Legislation and Regulation for Money Laundering

Legislation and Regulation for Money Laundering Finance and Investment Law – Money Laundering Current Legislative and Regulatory Arrangements Money laundering is a menace. Tainted funds from drugs traffic and terrorism are the prime causes of the recent round of energetic legislation designed to make life more difficult for the launderers. The European Directive on Money Laundering has been followed in the UK by primary and delegated legislation. The aim is to deter laundering by well-focused use of the criminal law and, at the same time, to obstruct it by compelling banks and other persons and institutions in the financial services industry to ask more questions, keep more records and divulge more information. The money laundering legislation does not bear directly on the civil law, but, it will profoundly alter professional practices and is bound to filter back into the setting of standards which determine the incidence of civil liability. The huge profits of the drugs industry are gained ultimately from thousands of users who will never so much as contemplate recourse to the civil law. It is different in the case of theft, fraud and corruption. There the victims and their insurers have economic power, and the sums at stake are often large enough to justify a restitutionary campaign in the courts. Tracing is a weapon against laundering. It allows value held in one form at one place to be located later in other assets in another place. It lengthens the victims reach. Successful civil campaigns have been waged. The most notorious is the insurers recovery of assets derived from the Brinks Mat robbery. Often the defendants are not the principal rogues but others to whom the money has come or through whom it has passed. To the victim of a massive fraud, a bank or firm of lawyers or accountants will seem the most promising defendant, if the facts will only support a claim against them. This aggressive opportunism on the part of victims is a factor to be borne in mind as the law settles the conditions of the various restitutionary and restitution related liabilities which can be brought into play. In one recent case the plaintiff had been cheated of millions of dollars in Amsterdam. A sophisticated laundering operation had passed the money through many accounts in different names in different parts of the world. The plaintiff nonetheless traced a large part of it to a legitimate property development in London, and the development company had to make restitution. The same problems encountered in restitutionary campaigns after fraud are also met in more innocent contexts, as where money is paid away by mistake or on a basis which fails. Even in cases of the less disreputable kind the fact that the law will allow the value of one asset to be traced into another can confer great advantages. It will sometimes allow a plaintiff to extend a priority against an insolvent by enabling him to claim it, not against the asset with which he originally parted but against another to which its value can be traced. And it will sometimes allow a plaintiff to leapfrog the immediate recipient and claim against a third party who received, in different assets, value which proceeded from him. For all its utility tracing is one of the least perfectly understood areas of the law of restitution. It is caught on the horns of a dilemma. The longer its reach and therefore the greater its potency against fraud, the more difficult it is to describe exactly how it works; an d the more one insists on the need for an accurate and intelligible account of how it works, the greater the danger of shortening its reach. But there is no real doubt as to how this dilemma must be resolved. The law cannot tolerate figures which are beyond rational description. If there turn out to be limits to what can intelligibly be done by tracing, other weapons will have to be invoked. The law of tracing and claims contingent on tracing will soon settle down. Less stable in the medium term may be the law relating to or affected by restitutionary defenses. The introduction of the defense of change of position is already transforming the law of restitution. In one bound it has put the English law of unjust enrichment in closer touch with German law, and it may yet indirectly effect a civilian transformation of our approach to the cause of action itself. Festina lente may be the order of the day. The down to earth English approach may in fact be preferable. It is a great virtue of the English law of unjust enrichment that it talks in terms of very familiar reasons for restitution and does not go in for the metaphysics of causa and the absence thereof. Canada has succumbed to the temptation to start looking for sufficient juridical cause. The danger of that language is all the greater when it is not underpinned by mature civilian doctrine: it does not tell us why or wh en restitutionary rights arise but merely conceals the absence of an intelligible answer to those questions. Whatever larger changes it may portend, the new defense indubitably provides a new strategy for reconciling the interest in restitution with the interest in the security of receipts. As it takes over the protection of the latter it encourages a liberalization of the restrictive attitudes to the grounds of restitution. Those restrictions were previously the blunt instruments for the protection of that interest. The new focus on change of position also entails more attention to other defenses in its immediate vicinity. In this paper, bona fide purchase, ministerial receipt and passing on assert their independence. Counter-restitution impossible also declines to be absorbed into change of position but appears to be destined to have little future as an absolute defense. The Society of Public Teachers of Law once again stands in debt to those who gave up their time to attend these seminars and, especially, to the judges who were kind enough to take the chair. Lord Justice Millett chaired the seminar on tracing and Lord Goff chaired the seminar on defenses. We are most grateful both for their generous surrender of free time, if indeed a judge can these days be said to command any of that valuable commodity, and for the learning and wisdom with which they brought order to the discussion (United Kingdom Model Agreement, May 2003). Case Example In AGOSI v. United Kingdom the Court was faced with the question whether the imposition of a confiscation necessarily implies that the owners of the confiscated property should have been afforded the same rights as those granted to everyone in the determination of a criminal charge. The German company AGOSI had suffered a considerable economic loss when the UKs Customs Excise department had seized and eventually forfeited golden Krugerrands to a value of  £120,000 that had been illegally imported into the United Kingdom. Defendants X and Y were caught by UK Customs Excise officers as they attempted to smuggle into the United Kingdom on 2 August 1975 the golden Krugerrands they had bought on the same day from AGOSI in Germany (M2 Presswire, March 1, 2004). Because the cheque presented by them for payment had been drawn without provision, the sale contract was ab initio null and void and AGOSI had retained ownership of the Krugerrands. AGOSI initiated several procedures in the Unit ed Kingdom for restitution of the confiscated Krugerrands but was unsuccessful. AGOSI therefore took the case to the European Court of Human Rights, complaining that the confiscation amounted to a procedure for the determination of a criminal charge in which it had been denied the fair trial rights laid down in Article 6 of the European Convention. The Court responded that: The fact that measures consequential upon an act for which third parties were prosecuted affected in adverse manner the property rights of AGOSI cannot itself lead to the conclusion that, during the course of the procedures complained of, any criminal charge, for the purposes of Article 6, could be considered as having been brought against the applicant company. As a general statement this is undoubtedly true. The mere fact that persons own property that is being confiscated does in itself not necessarily imply that a criminal charge is being brought against them. When, for example, instrumentalities of an offence are being confiscated, that does not necessarily imply that a criminal charge should be brought against the owners who may very well have not been implicated in the offence in any way. Confiscation of proceeds from crime as a matter of fact often implies that the person who is being prosecuted is not the real owner. Nine years after AGOSI, the European Court of Human Rights arrived at a similar decision in Air Canada v. United Kingdom, which again involved a seizure by the UK Customs Excise, this time of an aircraft on board which drugs had been found on several occasions, including a few days earlier. The aircraft was only seized temporarily for a few hours until Air Canada paid a sum of  £50,000. 116 The European Court agreed with the English Court of Appeal that the case did not concern an in personam procedure but an in rem procedure and therefore did not require that mens rea of the owner or the possessor was established. This, as well as the fact that non-payment of the sum could not give rise to criminal prosecutions, unlike some out-of-court settlements (transactions) and that the procedure did not involve the intervention of criminal courts at any stage, induced the Court to reach the conclusion that the action of the UKs Customs Excise department did not amount to a criminal charge in the sense of Article 6 of the European Convention on Human Rights. It is submitted that this decision is flawed. The case law of the European Court of Human Rights regarding the applicability of Article 6 to confiscation procedures should be seen in close connection to its case law regarding the right to property, entrenched in Article 1 of the First Protocol to the European Convention on Human Rights. In AGOSI the Court held that an import prohibition on golden coins constituted a law necessary to control the use of property and that the seizure and confiscation of the Krugerrands were consequently measures taken in accordance with this prohibition and were therefore governed by the second paragraph of Article 1 of the First Protocol. The Court ruled in the same sense in Air Canada. The text of Article 1, however, prompts the question whether confiscation of proceeds from crime should not be considered a deprivation of property under the first paragraph of this provision: 1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and by general principles of international law. 2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. This question was answered in the negative in Raimondo v. Italy, which concerned seizure and confiscation of real estate that was derived from mafia practices. It was held that although it involves deprivation of possessions, confiscation of property does not necessarily come within the scope of the second sentence of the first paragraph of Article 1 of Protocol No. 120 The Court referred to its prior judgments in AGOSI and Handyside, in which the Court seemed to have considered confiscation as a preventive measure. This was undoubtedly the case in Handyside where the Court held that the seizure, confiscation and destruction of obscene publications constitute a law necessary to control the use of property and were thus governed by the second paragraph of Article 1 of the First Protocol. These measures effectively prevented further distribution of the publication. It is, however, submitted that the confiscation of the illegally imported Krugerrands in AGOSI did not constitute a preventive measure as it did not pertain to the use of the property but only to certain economic-political goals that were set by the British Parliament. The (possession of) property was not unlawful per se at most; the confiscation dealt with derivative contraband, but not with per se contraband. An even more flagrant example is that of M v. Italy, a case decided by the European Commission of Human Rights, in which it was accepted that the confiscation of proceeds from crime under the Italian anti-mafia laws pursuant to a reversal of burden of proof did not fall foul of Article 6 of the Convention nor of Article 1 of Protocol No. 1 as these confiscation measures were preventive and hence did not amount to a criminal penalty. Although all these cases differed from the earlier mentioned case of Welch v. UK (in which the Court did accept the criminal nature of the confiscation of drug trafficking proceeds) 124 in that the imposition of these confiscations did not require that the person was found guilty of a criminal offence, it is submitted that the punitive character of these confiscations could and should have been deduced from the possibility that the owner might avoid confiscation by demonstrating his innocence – a possibility which was explicitly acknowledged by the European Commission and the Court of Human Rights. In this perspective, it is useful to refer to the line of reasoning adopted by the American Supreme Court which explicitly deduced the punitive nature of in rem confiscations from the fact that confiscation is excluded in case owners can demonstrate exceptional innocence. It inevitably follows from this line of reasoning that the confiscation in AGOSI amounted to a penalty, as it wa s at least in part based on guilt of the owner. In Air Canada the punitive nature of the seizure of the aircraft as an instrument of crime was even more blatant, as it was not the aircraft as such that constituted the contraband, but the drugs that had been found on it on earlier occasions. It should be equally clear that the confiscation of assets belonging to a mafia member and presumably derived from an illegal origin, though termed preventive, is in fact nothing else but a criminal penalty. Given the absence of a formal international legislator, it is not surprising that the influence of soft law has been especially notable on the international level. The contribution of international soft law instruments to the fight against money laundering is impressive. One of the earliest international initiatives undertaken in the field of money laundering was the Recommendation No. R (80) 10 adopted by the Committee of Ministers of the Council of Europe on 27 June 1980 entitled Measures against the transfer and safeguarding of the funds of criminal origin. The first international instrument to address the issue of money laundering specifically was the Basle Statement of Principles of 12 December 1988, issued by the Basle Committee on Banking Regulations and Supervisory Practices. The Basle Committee, which comprises the authorities charged with banking supervision of twelve western countries, thought it necessary to take action against money laundering lest public confidence, and hence the stability of banks, should be undermined by adverse publicity as a result of inadvertent association by banks with criminals. Regardless of the fact that the primary function of banking supervision is to maintain overall the financial stability of the banking system rather than to ensure that individual financial transactions are legitimate, the supervisors thought that they could not stay indifferent to the use made of banks by criminals. Money Laundering Regulations 2003 The new regulations replace the Money Laundering Regulations 1993 and 2001 and require any person who carries a relevant business to maintain certain anti money-laundering administrative and training procedures. In particular, the activity of dealing in goods by way of business whenever a transaction involves accepting a cash payment of 15,000 or more, will mean that the business needs to comply with the Regulations. Furthermore, records of identification evidence must be kept for at least five years following the end of the business relationship. Failure to maintain the necessary procedures is a criminal offence carrying a maximum penalty of two years` imprisonment and a fine. Research commissioned by BT and GB Group, has found two thirds (67 per cent) of top UK businesses are currently not compliant with new money laundering legislation that came into force on March 1, 2004, leaving their directors open to legal action and a possible two-year jail sentence. The Money Laundering Regulations 2003 require all UK businesses to prove the identity of their customers when handling cash transactions for goods of euro15,000 or more, and also to have adequate record-keeping procedures in place to demonstrate necessary checks have been undertaken. Furthermore, 40 per cent of companies that have implemented what they regard to be acceptable identity authentication processes feel they could still be victims of money laundering, and over half (53 per cent) of those with solutions in place fear that money laundering activity will increase over the next couple of years (The Daily Mail February 23, 2004). The new extended money laundering regulations make it a legal requirement for companies to have robust systems for customer validation and record keeping in place. However, research clearly highlights that organizations are confused about how to achieve compliance, and that there is a worrying lack of confidence in identity verification systems that are already in place. To help companies address this problem, BT has developed an online authentication service, called URU, in partnership with GB Group (Haynes, 2004). URU helps businesses protect themselves against the growing problem of identity fraud, and by helping them work towards achieving compliance with money laundering legislation it may even help keep directors out of jail. URU enables companies subscribing to the service to decide instantly whether to accept the identity claimed by an individual. It does this by asking a series of questions and comparing the information gathered to that held in the most comprehensive data se ts available in the UK, producing match or no match reports. The result is a faster, cheaper, secure and more convenient way to fight identity fraud. URU also provides businesses with an independent audit, thereby helping companies demonstrate compliance with the Money Laundering Regulations 2003. Other findings from the research include: A quarter of all respondents have no identity-checking process in place at all and have no plans to introduce one. Of those with defined and documented identity-checking processes in place, businesses remain confused about some of the basic terms of the legislation: o 34 per cent are unable to state the threshold value level of goods at which a money laundering check should be triggered o 10 per cent do not regularly ask for key identification documents such as a passport or drivers license. A quarter is unclear that directors are now personally liable for any breaches. There are marked variations in levels of compliance across different market sectors. Compliance is highest amongst financial services companies, with 62 per cent of stockbrokers and 55 per cent of Independent Financial Advisers (IFAs) already compliant, compared to only three per cent of car dealers and 23 per cent of luxury good companies (Dale, 2001). More than one in four companies feel that the cost of compliance will mean certain transactions will have to be refused, and 13 per cent see it as a cost that will have to be passed on to customers. The different levels of understanding about the requirements of the Money Laundering Regulations are a problem not only for businesses that need to comply, but also for the regulators aiming to crack down on this serious crime. It is in the interests of both parties to stem the rise of money laundering as a crime. Our URU system, which is designed specifically to help companies make large numbers of identity checks quickly and cost effectively, also helps organizations to meet the requirements of the regulations. Surveyors, estate agents, accountants, lawyers, licensed conveyancers and sellers of high value goods will now have had exactly a year to get to grips with the Money Laundering Regulations 2003 (Money Management; July 1, 2004). They are all caught within the range of business activities included in the regulations, and have had to set up internal compliance regimes. These involve regulation by the relevant authorities, training to ensure staff are alert to possible money laundering, the appointment of a money laundering reporting officer, identification procedures to check the details of all clients within the regulated sector and records of all identification checks to be kept for six years. Conclusion The objective standard for the suspicion of money laundering essentially provides the rationale for the know your client/know your business requirements. Failure to report a suspicion of money laundering is judged on the standard of whether a reasonable IFA would have been suspicious in all the circumstances. So what should make an IFA suspicious? The following are examples and should not be taken as an exhaustive list of circumstances that may give rise to suspicion. The important element is understanding what suspicion actually means. At the most basic level an IFA should be cautious of a client introduced through a third party or intermediary based in a country where drug production and trafficking, or terrorism is prevalent. This is not to say that suspicion should automatically arise in this context. It is perhaps only the background against which the reasonable IFA may later find grounds for suspicion. A transaction may have the requisite quality of suspicion where, without logical explanation, funds are routed in and out of the jurisdiction or between different accounts or institutions, or a transaction leads to financial loss. The settlement or payment following any transaction may also be suspicious if a client requests an unusual form of settlement. The term unusual will depend on the usual circumstances, but a request for payments in cash, or to a third party, or through a series of payments from an account may be suspicious. Recognizing a warning signal is the first step to complying with anti money laundering laws. If an unusual or unpredictable circumstance does arise which gives an IFA cause for concern, then the next step is to ask more questions. The answers to those questions will either allay fears or provide a foundation for reasonable suspicion. Bear in mind that although drugs and terrorism are examples of the crimes where money laundering cash is likely to be an is sue, the new laws relate to any proceeds, however small, from any crime, however petty it may seem. In particular, the new laws cover proceeds from tax evasion and benefit fraud. Various regulatory bodies have issued guidance to assist with the interpretation of the new laws. The guidance is also important to note because a court will take account of the guidance issued in a particular industry when applying the objective test as to whether someone knew or suspected money laundering. Bibliography Money laundering regulations. M2 Presswire; March 1, 2004. New laundering clampdown. The Daily Mail (London, England); February 23, 2004. Taken to the cleaners. Money Management; July 1, 2004. Haynes, A., Recent Developments in Money Laundering Legislation in the United Kingdom, JIBI (2004), 58–63. Dale, R., Reflections on the BCCI Affair: A United Kingdom Perspective, Intl Law (2001), 949–62. United Kingdom Model Agreement Concerning Mutual Assistance in Relation to Drug Trafficking (May 2003), reprinted in Mitchell, Hinton and Taylor, Confiscation.

Economic Recovery in UK Essay

Introduction Over the past few years, UK economy has been is a recession period characterized by decline in positive business conditions. This period indicated unfavorable business environment due to aspects of high taxation, reduced demand and high cost of imports. The period was also characterized by low cost of imports which results to unfavorable balance of trade in UK. Economic downturn in UK has great influence in business especially the high street brands (Holley, 2012). With that kind of economic, grow conditions there was increased concerns about the future of high street s. this trend threatened the long term survival and attractiveness of high street brands since the economic conditions undermined the ability to attract a range of potential customers and other businesses. However, signs of economic recovery are evident in United Kingdom. The United Kingdom is returning to economic growth, this is according to a range of economic indicators which reveal a stable housing market; firm’s raising confidence and employees’ readiness to hire (Irvin, 2006). According to economic data is growing faster where effects are felt throughout the economy. The data suggests that the economic recovery is evident in nearly all sectors in the United Kingdom economy. According to economic data in UK, the economy grew by 0.8 percent compared to last year economic grow denoted by 0.4 percent (Holley, 2012).  Ã‚   Considerably, economic recovery in UK has greatly boosted business in the country. For instance, many organizations have grown considerably in the current business environment that is ensured by the economy recovery. More precisely, companies such as Tesco has registered and increase in the total sales compared to recent past (Tesco annual report, 2013). This in turn has enhanced organizations strategic approach in regard planning in the current business environment. Most important, the constant economic recovery mood in UK is improving as most businesses are reacting to the increased business confidence through search of new markets. The situation has also encouraged investment and saving in United Kingdom. Increase in business confidence is accelerating; this is a fundamental financial performance signal in UK that indicates reported profit and turnover rise and is expected to improve further (Irvin, 2006). According to economic data, unemployment level has decreased drastically since the start of economic recovery in the country. This situation is characterized by increased demand, growth of most of sector especially retail. In addition, economic firing has ensured favorable balance of payment in UK (Holley, 2012). The economic recovery in UK also indicates enhanced future for high streets brands since it is improving its attractiveness and survival. According to economic data, improved economic conditions in UK will attract more potential investors and retailers to high street brands business. This because of the enhance business confidence and favorable business climate in United Kingdom. Generally, all sectors of United Kingdom economy are growing considerably showing continuing creation of employment opportunities by the government, educated workforce and enhanced living standards through reduction of costs of living (Irvin, 2006). According to economic data, there are indications of enhanced consumer confidence in United Kingdom. This phenomenon is precisely defined by the current economic recovery in  Ã‚   the country. According to Holley (2012), the level of consumer confidence is high indicated by the current economic conditions in a country. The improvement in consumer confidence is also ensured due the decline in unemployment in UK which helps to boost confidence. In addition, decline in house prices has also accounted for the improved consumer confidence in UK. Consumer confidence is fundamental as it influences economic policies in a country. Considerably, increased consumer confidence in UK has caused households to opt to invest instead of savings since they are confident of better returns with the prevailing economic conditions in the country. Positive trading conditions as a result of economic growth in U.K Growth in business confidence is a major indicator that enhances economic growth. This has lead many investors in the UK to invest in many sectors since they have confidence on the business has there is a confirmed stable growth that motivates them to even invest more in other different sectors. This trading condition has highly encouraged many businesses to search for new markets in the UK and this comes a result of them many investors within and outside UK having enough confidence on what they are investing thus, these has attributed much to enormous growth in their economy. In addition, they expect growth to create a huge pace now as the recovery continues to build steadily and business investment and net trade are also expected to offer increasing support to enhance over the coming years (Trade and investment for growth, 2011). Fairtrade sales in U.K have highly increases going up to â‚ ¬2.89bn globally towards the end of 2008 (Cofnas, 2012).   On the same line with the economic growth there is a high increase in demand that helped to avoid the economic crisis and demonstrate the difference that depict with Fairtrades. Consequently, Fairtrade is highly attributed towards enhancing the economic growth in UK. Many of the latest research prevail that through the mechanisms entailed, Fairtrade grants a positive economic opportunity for those individuals with smallholder farming families competent and ready to join producer associations and provide products of the right provisions for the required market. Consequently, numerous Fairtrade co-operatives are appropriate and are becoming stronger, frequently showing a higher capacity to survive in intricate times and becoming capable to grant important services to their members. This strengthening is mainly noticeable where producer ownership supplementary along the assessment chain is attained as demonstrated by the share ownership of producers (Cofnas, 2012). Increase in supply is another positive condition that has resulted from the economic growth in the UK. This came into consideration has the government offers and subsides to those producers of the necessary goods and services which generates external benefits that will diminish the cost of production as well has encourage more supply. This has been enacted to encourage the supply of merit goods in the UK. For instance in the education sector, health and those issues dealing with the housing finance and therefore, these particular merits can easily be funded from the local government taxation or from the nongovernmental organization and this has highly contributed to the economic growth over the last few years. This is basically because they focus on the public goods, for example they concentrate on building roads, bridges, airports and other more areas that are considered to be generating more income thus showing an increase in tax revenue. In addition, the food processing industry such as Cadbury plc is among those who have heavily benefited from the positive trading conditions, thus it noted to be among the largest leading confectionary with a wide range of products. Back in 2007, the Cadbury plc closed down the keynsham chocolate factory and this lead to about jobs closed. This was enhanced by the wake of wake of the global economic crunch, however, Presently, Hershey Chocolate Company, a US based plc is making tireless efforts to acquire Cadbury so as to enjoy broad world markets due to the positive tradition conditions that have been put in place and enhanced fully. Lastly, tariffs or free trade is another indicator that has enhances economic growth in the UK.   According to the economists, when high tariff was not formulated, UK was not economically productive as it was stuck in a huge economic depression in the early years. In contrast, the tariff has currently created appropriate economy in that there is large proportion of the entire population at the same time dependent on commerce and industry sector. The imposition of free tariff has highly promoted growth of several industries. According to the economists, the persistence in economic history, it shows the free trade provides long-run conditions for growth that maybe better than any other way (Aldridge, 2013). How positive trading conditions affects approaches to strategic planning Strategic planning is the process in an organization which leads the organization to coming up with news strategies and ideas and finding for means of achieving those strategies as one way of improving an organization or company. It deals with knowing what is to be done, how it is going to be done and for what purpose and the means of doing it. Strategic planning involves understanding a company’s mission, vision, strategies, aims, objectives, goals and achievements. The tools required for this include the pestle factors example economic, social, political, legal, environmental and technological and informatics factors. The construction industry which had been affected by the economic breakdown is now improving as various business strategies are being enhanced. United Kingdom’s GDP is pushed upwardly through enhancing the positive trading conditions. The trading conditions in the United Kingdom are currently improving amidst many challenges facing the economy of Britain thus if the GDP is to move upwards then the trading conditions must be improved. Last year November, the United Kingdom’s exports had a small positive change which made the imports to decrease thus enhancing positive trading conditions which in return reflected a positive change in the GDP (Great Britain & Great Britain, 2013). Change in trading conditions impacts greatly on the GDP thus it is determined by trading conditions. United Kingdom’s sterling pound is weakening which contributes to an increase in the amounts exported because of recovery in trade worldwide. Thus as the number of exports increases the GDP maintains a positive move thereby stabilizing the economy thereby maintaining the strategic planning in order to maintain that positive move in the economy. Trading conditions determines which strategies to be put in place, when they will be made, who will make those strategies and resources required for the strategies to remain successful. The United Kingdom’s trading conditions has suffered challenges over the last few years but lately the trading conditions are taking a positive direction. The manufacturers have learnt their lessons and identified their mistakes which enable them make strategic plans in order to avoid such mistakes in future. Strategic plans have been made in such a way that employment and investments remain balanced. By doing this, the economy of United Kingdom is getting boosted and the sterling pound is gaining value (Great Britain, 2007). Investors and employers are applying good strategic planning which is greatly reflected by improvement of trading conditions and economy at large. The manufacturers are now getting huge profits, importing less and exporting more which shows that the trade market is improving greatly. The United Kingdom is trying to balance its trade which is affected by a number of factors (Middleton, Rodger & MacCulloch, 2008). The production cost of the exports should always remain lower than the cost of importation for the economy to remain stable. United Kingdom is strategizing that there are enough and available raw materials instead of importing them. It has put restrictions on trade in terms of taxes and made sure that the trading environment is maintained inclusive of standards of health, safety of its people and conducive environment. Foreign exchange is a key strategy and a contributing factor in the economy of the United Kingdom. The high the foreign exchange the more stable the economy is and vice versa. In addition, it has come up with the strategy of minimizing the cost of the goods sold locally and increasing the cost of its exports. In addition, it has reduced the amount of imports in the country by producing most products locally. The commercial banks and investments banks were greatly affected by the economic decline then followed by the construction and insurance firms and companies. Through the good strategies enhanced the economic started to rise and is now growing to higher standards. The merits, effectiveness and relevance of prescriptive and emergent approaches to strategic planning in this improving economic climate The effectiveness on the strategic planning is based on the ability on how managers and leaders are able to establish concrete strategies which help them attain their vision and mission in the most appropriate means possible.   Strategic planning is fundamental to address long term issues which might which might be as a result of prescriptive and emergent approaches.   During hard economic times, strategic planning is vital for organization to draw up tangible strategies capable to enable the firm to reach out its desired goals and objectives. Prescriptive strategic planning can be defined as a strategy established before the whole implementation process starts (Jeffs, 2008). The whole idea revolves around investigation, planning, development and full implementation.   This approach is vital particularly to ensure analysis of a firm is stable in relation to the economic conditions. Prescriptive strategy is more focused towards developing enough ability to predict the changes occurring on the external environment. This approach makes it achievable to systematize difficult activities and conditions as a way of addressing the current environmental changes (Friend & Zehle, 2004). On the other hand, emergent approach is an appropriate alternative to the prescriptive strategic planning.   Emergent approach strategies are developed as time elapses but usually without any objectives or reasons.   This approach is a bit flexible because it allows creation of more creative and responsive process in relation to the present economic conditions.   This approach is not only important but also appropriate mainly to address the volatility evidenced in the present creative and responsive process. This approach is important because it can be easily altered in the best way possible to suit the current economic conditions (Rao, Rao & Sivaramakrishna, 2008). It is also be applicable in unpredictable environment in order to address some key issues of concern.   As evidenced the climate is changing rapidly, and therefore it is important to adapt good strategies to ensure and maintain firm’s survival. Effectiveness of both prescriptive and emergent approaches is based on the ability to establish clear business objectives and aims.   The level of flexibility between different companies matters a lot in relation to adaptation of these strategies.   Evidently, firms must develop tangible strategies to tackle the current changes in the environment in order to ensure their survival.   Effectiveness of the strategic planning is based on the fact how a firm is prepared enough to handle all maters presented by economic conditions (Jeffs, 2008).   The focus towards attaining business objectives is the key driver towards establishing effective strategic plan. The numerous changes happening in both developing and emerging countries have led to establishment and diffusion of efficient strategic planning.   The effectives of both prescriptive and emergent approaches are determined by how an organization is able to polish its operations and implementation of viable strategies. In other works it can be stated as the degree at which firms are able to successfully achieve its desired objectives in the most appropriate procedural.   The effectiveness of strategic planning is closely linked with its achievements as a result of established objectives.   Basically, strategic planning is more concerned with objectives and results despite presence of economic conditions (Rao, Rao   & Sivaramakrishna, 2008). Strategic planning is relevant to address all issues emerging as a result of economic trading conditions.   According to Friend and Zehle (2004), both prescriptive strategies and emergent strategies are so relevant to address the current situation as witnessed in the in the current economic climate of instability. There is need for companies and organizations to effectively implement and adapt these strategies mainly to ensure their survival.   The aim of these strategies is to ensure that an organization has proper mechanism put in place to handle changes which might be as a result of environmental changes (Jeffs, 2008). Strategic planning has gained more popularity with many companies adapting strategies with more efforts focused towards achieving the aims and objectives goals.   Evidently, strategic planning helps organizations to grow progress and successfully adapt effective strategies to address the constantly changing environment. Conclusion From the above paper it is evident that, over the past few years, UK economy has witnessed a recession period characterized by decline in positive business conditions. This period indicated unfavorable business environment due to aspects of high taxation, reduced demand and high cost of imports. The implication is widespread low imports hence attracting all trading businesses. The economic recovery in UK also indicates enhanced future for high streets brands since it is improving its attractiveness and survival. According to many indicators, UK economy appears to be emerging from the turbulence of the past five years; with its devastating impact on many businesses including well known high street brands. Strategic planning is vital to address long term issues which might which might be as a result of prescriptive and emergent approaches. Reference Aldridge, I. (2013). High-frequency trading: A practical guide to algorithmic strategies and   Ã‚  Ã‚  Ã‚  Ã‚   trading systems. Cofnas, A. (2012). Trading binary options: Strategies and tactics. Hoboken, NJ: Bloomberg   Ã‚  Ã‚  Ã‚  Ã‚   Press/Wiley. Friend, G., & Zehle, S. (2004). Guide to business planning. London: Economist in association    with Profile Books. Great Britain. (2007). Success and failure in the UK car maunfacturing industry. London: The    Stationery Office. Great Britain., & Great Britain. (2013). The future of the European Union: UK Government   Ã‚  Ã‚  Ã‚  Ã‚   policy : first report of session 2013-14. London: Stationery Office. Holley, D. (2012). UK economic recovery: The long road : a political thesis. Guildford: Grosvenor House. Irvin, G. W. (2006). Regaining Europe: An economic agenda for the 21st century. London:   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Federal Trust for Education and Research. Jeffs, C. (2008). Strategic management. Los Angeles: SAGE. Middleton, K., Rodger, B. J., & MacCulloch, A. (2008). Cases and materials on UK and EC   Ã‚   competition law. Oxford: Oxford University Press. Rao, C. A., Rao, B. P., & Sivaramakrishna, K. (2008). Strategic management and business   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   policy: Texts and cases. New Delhi, India: Excel. Trade and investment for growth. (2011). London: Stationery Office.      

Property Law- Adverse Possession Essay

Introduction To understand the comments made by Young J in Shaw v Garbutt (1996) 7 BPR 14 at 816, it is necessary to discuss the doctrine of adverse possession, it’s requirements and the history of how this law has been interpreted. Philosophy of adverse possession The basic underlying philosophy for the doctrine of adverse possession is that historically land use has been favoured over disuse. The doctrine protects ownership by barring stale claims of non-occupiers and errors in the title records. The intention is not to â€Å"reward the diligent trespasser for his wrong nor to penalise the negligent and dormant owner for sleeping upon his rights†¦Ã¢â‚¬  . At common law, the possession of land raises a prima facie presumption that the possessor is the owner, and modern cases concentrate on possession as the basis of proprietary interest. What this amounts to is that a person may acquire property without the consent of the actual titleholder if he or she possesses it long enough and meets the legal requirements. Situations may arise where a person who is not the rightful owner of land occupies the land without the permission of the rightful owner. This kind of occupation of land may be deliberate, for example by a squatter who is intentionally trespassing on the land, or it may be inadvertent, for example by a neighbouring landowner who unwittingly occupies the property. The person wrongfully dispossessed of the land has a right to bring proceedings against the occupier to recover the land. However, in certain circumstances, limitation law operates after a period of time to deny the rightful owner the opportunity to bring such an action. When this happens, the occupier is able to continue in occupation undisturbed except by anyone who can prove a better legal right to possession of the land. To seek a title by adverse possession, both the satisfaction of the common law requirements in relation to adverse possession and expiration of the relevant limitation period must be established. Requirements of an adverse possessor The Real Property Act 1900 s 45D (1)(b) provides that a person in possession of land may apply at any time to the Registrar General to be recorded as the registered proprietor of the land if: â€Å"the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land†. In NSW the current legislation on limitation of actions is governed by the Limitation Act 1969. S.27(2) of the Act states that the limitation period for an action to recover land is 12 years. S 45D(4) of the Act prevents the lodgement of a possessory application unless the whole of the period of adverse possession (in this case, twelve years) is expired. S.28 of the Act provides that the cause of any action accrues on the date of dispossession or discontinuance. To dispossess a rightful owner of land, actual possession of land without notice must exist. Actual possession consists of the following two elements: *factual possession – the appropriate degree of exclusive physical control of the land in question; and *animus possidendi – an intention to possess that land to the exclusion of all others including the true owner. One without the other will not be sufficient. To amount to adverse possession  the acts of possession must be inconsistent with the documentary owners intended use. In Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270, 13,283, Bryson, J stated possession must be â€Å"actual, open, visible, notorious, continuous and hostile to the title of the true owner† to exist. In Mulcahy v Curramore [1974] 2 NSWLR 464, however, Bowen, CJ stated that to amount to possession the inclusion of the requirements â€Å"peaceful, not by force† must exist. In analysing this, Young J in Shaw v Garbutt posed the question â€Å"Is it a requirement that adverse possession be â€Å"peaceful, not by force†.† Adverse possession – inclusion of peaceful and not by force requirements Young J carefully considered the above judgment of Bowen CJ in Mulcahy v Curramore in light of the particular circumstances of Shaw v Garbutt and closely researched the definition of â€Å"peaceable† at common law. He did this in two ways; firstly he considered other judges definition of â€Å"peaceable† (including internationally); and secondly, he considered how precedence within Australia dealt with the interpretation of an aggressive act to protect one’s property whilst in adverse possession. Young, J detailed the literal translation of words used by Bowen, CJ to be â€Å"without force, without stealth, and as of right† . The Statute of Forcible Entry 1381 provides that entry into any lands except where entry is given by law must be peaceable and easy in manner. Contrary to this, is punishable by imprisonment. In Australia, the modern equivalent replacements provide ‘that it is lawful for a person in peaceable possession of land with a claim of right to use such force as he or she reasonably believes to be necessary to defend his or her possession against any person whether entitled by law to possession of the property or not, provided bodily harm is no caused†. Despite this offence of forcible entry, it was found in Hemmings v Stoke Poges Golf Club Ltd [1920] 1 KB 720 that † a person retaining possession of land has no civil action for damages against the rightful owner who forcibly enters the premises unless more force is used than is reasonably necessary†. The bench further observed that â€Å"it will still remain the law that a person who replies to a claim for trespass and assault that he ejected a trespasser on his property with no more force than was necessary may be successfully met by the reply that he used more force than was necessary if the jury can be induced to find it.† In Shaw v Garbutt many authorities are cited with varying interpretations of peaceable possession. Generally peaceable possession is seen as possession that is continuous and is not interrupted. That is it is equated not with the use of force or threats to defend possession of the land or disturbed by the commencement of a suit for possession. Clearly where violent and unlawful force is used in defending land criminal action can be pursued. Whether the possessor has been peaceable or not is a pure question of fact. Forcible or threatening conduct in warning people off property can be characterised as an act going to establish possession of the land. In Beever v Spaceline Engineering Pty Limited, the person in possession warned other persons off land by threatening with a shotgun. This was held to be â€Å"very unsatisfactory behaviour† however it was â€Å"an act of possession, in that it asserted a right to control the presence of the other person† . Young J in Shaw v Garbut t also stated that if the ‘warning off’ of the property was found to not be ‘peaceful’ at common law, the outcome of the case could have been different. In Bartlett v Ryan [2000] NSWSC 807 (16 August 2000) the specific facts of  the circumstances were considered and in this case the acts of force were determined such that the plaintiff was â€Å"deprived of the benefit of their adverse possession because it could not be said to have been nec vi nec clam nec precario, and particularly that it could not be said that it was peaceably and not by force that they had obtained and maintained possession† . As unlawful force was found an injunction was granted. Conclusion I return to the philosophy of the doctrine of adverse possession, which is fundamentally to protect property rights. The intention is not to encourage the wrongful taking of possession of land. To do so would only promote violent and unlawful acts, which would naturally occur between the parties disputing ownership of land. A person’s right to acquire real property by adverse possession begins with the wrongful occupation of another person’s property. In the event that an action is made to recover the possession of land by the rightful owner gives a circumstance where each party can exercise the rights to possession of that land. Whilst possession must be considered in every case with reference to the peculiar circumstances it is a requirement that all acts of possession be peaceable and without force, where peaceable infers uninterrupted and without force infers without violence. Protests and argument may not prevent the finding of adverse possession but obstruction and the use of unlawful physical force would.

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