Market for Offshore Financial Secrecy in a Technological Age
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1 Market for Offshore Financial Secrecy in a Technological Age Dr David Chaikin Chair, Discipline of Business Law, Associate Professor The University of Sydney Business School Barrister, PhD in Law (Cambridge), LLM (Yale) LLB /BCom (Acctg, Finance & Systems) (UNSW) MARKETS, MISCONDUCT AND THE TECHNOLOGICAL AGE Discipline of Business Law Conference Sydney, 10 November
2 Offshore financial secrecy DEMAND Money laundering, terrorist financing, drug trafficking, fraud, corruption, tax evasion, theft, evasion of sanctions Tax avoidance, asset protection, avoidance of inheritance laws, limiting political risk Fund sensitive government intelligence operations SUPPLY Private banking, trust & fiduciary services Lawyers, accountant,,trustees, company & trust service providers Promoters, advisers, managers 2
3 Financial secrecy ranking 2015 Secrecy Index Ranking 1. Switzerland 2. Hong Kong 3. USA 4. Singapore 5. Cayman Islands 6. Luxembourg 7. Lebanon 8. Germany 9. Bahrain 10. United Arab Emirates (Dubai) 11. Macao 12. Japan 13. Panama 14. Marshal Islands 15. United Kingdom *Source: 3
4 Offshore model of financial secrecy Bank secrecy the law, limited exceptions Corporate secrecy beneficial ownership/control : but Swiss 1977 Due Diligence Convention Professional secrecy Economic espionage offences Secrecy practices: Swiss PBAN Numbered bank accounts/codes; rotating numbers Triple password protection Audit & surveillance Encrypted s Misleading documentation 4
5 Enforcement - Swiss statistics Economic espionage statistics Between : 97 convictions in Switzerland for economic espionage (in breach of article 273 of the Criminal Code) 13 countries identified as engaging in economic espionage to secure Swiss bank secrets during : France, India, Korea, Israel, Philippines, Romania, Poland, Russia, Rwanda, South Africa, Yugoslavia, the United States and Zaire 5
6 Offset Alpine Printing Bank Leumi (Switzerland) 4,038,600 (16.97%) EBC (Switzerland) 5,293,771 (22.25%) 1 st & 2 nd Respondents 4,038, , ,036 1,214,319 1,783,037 1,380,818 ANZ Nominees 4,038,600 (16.97% ANZ Nominees 591,056 (2.48%) Bell Buckle Nominees 162,437 National Nominees 1,214,319 Galah Nominees 1,783,037 Statton Nominees 1,380,818 3 rd -7 th Respondents 19.56% 0.68% 5.1% 7.49% 5.8% Offset Alpine Printing Limited 23,793,853 8 th Respondents 6
7 7
8 Massive theft/leakage of financial data Government sponsored eg 1990 BND electronic hacking of the Liechtenstein Money Laundering Community Theft- banks, law firms, corporate service providers (CSPs) 2006 Liechtenstein Global Trust - Heinrich Kieber 2008 Julius Baer, Cayman Islands - Rudolf Elmer 2013 Offshore Leaks - Singapore/British Virgin Islands 2014 Lux Leaks PWC- Antoine Deltour 2015 Swiss Leaks - HSBC Private Bank -Herve Falciani 2015 Panama Papers- Mosssack Fonseca 2016 Bahamas Leaks- government corporate registry 2017 Paradise Leaks Appleby & 19 CSPs 8
9 Known leakers: Anonymous leakers: 9
10 Technological developments Outsourcing of back office function, eg computer security to third party vendors (Swiss banks 1990s) Upgrade of operating systems, installation of new enterprise wide software, creating of new customer interfaces Modernisation, digitalisation of paper records Falciani (HSBC, Geneva), Kieber (LGT, Vaduz) Storage, transfer & centralization of date bases, across jurisdiction Konza (ATO) v ANZ (Federal Court) Flaws in computer security systems (eg no firewall in Mossfon) 10
11 Transparency- legal developments Global anti-money laundering laws, networks Elimination of bank secrecy, corporate secrecy as an obstacle Tax crimes, tax avoidance Foreign Account Tax Compliance Act (US) OECD bilateral exchange of tax information OECD Common Reporting Standard automatic exchange of financial information from 2017/2018 between 100 countries 2016 Standard Chartered Bank in Guernsey closes trustee/fiduciary services line of business and transfers customer data base to Standard Chartered in Singapore, prior to the commencement of CRS in Guernsey Investigation into US$1.4bn Indonesian client base 11
12 Regulatory Arbitrage 12
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