U.S. Proposes to Subject Non-U.S. SEC Registered Investment Advisers to Anti-Money Laundering Rules

September 22, 2015

The United States is proposing rules that, for the first time, would subject investment advisers registered or required to be registered (RIAs) with the U.S. Securities and Exchange Commission (SEC) under the Investment Advisers Act of 1940, as amended, including non-U.S. RIAs, to anti-money laundering (AML) regulation.1

The proposed rules would require RIAs to “develop and implement a written [AML] program reasonably designed to prevent the investment adviser from being used for money laundering or the financing of terrorist activities and to achieve and monitor compliance with the applicable provisions of the Bank Secrecy Act . . . and the implementing regulations thereunder.” The proposed rules also would require RIAs to report suspicious activity to the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN).

In a departure from existing practice, the proposal would extend these rules to RIAs wholly outside the United States and is not limited to an RIA’s U.S. clients. As discussed below, this may pose significant challenges for non-U.S. RIAs, as U.S. AML rules may not be consistent with local requirements. Moreover, some non-U.S. RIAs may be subject to local rules restricting their ability to file suspicious activity reports (SARs) with FinCEN.

This Dechert OnPoint provides a brief discussion of some of the key components of the proposed rules and how they could affect non-U.S. RIAs. For a detailed description of the substantive requirements included in the proposed rules, please see Dechert OnPoint "FinCEN Proposes Anti-Money Laundering Regulation for Investment Advisers."

All Advisers Registered or Required to Register with the SEC would be subject to U.S. AML Regulation 

Definition of “Investment Adviser” 

The proposed rules would apply to each “investment adviser,” which is defined as “[a]ny person who is registered or required to register with the SEC under section 203 of the Investment Advisers Act of 1940.” FinCEN acknowledges that the proposed rules would cover non-U.S. RIAs and requests industry comment on whether “foreign advisers that are registered or required to register with the SEC, but that have no place of business in the United States, [should] be included in the definition of investment adviser.” Notably, exempt reporting advisers (ERAs) would not be covered by the proposed rules, as ERAs are neither registered nor required to register with the SEC. 

Departure from Practice 

The proposed extension of U.S. AML rules to financial institutions outside the United States represents a significant departure from prior proposals and guidance. When the United States Congress passed the Bank Secrecy Act (BSA) in 1970, it intended to apply BSA requirements only to those financial institutions located in the United States. The United States House of Representatives’ report accompanying the BSA stated that “[i]t is not feasible and it is not the purpose of this bill to attempt to apply American law in foreign countries.”2 The U.S. Department of the Treasury historically has embraced this view. For example, in a 1987 report, Treasury noted that the BSA’s requirements “do not apply to foreign branches of United States financial institutions or to any other type of financial institution physically located outside of the United States.”3 FinCEN has affirmed the jurisdictional limits of the BSA in other contexts. Indeed, when FinCEN previously proposed requiring certain investment advisers to establish AML programs,4 only those advisers “whose principal office and place of business is located in the United States” were proposed to be subject to AML regulation. Such jurisdictional limitation also is consistent with FinCEN’s industry guidance regarding SARs, which states that “foreign-located operations of U.S. organizations are not required to file SARs,”5 and with other FinCEN guidance on related regulations.

Challenges for Non-U.S. RIAs 

The proposed rules represent potentially significant challenges for non-U.S. RIAs, as these rules may not be consistent with local requirements.7 At best, non-U.S. RIAs face the prospect of having to comply with multiple AML regulatory regimes. In some cases, local requirements may prevent non-U.S. RIAs from complying with the proposed rules entirely. 

For example, RIAs principally located in European Union member states that have adopted data privacy regulations consistent with the European Union’s Data Protection Directive may be unable to comply with FinCEN's proposed SAR requirements without violating local law.8 Similarly, compliance with the proposed SAR requirements may be challenging or impossible for RIAs based in China or Hong Kong. Chinese banking laws generally require that bank entities (certain of which may be registered with the SEC) maintain customer data physically within China;9 in Hong Kong, banks and other financial institutions generally must receive specific customer consent before transmitting personal data outside of the jurisdiction, and only limited exceptions apply with respect to data transmission to law enforcement agencies and financial regulators.10 

Non-U.S. RIAs should carefully consider the potential impact of this proposal on their business and operations and may wish to consider submitting comments addressing the concerns outlined above. Written comments on the proposal are due by 2 November 2015. 


1) Anti-Money Laundering Program and Suspicious Activity Report Filing Requirements for Registered Investment Advisers.
2) H.R. Rep. No. 91-975 (1970), reprinted in 1970 U.S.C.C.A.N. 4402.
3) Secretary of the Treasury, Money Laundering and the Bank Secrecy Act: The Question of Foreign Branches of Domestic Financial Institutions (1987).
4) Anti-Money Laundering Programs for Investment Advisers (2003).
5) FinCEN, Answers to Frequently Asked Bank Secrecy Act (BSA) Questions, available here.
6) See, e.g., FinCEN, Guidance on Customer Identification Regulations (Jan. 2004), available here (“The [Customer Identification Program] rule does not apply to any part of [a] bank located outside of the United States.”). FinCEN has expanded BSA requirements to non-U.S. money services businesses that engage in business activities within the United States. See 31 C.F.R. § 1010.100 (ff). However, for reasons noted herein, this is a significant departure from the longstanding jurisdictional limitations of the BSA.
7) In other contexts, FinCEN has accommodated differences between its regulations and the local law of non-U.S. jurisdictions. See id. (“Nevertheless, as a matter of safety and soundness, banks are encouraged to implement an effective [Customer Identification Program] throughout their operations, including in their foreign offices, except to the extent that the requirements of the rule would conflict with local law.”) (emphasis added).
8) See Directive 95/46/EC of the European Parliament and of the Council of 24 Oct. 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, art. 25-26, 1995 O.J. (L 281) (Directive) (requiring, among other things, member states to prevent transfers of personal data to third countries found to have an inadequate level of protection of personal data).
9) See, e.g., Notice of the People’s Bank of China on Urging Banking Financial Institutions to Do a Good Job in Protecting Personal Financial Information, No. 17 (2011). 
10) See, e.g., Office of the Privacy Commissioner for Personal Data, Guidance on the Proper Handling of Customers’ Personal Data for the Banking Industry (Oct. 2014).

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