The control of money laundering in emerging economics: the case study of Thailand

Abstract

l'his study examines the problems faced in enforcing the criminal anti-money laundering measures. For this purpose, the laundering offence and confiscation measures, both domestically and internationally, are discussed and suggestions are made for methods of enforcing those measures in order to make effective the control of money laundering in emerging economies in general and Thailand in particular. In approaching this task, this thesis uses the UK and the US legislation and their case law as well as relevant international instruments as comparative reference points for identifying the problems in enforcement and for making suggestions thereto. The primary thesis is that states should design and enforce laundering and confiscation provisions in a manner that would overcome evidentiary problems relating to the proceeds of crime. Furthermore, states should provide for a flexible system of mutual assistance in confiscation matters that does not breach the legality principle. Both money laundering and confiscation measures target the criminal proceeds, which often originate in the form of "money". As money is fungible and has no specific identity, identifying it for the purpose of these measures is very difficult and, in some cases, even impossible. Unless these evidentiary problems are properly addressed, those measures would be ineffective. In relation to mutual assistance for confiscation purposes, many states have differences in ranges, approaches, and limitations on measures for investigation, preservation and confiscation. While those differences are only optional grounds for refusing assistance under the concerned international instruments, the provision of assistance in some cases is legally impossible, particularly due to the violation of the legality principle in the requested state. For the effectiveness of mutual assistance in confiscation matters, a system should therefore be structured in a way that makes it legal to provide assistance despite these differences. This study expounds this thesis in five chapters. Chapter I outlines the historical evolution of money laundering control. Chapters II and III examine the laundering offence and confiscation respectively. Chapter IV analyses international confiscation. In light of the fmdings in the previous chapters, Chapter V makes suggestions for the effective enforcement of the repressive measures in emerging economies more generally and in Thailand more particularly.