Investor protection and corporate governance - MyAssignmenthelp.com

Question: Discuss about the Roles Of Banking And Financial Laws And Regulations In The Protection Of Investors. Answer: Introduction Money Laundering is a vice that affects not only banking industry but other business and the public at large. Efforts to mitigate this challenge have resulted in various Acts and Regulation. This paper reviews these Acts and Regulation in regards to their effectiveness in tackling this vice. The following discussions highlights some of these Acts and Regulations in terms of pros and cons in their attempts to deal with money laundering in the banking industry. This will help in analyzing the role of banking and financial laws and regulations in protecting investors. Proceeds of Crime Act 2002 On the benefits side, this is a piece of legislation which has the advantage to address organized crime hence protecting the investors. For example, it provides officers with the power of seizing cash as well as recovering assets which sends a warning to the criminals hence guaranteeing protection to investors. Such assets may include cars alongside houses purchased by criminals using the crimes proceeds. [1] Another advantage of POCA is that it directly strikes the major motive for crime thereby deterring offenders, disrupting organized crime as well as showing the public the crime does not pay. This way, investors remain protected as their assets and properties are guarded by disrupting organized crime. Moreover, it is also advantageous that the money recovered and those made through the sale of criminals assets are put back into the projects of the community as well as helping to fund additional investigations. In so doing, investigations into criminal activities are conclusively concluded to ensure that investors are compensated. The POCA is also advantageous because it enables the police to part criminals from their respective money. This has been used by the Cheshire Police to make it even harder for criminals to get their respective hands on their money as well as launder the proceeds of such crimes. [2] This has successfully been done via confiscation orders and forfeiture orders. The POCA has had various benefits: One of the benefits is the removal of the criminal assets from the country which might be utilized to generate additional crime. Another benefit of POCA is that crime is probably to decline as criminal stripped of their corresponding assets risk future confiscations in case they return to their old manners hence protecting investors. Another benefit is that POCA stifles criminal activities as well as sends precise messages to all including criminals that crime does not reward. This has served to discourage criminals from criminal activities hence protecting the investors. POCA also has the benefit of decreasing the iconic status of the crime and criminals. It has also been used effectively by the financial investigators as it allows the police as well as the law enforcement agencies to combat a vast array of criminality like money laundering, terrorism and drug traffickin g amongst others. On the contrary, one of the cons is that the Act has not been able to detect much of the money laundering activities which puts investors at high risks. This means that more proceeds from the crimes have never been confiscated and hence have continued to support terrorism or criminal activities. The Serious Crime Act 2007 The first benefit of the Act is that it has made various radical alterations to English criminal law thereby creating a novel scheme of orders to serious crime prevention which protects in investors from losing their investments. This has had the benefit of increasingly frustrating crime in Northern Ireland and Wales and England which ensures safe environment for investments to prosper. [3] Also, the Act has replaced the ineffective common law crime of the incitement with an effective statutory offence of encouraging/assisting crime. Another advantage is that the Act has effectively made a provision as to disclosure as well as info sharing thereby preventing fraud. Investors can now have access to all information required before deciding whether the project is viable. Also, the abolishment of Assets Recovery Agency has been an advantage because it has created a novel regime for the proceeds of crime recovery. [4] However, the Act undertook radical changes to English Criminal law without first getting to know what actually needs to be changed for its effectiveness thus failing to protect investors from losing their money. For this reason, new scheme of orders to prevention of crime have been established which do not necessarily assist in investors protection. Thus, instead of effectively frustrating crime, money laundering have surged unnoticed. The Terrorism Act 2000 The Act has the advantage because s.41 gives the police the power to arrest as well as detain an individual without charge for up to forty-eight hours in case police suspects the person to be a terrorists. This has the effect of protecting investors because it bars criminals from interfering with the witnesses or investigations. Moreover, it further provides for extension of this period to seven days in case the judge can be persuaded by the police that it remains essential for additional probing. This means that a thorough probe will be undertaken and sends in order that investors can get back their stolen assets. This is advantageous because it is a clear break from the ordinary criminal law whereby the suspect had to be charged with twenty-four hours of detention lest released. [6] The Act, on the contrary, has been ineffective in that it confers controversial powers to the police. This has led to the remarkable instances of alleged abuses as well as legal challenges in both European and British Courts. Thus instead of helping protect the investors, police have abused their powers and focused on wrong criminals hence failing to recover the stolen assets. Moreover, the Act has suffered a setback due to its illegal stop-and-search powers under s.44. This is because the European Court of Human Rights has rule this section illegal. Moreover, sections (2) (b) as well as (e) have suffered criticisms because they fall well beyond the scope of what is often comprehended as the terrorism definition. The Money Laundering Regulation 2007 The Regulation has the pros of effectively re-defining the money laundering as well as money laundering offences. It has further effectively established mechanisms for probing as well as recovering crime proceeds thus giving hope to investors. [7] It further has the advantage because it revises as well as consolidates the requirement for people affected to report suspicion, knowledge and reasonable grounds for suspecting money laundering thus improving the likelihood of timely crime detection before investors lose their money. This Regulation has helped the business and banks as it has required many more of them to usher in procedures that combat money laundering as well as criminal activities which underline them that protect investors. The Regulation has improved combat of money laundering because it has kept pace with the sophisticated ways used by money launders to disguise the funds sources. [8] The Regulation has further ensured that more professions as well as business are bro ught into the regulated sector who must comply with the requirement of the Act and 2007 regulations. In other words, the 2007 Regulation has ensured that the investors affected introduce a range of procedures that guarantee legal requirement responsibilities compliance. [9] The Regulation has increasingly put off a stop to money laundering because it requires stakeholders in the regulated sector to report all transactions which they are suspecting to guard investors. Moreover, through this Regulation the government has emphasized that there is never de minimis boundaries within legislation which imply that very trivial crime proceeds must be reported to the National Crime Act. Another pros of the Regulation is that is the enhanced due diligence. This is because the Regulation requires that enhanced CDD as well as ongoing monitoring be upheld where the client hasnt been met face-to-face; is politically exposed individual; and there remains higher risk to launder money or finance terrorist. Moreover, it is also advantageous because the Regulation requires marginal procedures over and above such applied for ordinary due diligence in such conditions. Moreover, the Regulation has integrated proceeds of any crime in the definition of money laundering. Thus the stakeholders in the regulated sector must report knowledge or suspicion of money laundering based on internal procedures. Another pros of the regulation is that its scope and its application to business activity remains highly risk-based. This is because the Regulation currently applies risk-based criterion to a range of individual provisions. This remains applicable especially to the manner in which the regulated sector undertakes CDD, ongoing monitoring as well as improved DD. Thus, in principle, the risk-based criterion application to such procedures remains appropriate, even where the implication remains that diligence checks in regards to larger instances shall essentially engage more time as well as expense for the regulated sector. The Regulation is thus effective because al entities, irrespective of size, must, inter alia, keep all records for a given period as well as embrace policies alongside procedures on a range of particular matters. [10] Another pros is that CDD requirements established in the Regulations remain highly proportionate response to money laundering threat. In principle, under taking CDD procedures, remains a reasonable precautions against the entitys threat being utilized for money laundering. This is because such procedures remain familiar to accountants alongside other classification of professional adviser expected to undertake Know Your Client measures at the professional relationship outset. Thus, where CDD procedures leads to accountants not taking on such clients involved in criminal activities, it will automatically be fruitful. Another advantage is that CDD procedures remains necessary for enabling practicing accountants to offer a comprehensive as well as professional services to clients. Moreover, this serves the AML interest by placing accountants in position in which they can identify normal as well as usually trends of business behavior, and by extension unusual and abnormal behavior patterns alongside illegal acts. Thus, the CDD procedures undertaken by regulated businesses denote a valuable as well as imperative precaution against the money laundering risk. Thus the regulation has ensure a high level of compliance with CDD requirements. The disadvantage of the Regulation is that whereas it requires that any suspicion for money laundering be reported by those in the regulated sector, there is no guarantee that these reports will be made. Where such reports are not made, the investors are the ones losing as their investment are exposed to more risk. This is because the regulation lacks a clear procedure on how to ensure non-disclosure of every transactions. [11] Another cons is that CDD compliance attracts additional financial costs and in certain instances, where risk linked to relationship is regarded higher, such cost might be substantial. This may make its implementation impossible and hence fail to protect the investors. This is because it could be that such cost of undertaking the CDD shall be so huge that it might surpass the prospective business relationship value whereby the fact of having to carry out risk-based CDD, or improved DD, shall trigger the underlying entity to take into account whether it actually wishes to undertake the work at all. Another cons relates to the position of politically exposed persons (PEPs) as it has caused most uncertainty. There is a need to carry out risk-based criterion during identification. The Financial Service and Markets Act 2000 The first pros of this Act is that it effectively created the Financial Service Authority (FSA). This has served to protect the investors from losing their investments. This is because the authority has had the benefit of regulating insurance, investment business as well as banking thus ensuring compliance which closes the loopholes for laundering money. Moreover, the Act has also created the Financial Ombudsman Service that has effectively resolved disputes as a free courts alternatives. The FOS has ensured that disputes are solved in time so that investors can proceed with their business unhampered. [12] However, the Act has not been able to fully regulate the investment business, banking and insurance leading to higher cases of undetected money laundering hence a risk to investors. Also, the Ombudsman has not been able to hasten the cases resolution in order that can serve as examples of the offenders to send a warning that can bar money laundering. Where it takes more time to resolve these cases, investors might lose due to the effect of time value of money. The Corporate Sentencing Guideline The Guideline has ten effective and 10 clear steps for sentencing which applies to each organization sentenced irrespective of offence dated on or after 2014 October 1. It has helped the Council to achieve a balance between desirability of offering a level of certainty for defendants and prosecutors as to a probably sentence and the requirements for flexibility as offenders mighty differ in size as well as the offences covered entail a vast array of behavior. It has led to effective ways of dealing with offenders in the United Kingdom based on effective penalties borrowed from the US system. [13] It has created incentives for corporate to institute efficient and effective compliance as well as ethics programs thereby decreasing the culpability score of organization in case it is established later that it involved in criminal conduct. It has led to a narrowing of present gap between financial penalties that UK and US have imposed. It has further reinforced the significance of proactiv e compliance as a mitigating factor where one assess culpability and considered when adjusting a sentence. Companies alongside advisers currently have clarity on potential exposure to penalties/fines, compensation as well as confiscations orders alongside precise guidance on the manner cooperation impacts penalties quantum. The cons is that the Guideline has not got rid of criticisms leveled against the UK in certain quarters for its corporate offenders sentencing records as opposed to massive penalties which have been imposed lately in the United States. It remains unlikely that the breathtaking multi-billion dollar fines/penalties shall in the US shall be emulated in the UK in few coming years. This will not bar criminal activities in any near future hence leaving investors exposed to crime. Markets in Financial Instruments Directive II On the positive side, the MiFID II is an effective EU legislation which has regulated firms that provide services to respective clients connected to financial instruments alongside venues for trading such instruments. It has the advantage of improving the functioning of the financial markets with respect to financial crisis as well as strengthening the protection of the investor. Moreover, the MiFID II has extended the requirements of the MiFID in such areas as novel market structure requirements and novel rules on inducement and research. It has transformed the financial industry of Europe by offering greater protection for investors as well as injecting additional transparency into each class of asset. The new rules have further captured virtually each aspect of trading with the European Union hence reaching across financial services industry. It has also led to better audit as well as surveillance trails as the MiFID has a regulatory desire of pushing additional trading away from phone and on to electronic venues. Thus the wave of data is measurable in petabytes which will make institutions to report more info regarding most trades instantly alongside volume and price. It has the advantage of unbundling where firm managers will have to separately budget for trading cost and research. Also, long-term investors now have additional evidence to grill their brokers they do business with hence encouraging fund managers to seek alternative means in market to undertake trades as much as they turned to equity dark pools following initial MiFID. Conversely, one of the major cons of MiFID is that it will require a range of changes in the way business are operated and ran. Thus, some business may find this costly and hence fail to effectively implement it thereby failing to protect investors. This will have a likelihood of inevitable change resistance which may be harmful to the business. Conclusion Based on the discussion of the roles of banking and financial laws and regulations in the protection of investors, it is apparent that these laws and regulation are never obstacles to efficient financial markets. These laws and regulations have served to protect many investors from losing their investments to money laundering. In so doing, the efficiency in the financial markets have surged as investors increasingly feel protected and hence investment in the banking sector. References Bryans, D. "Bitcoin and money laundering: mining for an effective solution."Ind. LJ89 (2014): 441. Colladon, A, F. and Elisa R. "Using social network analysis to prevent money laundering."Expert Systems with Applications67 (2017): 49-58. Cooper, K, A. "A critical examination of the anti-money laundering legislative framework for the prevention of terrorist finance with particular reference to the regulation of alternative remittance systems in the UK." PhD diss., University of Leeds, 2014. Harvey, J and Simon A. "Anti-money laundering policy: A response to the activity of criminals or of agencies?." (2015): 283-307. Helgesson, K, S. and Ulrika M. 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