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Wednesday
Aug082018

Martin Kenney: Yes, Mossack Fonseca was a mess. But don't blame the BVI

I have had several dealings with the Panama Papers law firm, Mossack Fonseca, over the years, while trying to identify its clients who had wronged my own.

Despite acquiring the appropriate court disclosure order forcing Mossack Fonseca to reveal the identity of a client patron (accused of some form of wrongdoing by my clients), the firm was difficult to deal with: the level of cooperation appeared to randomly fluctuate between non-existent and half-baked.

In one case, all UBO (ultimate beneficial owner) identification data regarding a BVI company (which I was told was held in Panama) was not forthcoming. In another, a BVI court disclosure order was skirted around via what minimally could be called an "aggressive approach" to finding a way to hide an apparent UBO.

In 2016, Mossack Fonseca realized it had lost in excess of 11 million sensitive documents. A new tranche of what has now become known as the Panama Papers has recently been released.

Not surprisingly, this new release indicates the level of panic within the law firm when it first learned of the massive data leak in 2016 and as it desperately tried to fill in its knowledge gaps about its clients. Indeed, the firm was apparently in the dark about a staggering 75 percent of its clients.

The means of acquiring the missing information was basic. Mossack Fonseca employees simply wrote, emailed and called introducers such as banks, accountants and lawyers in an effort to bridge the knowledge gap. Unsurprisingly, those on the receiving end of the Mossack Fonseca requests were unimpressed when they realized that their clientele, who had sought confidentiality, had had their position compromised by the Panama Papers leak.

This new tranche of leaked Mossack Fonseca papers casts a new light on the firm's apparent reluctance to cooperate, painting a picture of a factual inability to comply in some cases. Instead of admitting that in many instances they had no idea who the client was, they sought to bluff their way out of the hole they had dug for themselves, frustrating the legal process.

Historically, in the 1980s and 1990s, the world of offshore and shell companies was akin to something out of the Wild West. The lack of regulation and control led to agents simply ignoring the basics, with the result that NGOs and governments of developed countries brought pressure to bear and new regimes were implemented.

Despite the overwhelming evidence at the time, Mossack Fonseca was quoted in response to the 2016 scandal, denying any wrongdoing: “We are responsible members of the global financial and business community.”

Sadly for Mossack Fonseca, it was often unable to claw back the information now being demanded, its earlier recklessness being its commercial undoing. Despite slashing prices, and craftily offering clients the opportunity to change their entities’ name in order to provide post-data-leak prudence, the damage was overwhelming. Ultimately the firm endured a slow and painful demise.

In February 2017, Panama’s attorney genera described Mossack Fonseca as “a criminal organization that is dedicated to hiding money assets from suspicious origins.” Later the firm’s founders were arrested on suspicion of money laundering. They are currently out on bail and the investigation reportedly continues.

Invariably, Mossack Fonseca's name is once again being linked to all offshore service providers, including those in the wider Caribbean area. Those who disparage the islands providing offshore financial and company administration services would do well to remember that pre-Panama Papers, locations such as the BVI, the Cayman Islands and elsewhere had already implemented much more stringent regulatory protocols than those in places such as Delaware or Scotland, for example. Yet once the genie was out of the Mossack Fonseca bottle, it appears the damage has been irreparable. And the reverberations can be felt elsewhere.

One has been the UK Parliament’s (and government’s) decision to force the UK overseas territories to create a public register of UBO details by 2020. Yet it seems the UK government has not been prepared for an ensuing backlash. Putting aside the constitutional arguments impugning the new law, and the public demonstrations on the islands concerned, many peers in the House of Lords recognized that the decision was not only an infringement on the territories’ rights to self-rule, but also seriously flawed on the merits.

Their Lordships were cognizant of the fact that territories such as the BVI had already invested heavily in setting out new compliance regimes. These regimes ensured the availability (at two-hours’ notice in an emergency and 24-hours’ notice routinely) of the UBO information to the competent authorities in the UK. They appreciated that there was no rule-based notion of "secrecy" in the overseas territories and that the necessary UBO identification information collected is held and available, but not publicly to the masses (and frustratingly for some of the NGOs), or to those who simply want to know everybody’s business.

The UK debate continues and the anger in the territories is tangible. They have openly debated whether to sever ties with the UK. Indeed, their respective governments are being openly defiant, stating that they will adopt the UK’s demands if and only when they become the global regulatory norm for all. Constitutional challenges in court by the territorial governments against the imperial statute of the Parliament of Westminster are a certainty.

The Panama Papers made a difference, and for that the International Consortium of Investigative Journalists should be justifiably proud. But bashing the overseas territories because of historical failings that they rectified some years ago (and using the demise of Mossack Fonseca as a catalyst for doing so) needs to stop. Hopefully common sense will prevail.

___

Martin Kenney, pictured above, is Managing Partner of Martin Kenney & Co., Solicitors, a specialist investigative and asset recovery practice based in the BVI and focused on multi-jurisdictional fraud and grand corruption cases www.martinkenney.com |@MKSolicitors. In 2014 he was the recipient of the ACFE’s highest honor: the Cressey Award for life-time achievement in the detection and deterrence of fraud. He was selected as one of the Top Thought Leaders of the Legal Profession in 2018 by Who's Who Legal International and as the number one offshore lawyer for asset recovery in 2017.

Reader Comments (2)

How can financial institutions in Europe comply with the fourth Money Laundering Directive if they cannot identify beneficial owners based or operating out of overseas territories? Rich people do not have a right to keep their business affairs private any more than the ordinary person. It is perfectly reasonable for all countries and territories to be required to hold public registers of those who ultimately control companies
August 8, 2018 | Unregistered CommenterJane Jee
Martin Kenney is a skilled wordsmith. When he writes of the1980's and 1990's world of offshore and shell companies being "akin to something out of the wild west" he seems to imply that there was no law in the wild west. There was law in the wild west, hence the terms "outlaw" and lawlessness. What was absent in those days was sufficient enforcement, then as now, when outlaws and lawlessness create enough problems, things change and enforcement is increased.When Martin writes Mossack Fonseca denied wrongdoing saying "We are responsible members of the global financial and business community" that sounded more like a confession than a denial to me. I agree with Martin when he states "hopefully common sense will prevail" however he ignores any mention of the frantic,panicked responses of other lawyers when M.F. asked for "client" information.One Swiss lawyer fumed "How F---ING STUPID ARE YOU PEOPLE IN PANAMA??? " In any properly regulated jurisdiction, a firm like yours would have been shut by the regulator!!!" It sounds to me like the Swiss lawyer ignored "the basics" of due diligence and knowing the difference between a client and a customer. In the normal world, with a customer you provide a service and hope they will be pleased and return to give you more business. Unless of course you are rich enough or close enough to retirement that you really don't care. The "client"designation denotes a much deeper relationship and responsibility than to a simple customer.
August 10, 2018 | Unregistered Commenterlameslave 13
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