosing the fact that a suspicious transaction report (STR) or related information is being reported to the FIU.

　　Recommendation 15

　　Financial institutions should develop programmes against money laundering and terrorist financing. These programmes should include:

　　a) The development of internal policies, procedures and controls, including appropriate compliance management arrangements, and adequate screening procedures to ensure high standards when hiring employees.

　　b) An ongoing employee training programme.

　　c) An audit function to test the system. [44]

　　Recommendation 16

　　The requirements set out in Recommendations 13 to 15, and 21 apply to all designated non-financial businesses and professions, subject to the following qualifications:

　　a) Lawyers, notaries, other independent legal professionals and accountants should be required to report suspicious transactions when, on behalf of or for a client, they engage in a financial transaction in relation to the activities described in Recommendation 12(d). Countries are strongly encouraged to extend the reporting requirement to the rest of the professional activities of accountants, including auditing.

　　b) Dealers in precious metals and dealers in precious stones should be required to report suspicious transactions when they engage in any cash transaction with a customer equal to or above the applicable designated threshold.

　　c) Trust and company service providers should be required to report suspicious transactions for a client when, on behalf of or for a client, they engage in a transaction in relation to the activities referred to Recommendation 12(e).

　　Lawyers, notaries, other independent legal professionals, and accountants acting as independent legal professionals, are not required to report their suspicions if the relevant information was obtained in circumstances where they are subject to professional secrecy or legal professional privilege. [45]

　　Other measures to deter money laundering and terrorist financing

　　Recommendation 17

　　Countries should ensure that effective, proportionate and dissuasive sanctions, whether criminal, civil or administrative, are available to deal with natural or legal persons covered by these Recommendations that fail to comply with anti-money laundering or terrorist financing requirements.

　　Recommendation 18

　　Countries should not approve the establishment or accept the continued operation of shell banks [46]. Financial institutions should refuse to enter into, or continue, a correspondent banking relationship with shell banks. Financial institutions should also guard against establishing relation[FS:PAGE]s with respondent foreign financial institutions that permit their accounts to be used by shell banks.

　　Recommendation 19

　　Countries should consider: [47]

　　a) Implementing feasible measures to detect or monitor the physical cross-border transportation of currency and bearer negotiable instruments, subject to strict safeguards to ensure proper use of information and without impeding in any way the freedom of capital movements.

　　b) The feasibility and utility of a system where banks and other financial institutions and intermediaries would report all domestic and international currency transactions above a fixed amount, to a national central agency with a computerized data base [48], available to competent authorities for use in money laundering or terrorist financing cases, subject to strict safeguards to ensure proper use of the information.

　　Recommendation 20

　　Countries should consider applying the FATF Recommendations to businesses and professions, other than designated non-financial businesses and professions, that pose a money laundering or terrorist financing risk.

　　Countries should further encourage the development of modern and secure techniques of money management that are less vulnerable to money laundering.

　　Measures to be taken with respect to countries that do not or insufficiently comply with the FATF Recommendations

　　Recommendation 21

　　Financial institutions should give special attention to business relationships and transactions with persons, including companies and financial institutions, from countries which do not or insufficiently apply the FATF Recommendations. Whenever these transactions have no apparent economic or visible lawful purpose, their background and purpose should, as far as possible, be examined, the findings established in writing, and be available to help competent authorities. Where such a country continues not to apply or insufficiently applies the FATF Recommendations, countries should be able to apply appropriate countermeasures [49].

　　Recommendation 22

　　Financial institutions should ensure that the principles applicable to financial institutions, which are mentioned above are also applied to branches and majority owned subsidiaries located abroad, especially in countries which do not or insufficiently apply the FATF Recommendations, to the extent that local applicable laws and regulations permit. When local applicable laws and regulations prohibit this implementation, competent authorities in the country of the parent institution should be informed by the financial institutions that they cannot apply the FATF Recommendations.

　　Regulation and supervision

　　Recommendation 23 [50]

　　Countries should ensure that financial institutions are subject to adequate regulation and supervision and are effectively implementing the FATF Recommendations. Competent authorities should take the necessary legal or regulatory [FS:PAGE]measures to prevent criminals or their associates from holding or being the beneficial owner of a significant or controlling interest or holding a management function in a financial institution. [51]

　　For financial institutions subject to the Core Principles [52], the regulatory and supervisory measures that apply for prudential [53] purposes and which are also relevant to money laundering, should apply in a similar manner for anti-money laundering and terrorist financing purposes.

　　Other financial institutions should be licensed or registered and appropriately regulated, and subject to supervision or oversight for anti-money laundering purposes, having regard to the risk of money laundering or terrorist financing in that sector. At a minimum, businesses providing a service of money or value transfer, or of money or currency changing should be licensed or registered, and subject to effective systems for monitoring and ensuring compliance with national requirements to combat money laundering and terrorist financing.

　　Recommendation 24

　　Designated non-financial businesses and professions should be subject to regulatory and supervisory measures as set out below.

　　a) Casinos should be subject to a comprehensive regulatory and supervisory regime that ensures that they have effectively implemented the necessary anti-money laundering and terrorist-financing measures. At a minimum:

　　o casinos should be licensed;

　　o competent authorities should take the necessary legal or regulatory measures to prevent criminals or their associates from holding or being the beneficial owner of a significant or controlling interest, holding a management function in, or being an operator of a casino

　　o competent authorities should ensure that casinos are effectively supervised for compliance with requirements to combat money laundering and terrorist financing.

　　b) Countries should ensure that the other categories of designated non-financial businesses and professions are subject to effective systems for monitoring and ensuring their compliance with requirements to combat money laundering and terrorist financing. This should be performed on a risk-sensitive basis. This may be performed by a government authority or by an appropriate self-regulatory organisation, provided that such an organisation can ensure that its members comply with their obligations to combat money laundering and terrorist financing.

　　Recommendation 25

　　The competent authorities should establish guidelines, and provide feedback which will assist financial institutions and designated non-financial businesses and professions in applying national measures to combat money laundering and terrorist financing, and in particular, in detecting and reporting suspicious transactions.

　　INSTITUTIONAL AND OTHER MEASURES NECESSARY IN SYSTEMS FOR COMBATING MONEY LAUNDERING AND TERRORIST FINANCING

　　Competent authorities, their power[FS:PAGE]s and resources

　　Recommendation 26 [54]

　　Countries should establish a FIU that serves as a national centre for the receiving (and, as permitted, requesting), analysis and dissemination of STR and other information regarding potential money laundering or terrorist financing. The FIU should have access, directly or indirectly, on a timely basis to the financial, administrative and law enforcement information that it requires to properly undertake its functions, including the analysis of STR.

　　Recommendation 27 [55]

　　Countries should ensure that designated law enforcement authorities have responsibility for money laundering and terrorist financing investigations. Countries are encouraged to support and develop, as far as possible, special investigative techniques suitable for the investigation of money laundering, such as controlled delivery, undercover operations and other relevant techniques. Countries are also encouraged to use other effective mechanisms such as the use of permanent or temporary groups specialised in asset investigation, and co-operative investigations with appropriate competent authorities in other countries.

　　Recommendation 28

　　When conducting investigations of money laundering and underlying predicate offences, competent authorities should be able to obtain documents and information for use in those investigations, and in prosecutions and related actions. This should include powers to use compulsory measures for the production of records held by financial institutions and other persons, for the search of persons and premises, and for the seizure and obtaining of evidence.

　　Recommendation 29

　　Supervisors should have adequate powers to monitor and ensure compliance by financial institutions with requirements to combat money laundering and terrorist financing, including the authority to conduct inspections. They should be authorised to compel [56] production of any information from financial institutions that is relevant to monitoring such compliance, and to impose adequate administrative sanctions for failure to comply with such requirements.

　　Recommendation 30

　　Countries should provide their competent authorities involved in combating money laundering and terrorist financing with adequate financial, human and technical resources. Countries should have in place processes to ensure that the staff of those authorities are of high integrity.

　　Recommendation 31

　　Countries should ensure that policy makers, the FIU, law enforcement and supervisors have effective mechanisms in place which enable them to co-operate, and where appropriate co-ordinate domestically with each other concerning the development and implementation of policies and activities to combat money laundering and terrorist financing.

　　Recommendation 32

　　Countries should ensure that their competent authorities can review the effectiveness of their systems to combat money lau[FS:PAGE]ndering and terrorist financing systems by maintaining comprehensive statistics on matters relevant to the effectiveness and efficiency of such systems [57]. This should include statistics on the STR received and disseminated; on money laundering and terrorist financing investigations, prosecutions and convictions; on property frozen, seized and confiscated; and on mutual legal assistance or other international requests for co-operation.

　　Transparency of legal persons and arrangements

　　Recommendation 33

　　Countries should take measures to prevent the unlawful use of legal persons by money launderers. Countries should ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion by competent authorities. In particular, countries that have legal persons that are able to issue bearer shares [58] should take appropriate measures to ensure that they are not misused for money laundering and be able to demonstrate the adequacy of those measures. Countries could consider measures to facilitate [59] access to beneficial ownership and control information to financial institutions undertaking the requirements set out in Recommendation 5.

　　Recommendation 34

　　Countries should take measures to prevent the unlawful use of legal arrangements by money launderers. In particular, countries should ensure that there is adequate, accurate and timely information on express trusts [60], including information on the settlor, trustee and beneficiaries [61], that can be obtained or accessed in a timely fashion by competent authorities. Countries could consider measures to facilitate access to beneficial ownership and control information to financial institutions undertaking the requirements set out in Recommendation 5.

　　INTERNATIONAL CO-OPERATION [62]

　　Recommendation 35

　　Countries should take immediate steps to become party to and implement fully the Vienna Convention, the Palermo Convention, and the 1999 United Nations International Convention for the Suppression of the Financing of Terrorism. Countries are also encouraged to ratify and implement other relevant international conventions, such as the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime [63] and the 2002 Inter-American Convention against Terrorism. [64]

　　Mutual legal assistance and extradition [65]

　　Recommendation 36

　　Countries should rapidly, constructively and effectively provide the widest possible range of mutual legal assistance in relation to money laundering and terrorist financing investigations, prosecutions, and related proceedings. In particular, countries should:

　　a) Not prohibit or place unreasonable or unduly restrictive conditions on the provision of mutual legal assistance.

　　b) Ensure that they have clear and efficient processes for the ex[FS:PAGE]ecution of mutual legal assistance requests.

　　c) Not refuse to execute a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters.

　　d) Not refuse to execute a request for mutual legal assistance on the grounds that laws require financial institutions to maintain secrecy or confidentiality.

　　Countries should ensure that the powers of their competent authorities required under Recommendation 28 are also available for use in response to requests for mutual legal assistance, and if consistent with their domestic framework, in response to direct requests from foreign judicial or law enforcement authorities to domestic counterparts.

　　To avoid conflicts of jurisdiction, consideration should be given to devising and applying mechanisms for determining the best venue [66] for prosecution of defendants in the interests of justice in cases that are subject to prosecution in more than one country.

　　Recommendation 37

　　Countries should, to the greatest extent possible, render mutual legal assistance notwithstanding the absence of dual criminality.

　　Where dual criminality is required for mutual legal assistance or extradition, that requirement should be deeme to be satisfied regardless of whether both countries place the offence within the same category of offence or denominate the offence by the same terminology [67], provided that both countries criminalise the conduct underlying the offence.

　　Recommendation 38

　　There should be authority to take expeditious [68] action in response to requests by foreign countries to identify, freeze, seize and confiscate property laundered, proceeds from money laundering or predicate offences, instrumentalities used in or intended for use in the commission of these offences, or property of corresponding value. There should also be arrangements for co-ordinating seizure and confiscation proceedings, which may include the sharing of confiscated assets. [69]

　　Recommendation 39

　　Countries should recognize money laundering as an extraditable [70] offence. Each country should either extradite its own nationals, or where a country does not do so solely on the grounds of nationality, that country should, at the request of the country seeking extradition, submit the case without undue delay to its competent authorities for the purpose of prosecution of the offences set forth in the request. Those authorities should take their decision and conduct their proceedings in the same manner as in the case of any other offence of a serious nature under the domestic law of that country. The countries concerned should cooperate with each other, in particular on procedural and evidentiary aspects, to ensure the efficiency of such prosecutions.

　　Subject to their legal frameworks, countries may consider simplifying extradition by allowing direct transmission of extradition requests between appropriate minis[FS:PAGE]tries, extraditing persons based only on warrants of arrests or judgments, and/or introducing a simplified extradition of consenting persons who waive formal extradition proceedings.

　　Other forms of co-operation

　　Recommendation 40

　　Countries should ensure that their competent authorities provide the widest possible range of international co-operation to their foreign counterparts. There should be clear and effective gateways to facilitate the prompt and constructive exchange directly between counterparts, either spontaneously or upon request, of information relating to both money laundering and the underlying predicate offences. Exchanges should be permitted without unduly restrictive conditions. [71] In particular:

　　a) Competent authorities should not refuse a request for assistance on the sole ground that the request is also considered to involve fiscal matters.

　　b) Countries should not invoke laws that require financial institutions to maintain secrecy or confidentiality as a ground for refusing to provide co-operation.

　　c) Competent authorities should be able to conduct inquiries; and where possible, investigations; on behalf of foreign counterparts.

　　Where the ability to obtain information sought by a foreign competent authority is not within the mandate of its counterpart, countries are also encouraged to permit a prompt and constructive exchange of information with non-counterparts. [72] Co-operation with foreign authorities other than counterparts could occur directly or indirectly. When uncertain about the appropriate avenue to follow, competent authorities should first contact their foreign counterparts for assistance. [73]

　　Countries should establish controls and safeguards to ensure that information exchanged by competent authorities is used only in an authorized manner, consistent with their obligations concerning privacy and data protection.