Issues of the International Criminal Regulation of Money Laundering in the Context of Economic Globalization
53 Pages Posted: 9 Nov 2008
Date Written: November 1, 2008
This work has a twofold aim. First, it outlines the serious threats posed by transnational laundering operations in the context of economic globalization, showing, at the same time, the foremost reasons for sustaining the need of international responses to such crime. In the first part the focus is on the phenomenological aspect of money laundering as the necessary means through which criminal activity can live on and proliferate. Moreover, we analyse the main results economic studies on the matter has lately achieved. In this way, we aim at highlighting that money laundering is also (if not mainly) an economic issue and an accurate diagnosis of it can not exclude its economic essence and consequences. The economic analysis calls for an accurate legal response, which faces a typical trade-off. It should, indeed, deter criminals from laundering by increasing the costs for such illicit operations. Arguably this aim can be achieved by intensifying regulation and enhance the enforcing activities. However, a stronger enforcement yields increased costs and reduces the privacy of citizens. Both at the international level and within the single domestic legal systems, anti money-laundering law is typically characterised by a multidisciplinary approach combining the repressive profile with preventive mechanisms. The non-criminal measures lately implemented both at the international level and by the national legislation seem to be consistent with the insights the most recent economic studies on money laundering have put forward. On the other hand, the economic analysis highlights that some crucial criminal issues are in the need of further revision. Therefore, the second part of our work centres on elements of international criminal regulation of the crime under discussion. The adoption of international hard law instruments since 1988 is encouraging. The treaty-approach regarding criminalisation has unquestionably contributed in calibrating the national responses and, in some cases (e.g. the definition of the actus reus, and the promotion of the liability ex crimine for legal entities) formulating them ex novo. Nonetheless, there still seems to be a hiatus between the well-recognised need of concerted criminal strategies, the challenges posed by transnational dynamics of laundering crimes, and a certain determination of States to maintain their criminal prerogatives. For instance, issues regarding the national definitions of predicate offences persist. Again, the emergence of causal chains stretching across national jurisdictional boundaries with effects that transgress one or more national criminal norms poses serious jurisdictional challenges.
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