By Asian Development Bank
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Extra resources for Asset Recovery and Mutual Legal Assistance in Asia and the Pacific: Proceedings of the 6th Regional Seminar on Making International Anti-Corruption St
What are the solutions? Mutual Legal Assistance or Mutual Assistance? Prosecutors and investigators sometimes have recourse to MLA without exploring whether informal mutual assistance would in fact meet their needs. It is often forgotten that the country receiving the request might welcome an informal approach that can be dealt with efficiently and expeditiously.
The operation of asset recovery through MLA should be undertaken through a regional cooperation in mutual assistance in criminal matters. Their bilateral treaty was signed, but regional agreements or arrangements will eventually make such cooperation much stronger. For example, the ASEAN Convention on Counter Terrorism that was adopted last year has successfully revealed terrorism networking within the region. A step forward in the implementation of the UNCAC within the Asian and Pacific region or the ASEAN is the ASEAN Forum against Corruption.
Recent multilateral instruments advocate a more flexible and inclusive approach to dual criminality, for instance, by making the requirement optional or eliminating it for noncoercive forms of assistance. 6 In almost all cases, whether dual criminality is required does not depend on whether the assistance sought is coercive in nature. Dual criminality could pose problems when the offense under investigation exists in the State requesting MLA but not in the requested State. This situation could arise in corruption cases since many members of the Initiative have not criminalized certain types of corrupt conduct.