Tuesday 9 June 2015

COMPLIANCE PAPER - FORFAITING - MONEY LAUNDERING AND KYC CHECKS (REVISITED); Lorna Pillow - ITFA Head of Communications and Membership and Senior Vice President, London Forfaiting Company Ltd.

Introduction & Background

Since the publication of the IFA (now ITFA) MPC Bulletin no 5 in September 2006 on ‘Money Laundering and “know your customer” checks in Forfaiting - a lot has happened.  The 3rd EU Money Laundering Directive has been passed into legislation by the various EU Jurisdictions and the International Chamber of Commerce has published URF 800, the Uniform Rules for Forfaiting.

In 2006, the ITFA brought to the attention of its members Guidance Notes issued by the Joint Money Laundering Steering Group (JMLSG) focusing on paragraphs specific to forfaiting.  The JMLSG is made up of the leading UK Trade Associations in the Financial Services Industry. Its aim is to ‘promulgate good practice in countering money laundering and to give practical assistance in interpreting the UK Money Laundering Regulations’.  

The JMLSG Guidance is addressed to those firms regulated in the UK by the Financial Conduct Authority (FCA). Other firms such as non-bank Forfaiting companies are advised that they ‘should have regard to the contents of the guidance.  The JMLSG Guidance has gone through a number of amendments, the latest being the 2014 Revised Version. 

Although the JMLSG Guidance is directed towards UK based institutions, its underlying basis is compliance with the UK’s Money Laundering Regulations, which implement the requirements set out in the 3rd EU Money Laundering Directive.  Therefore, with the exception of some jurisdictional nuances, they may be viewed as being broadly applicable for EU based financial institutions and probably ‘good practice’ procedures for most financial institutions.

The JMLSG Guidance sets out what is expected of firms and their staff in relation to the prevention of money laundering and terrorist financing and is contained in a series of three volumes which can be found here.

Scope of this Bulletin

For the purpose of this bulletin, Forfaiting is taken to mean the ‘without recourse’ discounting of trade or trade-related payment instruments which are capable of being sold into a secondary market.   

JMLSG Guidance on Forfaiting

The JMLSG Guidance (drafted with the assistance of ITFA) contains three paragraphs relating to Forfaiting which can be found in Part II of the Guidance. These paragraphs are reproduced below:

“Forfaiting
15.51     The diverse nature of forfaiting business is such that the exact nature of the transaction needs to be considered.  For example, the need to ensure authenticity may lead to enquiries being made of the importer's management, and it may be necessary to examine the commercial parts of documents, dependent on the nature of the underlying commercial transaction.

15.52     In the primary Forfaiting, or origination, market, a firm will usually be dealing directly with an  exporter,  who  will  be  its  customer  and  on  whom it  should  carry  out  due  diligence  in accordance with Part I, Chapter 5. In addition, as part of its risk-based approach, a firm, where appropriate,  should  scrutinise  the  other  party  to  the  underlying  commercial  transaction,  as well  as  the  transaction  itself,  to  satisfy  itself  of  the  validity  of  the  transaction.  The amount and depth of scrutiny will depend on the firm's risk assessment of the client and transaction.

15.53     In the secondary Forfaiting market, the firm's customer will be the person from whom it buys the evidence of debt. However if it holds a Forfait asset to maturity it will be receiving funds from the guarantor bank and thus it should as a matter of course perform due diligence on this entity as well. Using a risk-based approach, firms should also consider whether they should conduct some form of due diligence on the underlying parties to the transaction, as well as on the transaction itself. This will depend on a risk assessment of the countries and the types of clients or products and services involved. It may be necessary to examine documentation on the underlying commercial transaction. However, it should be borne in mind that the further away from the original transaction the purchaser of a Forfait asset is, the harder it will be to undertake meaningful due diligence.”[1]

This Guidance has not changed fundamentally since it was first introduced in 2006 and it can, therefore be said to have withstood the test of time. Experience since that date has, however, clarified the nature of a typical due diligence exercise and helped to identify the factors which determine the risk profile of a given transaction.

This position fits in well with the Uniform Rules for Forfaiting (ICC Publication no. 800) which require, under Article 13, for the primary forfaiter (the forfaiter who arranges the original transaction) to carry out appropriate steps in accordance with market practice to ensure that documentation reflects the underlying transaction. 

Application of Client Due Diligence measures in Forfaiting

Drawing on the above sections, a Forfaiter needs to carry out Customer Due Diligence (CDD) on the entities with which it has a business relationship i.e. the contractual seller of the forfaiting transaction as well as the other parties to the underlying transaction itself. 

JMLSG Guidance Part I Chapter 5 discusses minimum requirements for CDD measures applicable to various types of customers. However, as the ITFA global membership operates in a broad spread of jurisdictions, many of which have their own know your client requirements we will not address CDD in this paper.  Although it is worth noting that the JMLSG considers identification and verification measures to be two distinct tasks, noting that ‘Identification’ involves obtaining a range of information whilst ‘verification’ involves obtaining documents from a reliable and independent source that evidence such information.

In relation to documentation, in a supplier credit there will normally be fairly extensive documentation which should be checked in a similar manner to the money-laundering checks applied to a letter of credit. In a buyer credit, there is typically far less documentation. This is acceptable provided that the rationale for the absence of documentation is credible.

However, as pointed out by the JMLSG, wider due diligence issues are presented in the secondary Forfaiting market due to the secondary Forfaiter’s lack of involvement in the primary transaction and the resultant remoteness from other transactional counterparties.  (Normal CDD will be carried out on the seller of the forfait asset).Therefore, as part of their due diligence procedures, secondary Forfaiters will normally need to adopt internal procedures requiring them to undertake appropriate due diligence on parties to the transaction with whom they have no direct contact.

Usually, this is, at the very least, the obligor. Basic identification evidence should be obtained from public sources. The supplier having a relationship with the obligor should be in a position to assist the Forfaiter in obtaining documents which might not be available through public sources. This requirement may also be satisfied or accompanied by further investigation and consideration of the supplier’s business e.g. how do the obligors fit into the supplier’s business patterns, how long have they traded with them, etc. Where the transaction involves high risk goods or countries, such checks will normally extend to the original seller or supplier of goods and in such a case the overall nature of the trading relationship should be considered.   

In addition to the sections on Forfaiting and CDD measures, additional relevant information can be found in JMLSG Guidance Section 15, which provides guidance relevant to the Trade Finance Sector as a whole.

Compliance or Market Practice

It is not the intention of this Bulletin to cover the requirements of the JMLSG or state that such guidance is mandatory to all Forfaiters. Whereas the JMLSG guidance notes provide mandatory rules applicable to UK companies subject to the UK anti-money laundering regime, such rules are drawn on the FATF recommendations which set international standards on combating anti-money laundering and financing of terrorism.

Moreover, FATF reports that implementation of the recommendations by member countries is not always comparable.  EU countries are widely compliant, whilst some other countries are still lagging behind, or even worse, not cooperative at all.  This can be seen from the FATF reports on high-risk and non-cooperative jurisdictions. 

One of the key findings in ICC’s recently published report entitled The Global Survey 2014: Rethinking Trade and Finance, is that ‘70% of respondents cited lack of harmonization between jurisdictions as a key problem in KYC/AML’.  This situation increases the cost of KYC/AML due diligence leading to differences between the expected levels contained in the JMLSG extracts and actual overall market practice.

In conclusion, ITFA members are invited to refer to the FATF recommendations, JMLSG Guidance and Wolfsberg Group guidance notes to inform themselves on Industry Best practices appropriate to their own organizations in order to consider their own approach to ‘Forfaiting - Money Laundering and KYC Checks’.

Sources:





[1]JMLSG Guidance for the UK Financial Sector, Part II: Sectoral Guidance, Amended: November 2014 

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