Learning from failure: cross-border confiscation in the EU

2019 ◽  
Vol 26 (3) ◽  
pp. 683-691 ◽  
Author(s):  
Georgios Pavlidis
Keyword(s):  
Human Rights ◽  
Paradigm Shift ◽  
Mutual Recognition ◽  
Lessons Learned ◽  
International Standards ◽  
Content Type ◽  
Cross Border ◽  
Open Source Data ◽  
Human Rights Standards ◽  
The Eu

Purpose The purpose of this paper is to critically examine the strengths and weaknesses of a new European Union (EU) initiative attempting an interesting paradigm shift in the field of cross-border asset freezing and confiscation. The entry into force of the Lisbon Treaty and lessons learned from the manifest failure of past EU initiatives (Framework Decisions 2003/577/JHA and 2006/783/JHA) have allowed for such a paradigm shift for the strengthening of mutual recognition of freezing and confiscation orders in the EU. Design/methodology/approach This paper draws on reports, legal scholarship and other open source data to examine a legislative innovation for the mutual recognition of freezing and confiscation orders in the EU. Findings The EU legislative initiative that will be examined is innovative in nature and goes beyond international norms on cross-border asset freezing and confiscation. The new initiative needs to be integrated into the broader EU framework that targets criminal proceeds, and at the same time, to be anchored to respect for human rights. Originality/value This study examines the strengths and weaknesses of an important new EU initiative, its compatibility with human rights standards and its relationship to international standards of cross-border asset freezing and confiscation.

Asset recovery: a Swiss leap forward?

2017 ◽  
Vol 20 (2) ◽  
pp. 150-158 ◽  
Author(s):  
George Pavlidis
Keyword(s):  
Human Rights ◽  
Design Methodology ◽  
International Standards ◽  
Extensive Experience ◽  
Content Type ◽  
Open Source Data ◽  
Asset Recovery ◽  
Source Data ◽  
National Norms ◽  
Human Rights Standards

Purpose International asset recovery proceedings may be hindered by several obstacles, especially in the case of “failed states” or of states that experience a regime change. In this context, Switzerland, a country with extensive experience in asset recovery, attempted two legislative leaps forward, the first in 2011 and the second in 2016. The purpose of this paper is to critically examine the legislative innovations in Switzerland, with special reference to their strengths, weakness and compatibility with human rights standards. Design/methodology/approach This paper draws on legal scholarship, jurisprudence, reports and other open source data, to analyze two important legislative innovations in Switzerland [Law on the Restitution of Assets of Criminal Origin of 2010 (LRAI) and law on assets of illicit origin (LVP). Findings The two Swiss legislative initiatives that will be examined (LRAI and LVP) are innovative in nature, but serious weaknesses and obstacles to asset recovery remain unaddressed. Despite their flaws, these two legislative innovations can inspire positive change in international and national norms. They can be viewed as part of a work-in-progress for the reinforcement of asset recovery proceedings and international cooperation in this domain. Originality/value Since the new law on asset recovery (LVP) came into force (July 1, 2016), this has been the first study examining the strengths and weaknesses of the adopted text, its compatibility with human rights standards and its potential influence on international standards of asset recovery.

A critical analysis of corruption and anti-corruption policies in Italy

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Paola Maggio
Keyword(s):  
Human Rights ◽  
International Standards ◽  
Content Type ◽  
The Public ◽  
Seven Deadly Sins ◽  
Ne Bis In Idem ◽  
Open Source Data ◽  
Source Data ◽  
Public Ethics ◽  
Human Rights Standards

Purpose This study aims to critically analyse the Law 9 January 2019, n. 3, on “Measures to fight crimes against the public administration and on the transparency of political parties and movements” (so-called bribe-destroyer law). Design/methodology/approach This paper draws on reports, legal scholarship and other open-source data to examine a legislative innovation for the corruption in Italy in relation to the general guarantees of the trial process and with the controversial paradigm of the national perception index of bribery. Findings The Italian legislative initiative that will be examined is innovative in nature and goes beyond the constitutional and conventional principles on procedural guarantees. The new initiative needs to be integrated into the international and European action against bribery that targets criminal proceeds, and at the same time, be anchored in respect for human rights during the process. Research limitations/implications The new initiative needs to be integrated into the international and European action against bribery that targets criminal proceeds, and at the same time, be anchored in respect for human rights during the process. Practical implications Despite the aggressiveness and lofty proclamations by those who aspire to fight corruption from the highest levels, the goal of rehabilitating Italy from one of the seven “deadly sins” that delay economic growth still seems far off. Social implications In the absence of public ethics, the increase in criminalisation does not seem sufficient on its own to guarantee the containment of the phenomenon. Originality/value This study examines the strengths and weaknesses of the important new law, its compatibility with human rights standards and its relationship to international standards of anti-bribery policies. The aggressive legislation critically relies on the pervasive and persistent lack of perception of corruption as a crime. In the confiscation (and now also reparation) of equivalent that normally addresses assets accumulated in a lawful manner, the periculum is even presumed in re ipsa and the classical aims of caution undergo a total torsion revealing an authoritarian face that takes on the meaning of anticipating further sanctioning contents. Finally, the presence of many levels of sanctioning in relation to the same fact poses serious problems of violation of the ne bis in idem rule.

Global sanctions against corruption and asset recovery: a European approach

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Georgios Pavlidis
Keyword(s):  
European Union ◽  
Human Rights ◽  
Design Methodology ◽  
The European Union ◽  
Content Type ◽  
Open Source Data ◽  
Asset Recovery ◽  
Source Data ◽  
The Uk ◽  
The Eu

Purpose This paper aims to critically examine whether it is timely and actionable for the European Union (EU) to adopt a global sanctions regime against corruption and how such a regime can be designed to maximise its efficiency. This paper argues that developing such a dedicated framework is necessary, feasible and supportive of the international fight against corruption and the efforts to enhance the recovery of corruption proceeds. Design/methodology/approach This paper draws on reports, legislations, legal scholarships and other open-source data on global sanctions against corruption and the recovery of corruption proceeds. Findings This paper argues in favour of a dedicated global sanctions regime against corruption, which is necessary to mitigate significant risks for the EU internal market. Originality/value To the best of the authors’ knowledge, this study is one of the first to examine recent legislative developments, such as the EU Global Human Rights Sanctions Regime and the UK Global Anti-Corruption Sanctions Regulations, and the possible development of an EU-dedicated global sanctions regime against corruption with strong asset recovery components.

Principles and Structures of European Risk Governance, or: How (not) to Play a Trust Game

2013 ◽  
Vol 4 (2) ◽  
pp. 159-174
Author(s):  
Anne van Aaken
Keyword(s):  
International Organizations ◽  
Service Provision ◽  
Mutual Recognition ◽  
Trust Game ◽  
Risk Governance ◽  
Private Institutions ◽  
Cross Border ◽  
Potential Risks ◽  
Regulatory Functions ◽  
The Eu

Ever more risky service activities are carried out across borders, creating spillovers and externalities. At the same time, if freedom to provide services is legally enabled, states can cooperate in multiple ways to mitigate the potential risks accruing from crossborder activities. Global Administrative Law Scholarship distinguishes five types of administrative regulation: “administration by formal international organizations; administrations based on collective action by transnational networks of governmental officials; distributed administration conducted by national regulators under treaty regimes, mutual recognition arrangements or cooperative standards; administration by hybrid intergovernmental–private arrangements; and administration by private institutions with regulatory functions. In practice many of these layers overlap or combine […]”. In the area of risky cross–border service provision, the EU has moved from a more decentralised version of networks and mutual recognition characterised by coordination and minimum harmonization of rules and standards to a more centralized commandand–control system with European authorities and supervision.

European Arrest Warrants and Minimum Standards for Trials in absentia – Blind Trust vs. Transnational Direct Effect?

2021 ◽  
Vol 11 (3) ◽  
pp. 275-287
Author(s):  
Martin Böse
Keyword(s):  
Mutual Recognition ◽  
Minimum Standard ◽  
Minimum Standards ◽  
Cross Border ◽  
Court Of Justice ◽  
European Arrest Warrant ◽  
The Right ◽  
Procedural Rights ◽  
Cross Border Cooperation ◽  
The Eu

The right of the accused person to be present at the trial and defend himself in person forms an essential part of the right to a fair trial. In this regard, the minimum standard enshrined in Art. 6 ECHR has been further developed by the minimum rules on procedural rights established by the EU legislator. According to a recent judgment of the Union’s Court of Justice, the Framework Decision on the European Arrest Warrant still allows the executing state to surrender a person convicted in absentia even if the EU minimum standard is not met. This paper will argue that common minimum standards have repercussions on cross-border cooperation based on mutual recognition and may emerge as a ground for refusal.

The EU Response to Criminal Misuse of Cryptocurrencies: The Young, already Outdated 5th Anti-Money Laundering Directive

2020 ◽  
Vol 28 (3) ◽  
pp. 217-251
Author(s):  
Valentina Covolo
Keyword(s):  
Money Laundering ◽  
Business Models ◽  
International Standards ◽  
Present Contribution ◽  
The Core ◽  
Cross Border ◽  
The Us ◽  
New Business ◽  
New Business Models ◽  
The Eu

Abstract Combatting criminal misuse of cryptocurrencies was at the core of the fatf agenda under the US Presidency, culminating in June 2019 with the thorough extension of international standards against money laundering over virtual assets’ markets. This echoed the first legislative measure regulating virtual currencies adopted by the EU a year before. Directive 2018/843, better known as the 5th Anti-Money Laundering Directive, fails however to address key technological breakthroughs and new business models, which continuously make the ever-growing and fast-paced crypto economy evolve. Against this background, the present contribution investigates shortfalls and challenges that lay ahead in the light of the new fatf Recommendations. It ultimately argues that the preventive anti-money laundering measures cannot dispense with the establishment of a cross-border integrated supervisory and enforcement system.

The eu “Conflict Minerals Regulation”: Potentialities and Limits in the Light of the International Standards on Responsible Sourcing

2018 ◽  
Vol 27 (1) ◽  
pp. 235-257 ◽  
Author(s):  
Valentina Grado
Keyword(s):  
Human Rights ◽  
Mineral Resources ◽  
International Standards ◽  
Due Diligence ◽  
Conflict Zones ◽  
Human Rights Abuses ◽  
Conflict Minerals ◽  
Risk Areas ◽  
The Eu ◽  
Responsible Sourcing

Business enterprises involved in the exploitation of mineral resources originating from conflict zones are at risk of financing armed activities and fuelling systematic violations of international law and human rights abuses. This article first analyses the initiatives developed by the UN and OECD aimed at encouraging companies to respect human rights and avoid contributing to conflict by adopting “supply chain due diligence” practices. Second, it focuses on a recent Regulation adopted by the EU to tackle trade in certain minerals sourced from conflict-affected and high-risk areas in order to highlight its main positive aspects and challenges and, at the same time, to ascertain whether and to what extent this new legislation is consistent with the UN/OECD international standards on responsible sourcing.

Economic impact of data localization in five selected African countries

2018 ◽  
Vol 20 (4) ◽  
pp. 337-357
Author(s):  
Mona Farid Badran
Keyword(s):  
South Africa ◽  
General Equilibrium ◽  
Computable General Equilibrium ◽  
Research Paper ◽  
Policy Recommendations ◽  
African Countries ◽  
Content Type ◽  
Cross Border ◽  
The Impact ◽  
The Eu

Purpose The purpose of this study is to quantify the impact of laws and regulations that govern the cross-border flow of data on the economies of five selected African countries, namely, Egypt, Morocco, South Africa, Kenya and Mauritius. Moreover, this study addresses the state of cloud computing in Africa. Finally, policy recommendations are provided in this respect. Design/methodology/approach To reach accurate finding the Global Trade Analysis Project (GTAP) data was used, and then the computable general equilibrium (CGE) was computed to estimate the total cost on the economy. Using the three data regulations linkages indexes (DRLs), the increased administrative cost effect was analyzed on five to six major economic sectors in the target countries. This was followed by estimating the loss in sector-wide total factor productivity (TFP) (for the five to six shortlisted sectors). Using this data, the computable general equilibrium model (CGE) was computed, in order to estimate the economy-wide impact. Based on these findings, a set of recommendations were offered to the policy maker, reflecting the obtained results and conclusions and their implications on drafting data-related policies. Findings The obtained data indexes reveal that Mauritius is the country with the most laws and regulations governing the cross border flow of data, followed by South Africa Egypt to a lesser extent and finally Morocco and Kenya both showing an obvious lack of data regulations. The small value of the estimated elasticity of the selected countries compared to the value of the estimated elasticity in the EU-0.347 shows that the impact of data localization is less in the selected African countries than in the other set of EU countries examined in the research paper. This is because the former has smaller economies with fewer linkages to the global economy and are less reliant on sectors that are heavy users of data. Thus, the overall impact of data localization was not as profound on TFP as is the case in advanced economies. This research paper arrives at the conclusion that fighting the trend of data localization is crucial. In fact, data localization hinders the necessary and essential role of global trade in realizing economic development. Specifically, this is evident in the increase in production costs as reflected in the increase of the prices of goods, which would lead to a decline in incomes. Originality/value Global studies looked at the impact of data localization on the EU, as well as China, India, Korea and Vietnam, providing some data on Asia Pacific. However, no study has ever been conducted on the Middle East and Africa. This study aims to fill this gap. The approach of this study is to capture the extent of data localization mandates encoded in the laws of each of the selected five African countries showing how these mandates govern their cross-border data flow and, in turn, affect their economies. Furthermore, the policy recommendations section of this research paper makes a contribution to the existing literature.

Belarus leader's win will be less controversial

2015 ◽  
Keyword(s):  
United States ◽  
Silk Road ◽  
International Standards ◽  
Content Type ◽  
China And India ◽  
The Eu

Significance While the election was flawed and failed to meet international standards, this year's poll has not so far seen a repeat of the violent crackdown witnessed in 2010. However, Lukashenka faces huge challenges, ranging from the economy through to balancing Minsk's relations with Moscow and Brussels. Impacts The West's poor ties with Russia are likely to prompt the EU and United States to treat Lukashenka more cordially. Better relationships between Minsk and Brussels will make Lukashenka a more trustworthy moderator in contacts between Ukraine and Russia. Lukashenka will continue to forge ties with China and India as a way of boosting his options and New Silk Road participation.

Environmental policy is shaping the EU’s energy market

2019 ◽  
Keyword(s):  
Financial Incentives ◽  
National Level ◽  
Energy Transition ◽  
Single Market ◽  
Energy Market ◽  
Low Carbon ◽  
Content Type ◽  
Cross Border ◽  
Trading Scheme ◽  
The Eu

Subject The EU's single market for energy. Significance Climate change targets, the EU's Emissions Trading Scheme (ETS) and direct emissions controls increasingly define the end-destination of the EU’s energy transition towards a single market, while the precise path of travel is determined largely by national-level policies. Differences in national approaches create distortions that hamper the increase in cross-border trade required to make the EU single energy market a reality. Impacts The EU will continue to resist capacity markets and strategic-reserve mechanisms, which create significant market distortions. Cross-border electricity trade requires significant new investment, but it is not clear that the financial incentives exist to support it. The long-term future of gas-fired generation is in doubt owing to increasing competition from low-carbon technologies.

Sign in / Sign up

Export Citation Format

Share Document