ppm writer
  • Home
  • Jurisdictions
    • British Virgin Islands
    • Bahamas
    • Panama
    • Belize
    • Cayman
    • Seychelles
    • Delaware, USA
  • Service
    • PPM for Companies
    • Domestic Hedge Funds
    • Offshore Hedge Funds
    • Forex CTA/CPO
    • Company Formation
    • Business Plans
  • Resources
  • Blog
  • About
    • About Us
    • Privacy Policy
  • Contact

Blog

Home / Blog

Learning to Love Hedge Funds

The first hedge-fund manager, Alfred Winslow Jones, did not go to business school. He did not possess a Ph.D. in quantitative finance. He did not spend his formative years at Morgan Stanley, Goldman Sachs or any other incubator for masters of the universe. Instead, he studied at the Marxist Workers School in Berlin, ran secret missions for a clandestine anti-Nazi group called the Leninist Organization and reported on the civil war in Spain, where he hitch-hiked to the front lines in the company of Dorothy Parker. It was only at the advanced age of 48 that Mr. Jones raked together $100,000 to launch a "hedged fund," setting himself up in 1949 in a shabby office on Broad Street. Almost by accident, Mr. Jones improvised an investment structure that will survive for years to come.

Hedge funds account for a huge share of trading in financial markets, and have grown to a scale that would have astonished Mr. Jones, amassing roughly $2 trillion in assets. Success has come with notoriety: the Securities and Exchange Commission is suspicious of hedge funds' fast trading algorithms, which some blame for last month's "flash crash" in U.S. stocks. Reformers in Congress are threatening to bring hedge funds to heel by forcing them to register with the SEC and perhaps to hold more capital. Hedge-fund managers such as Raj Rajaratnam of the Galleon Group are being investigated for insider trading, and recently Art Samberg and his late firm, Pequot Capital Management, settled a complaint with the SEC, agreeing to a fine of $28 million. But although hedge funds are often blamed for excesses, Mr. Jones's investment structure holds the key to a more stable finance, to an extent that Washington's reformers fail to understand.

After the 1929 crash, investors had fled the market in droves, and the bustling brokerages had fallen quiet; it was said that you could walk the famous canyons near the stock exchange and hear only the rattle of backgammon dice through the open windows. The few obstinate souls who opted to work in money management joined firms such as Fidelity and Prudential, which behaved as conservatively as their names implied. But Mr. Jones was cut from different cloth and he reinvented capitalism on Wall Street.

Mr. Jones's hedge fund, like most later hedge funds, embraced four features. To begin with, there was a performance fee. Mr. Jones reserved 20% of the fund's investment gains for himself and his team, invoking the Phoenician sea captains who kept a fifth of the profits from successful voyages. Mr. Jones's portfolio managers hustled harder than rivals at traditional money-management firms: They called more people, crunched more numbers and made decisions faster. At the same time, the Jones men were deterred from taking crazy risks. They were required to keep their own capital in the fund, so that mistakes would cost them personally.

Mr. Jones's second distinguishing feature was a conscious avoidance of regulation. In his previous life as an anti-Nazi agent, Mr. Jones had kept a low profile. As a hedge-fund manager, likewise, Mr. Jones escaped the attention of regulators by never advertizing his fund; he raised capital by word of mouth, which sometimes meant a word between mouthfuls at his dinner table. Unhindered by the government, Mr. Jones expected no help from it either. The Jones men knew that if they mismanaged their risks, their fund would blow up—and nobody would save them.

Thirdly, Mr. Jones embraced short selling. In the 1950s as now, speculating on the prospect of corporate failure was seen as almost un-American. But Mr. Jones described it as "a little known procedure that scares away users for no good reason." By being "short" some stocks, he hedged his "long" investment in others.

By insulating his fund from market swings, Mr. Jones cleared the way for his fourth distinctive practice, which was later to become the most controversial one. Because he had hedged out market risk, he felt free to embrace more stock-specific risk, and so he magnified, or "leveraged," his bets with borrowed money. Between 1949 and 1968, Mr. Jones's partnership earned a cumulative return of just under 5,000%.

Mr. Jones inspired a wave of imitators in the late 1960s, including the compulsive trader Michael Steinhardt, who opened a small operation in 1967, and the Hungarian philosopher-financier George Soros, who started his own Jones-style fund two years later. As the successor hedge funds grew, they ad-libbed their own variations on Mr. Jones's original model. Mr. Steinhardt started out as a long/short stock investor, but he found his niche as a gun-slinging market maker for outsized blocks of stock. He was a human version of today's fast-trading computerized hedge funds—those "flash traders" that excite the SEC's suspicion. Mr. Soros evolved too, triggering a decline in value of foreign currencies from Britain to Thailand by selling them short.

As hedge funds improvised new ways of getting rich, they didn't always need the tools that Mr. Jones had relied on. Julian Robertson's storied Tiger Fund, launched in 1980, began as a faithful imitator of Mr. Jones; but when Tiger negotiated the purchase of the Russian government's entire stock of non-gold precious metals in 1998, leverage mattered less than the security around the train that was to bring the palladium from Siberia. Four years later, a swashbuckling West Coast fund named Farallon swooped into Indonesia and bought the controlling stake of the country's largest bank. The chief ingredient for this trade was neither hedging nor leverage but nerves—Indonesia had recently experienced a currency collapse and a political revolution.

Light regulation has allowed Mr. Jones's descendants to seize opportunities as they arise—when Farallon was not buying a bank in Indonesia, it was speculating on corporate mergers, distressed debt or a water project in Colorado. Equally, the freedom to go long and short has permitted hedge funds to express investment views with precision. Rather than simply buying a stock or a bond whose performance will reflect currency shifts, interest rates, trends in the broad market, and so on, a hedge fund can hedge out the risks on which it has no view, isolating the particular risk on which it has a real insight.

In the 1960s, the Jones men would show up at the office of the Securities and Exchange Commission to read key releases the moment they came out, stealing a march on sleepier rivals who waited for the information to arrive in the mail. In the 1980s, likewise, Julian Robertson maintained two giant Rolodexes; when compromised Wall Street salesmen pitched a buy recommendation his way, he would pump information out of his network to get the real story on the company. Once, when a Robertson lieutenant heard that a car maker's latest model was prone to break down, he bought two of the suspect vehicles and had them independently tested. When the mechanic confirmed there was an engine flaw, Tiger took a short position in the manufacturer.

Other hedge-fund innovations have been bracingly complicated. James Simons, who emerged as the industry's top earner in the past decade, built his fortune on mathematics, particularly the sort used in military cryptography. By discerning patterns in price movements that were invisible to others, his team constructed a black box that earns billions of dollars annually.

Because they are largely free of regulatory impediments, and because their reward structure has attracted the best brains, hedge funds have continued in the Jones tradition of outperforming rivals. Whereas mutual-fund managers, as a group, do not beat the market, the best analysis suggests that hedge funds deliver value to their clients. In a series of papers, Roger Ibbotson of the Yale School of Management has examined the performance of 8,400 hedge funds between 1995 and 2009. After correcting for various biases in the data, and after subtracting hedge funds' large fees, Mr. Ibbotson and his co-authors conclude that the average fund generates positive "alpha"—that is, profits that could not be earned from exposure to a market index. In the United States, only rich individuals and institutions are allowed to reap the benefits of hedge funds. But in Europe and Asia, they are increasingly marketed to ordinary savers.

Of course, neither endowments nor individuals should put all their money in hedge funds; like any investment, they can blow up spectacularly. The most famous hedge-fund collapse came in 1998, when Long-Term Capital Management lost almost $6 billion. Eight years later, a Ferrari-driving 32-year-old trader at a fund called Amaranth lost $6 billion on disastrous gas bets; a year after that, several quantitative funds hit trouble all at once, setting off a panic known as the "quant quake."

But even these exceptions to hedge funds' generally good performance serve to underline one of their virtues. When Amaranth failed, another hedge fund named Citadel swooped in to buy the remains of its portfolio—one hedge fund had caught fire, but a second stabilized markets by acting as the fireman, and taxpayers did not have to cover any of the losses. Likewise, the quant quake of 2007 was over even before the public realized it had begun. The one partial exception was Long-Term Capital, whose failure was destabilizing enough to cause the New York Fed to broker a $3.6 billion rescue. But even in this case, public resources played no part in the bailout: The Fed convened Long-Term's bankers and told them to cough up the money to stabilize the fund.

The independent culture of hedge funds stood them in good stead during the recent mortgage bust. Spurred by the carrot of the performance fee, a then-obscure manager named John Paulson created a $2 million budget to buy the largest mortgage database in the country and hire extra analysts to figure out patterns in default rates. Meanwhile, because of the stick of having their own savings at risk, hedge funds that did not undertake similar research at least had the wit to avoid buying subprime paper. Lazier investors piled into collateralized debt obligations on the strength of their triple-A seal of approval. But most hedge funds were too careful to rely on the advice of ratings agencies.

In 2007, the year the mortgage bubble burst, hedge funds were up 10%—not bad for a crisis. Even more remarkably, the subgroup of hedge funds specializing in mortgages and other asset-backed securities was flat for the year—in other words, the hedge funds that might have been expected to get hit generally dodged the bullet. In 2008, admittedly, the turmoil following the collapse of Lehman Brothers hurt hedge funds' returns. But even then, they did better than their peers. They were down 18 % by the end of the year, a decline half as severe as that of the stock market.

The real humiliation of 2008 did not befall hedge funds. It befell banks, insurers, government-chartered housing lenders, and money market funds—and especially the mightiest of all Wall Street titans: investment banks. Until the financial crisis, the brain-power of these behemoths was presumed to be the force that made global markets work. If you were impertinent enough to ask how trillions of dollars of exotic trades could slosh across borders without risking a breakdown, the answer was that Lehman Brothers and its ilk had designed the instruments, modeled the risks, and had all bases covered.

Now that this answer has been exposed as a lie, the puzzle is how to erect a new scaffolding for global finance. The leading answer in Washington, expressed in the reform package emerging from Congress, is to regulate the investment banks and other traditional risk takers. This is a worthy project that must be attempted, but it would be naïve to expect too much from it. The crisis proved the fallibility of regulators from the Securities and Exchange Commission to the respected Financial Services Authority in London to the highly professional Federal Reserve. When multiple overseers fail in multiple places, one must accept that even smart reforms may not change the pattern decisively.

The crisis also demonstrated flaws in large financial firms. These start with the too-big-to-fail problem. Large banks cannot be allowed to go down; knowing that, their creditors lend without monitoring their risks; as a result, their risk-taking is undisciplined. At the same time, each trading desk within a large banking supermarket has strong reason to load up on risk. If its bets come good, huge bonuses will ensue. If they go bad, the losses will be spread across the whole institution.

Given the difficulties with financial reform, legislators should embrace a complementary approach: As well as struggling to tame financial behemoths, they should promote boutique risk takers. With only a few exceptions, hedge funds have the powerful virtue of being small enough to fail; indeed, some 5,000 went out of business in the course of the past decade, and none imposed losses on taxpayers. Mythology notwithstanding, the average hedge fund's leverage is more sober than that of banks and investment banks.

The question for policy-makers is what kind of financial institution will absorb risk most efficiently—and do so without a backstop from taxpayers. The answer awaits discovery in the story of A.W. Jones and his descendants. The future of finance lies in the history of hedge funds.

By SEBASTIAN MALLABY

British Virgin Islands: Securities and Investment Business Act, 2010

After much anticipation, the British Virgin Islands ("BVI") enacted the Securities and Investment Business Act, 2010 on 12 April 2010 ("SIBA"). SIBA, which came into force on 17 May 2010 (with the exception of the provisions relating to public issues of securities), takes into full account current and emerging international standards of regulation as they relate to the regulation and administration of investment funds (including hedge funds) and entities conducting investment or securities business. It represents an extremely important step for the ongoing development and growing sophistication of the financial services sector within the BVI. It also provides a user friendly statute, in tune with the current regulatory environment, which will complement the BVI Business Companies Act, 2004 and the Insolvency Act, 2003.

SIBA has four principal objectives, being to:

* introduce an investment business licensing regime to regulate entities conducting "investment business" in or from within the BVI;
* adopt restrictions on and regulations for the making of "public issues of securities" into the BVI;
* update and modernise the regulation of the BVI investment funds industry, by repealing the current Mutual Funds Act, 1996 and replacing it with SIBA and the Mutual Funds Regulations, 2010; and
* introduce a market abuse regime.

The key features of SIBA are as follows:

Investment business
Any person carrying out activities constituting "investment business" in or from within the BVI will be required to hold an investment business licence specifically authorising that kind of investment business, unless either those activities constitute an excluded activity or the entity conducting the investment business is an excluded person). The types of activity constituting investment business are as follows:

* dealing in investments;
* arranging deals in investments;
* managing investments;
* providing investment advice;
* providing custodial services with respect to investments;
* providing administrative services with respect to investments; and
* operating an investment exchange.

Significantly, the scope of SIBA will cover (i) any BVI company carrying on investment business anywhere in the world and (ii) any BVI or non-BVI entity conducting investment business in the BVI.

Once licensed to conduct investment business, SIBA makes provision for various systems and controls for the operation of a licensee's business, covering corporate governance, advertisements and other administrative functions. A further regulatory regime will be implemented through the Regulatory Code, 2009 (the "Regulatory Code") which came into force in the BVI on 1 February 2010 and is being amended to capture investment business licensees.

Public issues of securities
Another feature of SIBA is that it introduces provisions regulating the offering of securities into the BVI.

Under the public issues provisions, subject to limited exceptions, no security may be offered to the public in the BVI unless (i) the offer is contained within a "registered prospectus"; and (ii) the offer complies with the Public Issuers Code. For these purposes, an offer of securities to any person in the BVI or an offer received by a person in the BVI is an offer of securities to the public. Importantly, the mere receipt by a BVI company at its registered office of an offer of securities will not, in itself, be sufficient to make that offer constitute a public offer.

In addition to the normal common law remedies available, SIBA also gives the Courts the powers to grant a compensation order in favour of subscribers who purchased securities offered pursuant to a public offer in reliance of a prospectus and suffered loss or damages as a consequence of any untrue or misleading statement contained within that prospectus or omission from that prospectus.

Mutual funds
SIBA repeals the Mutual Funds Act, 1996 and introduces an updated and modernised statutory regime for the regulation of the BVI funds industry, through SIBA and the Mutual Funds Regulations, 2010. The framework for the regulation of BVI funds is not materially altered by the enactment of SIBA and most of the popular concepts remain. Many of the legislative changes made under SIBA and the Mutual Funds Regulations, 2010 merely codify the existing FSC policy which has developed over recent years in line with evolving international standards.

Notable changes introduced by SIBA are as follows:

* a codification of the requirement for BVI funds to have at least two directors;
* a requirement for all BVI funds to appoint an authorised representative resident in the BVI (being an agent licensed by the FSC to provide authorised representative services);
* a change in the minimum initial investment which may be made by investors investing into professional funds, requiring, subject to limited exceptions, all investors to make an initial minimum investment of at least US$100,000 (the previous position under the Mutual Funds Act, 1996 was that a majority of the investors into professional funds were required to invest at least US$100,000);
* a change in the timeframe pursuant to which professional funds are able to commence business before receiving recognition from the FSC, enabling professional funds to commence business for up to 21 days before receiving FSC recognition, provided that the professional fund's application for recognition is submitted to the FSC for consideration within 14 days of the launch date (the previous position under the Mutual Funds Act, 1996 was that a professional fund could commence business for up to 14 days before receiving FSC recognition); and
* a requirement for professional and private funds intending not to appoint either an investment manager, administrator or custodian to apply to the FSC for an exemption from the requirement to appoint such a functionary.

In addition to the above, SIBA codifies the current FSC policies in relation to ongoing reporting obligations for funds.

Market abuse
SIBA introduces a market abuse regime which introduces prohibitions against insider dealing in the BVI. The market abuse regime introduced under SIBA is very much in line with accepted international standards.

Transitional provisions
SIBA provides for transitional provisions which are applicable for existing BVI entities which are, on the date of it coming into force either currently licensed under the Mutual Funds Act, 1996 or currently carrying on business activities which constitute "investment business". These transitional provisions will apply during the first six months following the enactment of SIBA and will enable such entities to come into compliance with SIBA during the transitional period without being in breach of the new regulatory regime, so facilitating the smooth transition of such entities into this regime.

Regulation
In 2010, the fundamental importance of lucid regulation governing the global financial services industry has never been more appropriate. Against this backdrop, the BVI has continued to develop its reputation as a leading financial centre for the facilitation of international business and finance. SIBA is a new addition to an existing robust and transparent regulatory regime and underlines the BVI's significance as an integrated financial centre which plays an important role in the global economy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Article by Simon Schilder

Anti Money Laundering (AML) Compliance

In the post-9/11 era, Anti Money Laundering (AML) legislation and compliance with AML requirements have become key focus areas for banks, law firms, asset management firms, auditors and similar regulated service providers. World-Check, the leading global AML intelligence solution, provides an overview of AML compliance and the laws underlying this area of regulatory compliance.

According to the KPMG Global Anti Money Laundering Survey published in 2007, a staggering US$ 1 trillion per year is being laundered by financial criminals, drugs dealers and arms traffickers worldwide. With this much laundered money in the wrong hands, criminal syndicates are able to expand their operations, resulting in more violence, higher levels of addiction and a range of related socioeconomic problems throughout the world.

Laundered money is also known to finance highly coordinated international terrorist activities; a phenomenon that poses a clear and present danger to worldwide political and economic stability.

As such, Anti Money Laundering and the Combating of Terrorist Financing (CFT) can only be treated as pressing objectives of global concern. A sharp worldwide increase in the amount of wealth in private hands, combined with the multinational expansion of leading financial institutions, further necessitated the expansion of supranational legislation and law enforcement structures to combat money laundering and related financial crimes.

History of Anti Money Laundering Compliance Legislation
Although AML compliance has been accentuated by recent global developments, it is by no means a new regulatory issue. Modern Anti Money Laundering regulations are to a large extent informed by the earlier experiences of the Swiss banking community, where financial scandals involving the likes of Nigeria's General Sani Abacha and the Philippines' Marcos family resulted in lingering bad publicity for the institutions involved. The arrival of the new millennium was marred by a series of coordinated acts of terrorism and a number of massive corporate scandals involving the likes of Enron and Riggs formerly a leading American financial institution.

These events highlighted the fact that money laundering had taken on epic proportions over time, and that the proliferation of new technologies and communication platforms had created countless opportunities for fraud, money laundering and other illicit financial activities. They also accentuated the need to "know your customers", and led to the creation and implementation of a range of KYC and AML laws aimed at preventing financial criminals from accessing and abusing financial systems.

Given the fact that the greatest majority of criminal activities generating profits only start generating a traceable paper trail once funds are introduced into the financial system, it was deemed necessary to approach AML compliance and law enforcement in a way that clamped down on abuses of the world's official banking and financial systems. To this end, regulatory, legislative and law enforcement agencies set out to create an AML compliance framework and cross-border law enforcement regime aimed at holding financial institutions accountable for their clients' transactional activities.

Preventing reputation damage
Against this backdrop, reputation damage emerged as a threat to the very existence of financial services providers, and hence reputational risk mitigation became a key priority for banks, law firms and other regulated service providers that rely on a good reputation to remain in business.

AML laws and related regulatory legislation
Money launderers and entities financing terrorism were operating on a global scale; compliance laws and regulators inevitably had to adopt a global focus in order to clamp down on financial crime. One of the common traits of AML and CTF laws and the resultant Know Your Customer and KYC-related regulations is the fact that creation and implementation was characterised by an exceptionally high level of voluntary international cooperation between the United States and other prominent members of the international community. These AML laws have subsequently been adopted on a national level by the majority of nation states, with non-compliant countries effectively ostracising themselves from the international economy.

The following AML laws are considered legislative landmarks, and they have paved the way for global roll-out of Anti Money Laundering regulation and law enforcement:

The USA PATRIOT Act of 2001
The PATRIOT Act is widely regarded as one of the legislative benchmarks driving AML regulation worldwide. The Act includes extensive regulatory stipulations for financial service providers ranging from banks and asset management companies to law firms and institutional lenders, and places significant emphasis on the ongoing assessment and mitigation of operational risk. The PATRIOT Act requires regulated institutions to implement a client identification programme (CIP), and to screen transactions and clients for risk on a routine basis, amongst other key criteria.

The Financial Services and Markets Act of 2000
HM Treasury's enactment of this AML law served as an operational framework the Britain's Financial Services Authority (FSA), which started operating in 2001. Significantly, it served to facilitate the move from a voluntary compliance culture to a statutory one.

The Proceeds of Crime Act of 2002 (PoCA)
In terms of AML law enforcement in the United Kingdom, the UK Proceeds of Crime Act (2002) would make the disclosure of income sources mandatory, and also gave law enforcement agencies such as the Organised Crime Force the legal muscle to seize undisclosed assets funded by illicitly generated profits. Significantly, the Act also makes explicit provisions for the handling of seized goods and assets to prevent further foul play once financial criminals have been apprehended. This piece of AML legislation broadened the range of entities being regulated, and constituted a substantial expansion of the breadth of principal and non-disclosure offences.

As with many of the other key AML laws, PoCA's objective is simple: to ensure that financial crime doesn't pay. Combined with the Financial Services and Markets Act, the Proceeds of Crime Act serves as a rigorous legislative framework for combating money laundering. Non-compliance with these AML laws earned Northern Bank and the Bank of Scotland a fine of £1.25 million each, proving that regulatory authorities were taking money laundering in the UK very seriously.

Basel II Accord
Basel II is the second of the famous Basel Accords, issued by the Basel Committee on Banking Supervision. Basel II replaced the 1998 Basel I Accord, and serves as a regulatory framework for strengthening the stability of the international banking system. It also includes explicit measurement criteria for operational risk, and essentially serves to foster a stronger risk mitigation and AML compliance culture within the financial services sphere.

EU Second Money Laundering Directive
The EU Second Money Laundering Directive of 2001, or 2MLD, constituted a significant expansion of cross-border Anti Money Laundering legislation. The Directive increased the regulatory scope in terms of the types of financial and serious crimes being combated to include all serious crimes, but also placed AML obligations on a far wider range of industries. Newly regulated industries included estate agencies, casinos and the purveyors of high-value goods, as well as the legal and accounting sectors. 2MLD outlined procedures for reporting suspicious transactional activities, and had the task of ensuring that a uniform enforcement framework was adhered to in six member states, namely the UK, Greece, Italy, Spain, Lithuania and Poland. Although the Directive expressly named money laundering and fraud, member states were also given the permission to define any other offences for the purposes of the Directive as well.

EU Third Money Laundering Directive
The EU Third Money Laundering Directive, also known as 3MLD, incorporates the objectives of the EU Second Money Laundering Directive and is intended to further curb abuses of the European financial and banking systems. Its stated primary aim is to include Anti Terrorist Financing within Anti Money Laundering provisions, and it has served to expand and consolidate the provisions of 2MLD. The Third Money Laundering Directive, with the support of the JMLSG (Joint Money Laundering Steering Group), will see UK authorities implementing an even more rigorous enforcement regime to prosecute non-compliant institutions. Businesses that have never made a disclosure regarding suspect activities are already being targeted, as the parameters of what constitutes money laundering are drawn so wide that not unearthing something suspicious is virtually impossible.

Given a particularly broad definition of "suspicious activities", it is virtually impossible not to stumble across something irregular, and hence failure to notify the UK Serious Organised Crime Agency (SOCA) of suspicious activities or transactions is treated as a sign of non-compliance.

The AML compliance landscape is a complex one, and despite the fact that most banks and regulated service providers have willingly invested in compliance infrastructure and procedures, many institutions are struggling to surmount the operational challenges of remaining compliant – and hence still face a significant reputational risk.

www.world-check.com

Know Your Customer (KYC) Compliance

Know Your Customer (KYC) compliance regulation has proved to be one of the biggest operational challenges banks, accountants, lawyers and similar financial service providers worldwide have had to overcome.

World-Check, the industry standard KYC compliance solution, provides an overview of KYC compliance and its origins, and outlines the compliance mandate as applicable to banks, accounting firms, lawyers and other regulated financial service providers – not just in the UK, Europe and the USA, but all around the world. Relied upon by more than 4 500 institutions worldwide, this KYC database solution provides effective legal and reputational risk reduction.

Why 'Know Your Customer?'
The 9/11 terrorist attacks on the World Trade Centre revealed that there were sinister forces at work around the world, and that terrorists activities were being funded with laundered money, the proceeds of illicit activities such as narcotics and human trafficking, fraud and organised crime. Overnight, the combating of terrorist financing became a priority on the international agenda. For the financial services provider of the 21st century, "knowing your customers" was no longer a suggested course of action. Based on the requirements of legislative landmarks such as the USA PATRIOT Act (2002), modern Know Your Customer (KYC) compliance mandates were created to simultaneously combat money laundering and the funding of terrorist activities.

What is Know Your Customer (KYC)?
Know Your Customer, or KYC, refers to the regulatory compliance mandate imposed on financial service providers to implement a Customer Identification Programme and perform due diligence checks before doing business with a person or entity. KYC fulfills a risk mitigation function, and one of its key requirements is checking that a prospective customer is not listed on any government lists for wanted money launderers, known fraudsters or terrorists.

If preliminary KYC checks reveal that the person is a Politically Exposed Person (PEP), for example, Enhanced Due Diligence must be done in order to ensure that the person's source of wealth is transparent, and that he or she does not pose a reputational or financial risk in terms of their finances, public positions or associations. Beyond customer identification checks, the ongoing monitoring of transfers and financial transactions against a range of risk variables forms an integral part of the KYC compliance mandate.

But to understand the importance of KYC compliance for financial service providers better, its origins need to be examined.

Origins of Know Your Customer (KYC) compliance
The arrival of the new millennium was marred by a spate of terrorist attacks and corporate scandals that unmasked the darker features of globalisation. These events highlighted the role of money laundering in cross-border crime and terrorism, and underlined the need to clamp down on the exploitation of financial systems worldwide. Know Your Customer (KYC) legislation was principally not absent prior to 9/11. Regulated financial service providers for a long time have been required to conduct due diligence and customer identification checks in order to mitigate their own operation risks, and to ensure a consistent and acceptable level of service.

In essence, the USA PATRIOT Act was not so much a radical departure from prior legislation as it was a firmer and more extensive articulation of existing laws. The Act would lead to the more rigorous regulation of a greater range of financial services providers, and expanded the authority of American law enforcement agencies in the fighting of terrorism, both in the USA and abroad.

In October 2001, President George W. Bush signed off the USA PATRIOT Act, effectively providing federal regulators with a new range of tools and powers for fighting terror financing and money laundering. During July 2002, the US Treasury proceeded to introduce Section 326 of the PATRIOT Act, a clause that removed some key burdens for regulators and added significant enforcement muscle to the Act.

What 9/11 changed, in essence, was the extent to which existing legislation was being implemented. Using the provisions of the earlier anti-terrorism USA Act as a foundation, it included the Financial Anti-Terrorism Act, which allowed for federal jurisdiction over foreign money launders and money laundered through foreign banks. Significantly, it is this anti-terror law that would make the creation of an Anti Money Laundering (AML) programme compulsory for all financial institutions and service providers.

Section 326 of the USA PATRIOT Act dealt specifically with the identification of new customers ("CIP regulation"), and made extensive provisions in terms of KYC and the methods employed to verify client identities.

In accordance with this piece of updated KYC legislation, federal regulators would hold financial institutions accountable for the effectiveness of their initial customer identification and ongoing KYC screening. Institutions are required to keep detailed records of the steps that were taken to verify prospective clients' identities.

Although current KYC legislation does not yet demand the exclusion of specific types of foreign-issued identification, it recommends the usage of machine-verifiable identity documents. The ability to notify financial institutions if concerns regarding specific types of identification were to arise, combined with a risk-based approach to KYC, proved to provide a robust mechanism for addressing security concerns.

Effectively, the risk-based approach to customer due diligence grants regulated institutions a certain degree of flexibility to determine the forms of identification they will accept, and under which conditions.

KYC compliance: implications for banks, lawyers and accounting firms
The KYC compliance mandate, for all its positive outcomes, has burdened companies and organisations with a substantial administrative obligation. Additionally, it increasingly entails the creation of auditable proof of due diligence activities, in addition to the need for customer identification. In order to meet KYC compliance requirements, financial institutions must:
* Verify that customers are not or have not been involved in illegal activities such as fraud, money laundering or organised crime
* Verify a prospective client's identity
* Maintain proof of the steps taken to identify their identity
* Establish whether a prospective customer is listed on any sanctions lists in connection with suspected terrorist activities, money laundering, fraud or other crimes.

www.world-check.com

Service Providers

 

Resource Links
  • Hedge Fund Directory
  • PPM Document Templates
  • SCG Business Services
About Us
  • About Us
  • Privacy Policy
  • Contact Us
Services
  • PPM for Companies
  • Domestic Hedge Funds
  • Offshore Hedge Funds
  • Forex CTA/CPO
  • Company Formation
  • Business Plans
©2011 SCG Business Services Limited - All Rights Reserved | Advertise