Similar in Their Differences: Transnational
Legal Processes Addressing Money
Laundering in Brazil and Argentina
Maira Machado
The purpose of this article is to provide a comparative analysis of the transnational
legal processes that Brazil and Argentina underwent to address money laundering. The
article discusses the interaction between the Financial Action Task Force (FATF) norms
and a number of changes both countries have experienced in the last decade. The
comparison focuses on the three central pillars of the anti-money laundering order
(AMLO): criminalization, administrative obligations imposed on the financial sectors,
and the creation of a financial intelligence unit. Building from the analytical framework
developed by Shaffer (2011), the evidence gathered in this study illustrates different
dimensions of state change and highlights the main challenges to assess the effectiveness
(output legitimacy) of transnational legal orders empirically.
INTRODUCTION
A decade ago Brazil and Argentina were invited to join the Financial Action Task
Force (FATF), which previously was a select club of Organisation of Economic Coop-
eration and Development (OECD) countries. At that time, the two countries shared
very similar positions regarding foreign interests in the implementation of anti-money
laundering norms and were both taking the first steps toward compliance with inter-
national standards. Almost ten years later, Brazil is the first Latin American country to
assume the presidency of FATF, and Argentina is facing one of the worst evaluations for
a FATF member country. These different trajectories raise questions on the role played
by membership in transnational legal processes. Relying on the comparison of these
processes in Brazil and Argentina, this article contends that membership in interna-
tional standard-setting bodies has only limited implications for state change. Never-
theless, membership has been dominating the debates regarding the legitimacy of the
transnational legal order to address money laundering.
This article argues that full membership as a guarantee of representation (input
legitimacy) and participation in the decision-making process (throughput legitimacy)
are not sufficiently decisive to convey state change. Rather, such a focus tends to
disguise the asymmetries of power among the members and the minor contribution of
Maira Machado is professor of law at São Paulo Law School of Fundação Getulio Vargas. Address
correspondence to Maira.machado@fgv.br. The author would like to thank for their comments Bernardo
Mota, Pedro Gomes Pereira, Juan Felix Marteau, Guillermo Jorge, Kevin Davis, panels for the Transnational
Legal Orders CRN at the Law and Society annual meetings, the participants of the Global Administrative
Law Project at workshops at San Andres, Tsinghua, and New York University, and the anonymous reviewers.
The author would also like to give a special thanks to Gregory Shaffer.
Law & Social Inquiry
Volume 37, Issue 2, 330–366, Spring 2012
Law &
Social Inquiry
Journal of
the American
Bar Foundation
330 © 2011 American Bar Foundation.