Section 6311 of the AMLA requires the Department of Justice to report annually to the Congressional Judiciary and Banking Committees on any deferred prosecution and non-prosecution agreements that the Department of Justice has entered into in the past year in connection with a violation or alleged violation of the BSA. The report shall include the justification for the measures taken, the factors taken into account and the extent to which the DOJ coordinated with other regulatory authorities prior to the conclusion of the Regulation. (2) PRE-LITIGATION ARBITRATION AGREEMENTS. — No disputed arbitration agreement shall be valid or enforceable to the extent that the agreement requires arbitration for any dispute arising out of this section. (1) WAIVER OF RIGHTS AND REMEDIES. – The rights and remedies provided for in this section may not be waived by agreements, political forms or conditions of employment, including by a contested arbitration agreement. That`s not all. By law, the Department of Justice must report annually to Congress on (1) all deferred prosecution agreements and non-prosecution agreements from the previous year regarding actual or suspected violations of the BSA, and (2) the use of data from financial institutions reporting under the BSA. The law distinguishes between “third parties” (§ 17 para. 1 GwG) and other “appropriate persons and companies” (§ 17 para. 5 GwG).
A third party within the meaning of § 17 sec. 1 GwG can in principle only be another obligated party. The exercise of due diligence obligations by such a third party does not require any particular reliability check on the part of that third party and no contractual basis. However, if due diligence obligations are subcontracted to other appropriate persons and companies, § 17 (5) GwG requires a contractual agreement for such outsourcing. In addition, Paragraph 17(7) of the GwG provides that a reliability check separate from other appropriate persons and undertakings must be carried out before such outsourcing. (5) RETAINED RIGHTS – Nothing in this section shall be construed as diminishing the rights, privileges or remedies of a whistleblower under any federal or state law or collective agreement. The impact of these new provisions is potentially significant. The amendments are intended to make it easier for domestic investigators to obtain foreign bank documents and not have to rely primarily on the Mutual Legal Assistance Treaty (MLAT) process or other international agreements. And while the law aims to combat money laundering, its broad scope (which allows subpoenas related to “any investigation into a violation of U.S.
criminal law”) means it can and is likely to be used to target other serious criminal behavior, including high-profile white-collar crimes (for example, .B tax evasion, FCPA violations), as well as international drug trafficking. and violations of national security. The AMLA gives the U.S. government additional powers to investigate foreign banks that may be involved in money laundering. Specifically, the law allows federal investigators to obtain foreign bank documents and reduces the burden of having to rely primarily on the Mutual Legal Assistance Treaty (MLAT) process or other international treaties. Similarly, the law gives the Treasury Department and the Department of Justice the power to request all documents from foreign banks that maintain a corresponding account in the United States. While the AMLA contains many changes in the current AML/CFT landscape, the following eight changes deserve special attention: Revised Section 5318(k) also requires foreign banks to authenticate requested documents, making it easier for prosecutors to use court records. If the bank fails to comply with the subpoena requirements of new § 5318(k), the government may impose civil penalties of up to $50,000 per day and obtain an order from the U.S. District Court requiring the foreign bank to appear and provide documents or be ignored.28 The information in this warning is intended for general education and knowledge of our readers. It is not designed and should not be used as the sole source of information in the analysis and solution of a legal problem, nor should it replace legal advice based on a specific factual analysis. In addition, the laws of each jurisdiction are different and constantly evolving.
This information is not intended to create a client relationship between the lawyer and the client, and receipt of this information does not constitute such a relationship. If you have specific questions about a particular situation, we invite you to consult the authors of this publication, your Holland & Knight representative or any other competent legal advisor. (A) providing information in accordance with this section on – Additional resources to combat money laundering and enforce money laundering laws have also been listed in the AMLA. These include a voluntary public-private information exchange partnership between law enforcement authorities, national security authorities and FinCEN; the creation of National FinCEN Liaison Roles to monitor various regions of the United States; the appointment of BSA”Innovation Officers” and “Information Security Officers” within FinCEN and other federal financial supervisors; the appointment of six liaison officers from the Foreign Financial Intelligence Unit; the creation of a Treasury Financial Attachés Program; and other provisions to strengthen cooperation between law enforcement and national security agencies in the United States and abroad. These measures are expected to improve the ability of U.S. law enforcement agencies to detect and prosecute AML/CFT offenses as well as predicate offenses such as corruption, fraud, or drug-related offenses. The AMLA extends the requirements and obligations of the BSA to persons engaged in the antiques trade and requires a study on the possible extension of the requirements of the BSA to persons engaged in the art trade. In particular, the AMLA amended the BSA definition of “financial institution” to include “a person engaged in the antique trade, including a consultant, adviser or other person involved as a business in the solicitation or sale of antiques”, subject to the rules prescribed by the Minister of Finance. This definition will come into force on the date of coming into force of the final provisions adopted by the Minister of Finance; The AMLA requires the Minister of Finance to publish the proposed rules within 360 days of the AMLA coming into force. In March, FinCEN issued a notice to inform financial institutions of AMLA`s efforts related to the trade in antiquities and works of art, to provide information on existing illegal activities related to antiquities and art, and to provide specific instructions for submitting reports of suspicious activity related to antiquities and art.
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