Sigrún Davíðsdóttir's Icelog

Yesterday, the oral hearing in the action (Case E-16/11) brought by the EFTA Surveillance Authority, ESA, was held at the EFTA Court. ESA is requesting the EFTA Court to declare that Iceland was in breach of the EU directive on deposit-guarantee schemes (Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes) since it didn’t pay the Icesave (set up as a branch of Landsbanki) deposit holders in the UK and the Netherlands – and secondly, ‘that Iceland has breached the prohibition on discrimination on grounds of nationality under Article 4 EEA.’

What the Directive stipulates is that a EU/EEA state has to set up a DGS – and that’s what Iceland did: it did set up an insurance guarantee fund, TIF and thus fulfilled the Directive on exactly this point – but when needed the scheme was underfunded. Iceland then chose another way: domestic deposits were moved from the old banks in Iceland to the new banks – but no similar salvation was done in the Landsbanki Icesave branches abroad.

Consequently, Iceland asked the Dutch to pay out the Dutch ‘Icesavers’ and indicated to the Brits if they could do the same. Which is why the Dutch and the Brits think that Iceland owes them money for this – both the Directive stipulated amount, up to €20.000 on every account – and the cost accrued by the Dutch and the Brits in funding this action.

ESA’s lawyer Xavier Lewis said yesterday that it’s never happened before in the EU/EEA that deposit holders haven’t been paid. That’s the ESA view – that ‘Icesavers’ weren’t paid. That’s not entirely correct. The Dutch and the British ‘Icesavers’ were indeed paid – but not by the Icelandic TIF or by Iceland. Authorities in these countries did pay, which is why these two countries feel that Iceland still owes them both the sums stipulated by the Directive and the cost. The EFTA Court verdict will not end the Icesave dispute between Iceland and the Brits and the Dutch.

ESA isn’t taking action on behalf of the Dutch and the Brits, and it’s certainly not asking the EFTA Court to rule on fair interest rates. The ESA is only asking the EFTA Court to rule on the alleged breach of the Directive – and discrimination.

In court yesterday, Xavier Lewis referred to this Channel 4 reporting (a masterly piece by Faisal Islam) from February 2008 – on how safe deposits in Icelandic banks would be in case of failure – where David Oddsson then the Governor of the Central Bank of Iceland says the following: “These banks are so sound that nothing like that (ie banking failure) is likely to ever happen. And if something would happen you would never be talking about the whole amount of money because it’s never like that. But even so the Icelandic economy, the state being debtless this would not be too much for the state to swallow if it would like to swallow it (my emphasis).” – In the autumn of 2008 the state did indeed swallow a lot for deposit-holders in Iceland and promised to pay the Dutch and the Brits for compensating deposit-holders in these countries.

As far as I can gauge, the discrimination part is the real danger and threat to Iceland. If Iceland is seen to have discriminated between domestic and foreign deposit-holders the ruling might oblige Iceland not only to pay the foreign deposit-holders, ie the ‘Icesavers,’ up to €20.000 on every deposit but to pay the deposits in full – because that’s what was done in Iceland. Then Iceland doesn’t need to pay out ISK650bn to the ‘Icesavers’ but ISK1150bn or ca 66% of Icelandic GDP (adjusted for growth and inflation) this year.

Iceland is claiming force majeur – the Directive doesn’t cover such catastrophic events as the collapse of a whole banking system, claim the Icelanders. ESA refutes this, pointing out that the Directive does allow for “exceptional circumstances” (when deposit-holders can be paid out over a longer period). In addition, ESA points out that it can’t be the meaning of the Directive that the greater the shock the less the coverage for deposit-holders. The report for the hearing yesterday, going through the various aspects and opinions, can be found here.

The verdict is expected in December and it can’t be appealed. – It couldn’t come at a more delicate time for the eurozone.

In today’s Europe of heavily indebted eurozone countries struggling to convince the world that they can manage, think Italy and Spain, the breach of the DGS leads the thoughts to whether there actually is a state guarantee on deposits in the EU countries. Xavier Lewis and the EU lawyer, Enrico Traversa, seemed to indicate that this was the case – and yet not quite. The message was that whatever happened, depositors in the EU/EEA should rest assured that their deposits are guaranteed and safe. Safe, because the states guarantee that yes, deposit holders will be compensated, but it doesn’t mean that there is an outright automatic state guarantee.

Now, the Directive doesn’t explicitly say there is a state guarantee – so the question is, if the deposits are and should be as safe as ESA and EU claim, why this isn’t said more loud and clearly in the Directive. The answer is, no doubt, that when the Directive was in the making, everyone could agree there should be a trustworthy system – but there was no agreement as to how it should be financed so the financing was left to the individual countries. The US DGSs were an inspiration, but they don’t imply an automatic state guarantee. (A state guarantee can be a moral hazard, tempting banks to be more reckless – an intriguing topic these days).

The understanding was that the banks should finance the DGS – but some states treated their banking systems with kid gloves, didn’t want to burden them and well, in a good old tradition, raced to the bottom in order to enhance their competitive stance. How the countries go about financing their schemes still varies widely as can bee seen here in this report from 2010 by the European Commission to the EU Parliament on the Impact Assessment… on Deposit Guarantee Schemes.

The discrimination part doesn’t touch anyone but Iceland – but the interpretation of the Directive is an explosive item right now. To my understanding, there is no automatic state guarantee implied in the Directive but that doesn’t mean states don’t have some obligations. They do, ia, have the obligations to regulate and supervise their banking systems in such a way as to hinder banking failure, thus hindering that a DGS needs to be used.

Since both ESA and the EU have put some emphasis on Iceland’s shortcomings in this respect, what was said and done, the EFTA judges might focus on this, instead of referring to some sort of a state guarantee on the deposits. A breach of the Directive doesn’t necessarily incur any financial cost on Iceland. Countries are found to be in breach of some Directives all the time, do sometimes get fines but often they are just told to put their house in order.

Those of us impatient to know the outcome will do doubt ponder on different outcomes. It seems that there are already those who have toyed with a possible verdict. As in a folk tale, I found the following yesterday and thought I would share it with Icelog readers, no doubt amused and impressed by the learning and understanding shown:

Justice Nurgis’s EFTA decision

Having considered the submissions of all parties, I, Chief Justice Nurgis, rule as follows in the matter of the ESA’s complaint against Iceland concerning the Icesave deposits (Case E-16/11):

1. Iceland argues that the relevant Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes requires states to put in place a deposit insurance scheme but it does not require, or even imply, a state responsibility for all claims that may be made against such a scheme. Iceland further argues that it established a deposit guarantee scheme and capitalised the scheme in accordance with EU norms (roughly 1% of the insured deposit base).

2. 85% of the Icelandic financial system collapsed and the Icelandic deposit insurance scheme was obviously unable to cover those losses. The same result, Iceland argues, would be true in any country that experienced such a massive collapse of its banking sector.

3. I hold that Iceland is correct in saying that an implicit sovereign guarantee cannot be read into the Directive. It would have been childishly easy for the authors of the Directive to require such a guarantee; they did not do so because the resulting liabilities on the balance sheets of member states would have been politically and financially intolerable. Reading a matter of such enormous import between the lines of a Directive violates every norm of statutory construction.

4. Iceland’s argument breaks down, however, on the question of whether the Icelandic deposit insurance scheme was adequately capitalised. An insufficiently capitalised scheme would fail to comply with the Directive.

5. Although Iceland is correct that its scheme was capitalised in accordance with EU norms, the depth of that capitalisation must be assessed against the background of the strength of the insured institutions. It is an inverse relationship. The stronger the financial position of the insured institutions (and thus the lower the likelihood of a bank failure and call upon the deposit insurance scheme), the less the scheme needs to be capitalised in order to be in compliance with the Directive. Conversely, the weaker the financial system, the higher the required level of the capitalisation of the scheme.

 6. 85% of Iceland’s financial sector collapsed because that sector was woefully unsupervised and regulated. This much Iceland, in its own candid evaluation of the crisis, has admitted in its SIC report.

7. Iceland therefore had two honourable choices – it could either have reined in its banks and capitalised its deposit insurance scheme in accordance with the norms of other countries that similarly curb the congenitally high spirits of bankers, or it could have let its banking sector run wild but insured that when the bubble inevitably burst the deposit insurance scheme would be robustly capitalised to bear the loss. Instead, Iceland opted to abdicate its supervisory responsibilities while instituting a deposit insurance scheme capitalised at a level appropriate for a country that did engage in prudent supervision of its banking sector.

8. Accordingly, I hold there has been a breach of the Directive – not because the Directive implies a sovereign guarantee of all deposit guarantee schemes – but because Iceland’s scheme was appallingly undercapitalised in light of the bloated and unregulated nature of its financial sector.

                                         * * * *

So ordered, this 18^th day of September 2012,

Chief Justice Nurgis.

– – –

With this ruling, no delicate feathers in the eurozone are ruffled.

As the readers can see, Chief Justice Nurgis has not ruled on the alleged breach of discrimination. The wise Chief Justice is obviously fully aware that this part of the case is a tricky one and needs further contemplation. This is the part that could possibly cost Iceland dear. A propos folk tales: there is an Icelandic version of the Faust story. Sæmundur the wise is the Icelandic Faust – but unlike the German, Sæmundur actually did beat the devil, inspiring Icelanders to fight against all odds. Remains to be seen if Sæmundur’s reckless luck will prevail at the EFTA Court.

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The news is out over the weekend that the Serious Fraud Office has withdrawn bail conditions regarding Robert Tchenguiz, Kaupthing’s largest borrower who at the collapse of the bank owed the bank over €2bn. The FT (subscription needed) quotes a lawyer who thinks this might mean that no further action will follow. However, it’s difficult to make sense of the SFO actions if, after losing judicial review to Robert and declaring a continued investigation against Robert, the SFO would now be retreating on that. My understanding is that bail is deemed to be of no practical use. That  view is taken up in the Guardian coverage of this latest move in the SFO Tchenguiz saga.

In Iceland the Office of the Special Prosecutor is prosecuting Kaupthing managers regarding the Qatari investment of 5.1% in Kaupthing in September 2008 (which has an interesting parallel in the Qatari investment in Barclays in 2008; another story for another day). It is also understood that the OSP could well sue Kaupthing managers for other actions.

The main difference between what the SFO is doing and the OSP is that OSP has, so far, only charged bank managers, not the big borrowers.

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The summer hiatus on Icelog wasn’t really planned, summer just flew away but there is still this and that newsworthy. The Office of the Special Prosecutor is still mulling over alleged fraud cases. No doubt the successful sentencing of the Byr managers will make it easier to continue. Compared to what’s happening in other countries in terms of bringing bankers to court in cases where banks pay fine for breaching the law Iceland and the OSP are doing pretty well. But Icelanders are still feeling rather impatient, would like to see more happening now that it’s almost four years since the banks collapsed.

The Icelandic economy is doing remarkably well, again compared to many other countries. The budget was presented today. Expected growth of GDP is 2.7%, inflation at 3.9% and unemployment will be down to 5.3%, from ca 8% this year. The current account deficit is expected to be 2.1% of GDP. – The weak side of the budget is the development in the eurozone. If the situation there deteriorate that could have adverse effect in Iceland.

On Tue. Sept. 18 there is an oral hearing in the EFTA Surveillance Authority case against Iceland over its breach of the EU Deposit Guarantee Directive and discrimination against deposit-holders in Icelandic bank branches abroad, heard at the EFTA Court in Luxembourg. This case might have some interesting ramification for EU countries, struggling to keep their banks afloat. (See and earlier Icelog on this case here; info from ESA on this case here.)

The outcome of this case, expected in ca two months, is a major factor of instability in Iceland in the coming year. A ruling against Iceland, especially on the discrimination issue, might burden Iceland with heavy financial liabilities. But Icelanders are always prone to believe in their luck – and perhaps signora Fortuna will side with them in this case though greater realist might be slightly more pessimistic as to the outcome in this case.

The first real storm has just swept over Iceland, burying parts of the country in snow, killing sheep and disrupting traffic and electricity. The weather has died down now but it was a reminder that summer – which in Iceland was unusually good – is now definitely over. Then winter isn’t far away. Autumn is a notoriously short and fleeting season in Iceland, usually no more than a few days. The good summer meant that blueberries were everywhere and the lucky ones will have some in the freezer to see them through winter, not to forget the unbeatable jam made of Icelandic blueberries.

The blueberries on the photo below grew on Snæfellsnes – and they tasted as lovely as they look.

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The effect of punishment is a hotly debated topic in criminology. The fact that two Icelandic bankers were sentenced to 4 1/2 years in prison for breach of fiduciary duty in the so-called Byr case seems to have shaken others in a similar situation. In an interview with Ruv tonight, the head of the Office of the Special Prosecutor Olafur Hauksson said that the OSP clearly senses that the Byr sentence has had an effect.

“The judgment gives a clear indication how the courts are likely to view similar cases. Also, the judgment has in some ways clarified things for those we are questioning, which means that the testimonies are now more clear than earlier,” Hauksson said. Those questioned are more willing to tell the whole story than earlier, which means that witness statements are better.

Hauksson says that the heavy sentences have spelled out the gravity of these cases. Many other cases under investigation regard breach of fiduciary duty where the sums at stake are not only ISK1bn, like in the Byr case but amount to several billions or even tens of billions. The maximum punishment for breach of fiduciary duty is six years, which means that the Supreme Court judges who ruled on the Byr case must have seen this activity as a serious crime.

Again, the question is why so little seems to be done in other European countries to prosecute bankers. Breach of fiduciary duty is a crime in most if not all Western countries, it is a fairly clear-cut activity – and yes, at least in Iceland it’s actually a serious crime.

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One of Kaupthing’s celebrity clients, the Australian supermodel Elle Macpherson has won the right to appeal a judgment in her case in the Isle of Man. Macpherson took out a loan with Kaupthing’s Isle of Man branch. The liquidator insisted Macpherson should pay back £7.8m but she claimed she could offset her deposits with the bank of £2.5m to lower the outstanding loan and should only pay the difference, just over £5m. The case was further complicated because the deposit was in Macpherson’s name whereas the loan was in the name of a nominee company, Light House Living Ltd*. With Kaupthing’s full acceptance Macpherson chose to have a company as the owner of her property in order to guard her privacy and hinder that the address landed in the public domain.

Macpherson, who in her earlier modelling days was simply called “The Body,” now runs a successful lingerie business and lives in London. She took the liquidator to court, won the first instance but when the High Court in the island sided with the liquidator Macpherson turned to the highest court of appeal for the British Crown Dependencies, such as the Isle of Man, this highest court being one of these archaic English institutions the Queen’s Privy Council. The Council has now granted the model appeal, which means she still has the chance to a successful challenge. The administrator has been ordered to pay Macphersons’s legal bill, expected to be a six figure sum.

The final ruling will be of importance not only to Macpherson but to others in the same situation.

There are several issues at stake in this case and those who want to get to the bottom of this case and its consequences can read some legal views on it here, p 384 and also here.

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Since October 2008, debt-related recession has popped up one country to another. In Spain, like in Iceland, the recession has hit private mortgage-holders and other small borrowers very badly. The same counts for other countries. Part of the Icelandic solution is the so-called “110% way” for individuals and debt relief in general, in addition to changes in bankruptcy laws. The other European countries in recession need to consider if they can benefit from the same. 

Iceland suffered a banking collapse in October 2008. The Government at the time didn’t rescue the banks; they were too big to safe. Consequently, after the collapse the main focus wasn’t on the debt taken over by the Government because of the banks – though there was some – but on the sky-rocketing mortgages, in particular for those borrowers who had taken out forex-linked/forex mortgages. These mortgages shot up because the Icelandic krona collapsed.

The plight of home-owners became the main political issue in Iceland and a problem that had to be resolved. In addition, the loans themselves were legally challenged. It turned out that linking interest rates to a foreign currency was illegal – but lending in foreign currency was legal. The loan contracts came in various forms meaning that some forex loans were legal, others not. The latest judgment in a series of judgments related to these loans stipulated that the interest rates should be the foreign interest rates, which were very low.

This latest ruling created a huge unbalance between those who had borrowed in foreign currencies and those whose mortgages were indexed in Icelandic krona, tied to the high interest rates in Iceland. The banks have re-calculated the forex loans and are now doing it again, where appropriate, after the latest rulings.

Apart from all this uncertainty regarding the forex loans the Government, together with mortgage lenders, has eventually found a solution for those who were saddled with mortgages – no matter what type – they could no longer afford. The short version is that mortgages are brought down to 110% of the value of the property. This means that sums above the 110% are written off. This is now called the “110% way” in Icelandic. In addition, banks have been willing to negotiate write-offs for companies.

Ireland was hit by a banking crisis at the same time the Icelandic banks collapsed. Ireland, with very low public debt, took on the banking debt, didn’t properly clean up the banks until much later (and possibly still not enough) and wound up saddled with debt, which originated in a finance sector that lent too much to too few – as in Iceland – and lent too much into just one sector of the economy, construction. In Ireland, private debt migrated to the public sector. Losses that should have been born by the banking sector weren’t allowed to fall there, for fear of a financial meltdown spreading to other European countries.

Ireland is still not in a good place and might very well be forced to ask for more money from the European Union. Ireland, as Greece, has been forced to cut down on public service though the outlook in Greece is much more horrific. At least, Ireland is still attracting foreign investment, something so painfully lacking in Greece.

As in Iceland, home ownership is high in Spain. From mainly living in some sort of tenancy arrangements Spaniards took to home ownership in the latter part of last century like the Northern Europeans took to the Spanish beaches. With the housing boom and the Spanish Cajas focusing on mortgages there has been a fair bit of over-borrowing/over-lending to individuals in Spain as is clear from this insightful article in Der Spiegel, by Juan Moreno, a Spanish journalist who grew up and lives in Germany.

One of Moreno’s relatives in Spain profited from the boom, bought a truck and then several trucks. Now he is bankrupt. Bankruptcy in Spain is harsh – there is no end to it. In Iceland, bankruptcy laws have been changed and the debt period is now down to only two years. Theoretically, the debt can be kept alive longer but any creditor needs more than ordinarily good reasons for doing so. In Iceland, Moreno’s cousin Pepe would have the perspective of starting all over again after two years. And most likely, an Icelandic bank would have written most of the debt off and allowed Pepe to keep one truck, with which Pepe could make a living for himself and his family and the state would get some taxes.

At the core of Iceland’s best crisis recovery is debt relief. It certainly is true that the recession-hit euro countries need a growth plan – but they also need to look at such basic things as bankruptcy laws and writing off debt quite fiercely. Otherwise, no growth plan, however clever and well funded, will really help. If the Spaniards want a reason to go out and protest this is a good point to protest on: more write-offs on individuals and small companies and changes in the country’s bankruptcy law.

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The High Court (Sir John Thomas, President of the Queen’s Bench Division, and Mr Justice Silber) has today declared that search warrants issued to the Serious Fraud Office were unlawful as they were obtained by misrepresentation and non-disclosure of the judge. – This is the beginning of the Summary of the judgment July 31 regarding the judicial review sought by Vincent and Robert Tchenguiz.

The story is that when the SFO presented their reasons in March last year for requesting a permission for house searches at the home and offices of the Tchenguiz brothers the SFO mispresented their material very badly. Ergo, the ruling is a heavy criticism of the SFO. I would also read the ruling as a criticism of judge Paul Worsley, who heard the SFO in March last year, although the two judges tread very lightly on that issue. But how could the SFO be so sloppy/bad/imprecice in its presentation? The issues the two judges differ on with the SFO are dealt with in para 122-124, quoted in extenso below. The judges add some sweetener to their bitter pill to the SFO: at the end of the judgment they  go to some length in excusing/explaining SFO’s mistake by emphasising the SFO’s lack of human and financial resources.

Regarding Robert and his company R20 Lth, the Court concluded (comments in[] are mine; the “para” refers to paragraphs in the ruling):

“We regret to conclude that the Information did not properly present the transactions where criminality was suspected in the context of the financial markets in which they were undertaken. The background was straightforward, but it was never explained. The case that was made on the specific transactions was not in the respects we have identified accurately set out; it failed in the respects we have identified fairly to draw to the attention of the judge the points that weighed against the granting of the warrants.” (para 170)

“The failure to set out the background, lack of clarity in the presentation in the Information and in the oral evidence, the errors made and the failure to put the matters that weighed against the granting of the warrant have been set out by us in detail. At the hearing before the judge, the oral evidence given at the hearing was both unfair and inaccurate. The tone of that evidence was unjustified. We have no doubt that, if what was in the Information [submitted by the SFO to the judge in March 2011, when the permission for the searches was sought] had been presented in such a way that the background was properly explained, the errors were corrected and the matters that weighed against the grant of the warrant had been drawn to the judge’s attention, it would have made a real difference and he would not have granted the warrants. This is very far from the case where the failures only might have made a difference; they plainly did, as the warrants would not have been granted.” (para 175)

“… it is apparent from what we have set out after a detailed examination of the materials over three days in court and a study thereafter of the evidence presented to us that a case of reasonable suspicion might have been advanced and presented by the SFO to the judge, at least in relation to the making of the Oscatello loan facility and associated arrangements (see paragraph 124 above) and the Money Market loans (see paragraph 136). This would have been a task that did not require corrections or additions by way of disclosure, but it would have required starting again and putting the presentation in a coherent, fair and analytical manner. Whether there was or is such a case of reasonable suspicion, if a case had been made in that way, would then have been for the judge to determine.”

“Although we consider such a case might have been made, we cannot accept the submission that it would be just to refuse to quash the decision of the judge. What we would be doing would be permitting the SFO in effect to justify what it had done by adopting a proper and analytical approach in this court and doing what it had manifestly failed to do when it went to Judge Worsley.” (paras 176‐ 177)

This is yet another victory for Vincent against the SFO – the SFO has already dropped all investigations into his affairs with Kaupthing – and completes his vindication in his dealings with the SFO. In a press release yesterday, Vincent said: “I will be seeking damages from the SFO – and from any other parties who contributed to the Court being misled. My claims will reflect the substantial personal and business costs and losses that have directly resulted from the actions of these parties.” The comment leaves an open question as to who else, beside the SFO Vincent will sue. The fact that Grant Thornton, an international advisory firm, played a large part in this whole saga might indicate who Vincent has in mind – but it remains to be seen.

Though Robert, as well as his brother, won his legal challenge against the SFO he has less to celebrate. The SFO has reiterated that its investigation into his relationship with Kaupthing is still ongoing. However, Robert has stated the following: “I now intend to pursue my claim in respect of damages I have suffered as a result of the SFO’s (Serious Fraud Office’s) illegal actions.” He also intends to bring proceedings against the SFO in respect to his arrest.

The ruling itself offers some insight into the mistakes the SFO made in handling this investigation, as well as the issues being investigated.

First some facts regarding Kaupthing: “On 8/9 October 2008, Kaupthing collapsed. According to the Information presented by the SFO it had €8bn in debts, 25% of which was owed by companies within the TDT [Tchenguiz Discretionary Trust; related to Robert Tchenguiz] and 12% by Exista Hf [owned by the Icelandic brothers Agust and Lydur Gudmundsson, with Robert as a board member the last few years], its largest shareholder.” – Robert Tchenguiz owed Kaupthing £1.6bn when the bank collapsed. The fact that Kaupthing’s largest shareholders were also its largest borrowers follows a familiar pattern from the other two Icelandic banks, Landsbanki and Glitnir.

As to the allegations made by the SFO related to Robert and the TDT:

105. As we have set out, five specific transactions were relied on  as showing suspected criminality.  Listed in chronological order, they were:

i)              The Oscatello loan facility and the increases in lending under it

ii)              Money Market loans [in total, Kaupthing made 36 money market loans to Oscatello, in total £345m; £143 million was repaid, but £156m was outstanding at the time of the collapse of Kaupthing. Explained in para 132 and following.]

iii)              Pumpster [regarding Kaupthing loans to a company owned by TDT; the SFO alleges these loans concealed bad debt to Kaupthing at a time when Oscatello was insolvent. Explained para 138 and onwards.]

iv)              Thorson [a TDT company; Kaupthing transferred almost £62m to Thorson’s account with Kaupthing Luxembourg 3 October 2008; para 151.]

v)              Project Longboat and the PIK notes [transactions 13 November 208 related to Oscatello; para 157]

Here are some highlights from the judgment. The following refers to the allegation, see v) above, but as seen here these allegations were also a matter between the Kaupthing resolution committee and TDT:

After the collapse of Kaupthing, TDT companies entered into a series of transactions on 13 November 2008 through which the security previously pledged to Kaupthing for loans to Oscatello [structure owned by TDT with Kaupthing as a co-investor] were replaced by “Payment in Kind Notes”.  Immediately after the transaction had been effected, the lawyers acting for TDT notified the Resolution Committee of Kaupthing that the transactions had taken place.  The clear intention and effect of these transactions were to remove the assets, including interests in Somerfield Ltd, used as security for the loans by Kaupthing, to companies outside the Oscatello structure to prevent the liquidators of Kaupthing taking control of those assets and selling them in the then market conditions. [This is how the SFO presented these transfers.]

30. On 5 December 2008, the Resolution Committee began proceedings in the British Virgin Islands in respect of these transactions against Investec and the Oscatello companies.  The pleadings signed by Mr Steinfeld QC alleged fraud. Grant Thornton prepared a report on this transaction on 14 January 2009.  An interim application for the appointment of receivers was made to the courts of the BVI which was vigorously contested on grounds set out in an affidavit sworn by an officer of Investec.  The proceedings were subsequently settled for £137m in June 2010; we were told by Lord Macdonald QC who appeared for RT and  R20 [company belonging to Robert’s business sphere] that this payment represented the proceeds of the sale of the interests in Somerfield Ltd.  All allegations of fraud were withdrawn as part of the settlement.

On how the SFO presented its case to Judge Worsley in March last year:

After short submissions from the in-house advocate the judge authorised the issue of the warrants.  Nothing was asked or said as to whether the judge had been told matters that weighed against issuing the warrants. 

51. The judge gave no reasons for his decision. [This is ia what I take to be a criticism of the Judge.]  This is a matter of complaint which we consider as the second issue at paragraphs 202 and following.

The SFO has dropped its investigation not only into Vincent Tchenguiz but also into Kaupthing Singer & Friedlander manager Armann Thorvaldsson and another key Kaupthing employee Gudni Adalsteinsson. Former chairman Sigurdur Einarsson and CEO Hreidar Mar Sigurdsson are still under investigation. The following is an interesting indication of matters being investigated:

There was no allegation against RT or VT that they had tampered with or destroyed documents, though such an allegation was made in the Information against others.

The SFO greatly emphasised that Kaupthing kept on lending to Oscatello all through 2008 even if it seemed “under water,” as stated in an email from Gudni Adalsteinsson. However, the two judges felt this was a one-sided presentation – this is the core of their grave criticism of SFO’s presentation. The two judges take a different stance on the loans and that’s what they are pointing out here:

122. It was obvious that a forced liquidation of Oscatello at the time of the 19 December 2007 arrangements could, because of the nature of the security held by Kaupthing, in all probability have seriously damaged Kaupthing.  It is not uncommon that a bank exposed to a company with a balance sheet of the type exhibited by Oscatello might have therefore a commercial rationale for lending more money in those circumstances, even if the company was  insolvent; the bank would hope that the market would improve and that the loss that would result from a decision to terminate the lending and consequent insolvency would be averted.

123. In our judgment, the failure to set out these facts and to explain these matters in the Information and oral evidence, was a grave and material omission which resulted in the judge not being given a fair presentation of the key issue in the case – was this a case where Kaupthing made  a wrong commercial decision in December 2007 by continuing to lend to the TDT companies in the hope that their exposure would be reduced by an improvement in the market or was this dishonest and collusive lending?

124. The failure to explain that issue in these relatively simple terms is entirely consistent with the overall presentation  to the judge which did not  set the issues out in an analytical manner.  It is with deep regret that we have reached this conclusion on what was done. Properly understood and explained, the materials which we have had an opportunity of examining during a three-day hearing before us and thereafter, might have provided grounds for reasonable suspicion on the basis of the matters to which we have referred at paragraph 118 and the matter to which we refer in paragraph 126.

It would then have been for the judge to be personally satisfied that it did.  However that was not the way in which the matter was put before the judge.  He was given an account that was not only wholly inadequate, but unfair.

This is how the judges view the case – the judicial review was not about the merits of the investigation but about procedures in obtaining permission for house searches etc. Below, the judges spell this out quite clearly:

176. However, it is apparent from what we have set out after a detailed examination of the materials over three days in court and a study thereafter of the evidence presented to us that a case of reasonable suspicion might have been advanced and presented by the SFO to the judge, at least in relation to the making of the Oscatello loan facility and associated arrangements (see paragraph 124 above) and the Money Market loans (see paragraph 136). This would  have been a task that did  not require corrections or additions by way of disclosure, but it would have required starting again and putting the presentation in a coherent, fair and analytical manner.  Whether there was or is such a case of reasonable suspicion, if a case had been made in that way, would then have been for the judge to determine.

177. Although we consider such a case might  have been made, we cannot accept the submission that it would be just to refuse to quash the decision of the judge.  What we would be doing would be permitting the SFO in effect to justify what it had done by adopting a proper and analytical approach  in this court and doing what it had manifestly failed to do when it went to Judge Worsley.

178. In any event, as Lord Macdonald correctly submitted as we have set out at paragraph 76, the merits of the investigation and continuing the investigation are not an issue in these proceedings. It is very important that proceedings of this kind are confined to the issues that strictly arise and are not utilised as a means of indirectly seeking the court’s view on an investigation.  The question whether matters should be investigated is under our constitution the responsibility of the investigating and prosecuting authorities; the role of the courts is strictly limited.  There would be highly undesirable consequences if it were otherwise.

As the SFO has stated, its investigation regarding Kaupthing continues.

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Imagine you come home one evening to find the back door kicked in with the door and the doorframe completely destroyed. Inside, everything is in disarray, furniture badly damaged and plenty of valuables stolen. When the policemen arrive they are completely stoic. They have seen it all before, recognise the methodology and are more or less sure who did it. The friendly policeman in charge tells you that by the time they get around to arrest the culprits the stolen goods – your things – will have been sold off. Sorry, no chance of recovering any of it. The thieves move too quickly, the police too slowly though the thieves will no doubt eventually be caught.

“When can I expect to be called in as a witness,” you ask. “Well, not so sure the case will come court. We negotiate with the thieves. They will pay a fine and that’s it. Quite a hefty fine because there is a lot of damage, apart from the stolen goods, of course.” You can’t believe your own ears: the thieves have committed a criminal act – and they will sell your property to pay the fine. Dismayed, you point this out to the friendly policeman. He shrugs his shoulders. “This is the new order. Prison is only for petty street crime. The serious criminals, we negotiate with them.”

Shareholders in banks involved in LIBOR swindle, such as Barclays and others banks soon to be named, and in HSBC, which allowed itself to be used as a conduit for money laundering by Mexican drug lords, dodgy Russian and entities with ties to terrorist organisations (see earlier Icelog here), are more or less in the situation of the house-owner in the story above. This is what’s been going on for the last many years when it comes to certain actions of those who operate from the management suites of big banks. With ever rising salaries, no matter if the banks lose or not, top managers have been allowed to let the company pay the fines resulting from their lack of oversight, corrupt company culture and potential criminal acts.

HSBC has just set aside $2bn to cover potential money-laundering fines and mis-selling claims. Barclays has just paid £290m to UK and US authorities for the LIBOR rigging. In addition, Barclays is now under investigation related to its fund-raising in the Middle East in 2008. The bank has just announced its pre-tax profits, £759m – down 71% from last years £2.6bn and potentially more fines in sight for Barclays.

This might – just might – be changing though. Recently, the Serious Fraud Office announced that its new director, David Green, “is satisfied that existing criminal offences are capable of covering conduct in relation to the alleged manipulation of LIBOR and related interest rates. The investigation, announced on 6 July, involves a number of financial institutions.”

This means that the SFO is now investigating the LIBOR rigging as a potentially criminal act, in the belief laws have been broken. Part of the rigging involved portraying the bank stronger than it indeed was, in the financial turmoil of autumn 2008. If that isn’t market manipulation I find it difficult to understand that concept.

In the US, some senators have introduced a bipartisan bill to give US regulators the authority to seek tougher fines from the financial sector. The understanding is that although the fines posed on Barclays are record high it’s still decimal dust in the grand scheme of the bank’s balance sheet. The bill proposes raising the maximum penalty from up to $150,000 per violation for individuals and $725,000 per entity to respectively $1m and $10m. Crucially, the SEC could seek fines of three times the amount of ill-gotten gains – or investor losses.

Interestingly, last November, US District Judge Jed Rakoff refused to rubber-stamp a $285m settlement the SEC had posed on Citigroup. Rakoff’s reasoning was that the fine was “pocket change” and investors had been “short-changed.” To put the fines in perspective re ill-gotten gains and losses, the SEC alleged investors lost $700m from the underlying scheme while Citigroup had estimated its gain $160m. In 2009, Rakoff did the same and forced the SEC to increase its settlement with Bank of America.

None of the things that happened in banks now being fined happened because of some laws of nature but because of one decision after another, leading in the same direction. Decision taken by individuals with the power to make these things happen. If accountability is to be a word be counted on, the individuals who took the decisions have to be made accountable, instead of just using their power make shareholders pay.

Regulators still seem to believe that mild words of warning are enough. President Barack Obama says he’s in favour of making “penalties count.” If the penalties just count for the shareholders and not for those who actually condone – or carry out – what’s being penalised that’s just not enough. Seeing Raj Rajaratnam sentenced to eleven years in prison for insider trading might awake more fear of the law than letting the company pay fines and seeing shareholders lose out on dividends.

As I’ve pointed out earlier, the correlation between corruption and the recession is to my mind a clear one. Corrupt business practices played its part in the financial collapse in the autumn of 2008. Both European countries and the US are still smarting from the aftermath and the ensuing recession has led to job losses and expensive bail-outs, paid by tax payers in these countries. In that sense, tax payers are paying for potential financial crimes.

Apart from corrupt business practices and the bail-outs there are three issues at stake here. The fines are ridiculously low, compared to the balance sheets of these gigantic banks. Secondly, is it fair that managers, on whose watch these breaches occur, can just dry the losses off on shareholders? And thirdly, is it fair that those who break the law out of luxurious suites with perks such as private toilets and paid-for taxes are treated any differently than criminals operating on the high street?

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A recent ruling in a French court spells out that while a case against Landsbanki Luxembourg for wrongful selling of its products is ongoing in France, Landsbanki Luxembourg cannot pursue its recovery of these loans. Over 80 clients in France of Landsbanki Luxembourg brought a civil case in France against Landsbanki, represented by Yvette Hamilius, for wrongful presentation of its loans. In a ruling July 13, Judge Renaud van Ruymbeke ruled that the recovery could not continue as long as this case is ongoing.

As Icelog has pointed out earlier, so many of the Landsbanki Luxembourg clients with equity release loans and often some investments found that incomprehensibly their assets fell just below the value, which demanded they added assets so as to cover 110% of the value. This put many of them in arrears, meaning that the Landsbanki Luxembourg administrator started threatening to sell their houses and has indeed sent the bailiffs out.

This French ruling gives them some hope that the selling of the loans, events at Landsbanki before its demise and the consequent actions of the administrator will be clarified.

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Today, Tax Justice Network published its report on how the super-rich might have $21tn (yes, trillions) – and possibly up to $32tn – stashed away in tax havens.

After the Icelandic banks collapsed in October 2008 the first thing I happened to investigate were their Luxembourg operations. I only learnt much later that their dodgy loans mostly went through Luxembourg but it was their offshore operations, out of Luxembourg, that I did start with. All of the banks offered offshore services from Luxembourg but Kaupthing, in particular, did this very systematically, by offering not only their large clients but also many smaller clients private banking service there.

I’ve spoken to some of these smaller clients – and what is clear to me is that if people both paid the cost – and – duly paid tax on the profits arising from these investments this was a loss-making entreprise. The offshore service is a costly one so the question was whom to pay – the bank or the Inland Revenue. And this isn’t money trickling down in the economy – this is money flowing out of it.

As the Tax Justice report brings out, the money tunneled out of the economy into tax havens are no trivial sums, ranging from $21tn to possibly $32tn, depending on the methods used to establish the numbers.

If the politicians don’t start taking this into account – and political parties cut short their dependence on financing from those who thrive on the offshore wealth – voters are bound to revolt. No society can bear that the wealthiest choose to pay their due to banks, lawyers and accountants and not to society. The inequality arising from this is scarily destabilising.

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