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Title: Due diligence, risk assessment, and documents required from promise of sale stage to the final deed of sale
Authors: Borg, Rachel (2021)
Keywords: Contracts -- Malta
Risk assessment -- Malta
Money laundering -- Law and legislation -- European Union countries
Issue Date: 2021
Citation: Borg, R. (2021). Due diligence, risk assessment, and documents required from promise of sale stage to the final deed of sale (Professional report).
Abstract: The profession of the Notary Public has always been portrayed as a profession of integrity and importance within the Maltese islands. This has been a commonly known factor from its earliest records of Notarial Acts. Indeed, the Notary Public, as a professional, has kept up such reputation due to the weight such profession carries. The level of responsibility of the Notary Public has always been considered as a high factor in his role, not only because of the fact that the Notary is writing history and drafting contracts which benefit the parties jointly, but also, even more so nowadays, due to the ever increasing risks of deceit, fraud and money laundering from the parties using the Notary’s services. Throughout the years, the increase in such criminal offences has put the authorities on high alert, and this has also infiltrated in the way many professional assess and analyse their clients, from their behavior to their financial means. Most especially, the increase in the crime of Money Laundering has placed many worries on the Maltese economy. Therefore, many developments and amendments within the Maltese financial departments have been implemented to further limit this crime from being consummated. The Notary Public is one of the professionals who has also been effected by the crime of Money Laundering. Indeed, with the implementation of new laws and regulations, the Notary Public has now to analyse client data and information in order to limit and possibly extinguish any suspicious or illicit transaction being done through his services. The crime of money laundering has become sought for by criminal offenders as an easy way of generating funds. Simply put, money laundering is a crime through which the origin or ownership of illicit assets is disguised with the aim of providing a legitimate façade to the said assets. Robinson states that “Money Laundering is called what it is because that perfectly describes what takes place - illegal, or dirty, money is put through a cycle of transactions, or washed, so that it comes out the other end as legal, or clean, money. In other words, the source of illegally obtained funds is obstructed through a succession of transfers and deals in order that those same funds can eventually be made to appear as legitimate income”. Moreover, the Court in Police vs. Mark Brincat defined this crime through Archibald as “the process by which the proceeds of crime are converted into assets which appear to have legitimate origins, so that they can be retained permanently or recycled into further criminal enterprises. Money laundering relies on the existence of an underlying criminal offence. Thus, it can be said that the offence of money laundering has two characteristics: (1) the existence of a predicate offence, (2) the act of ‘laundering’ the funds generated by the predicate offence. Thus, money launderers create a complicated network of transactions which make it even more difficult to trace the origin of the illicit moneys. Anti-money laundering legislation (AML) have become an asset to prevent this white-collar crime from increasing. Anti-money laundering legislation is infiltering not only the legal field but also other fields involving the controlling of assets or transactions in general. This is important as money laundering is a serious and dangerous financial crime which prejudices the economy at a global scale. The FAFT imposes a risk-based approach on the countries to implement anti-money laundering regulations i.e. once the country understands the gravity and the risks involved with this crime, it could level-up its standards and regulations to limit the consummation of the crime itself. Unfortunately however, with increased and strict compliance measures in order to limit the performance of money laundering, increased due diligence and compliance procedures must be performed by professionals such as notaries who deal with large transactions on a daily basis. Moreover, it has also become more difficult for professionals working in the financial sector to trust their clients and also work with other financial institutions due to the increased cumbersome protocols and procedures. Therefore, as a subject person, the notary public is now bound with local AML legislation as well as EU AML legislation in order to successfully carry out his role.
Description: LAW5006_Professional Practice for Notaries
Appears in Collections:Reports - FacLaw - 2021

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