It wasn’t without some irony that General Noriega, Panama’s infamous dictator, holed himself up in the Vatican embassy when the American army came knocking in 1989. On Christmas Day, in a bid to end the despot’s decade of money laundering and drug trafficking, the US army crunched their way to the gates of the embassy. After a nine-day stand off, Noriega eventually surrendered after soldiers blasted Guns N’ Roses’ ‘Welcome to the Jungle’ on repeat from a fleet of armoured Hummers.
The windfall of 11.2m leaked documents last week was an early Christmas present for transparency campaigners around the world. While the revelations surprised no one, given our suspicions about corruption across many institutions, the Panama Papers have shifted the game by upping the focus on gatekeepers: lawyers, accountants and agents.
Let’s put things in context though. Firstly, it is worth noting how moral standards have shifted over the years. Consider how attitudes towards smoking, smacking children and more recently, sugar, have moved over the last 30 years.
The point is that while standards have changed, the law has not necessarily kept up. A lot of the media scrutiny around the Panama Papers has related to actions that aren’t considered kosher, but aren’t (yet) considered illegal.
This leads to the other key point: when it comes to dealing with people on sanctions list or helping somebody to circumvent anti-money laundering (AML) controls, that assistance is most definitely illegal.
Over the last six months, we have been interviewing investors around levels of due diligence and compliance. The aim is to benchmark how regulated investors comply with regulations on AML and sanctions. Our findings will be available in June and could not be more timely.
With so much investment not channeled through FCA-regulated funds, the task of ascertaining the “beneficial owner” – legal jargon for the ultimate individual beneficiary of an asset held in another’s name – is challenging. As a lawyer, I can be far more comfortable with someone FCA-regulated. However, despite the very stringent checks the FCA ensures, even they have their doubts on whether sufficient due diligence has been done. Hence, the FCA has given UK banks until Friday 15 April to check if they have links to Mossack Fonseca.
Yet, as “gatekeepers” in the eyes of regulators, lawyers, agents and accountants could be the ones liable for not determining the beneficial owner.
So while dictators like Bashar al-Assad allegedly got his fixer to buy property in his wife’s nameusing an opaque company to hold luxury London flats, gatekeepers involved in such transactions may be under scrutiny to determine whether they carried out the requisite checks.
Strictly speaking, if you deal with a sanctioned person, even indirectly, then under the sanctions’ regulations you aren’t permitted to transact. Likewise if you cannot identify the ultimate individual’s name at the end of a chain of ownership, then you could be liable under the AML regulations.
More worrying will be those who have simply turned a blind eye or who may have actively assisted others to hide assets and evade tax or hide criminal property. In such cases they can be directly criminally liable for their actions.
HMRC, the FCA and others will be seeking to find any liable gatekeepers who have failed – for whatever reason – to identify people and stop the market being swamped with criminal property. Nothing will stir fear into the hearts of industry more than major firms being prosecuted for systematic failings in their customer and client due diligence.
However, if a client has deliberately lied and tried to hide the ownership of a particular asset, it is less likely the gatekeeper will be liable.
The obvious response from this affair will be tighter enforcement and potentially more controls on money coming in.
As well as cases against those who have tried to hide their assets – either the proceeds of tax evasion or other criminal conduct – there are likely to be a number of enforcement cases against gatekeepers as a result.
Companies of all shapes and sizes should ensure they have the right systems in place and the right checks against all relevant consultants. Firms should be looking now at what information they hold and whether it shows any links to Mossack Fonseca.
Clearly there may be less money thrown around as a result of any tighter controls. This will impact certain areas of the market, however London will likely continue to be seen as a safe haven, if for no other reason than that we have a free press to debate these very issues and a judiciary independent of the government.
Whatever the short-term effects on the market, one safe bet is that just as 27 years ago, Panama’s dodgy dealers will once again have to face the music.