|The point is to focus on topic whether financial sanctions (pecuniary punishment & fines) are effective….mostly civil cases, economic crimes……and analyze it as written above. :
Paper should be written by person who has legal background. So the paper is academical law research focused.
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This goes to all legal issues (how it should be written in all following 3 legal issues):
Paper should not be too practical. It should analyze EU and US laws, regulations, directives which should be linked with ESMA, OFAC, SEC or ohter authority point of views. First is important to analyze law, directives or ohter regulations and then practical side (what ESMA said…compared to SEC or OFAC….what they have said or what has been their practice regarding this legal issue) which is accordingly linked with legal side before that (according law, regulation, etc). Also few cases as an example, would be good as well (which is based on „what ESMA, SEC or OFAC or ohter authority has said“).
This academical research paper while analysing following 3 legal issues should be in that order:
Paper should be written about situation in EU which is compared with US. So that analysis is EU – US direction and if there is more space to write then within EU as well.
All issues should be written equal length. So, first issue about 20 pages, second issue 20 pages and third issue 20 pages.
To write an academic oriented research paper about 3 following legal issues (starting tasks to write about):
1. Jurisdictional conflicts
A difficult problem facing corporations, individuals and regulatory agencies is that different jurisdictions have different laws, procedures, enforcement mechanisms, and penalties. Even within countries, it is not always clear which enforcement agency will take the lead role.
The problem is compounded for international companies which operate in multiple jurisdictions. In a recent report , entitled “Extraterritorial US Sanctions” (German Institute for International and Security Affairs, no. 5 2019), the author, Sasha Lehman , points out how the US government has for a long time “asserted authority beyond its borders”. She says that “since the 1970s the extraterritorial reach of domestic law has increased significantly”.
There are a number of US agencies that enforce sanctions internationally. For example, the Office of Foreign Assets Control (OFAC) within the Department of the Treasury has used the nationality principle to extend its authority. Under this principle the US government can “regulate its own citizens anywhere in the world”, and “prosecute harm or injury done to its citizens “
Using this principle, OFAC has claimed enforcement jurisdiction over foreign companies that are owned or controlled 50% by a US person“. In a landmark case in 1970, the International Court of Justice, ruled against this expansive enforcement and said “the place of incorporation would determine the nationality of a company, and not the nationality of its owners or shareholders “. The Commission of the European Communities strongly agreed with this view and expressed this to the US Department of State.
Still, the US government continues to press its long regulatory arm by claiming jurisdiction over goods and services that contain more than 10% of US components. This has been used in the banking industry in the clearing of dollars between banks.
Within the EU, there are differences as well, between national & EU application of regulations. These differences can be legal differences as well as different cultural approaches to enforcement and sanctions.
Regarding the US, the EU needs to work with regulators and legislators and the courts to create a uniform approach for international regulation and enforcement. Recently the US Supreme Court has been developing a set of rules to interpret the reach of extraterritorial US jurisdiction. The framework is known as “presumption against extraterritoriality“. This principle holds that “US law would primarily apply domestically unless Congress has explicitly determined otherwise”.
2. Conflicts between data privacy rights and enforcement & regulation of financial institutions.
As part of enforcement, regulators need to gather information on individuals. However, with the recently passed privacy laws in Europe, (the GDPR), conflicts are arising as companies try to comply with regulations requiring personal information and simultaneously complying with data privacy.
The GDPR was adopted to protect the privacy of information about individuals. Personal data includes all data that can be used to identify an individual. As discussed in The International Comparative Legal Guide to Anti-money Laundering 2018, chapter 5, an example of the conflict that can arise, is where the information required by US AML laws, such as data relating to criminal convictions, is considered very sensitive by the GDPR. The GDPR imposes restrictions for the use of protected data. There are restrictions for data transfer within the European Economic Area (EEA), and even stricter guidelines for transferring data outside the EEA. The GDPR provides for significant penalties for violating protected data rules. However, US financial institutions are required to collect personal data about their customers as part of their AML programs.
Possible solution when US authorities want to prosecute an AML violation that involves European individuals or companies?
Within the EEA, one of the bases for processing non-sensitive personal data, is “freely given, specific, informed and unambiguous consent “. So, if banks can get this consent from their customers, perhaps, the information can be transferred within the EEA, and then the US authorities can turn their case over to their European enforcement colleagues to pursue any wrongdoing.
Any ohter suggestions/ solutions to offer?
3. Adverse consequences to innocent shareholders and employees from sanctions imposed on companies
When penalties are applied to companies , innocent people get hurt. Shareholders get hurt , especially in public companies because their stock values drop because of the actual money loss to the company, as well as loss in value due to reputational damage to the company.
Innocent employees get hurt , especially if the losses to the company or the sanctions weaken the company or cause it to go out of business.
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