Abstract
Recent reforms in international anti-laundering regime install legal professionals as gatekeepers by requiring them to take certain due diligence measures and actively cooperate with the state. These requirements have generated controversy and varied compliance among states. The prevailing view in legal academia and profession is that compliance with these requirements is inversely related to the resilience of states’ domestic rule of law system. The article critiques this view: the gatekeeping controversy is a debate taking place among different traditions of rule of law, and not creeping-in from outside the bounds of rule of law. By tracing policy documents, prominent judicial decisions and records of activities of legal professional associations, the article shows that states’ divergent compliance is instead a function of (i) a split in the philosophical inclinations of judiciaries over how the legal profession serves the public interest, and (ii) a turf-war over the administration of the legal profession.
Highlights
The international anti-money laundering[1] regime has come to encompass the standardisation of the activities of certain professions that are presumed to be relevant to financial flows
This requirement covers sole or firm-based legal practitioners, excluding “in-house” counsel in organisations or legal personnel working for government institutions.[3]. Such deployment of legal professionals in the fight against money laundering is emblematic of the larger move in global governance to deploy an array of professionals as front-line executors, or “gatekeepers”,4 and turn the routine practices, materials and technologies at their disposal into law enforcement tools.[5]
The imposition of international anti-money laundering obligations upon legal professionals, in particular the obligation to actively cooperate with the state through information exchange, has generated controversy and national variation in compliance: wider acceptance in places such as EU member states and stronger resistance in North America
Summary
The international anti-money laundering (aml)[1] regime has come to encompass the standardisation of the activities of certain professions that are presumed to be relevant to financial flows. Brought before the UK Court of Appeal).[43] In the Ordre des Barreaux case, Belgian Bars brought proceedings challenging the legality of the Belgian law that transposed the Second EU Directive (Directive 2001/97) on anti-money laundering and terrorism financing.[44] The key claim was that lawyers’ obligation to file suspicious transaction reports on their clients to the government under the Directive violates Article 6 of the European Convention on Human Rights and Article 6(2) of the Treaty on European Union, both of which stipulate the right to a fair trial. These judicial views affirm the working understanding at the fatf, EU and, according to the compliance patterns reported earlier,[69] most national governments What this implies is that there is a majority global consensus – standing in direct contrast to that formed around the Canadian jurisprudence – which holds that lawyers’ active gatekeeping role, under defined circumstances, is not necessarily antithetical to the rule of law in free and democratic societies.
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