Sigrún Davíðsdóttir's Icelog

Wow Air, the bold newish privately owned air company on the Icelandic aviation market had planned to be done by now with a bond offering, organised by Pareto Securities, Norway. Closing the offering has been postponed, indicating the bond market is sitting on its hands. The news over the last two weeks has been of a flurry of meetings with no outcome. A presentation on Pareto’s website indicated a weak financial position, which makes the attempt to sell bonds rather unconvincing – and the planned IPO in 18 months more a wishful than a realistic aim.

Tourism is now the largest contributor to balance of payment in Iceland. At the same time, tourism is a major risk factor in the Icelandic economy. Part of that risk is related to aviation – two air companies dominate the aviation market, Icelandair and Wow Air. The news of Wow’s shaky bond offering has rattled the Icelandic króna and the stock market.

Wow Air is privately owned but is now clearly in major financial difficulties. The Icelandic media seems tongue-tied, plenty of rumours but little clarity. One thing seems certain: the bond offering that Pareto Securities launched in August did not seem to be going as hoped.

After silence and then upbeat statements from Wow many questions remain unanswered. Wow has now promised a statement today, Tuesday 18 September.

The much announced bond offer

Over the years, news as to what Wow would do has been a bit here and there. Last year, Skúli Mogensen said to Bloomberg the airline might be sold within the next two years. Finding other shareholders has also been in the air. Now, he aims at an IPO in 18 months. The losses last year were ISK2.4bn, that is around €19m or $22m.

In the meantime, Wow needs to stay in the air. The bond offering now was supposed to give a financial boost of around ISK12bn, €94m or $110m, but half that would be a minimum. After the offering opened the conditions were changed, making the bonds convertible. And the minimum proved elusive. The Icelandic banks and pension funds were courted and apparently put under serious pressure, as there were fears of reputational damage and a nose-diving króna.

Part of the problem is that equity is next to none, something that Wow’s owner nonchalantly mentioned in an interview with the Icelandic Morgunblaðiðin spring. In addition to losses last year and this year, with rising oil prices. Wow does not own any airplanes, which makes it difficult to find any tangible collateral.

In an interview yesterday with the Financial TimesMogensen did not mention the bond offering, only that Wow Air was aiming to raise $200m to $300m in an IPO within 18 months. Those who have studied Wow’s available financial information scratch their head – it is hard to see anything that indicates a turn-around except for Wow’s own very optimistic forecast.

From Oz to Wow

With his predilection for short and sassy company names, Skúli Mogensen had his second coming in the Icelandic business community as the owner of Wow Air in 2012. The first one was in the 1990s as one of the founders of the Icelandic dotcom sputnik Oz. Oz crashed but the experience spawned many other IT companies in the following years as Oz founders and staff kept going elsewhere.

Mogensen however left Iceland and ran Oz Communications in Canada, selling it in 2008 to Nokia. Since it was a private deal little information is available. However, it seems that in spite of rapid and bold, some might say hubristic, expansion the company has been under-financed from the beginning, according to an Icelog source. In may ways, the Wow saga is similar in audacity to the Icelandic banks expansion after 2000.

One of the unanswered questions regards Wow’s debt to Isavia, the state-owned company that runs Keflavík Airport. Morgunblaðið claims Wow’s debt to Isavia is ISK2bn; the number I’ve heard is ISK1bn. If it’s the case that Wow has been allowed to run up a debt to Isavia or has secured more favourable terms than its competitors that is a serious issue. Sadly, that will remind Icelanders of how certain large shareholders in the collapsed banks were allowed to bank on wholly unsustainable terms.

Low-cost carriers are feeling the strain. The business model of offering stop-over in Iceland is also being tested. All of this is at play in the Wow cliff-hanger saga.

*According to Wow Air statement at 3pm Icelandic time, the bond offering has now been closed. Wow Air issuing €60m, €50m of which have already been sold:

*** WOW air – New Bond Issue – Book is closed ***

Tenor…………………3yrs

Issue Size……………EUR 60mm

Coupon………………3m Euribor +9% (Euribor floor at zero) + warrants

Update: Recently, Icelandair made a bid to buy Wow Air. The offer was dependent on due diligence ending this week, in time for Icelandair shareholder meeting on Thursday. According to unconfirmed Icelog sources, the state of affairs at Wow Air is not looking very promising, making it less likely that the sale will go through. Were that to happen, Wow Air would go into receivership. Today, the Icelandic Stock Exchange stopped trade in Icelandair shares, on demand of the FME, the Icelandic financial regulator.

Update 29 November, 9:30: Icelandair has just announced that it’s not going ahead with buying Wow Air, as it had announced, due diligence pending, November 5. Wow CEO Skúli Mogensen recently announced there were other possible buyers. I doubt they will materialise, more likely this is the end of Wow…

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The Icelandic SIC report and court cases in Iceland have made it abundantly clear that most of the questionable, and in some cases criminal, deals in the Icelandic banks were executed in their Luxembourg subsidiaries. All this is well known to authorities in Luxembourg who have kindly assisted Icelandic counterparts in obtaining evidence. One story, the Landsbanki Luxembourg equity release loans, still raises many questions, which Luxemburg authorities do their best to ignore in spite of a promised investigation in 2013. Some of these questions relate to the activities of the bank’s liquidator, ranging from consumer protection, the bank’s investment in the bank’s own bonds on behalf of clients and if the bank set up offshore companies for clients without their consent.

The Landsbanki Luxembourg equity release loans were issued to clients in France and Spain. Indeed, all these loans were issued to clients outside of Luxembourg. One intriguing fact emerged during the French trial in Paris last year against Landsbanki Luxembourg and nine of its executives and advisors: the French clients got the bank’s loan documents in English, the non-French clients got theirs in French.*

Landsbanki Iceland went into administration October 7 2008. The next day, Landsbanki Luxembourg was placed into moratorium; liquidation proceedings started 12 December. Over the years, Icelog has raised various issues regarding the Landsbanki Luxembourg equity release loans, mostly sold to elderly people (see here). These issues firstly relate to how the bank handled these loans, both the marketing and the investments involved and secondly, how the liquidator Yvette Hamilius, has handled the Landsbanki Luxembourg estate and the many complaints raised by the equity release clients.

A liquidator is an independent agent with great authority to investigate. There is abundant material in Iceland, both from the 2010 Report of the Special Investigative Commission, SIC and Icelandic court cases where almost thirty bankers and others close to the banks have been sentenced to prison. These cases have invariably shown that the most dubious deals were done in the banks’ Luxembourg operations.

Already by June 2015, liquidators of the estates of the three large Icelandic banks were ending their work, handing remaining assets over to creditors. In the, in comparison, tiny estate of Landsbanki Luxembourg there is no end in sight due to various legal proceedings. Yet, its arguably largest problem, the so-called Avens bond, was solved already in 2011. At the time, Már Guðmundsson governor of the Icelandic Central Bank paid tribute to the help received from amongst others Hamiliusfor “considerable efforts in leading this issue to a successful conclusion.”

The Landsbanki Luxembourg equity release clients have another story to tell, both in terms of their contacts with the liquidator and Luxembourg authorities. In May 2012, these clients, who to begin with had each and everyone been struggling individually, had formed an action group and aired their complaints in a press release, questioning Luxembourg’s moral standing and Hamilius’ procedures.

The following day, the group got an unexpected answer: Luxembourg State Prosecutor Robert Biever issued a press release. As I mentioned at the time, it was jaw-droppingly remarkable that a State Prosecutor saw it as his remit to address a press release directed at the liquidator of a private company in a case the Prosecutor had not investigated. According to Biever, Hamilius had offered the borrowers “an extremely favourable settlement” but “a small number of borrowers,” unwilling to pay, was behind the action.

In 2013 Luxembourg Justice Minister promised an investigation into the Landsbanki products that was already taking “great strides.” So far, no news.

The Landsbanki Luxembourg equity release scheme: high risk, rambling investments

In theory, the magic of equity release loans is that by investing around 75% of the loan the dividend will pay off the loan in due course. I have seen calculations of some of the Landsbanki equity release loans that make it doubtful that even with decent investments, the needed level of dividend could have been reached – the cost was simply too high.

If something seems too good to be true it generally is. However, this offer came not from a dingy backstreet firm but from a bank regulated and supervised in Luxembourg, a country proud to be the financial centre of Europe. And Landsbanki was not the only bank offering these loans, which interestingly have long ago been banned or greatly limited in other countries. In the UK, equity release loans wrecked havoc and created misery some decades ago, leading to a ban on putting up the borrower’s home as collateral.

Having scrutinised the investments made for some of the Landsbanki Luxembourg clients the first striking thing is an absolutely staggering foreign currency risk, also related to the Icelandic króna. Underlying bonds on the foreign entities such as Rabobank and European Investment Bank were nominated in Icelandic króna (see here on Rabobank ISK bond issue Jan. 2008), in addition to the bonds of Kaupthing and Landsbanki, the largest and second largest Icelandic banks at the time.

Currencies were bought and sold, again a strategy that will have generated fees for the bank but was of dubious use to the clients.

The second thing to notice is the rudderless investment strategy. To begin with the money was in term deposits, i.e. held for a fixed amount of time, which would generate slightly higher interest rates than non-term deposits. Then shares and bonds were bought but there was no apparent strategy except buying and selling, again generating fees for the bank.

The equity release clients were normally not keen on risk but the investments were partially high risk. The 2007 and 2008 losses on some accounts I have looked have ranged from 10% to 12%. These were certainly testing years in terms of investment but amid apparently confused investing there was indeed one clear pattern.

One clear investment pattern: investing in Landsbanki and Kaupthing bonds

Having analysed statements of four clients there is a recurring pattern, also confirmed by other clients and a source with close knowledge of the bank’s investments: in 2008 (and earlier) Landsbanki Luxembourg invariably bought Landsbanki bonds as an investment for clients, thus turning the bank’s lending into its own finance vehicle. In addition, it also bought Kaupthing bonds. The 2010 SIC report cites examples of how the banks cooperated to mitigate risk for each other.

It is not just in hindsight that buying Landsbanki and Kaupthing bonds as equity release investment was a doomed strategy. Both banks had sky-high risk as shown by their credit default swap, CDS. The CDS are sort of thermometer for banks indicating their health, i.e. how the market estimates their default risk.

The CDS spread for both banks had for years been well below 100 points but started to rise ominously in 2007 as the risk of their default was perceived to rise. At the beginning of 2008, the CDS spread for Landsbanki was around 150 points and 300 points for Kaupthing. By summer, Kaupthing’s CDS spread was at staggering 1000 points, then falling to 800 points. Landsbanki topped close to 700 points. The unsustainably high CDS spread for these two banks indicated that the market had little faith in their survival. With these spreads, the banks had little chance of seeking funds from institutional investors (SIC Report, p.19-20).

The red lights were blinking and yet, Landsbanki Luxembourg staff kept on steadily buying Landsbanki and Kaupthing bonds on behalf of clients who were clearly risk-averse investors.

Equity release investment in some details

To give an idea of the investments Landsbanki Luxembourg made for equity release borrowers, here is some examples of investment (not a complete overview) for one client, Client A:

Loan of €2.1m in January 2008; the loan was split in two, each half converted into Swiss francs and Japanese yens. The first investment, €1.4m, two thirds of the loan,was in LLIF Balanced Fund (in Landsbanki Luxembourg loan documents the term used is Landsbanki Invest. Balanced Fund 1 Cap but in later overviews from the liquidator it is called LLIF Balanced Fund, a fund named in Landsbanki’s Financial Statements 2007 as one of the bank’s investment funds).

Already in February 2008 Landsbanki Luxembourg bought Kaupthing bond for this client for €96.000. End of April 2008 €155.000 was invested in Landsbanki bond, days before €796.000 of the LLIF Balanced Fund investment was sold. Late May and end of August Landsbanki bonds were bought, in both cases for around €99.000. In early September 2008 Landsbanki invested $185.000 in Kaupthing bonds for this client. The next day, the bank sold €520.000 in LLIF Balanced Fund.

Landsbanki’s investments were focused on the financial sector that in 2008 was showing disastrous results. For client A the bank bought bonds in Nykredit, Rabobank, IBRD and EIB, apparently all denominated in Icelandic króna. In addition, there were shares in Hennes & Maurits, and a Swedish company selling food supplement.

A similar pattern can be seen for the other clients: funds were to begin with consistently invested in LLIF Balanced Fund but later sold in favour of Kaupthing and Landsbanki bonds. Although investment funds set up by the Icelandic banks were later shown to contain shares in many of the ill-fated holding companies owned by the banks’ largest shareholders – also the banks’ largest borrowers – a balanced fund should have been seen as a safer investment than bonds of banks with sky-high CDS spreads.

MiFID and the Landsbanki Luxembourg equity release loans

Landsbanki certainly did not invent equity release loans. These loans have been around for decades. Much like foreign currency, FX, loans, a topic extensively covered by Icelog, they have brought misery to many families, in this case mostly elderly people. FX lending has greatly diminished in Europe, also because banks have been losing in court against FX borrowers for breaking laws on consumer protection.

There might actually be a case for considering the equity release loans as FX loans since the loans, taken in euros, were on a regular basis converted into other currencies, as mentioned above. – This is, so far, an unexplored angle of these cases that Luxembourg authorities have refused to consider.

Another legal aspect is that the first investments were normally done before the loans had been registered with a notary, as is legally required in France.

The European MiFID, Markets in Financial Instruments Directive was implemented in Luxembourg and elsewhere in the EU in 2007. The purpose was to increase investor protection and competition in financial markets.

Consequently, Landsbanki Luxembourg was, as other banks in the EU, operating under these rules in 2007. It is safe to say, that the bank was far below the standard expected by the MiFID in informing its clients on the risk of equity release loans.

The following paragraph was attached to Landsbanki Luxembourg statements: “In the event of discrepancies or queries, please contact us within 30 days as stipulated in our “General Terms and Conditions.”– However, the bank almost routinely sent notices of trades after the thirty days had passed.

It is unclear if the liquidator has paid any attention to these issues but from the communication Hamilius has had with the equity release clients there is nothing to indicate that she has investigated Landsbanki operations compliance with the MiFID. MiFID compliance is even more important given that courts have been turning against equity release lenders in Spain due to lack of consumer protection – and that banks have been losing in courts all over Europe in FX lending cases.

Clients offshorised without their knowledge

The “Panama Papers” revealed that Landsbanki was one of the largest clients of law firm Mossack Fonseca; it was Landsbanki’s go-to firm for setting up offshore companies. Kaupthing, no less diligent in offshoring clients, had its own offshore providers so the leak revealed little regarding Kaupthing’s offshore operations. The prime minister of Iceland Sigmundur Davíð Gunnlaugsson, who together with his wife owned a Mossack Fonseca offshore company, became the main story of the leak and resigned less than 48 hours after the international exposure.

In September 2008, a Landsbanki Luxembourg client got an email from the bank with documents related to setting up a Panama company, X. The client was asked to fill in the documents, one of them Power of Attorney for the bank and return them to the bank. The client had never asked for this service and neither signed nor sent anything back.

In May 2009, this client got a letter from Hamilius, informing him that the agreement with company X was being terminated since Landsbanki was in liquidation. The client was asked to sign a waiver and a transfer of funds. Attached was an invoice from Mossack Fonseca of $830 for the client to pay. When the client contacted the liquidator’s office in Luxembourg he was told he should not be in possession of these documents and they should either be returned or destroyed. Needless to say, the client kept the documents.

Company X is in the Offshoreleak database, shown as being owned by Landsbanki and four unnamed holders of bearer shares. – Widely used in offshore companies, bearer shares are a common way of hiding beneficial ownership. Though not a proof of money laundering, the Financial Action Task Force, FATF, considers bearer shares to be one of the characteristics of money laundering.

This shows that Landbanki Luxembourg set up a Panama company in the name of this client although the client did not sign any of the necessary documents needed to set it up. Also, that the liquidator’s office knew of this. (This account is based on the September 2009 email from Landsbanki Luxembourg to the client and a statement from the client).

Other clients I have heard from were offered offshore companies but refused. The story of company X only came out because of the information mistakenly sent from the liquidator to the client.

Landsbanki Luxembourg clients now wonder if companies were indeed set up in their names, if their funds were sent there and if so, what became of these funds. This has led them to attempt legal action in Luxembourg against the liquidator. Only the liquidator will know if it was a common practice in Landsbank Luxembourg to set up offshore companies without clients’ consent, if money were moved there and if so, what happened to these funds.

The curious role of a certain Philomène Ruberto

Invariably, the equity release loans in France and Spain were not sold directly by Landsbanki Luxembourg but through agents. This is another parallel to FX lending characterised by this pattern. According to the Austrian Central Bank this practice increases the FX borrowing risk as agents are paid for each loan and have no incentive to inform the client properly of the risks involved.

One of the agents operating in France was a French lady, Philomène Ruberto. In 2011, well after the collapse of Landsbanki, the Landsbanki Luxembourg was putting great pressure on the equity release borrowers to repay the loans. At this time, Ruberto contacted some of the clients in France. Claiming she was herself a victim of the bank, she offered to help the clients repay their loans by brokering a loan through her own offshore company linked to a Swiss bank, Falcon Private Bank, now one of several banks caught up in the Malaysian 1MDB fraud.

Some clients accepted the offer but that whole operation ended in court, where the clients accused Ruberto of fraud and breach of trust. In a civil case judgement at the Cour d’appel d’Aix en Provence in spring 2013, the judge listed a series of Ruberto’s earlier offenses, committed before and during the time she acted as an agent for Landsbanki:

This case was sent on a prosecutor. In a penal case in autumn 2014 Ruberto was sentenced by Tribunal Correctionnel de Grasse to 36 months imprisonment, a fine of €15,000 in addition to the around €190,000 she was ordered to pay the civil parties. According to the 2104 judgement Ruberto was, at the time of that case, detained for other causes, indicating that she has been a serial financial fraud offender since 2001.

But Ruberto’s relationship with Landsbanki Luxembourg prior to the bank’s collapse has a further intriguing dimension: GD Invest, a company owned by Ruberto and frequently figuring in documents related to her services, was indeed also one of Landsbanki Luxembourg largest borrowers. The SIC Report (p.196) lists Ruberto’s company, GD Invest, as one of the bank’s 20 largest borrowers, with a loan of €5,4m.

In 2007, at the time Ruberto was acting as an agent in France for Landsbanki Luxembourg, she not only borrowed considerably funds but, allegedly, on very favourable terms. In March 2007, GD Invest borrowed €2,7m and then further €2.3m in August 2007, in total almost €5,1m. Allegedly, Ruberto invested €3m in properties pledged to Landsbanki but the remaining €2m were a private loan. It is not clear what or if there was a collateral for that part.

By the end of 2011, Ruberto’s debt to Landsbanki Luxembourg was in total allegedly €7,5m. In January 2012 it is alleged that the Landsbanki Luxembourg liquidator made her an offer of repaying €2,4m of the total debt, around 1/3 of the total debt. Ruberto’s track record of fraudulent behaviour from 2001, raises questions to her ties first to Landsbanki and then to Landsbanki Luxembourg liquidator. (The overview of Ruberto’s role is based on emails and court documents provided by Landsbanki Luxembourg equity release borrowers.)

Inconsistent information from the Landsbanki Luxembourg liquidator

From 2012, when I first heard from Landsbanki Luxembourg equity release borrowers, inconsistent information from the liquidator has been a consistent complaint. The liquidator had then been, and still is, demanding repayment of sums the clients do not recognise. There are also examples of the liquidator coming up with different figures not only explained by interest rates. The borrowers have been unwilling to pay because there are too many inconsistencies and too many questions unanswered.

As mentioned above, Landsbanki Luxembourg was put in suspension of payment, in October 2008 and then into administration in December 2008. As far as is known, people who later took over the liquidation were called on to work at the bank during this time. During this time, many clients were informed that their properties had fallen in value, meaning that the collateral for their loan, the property, was inadequate. Consequently, they should come up with funds. At this time, there was no rational for a drop in property value. This is one of the issues the borrowers have, so far unsuccessfully, tried to raise with the liquidator.

Other complaints relate to how much had been drawn. One example is a client who had, by October 2008, in total drawn €200,000. This is the sum this client want to repay. Mid October 2008, after Landsbanki Luxembourg had failed, this client got a letter from a Landsbanki employee stating that close to €550,000, that the client had earlier wanted transferred to a French account, was still “safe” on the Landsbanki account. This amount was never transferred but the liquidator later claimed it had been invested and demanded that the client repay it.

The liquidator has taken an adversarial stance towards these clients. The clients complain of lack of transparency, inconsistent information, lack of information and lack of will to meet with them to explain controversies.

The role and duty of a liquidator

By late 2009 the liquidator had sold off the investments. This is what liquidators often do: after all, their role is to liquidate assets and pay creditors. However, a liquidator also has the duty to scrutinise activity. That is for example what liquidators of the banks in Iceland have done. A liquidator is not defending the failed company but the interests of creditors, in this case the sole creditor, LBI ehf.

Incidentally, the liquidator has not only been adversarial to the clients of Landsbanki but also to staff. In 2011 the European Court of Justice ruled against the liquidator in reference for a preliminary ruling from the Luxembourg Cour du cassation brought by five employees related to termination of contract.

Liquidators have great investigative powers. In addition to documents, they can also call in former staff as witnesses to clarify certain acts and deeds. If this had been done systematically the things outlined above would be easy to ascertain such as: is it proper in Luxembourg that a bank systematically invests clients’ funds in the bank’s own bonds? Was the investment strategy sound – or was there even a strategy? Were clients’ funds systematically moved offshore without their knowledge? If so, was that done only to generate fees for the bank or were there some ulterior motives? And have these funds been accounted for? A liquidator can take into account the circumstances of the lending and settle with clients accordingly.

And how about informing the State Prosecutor of Landsbanki’s investments on behalf of clients in Landsbanki bonds and the offshoring of clients without their knowledge?

But having liquidators in Luxembourg asking probing questions and conducting investigations is possibly not cherished by Luxembourg regulators and prosecutors, given that the country’s phenomenal wealth is partly based on exactly the kind of dirty deals seen in the Icelandic banks in Luxembourg.

LBI ehf – the only creditor to Landsbanki Luxembourg

Landsbanki Luxembourg has only one creditor – the LBI ehf, the estate of the old Landsbanki Iceland. According to the LBI 2017 Financial Statements the expected recovery of the Landsbanki Luxembourg amounts to €84,3m, compared to €74,3m estimated last year. The increase is following what LBI sees as a “favourable ruling by the Criminal Court in Paris on 28 August 2017,” i.e. that all those charged were acquitted.

The only assets in Landsbanki Luxembourg are the equity release loans. The breakdown of the loans, in EUR millions, in the LBI 2017 Statements is the following:

Further to this the Statements explain that “LBI’s claims against the Landsbanki Luxembourg estate amounted to EUR 348.1 million, whereas the aggregate balance of outstanding equity release loans amounted to EUR 293.0 million with an estimated recoverable value … of EUR 84.3 million.”

As pointed out, the information “regarding legal matters pertaining to the Landsbanki Luxembourg estate is mainly based on communications from that estate‘s liquidator, and not all of such information has been independently verified by LBI management.”

Apart from the criminal action in Paris and the appeal of the August 2017 judgment, the Financial Statements mention other legal proceedings: “Landsbanki Luxembourg is also subject to criminal complaints and civil proceedings in Spain. … In November 2012, several customers in France and Spain brought a criminal complaint in Luxembourg against the liquidator, alleging that the former activities of Landsbanki Luxembourg are criminal and thus that the estate’s liquidator should be convicted for money laundering by trying to execute the mortgages. Other criminal complaints have been filed in Luxembourg in 2016 and 2017 based on the same grounds against the liquidator personally.”

This all means that “LBI’s presented estimated recovery numbers are subject to great uncertainty, both in timing and amount.”

What is Luxembourg doing?

It is not the first time I ask this question here on Icelog. In July 2013 there was the news from Luxembourg, according to the Luxembourg paper Wort, that there were two investigations on-going in Luxembourg related to Landsbanki. This surfaced in the Luxembourg parliament as the Justice Minister Octavie Modert responded to a parliamentary question from Serge Wilmes, from the centre right CSV, Luxembourg’s largest party since founded in 1944.

According to Modert both cases related to alleged criminal conduct in the Icelandic banks. One investigation was into financial products sold by Landsbanki. “…the deciding judge is making great strides,” she said, adding that in order not to jeopardize the investigation, the State Attorney was unable to provide further details on the results already achieved.”

Sadly, nothing further has been heard of this investigation.

In spring 2016 the Luxembourg financial regulator, Commission de surveillance du secteur financier, CSSF had set up a new office to protect the interests of depositors and investors. This might have been good news, given the tortuous path of the Landsbanki Luxembourg clients to having their case heard in Luxembourg – CSSF has so far been utterly unwilling to consider their case.

The person chosen to be in charge is Karin Guillaume, the magistrate who ruled on the Landsbanki Luxembourg liquidation in December 2008. As pointed out in PaperJam, Guillaume has been under a barrage of criticism from the Landsbanki clients due to her handling of their case, which somewhat undermines the no doubt good intentions of the CSSF. From the perspective of the Landsbanki Luxembourg clients, CSSF has chosen a person with a proven track record of ignoring the interests of depositors and investors.

So far, Luxembourg authorities have resolutely avoided investigating Landsbanki and the other Icelandic banks. In Iceland almost 30 bankers, also from Landsbanki, and others close to the banks have been sentenced to prison, up to six years in some cases (changes to Icelandic law on imprisonment some years ago mean that those sentenced serve less than half of that time in prison before moving to half-way house and then home; they are however electronically tagged and can’t leave the country until the time of the sentence is over).

In the CSSF 2012 Annual Report its Director General Jean Guill wrote:

During the year under review, the CSSF focused heavily on the importance of the professionalism, integrity and transparency of the financial players. It urged banks and investment firms to sign the ICMA Charter of Quality on the private portfolio management, so that clients of these institutions as well as their managers and employees realise that a Luxembourg financial professional cannot participate in doubtful matters, on behalf of its clients.  

Almost ten years after the collapse of Landsbanki, equity release clients of Landsbanki Luxembourg are still waiting for the promised investigation, wondering why the liquidator is so keen to soldier on for a bank that certainly did participate in doubtful matters.

*In court, the French singer Enrico Macias mentioned that all his documents were in English. I found this strange since I had seen documents in French from other clients and knew there was a French documentation available. When I asked Landsbanki Luxembourg clients this pattern emerged. All the clients asked for contracts in their own language. When the non-French clients asked for contracts in English they were told the documentation had to be in French as the contracts were operated in France. Conversely, the French were told that the language was English as it was an English scheme. I have now seen this consistent pattern on documents for the various clients. – Here is a link to all Icelog blogs, going back to 2012, related to the equity release loans. Here is a link to the Landsbanki Luxembourg victims’ website.

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The Bill passed by the Icelandic parliament in December 2008 on setting up an independent investigative commission, the Special Investigative Commission did not catch much attention at the time. The goal was nothing less than finding out the truth in order to establish events leading up to the 2008 banking collapse, analyse causes and drawing some lessons. The SIC report was an exemplary work and immensely important at the time to establish a narrative of the crisis. But in hindsight, there is yet another lesson to be learnt: its importance does not diminish with time as it helps to counteract special interests seeking to rewrite history.

There were no big headlines when on 12 December 2008 Alþingi, the Icelandic parliament, passed a Bill to set up an investigative commission “to investigate and analyse the processes leading to the collapse of the three main banks in Iceland,”which had shaken the island two months earlier. The palpable lack of enthusiasm and attention was understandable: the nation was still stunned and there was no tradition in Iceland for such commissions. No one knew what to expect, the safest bet was to not expect very much.

That all changed when the Commission presented its results in April 2010. Not only was the report long – 2600 pages in print in addition to online-only material – but it did actually tell the real story behind the collapse: the immensely rapid growth of the banks, from one GDP in 2002 to ten times the GDP in 2008, the stronghold the largest shareholders, incidentally also the largest borrowers, had on the banks’ managements, the political apathy and lax regulation by weak regulators, stemming from awe of the financial sector.

Unfortunately, the SIC report was not translated in full into English; see executive summary and some excerpts here.

With time, the report’s importance has not diminished: at the time, it clarified what had happened thus preventing those involved or others with special interest, to reshape the past according to their own interests. With time, hindering the reshaping of the past has become of major importance, also in order to draw the right lessons from the calamitous events in October 2008.

What was the SIC?

According to the December 2008 SIC Act (in Icelandic), the goal was setting up an investigative commission, that would, at the behest of Alþingi, seek “the truth about the run-up to and the causes of the collapse of the Icelandic banks in 2008 and related events. [The SIC] is to evaluate if this was caused by mistake or neglect in carrying out law and regulation of the financial sector in Iceland and its supervision and who could be held responsible for it.” – In order to fulfil its goal the SIC was inter alia to collect information on the financial sector, assess regulation or lack thereof and come up with proposals to prevent the repetition of these events.

In some countries, most notably in South Africa after apartheid, “Truth Commissions,” have played a major part in reconciliation with the past. Although the remit of the Icelandic SIC was to establish the truth, the SIC was never referred to as a “truth commission” in Iceland though that concept has been used in foreign coverage of the SIC.

The SIC had the power to make use of a vast array of sources, both by calling in people to be questioned and documents, public or private such as bank data, including data on named individuals, data from public institutions, personal documents and memos. Data, normally confidential, had to be shared with the SIC, which was obliged to operate as any other public body handling sensitive or confidential information.

Although the SIC had to follow normal procedures of discretion on personal data the SIC could “publish information, normally subject to discretion, if the SIC deems this necessary to support its conclusions. The Commission can only publish information on personal matters of named individuals, including their financial affairs, if the public interest is greater than the interest of the individuals concerned.” – In effect, this clause lift banking secrecy.

One source close to the process of setting up the SIC surmised the political intentions behind the SIC Act did not include lifting banking secrecy, indicating that the extensive powers given to the SIC were accidental. Others have claimed the SIC’s extensive powers were always part of the plan. I am in two minds about this but my feeling is that the source close to the process was right – the powers to scrutinise the main shareholders were far greater than intended to begin with.

Naming the largest borrowers, incidentally also the largest shareholders

Intentional or not, the extensive powers enabled naming the individuals who received the largest loans from the banks, incidentally their largest shareholders and their closest business partners. This was absolutely essential in order to understand how the banks had operated: essentially, as private fiefdoms of the largest shareholders.

In order to encourage those called in for questioning to speak freely, the hearings were held behind closed doors; there were no public hearings. The SIC had extensive powers to call people in for questioning: it could ask for a court order if anyone declined its invitation, with the threat of taking that person to court on grounds of contempt in case the invitation was declined.

Criminal investigation was not part of the SIC remit but its power to call for material or call in people for questioning was parallel to that of a prosecutor. As stated in the report, the SIC was obliged to inform the State Prosecutor if there was suspicion of criminal conduct:

The SIC’s assessment, pursuant to Article 1(1) of Act no. 142/2008, was mainly aimed at the activities of public bodies and those who might be responsible for mistakes or negligence within the meaning of those terms, as defined in the Act. Although the SIC was entrusted with investigating whether weaknesses in the operations of the banks and their policies had played a part in their collapse, the Commission was not expected to address possible criminal conduct of the directors of the banks in their operations.

As to suspicion of civil servants having failed to fulfil their legal duties, the SIC was supposed to inform appropriate instances. The SIC was not obliged to inform the individuals in question. As to ministers, the SIC was to follow law on ministerial responsibility.

The three members

The SIC Act stipulated it should have three members: the Alþingi Ombudsman, then as now Tryggvi Gunnarsson, an economist and, as a chairman, a Supreme Court Justice. The nominated economist was Sigríður Benediktsdóttir, then lecturer at Yale University (director of Financial Stability at CBI 2012 to 2016 when she returned to Yale). The chairman was Páll Hreinsson (since 2011 judge at the EFTA Court).

In addition to the Commission there was a Working Group on Ethics: Vilhjálmur Árnason professor of philosophy, Salvör Nordal director of the Centre for Ethics, both at the University of Iceland and Kristín Ástgeirsdóttir director of the Equal Rights Council in Iceland. Their conclusions were published in Vol. 8 of the SIC report.

In total, the SIC had a staff of around 30 people. As with the Anton Valukas report, published in March 2010, on the collapse of Lehman Brothers, organising the material, especially the data from the banks, was a major task. The SIC had access to the databases of the three collapsed banks but had only limited data from the banks’ foreign operations.

There were absolutely no leaks from the SIC, which meant it was unclear what to expect. Given its untrodden path, the voices expressing little faith were the most frequently heard. I had however heard early on, that the SIC had a firm grip on turning material into searchable databases, which would mean a wealth of material. With qualified members and staff, I was from early on hopeful that given their expertise of extracting and processing data the SIC report would most likely prove to be illuminating – though I certainly did not imagine how extensive and insightful it turned out to be.

Greed, fraud and the collapse of common sense

After the October 2008 collapse, my attention had been on some questionable practices that I heard of from talking to sources close to the failed banks.

One thing I had quickly established was how the banks, through their foreign subsidiaries, had offshorised their Icelandic clients. This counted not only for the wealthy businessmen who obviously understood the ramifications of offshorising but also people with relatively small funds. These latters had in many cases scant understanding of these services.

In the last few years, as information on offshorisation has come to the light via Offshoreleaks etc., it has become clear that Iceland was – and still is – the most offshorised country in the world (here, 2016 Icelog on this topic). Once the “art” of offshorisation is established, with all the vested interests accompanying it, it does not die easily – this might be considered one of the failed banks’ more evil legacies.

Another point of interest was how the banks had systematically lent clients, small and large, funds to buy the banks’ own shares, i.e. Kaupthing lent funds to buy Kaupthing shares etc. Cross-lending was also a practice: Bank A would lend clients to buy Bank B shares and Bank B lent clients to buy Bank A shares. This was partly used to hinder that shares were sold when buyers were few and far behind, causing fall in market value. In other words, massive market manipulation had slowly been emerging. Indeed, the managers of all three failed banks have in recent years been sentenced for market manipulation.

It had also emerged, that the banks’ largest shareholders/clients and their business partners had indeed been what I have called “favoured clients,” i.e. enjoying services far beyond normal business practices. One side of this came to light in the banks’ covenants in lending agreements: in the case of the “favoured clients,” the lending agreements tended to guarantee clients’ profit, leaving the banks with the losses. In other words, the banks took on far greater portion of the risk than these clients.

Icelog blogs I wrote in February 2010, before the publication of the SIC report, give some sense of what was known at the time. Already then, it seemed fair to conclude that greed, fraud and the collapse of common sense had been decisive factors in the event in Iceland in October 2008.

Monday morning 12 April 2010 – when time stood still in Iceland

The excitement in Iceland on Monday morning 12 April 2010 was palpable. The press conference was transmitted live. All around Iceland employers had arranged for staff to watch as the SIC presented its conclusions.

After Páll Hreinsson’s short introduction, Sigríður Benediktsdóttir gave an overview of the main findings regarding the banks, presenting “The main reasons for the collapse of the banks,” followed by Tryggvi Gunnarsson’s overview of the reactions within public institutions (here the presentations from the press conference, in Icelandic).

The main reason for the collapse of the three banks was their rapid growth and their size at the time they collapsed; the three big banks grew 20-fold in seven years, mainly 2004 and 2005; the rapid expansion into new/foreign markets was risky; administration and due diligence was not in tune with the banks’ growth; the quality of loans greatly deteriorated; the growth was not in tune with long-time interest of sound banking; there were strong incentives within the banks grow.

Easy access to short-term lending in international markets enabled the banks’ rapid growth, i.e. the banks’ main creditors were large international banks. With the rapid expansion, also abroad, the institutional framework in Iceland, inter alia the Central Bank and the FME, quickly became wholly inadequate. The under-funded FME, lacking political support, was no match for the banks, which systematically poached key staff from the FME. Given the size of the humungous size of the Icelandic financial system relative to GDP there was effectively no lender of last resort in Iceland; the Central Bank could in no way fulfil this role.

This had no doubt be clear to the banks’ management for some time. In his book, “Frozen Assets,” published in 2009, Ármann Þorvaldsson, manager of KSF, Kaupthing’s UK operation, writes that he “always believed that if Iceland ran into trouble it would be easy to get assistance from friendly nations… despite the relative size of the banking system in Iceland, the absolute size was of course very small.” (P. 194). – A breath-taking recklessness, naivety or both but might well have been the prevalent view at the highest echelons of the Icelandic financial sector at the time.

The banks’ largest shareholders and their “abnormally easy access to lending”

When it came to “Indebtedness of the banks’ largest owners” the conclusions were truly staggering: “The SIC concludes that the owners of the three largest banks and Straumur (investment bank where the main shareholders were the same as in Landsbanki, i.e. Björgólfur Thor Björgólfsson and his fater) had abnormally easy access to lending in these banks, apparently only because their ownership of these banks.”

The largest exposures of the three large banks were to the banks’ largest shareholders. “This raises the question if the lending was solely decided on commercial terms. The banks’ operations were in many ways characterised by maximising the interest of the large shareholders who held the reins rather than running a solid bank with the interest of all shareholders in mind and showing reasonable responsibility towards shareholders.” – Creative accounting helped the banks to avoid breaking rules on large exposures.

Benediktsdóttir showed graphs to illustrate the lending to the largest shareholders in the various banks. It is worth keeping in mind that these large shareholders all had foreign assets and were all clients of foreign banks as well. In general, the Icelandic lending shot up in 2007 when international funding dried up. At this point, the Icelandic banks really showed how favoured the large shareholders were because these clients were, en masse, getting merciless margin calls from their foreign lenders.

In reality, the Icelandic banks were at the mercy of their shareholders. If the large shareholders and/or their holding companies would default, the banks themselves were clearly next in line. The banks could not make margin calls where their own shares were collateral as it would flood the markets with shares no one wanted to buy with the obvious consequence of crashing share prices.

Two of the graphs from the SIC report, shown at the press conference in April 2010, exposed the clear drift in lending at a decisive time: to Björgólfur Thor Björgólfsson, still an active investor based in London and to Fons, a holding company owned by Pálmi Haraldsson, who for years was a close business partner of Jón Ásgeir Jóhannesson, once a king on the UK high street with shops like Iceland, Karen Millen, Debenhams and House of Fraser to his name.

The lending related to Fons/Haraldsson is particularly striking since Haraldsson was part of the consortium Jóhannesson led in spring of 2007 to buy around 40% of Glitnir: after the consortium bought Glitnir, the lending to Haraldsson shot up like an unassailable rock.

Absolution of risk

The common thread in so many of the SIC stories was how favoured clients – and in some cases bank managers themselves – were time and again wholly exempt from risk. One striking example is an email (emphasis mine), sent by Ármann Þorvaldsson and Kaupthing Luxembourg manager Magnús Guðundsson, jokingly calling themselves “associations of loyal CEOs,” to Kaupthing’s chairman Sigurður Einarsson and CEO Hreiðar Sigurðsson.

“Hi Siggi and Hreidar, Armann and I have discussed this (association of loyal CEOs) and have come to the following conclusion on our shares in the bank: 1. We set up a SPV (each of us) where we place all shares and loans. 2. We get additional loans amounting to 90% LTV or ISK90 to every 100 in the company which means that we can take out some money right away. 3. We get a permission to borrow more if the bank’s shares rise, up to 1000. It means that if the shares go over 1000 we can’t borrow more. 4. The bank wouldn’t make any margin calls on us and would shoulder any theoretical loss should it occur.We would be interested in using some of this money to put into Kaupthing Capital Partners [an investment fund owned by the bank and key managers] Regards Magnus and Armann”

This set-up, where the borrower is risk-free and the bank shoulders all the risk, has lead to several cases where bankers being sentenced for breach of fiduciary duty, i.e. lending in such a way that it was from the beginning clear that losses would land with the bank. (Three of these Kaupthing bankers, Guðmundsson, Einarsson and Sigurðsson, not Þorvaldsson, have been charged and sentenced in more than one criminal case).

The “home-knitted” crisis

Due to measures taken in October 2008 in the UK against the Icelandic banks, there was a strong sense in Iceland that the Icelandic banks had collapsed because of British action. The use of anti-terrorism legislation by the British government against Landsbanki greatly contributed to these sentiments.

A small nation, far away from other countries, Icelanders have a strong sense of “us” and “the others.” This no doubt exacerbated the understanding in Iceland around the banking collapse that if it hadn’t been for evil-meaning foreigners, hell-bent on teaching Iceland a lesson, all would have been fine with the banks. Some leading bankers and large shareholders were of the opinion that Icelanders had been such brilliant bankers and businessmen that they had aroused envy abroad: British action was a punishment for being better than foreign competitors (yes, seriously; see for example Þorvaldsson’s book “Frozen Assets”).

The story told in the SIC report showed convincingly and in great detail how wrong all of this was: the banks had dug their own grave. Icelandic politicians and civil servants had tried their best to fool foreign countries and institutions how things stood in Iceland. Yes, the turmoil in international markets toppled the Icelandic banks but they were weak due to bad governance, great pressure by the largest shareholders and then weak infrastructure in Iceland, as I pointed out in a blog following the publication of the SIC report.

This understanding is at times heard in Iceland but the convincing and well-documented story told in the SIC report has slowly all but eradicated this view.

Court cases and political controversies

Some, but by far not all, of the dubious deals recounted in the SIC report have ended up in court. The SIC brought a substantial amount of cases deemed suspicious to the attention of the Office of Special Prosecutor, incidentally set up by law in December 2008. However, most if not all of these cases had also been spotted by the FME, which passed them on to the Special Prosecutors.

CEOs and managers in all three banks have been sentenced in extensive market manipulation cases – the bankers were shown to have directed staff to sell and buy shares in a pattern indicating planned market manipulation. In addition, there have been cases involving shareholders, most notably the so-called al Thani case (incidentally strikingly similar to the SFO case against four Barclays bankers) where Ólafur Ólafsson, Kaupthing’s second largest shareholder, was sentenced to 5 1/2 years in prison, together with the bank’s top management.

In total, close to thirty bankers and major shareholders have been sentenced in cases related to the old banks, the heaviest sentence being six years. The cases have in some instances thrown an interesting light on operations of international banks, such as the CLN case on Deutsche Bank.

The SIC’s remit was inter alia to point out negligence by civil servants and politicians. It concluded that the Director General of the FME Jónas Fr. Jónsson and the three Governors of the CBI, Davíð Oddsson, Eiríkur Guðnason and Ingimundur Friðriksson, had shown negligence as defined in the law “in the course of particular work during the administration of laws and rules on financial activities, and monitoring thereof.” – None of them was longer in office when the report was published in April 2010 and no action was taken against them.

The Commission was of the opinion that “Mr. Geir H. Haarde, then Prime Minister, Mr. Árni M. Mathiesen, then Minister of Finance, and Mr. Björgvin G. Sigurðsson, then Minister of Business Affairs, showed negligence… during the time leading up to the collapse of the Icelandic banks, by omitting to respond in an appropriate fashion to the impending danger for the Icelandic economy that was caused by the deteriorating situation of the banks.”

It is for Alþingi to decide on action regarding ministerial failings. After a long deliberation, Alþingi voted to bring only ex-PM Geir Haarde to court. According to Icelandic law a minister has to be tried by a specially convened court, which ruled in April 2012 that the minister was guilty of only one charge but no sentence was given (see here for some blogs on the Haarde case). Geir Haarde brought his case to the European Court of Human Rights but the judgment went against him. Haarde is now the Icelandic ambassador in Washington.

The SIC lacunae

In hindsight, the SIC was given too short a time. With some months more, the role of auditors in the collapse could for example have been covered in greater detail. It is quite clear that the auditing was far too creative and far too wishful, to say the very least. The relationship between the banks and the four large international auditors, who also operate in Iceland, was far too cosy bordering on the incestuous.

The largest gap in the SIC collapse story stems from the fact that the SIC had little access to the banks foreign operations. Greater access would not necessarily have altered the grand narrative. But court cases have shown that some of the banks’ criminal activities, were hidden abroad, notably in the case of Kaupthing Luxembourg. – As I have time and again pointed out, it is incomprehensible that authorities in Luxembourg have not done a better job of investigating the banking sector in Luxembourg. The Icelandic cases are a stern reminder of this utter failure.

As mentioned above, only excerpts of the report were translated into English. To my mind, this was a big error and extremely short-sighted. Many of the stories in the report involve foreign banks and foreign clients of the Icelandic banks. The detailed account of what happened in Iceland throws light on not only what was going on in Iceland but also in other countries where the banks operated. The excerpts are certainly better than nothing but by far not enough – publishing the whole report in English would have done this work greater justice and been extremely useful in a foreign context.

Why the SIC report’s importance has grown with time

It is now just over eight years since the publication of the SIC report. Whenever something related to the collapse is discussed the report is a constant source and the last verdict. The report established a narrative, based on extensive sources, both verbal and written.

Some of those mentioned in the report did not agree with everything in the report. When they sent in their own reports these have been published on-line. However, undocumented statements amount to little compared to the report’s findings. Its narrative and conclusions can’t be dismissed without solid and substantiated arguments to counter its well-documented conclusions.

This means the story of the 2008 banking collapse cannot easily be reshaped. This is important because changing the story would mean undermining its conclusions and lessons to be learnt. In a recent speech, Tory MP Tom Tugendhat mentioned the UK financial crisis as the “forces of globalisation.” These would be the same forces that caused the collapse of the Icelandic banks – but from the SIC report Icelanders know full well that this is far too imprecise a description: the banks, both in the UK and Iceland, collapsed due to lack of supervision and public and political scrutiny, following year of lax policies.

Lessons for other countries

In order to learn from the financial crisis, countries need to know why there was a crisis – with no thorough analysis no lessons can be learnt. Also, not only in Iceland was criminality part of the crisis. Though not a criminal investigation, many of these stories surfaced in the SIC report, another important aspect.

Greece, Cyprus, UK, Ireland, US – five countries shaken and upset by overstretched banks, which needed to be bailed out at great expense and pain to taxpayers. However, all of these countries have kept their citizens in the dark as to what happened apart from some tentative and wholly inadequate attempts. The effect of hiding how policies and actions of individuals, in politics, banking etc, caused the calamities has partly been the gnawing discontent and lack of trust, i.a. visible in Brexit and the election of Donald Trump as US president.

Although Iceland enjoyed a speedy recovery (Icelog Sept. 2015), I’m not sure there are any particular economic lessons to be learned from Iceland. There were no magic solutions in Iceland. What contributed to a relatively speedy recovery was the sound state of the economy before the crisis, classic but unavoidably painful economic measures, some prescribed by the IMF, in 2008 and the following years – and some luck. If there is however one lesson to learn it is the importance of a thorough analysis of the causes of the crisis.

The SIC was, and still is, a shiny example of thorough investigative work following a major financial crisis, also for other countries. It did not alleviate anger; anger is still lingering in Iceland. An investigative report is not a panacea, nothing is, but it is essential to establish what happened and why, with names named.

There are never any mystical “forces” or laws of nature behind financial crisis and collapse. They are caused by a combination of human actions, which can all be analysed and understood. Without analysis and investigations it is easy to tell the wrong story, ignore the causes, ignore responsibility – and ultimately, ignore the lessons.

This is the second blog in “Ten years later” – series on Iceland ten years after the 2008 financial collapse, running until the end of this year.

Follow me on Twitter for running updates.

The horrifying political prosecutions by the Greek government against the former head of ELSTAT, ongoing for seven years, is no longer just a Greek affair. The European Union is undermining Greek and European statistics by not taking a stronger stance. 

Even the Greek newspaper Kathimerini has called the relentless prosecutions of Andreas Georgiou former head of ELSTAT “witch hunt.” Last year, the paper published a cartoon showing Kostas Karamanlis playing a videogame of chasing Georgiou. Karamanlis, prime minister from 2004 to 2009, is widely seen as the driving force behind the political persecutions against Georgiou and other ELSTAT staff. Karamanlis’ party, New Democracy, is in opposition and Karamanlis long out of office. The cases against Georgiou, now running for seven years, indicate that Karamanlis is still a political force to be reckoned with, a sign of ill omen for Greece.

Andreas Georgiou had been working at the IMF in Washington when he applied for the position of head of ELSTAT. When he took over in August 2010, the systematic falsification of Greek statistics, ongoing since before 2000, had already been exposed. During his five year in office, Georgiou and his staff made the last correction, rebuilt ELSTAT, helped introduce the necessary legal framework and fully implemented the statistical principles in the European Statistics Code of Practice: professional independence, impartiality and objectivity, commitment to quality and other principles. All of this was vital in order to put Greece on a more virtuous economic path, fulfilling its duties as a member of the European Union.

But this was more than the dark forces around Karamanlis and those who had been in power during the years of falsified statistics could endure. Although Georgiou and his staff had only been doing their duty as public servants and statisticians, the first prosecution started already a year after Georgiou took over at ELSTAT.

In 2015, when his five year term ended, Georgiou left ELSTAT and has now moved back to Washington DC. However, the preposterous abuse of power continues, giving good reasons to worry about the state of justice in Greece. There are several court cases ongoing – Georgiou has been charged with damages to Greece of €171bn, violation of duty, felony and slander. Acquittals have systematically been annulled, cases re-opened and new charges brought – an utter travesty of justice.

Economists, statisticians and others in the international community have time and again expressed support for Georgiou’s case, condemning the Greek government’s behaviour and the abuse of the justice system. There is now an international fundraising to meet Georgiou’s legal costs (see here, please consider supporting it).

As Georgiou said on May 29 when addressing the Financial Assistance Working Group of the Economic and Monetary Affairs Committee at the European Parliament the fact that these prosecutions have continued for seven years in Greece seriously undermines Greek and ultimately European statistics. This has long ceased to be only a Greek affair – it is a serious threat to European institutions.

As Georgiou pointed out incentives created in Greece “are poisonous. Would the responsibility for allowing such incentives to arise burden only the Greek State or also EU institutions and other EU stakeholders that are willing to live for years with this situation, which gives rise to these incentives?”

Further, Georgiou stated he was “not happy to report all this. But Greece—which I love dearly—will leave its troubles behind and prosper only if there is a firm commitment to credible official statistics. And this commitment will not be there—irrespective of anything that may be declared or signed—as long as the relentless prosecution of statisticians who followed European statistical law and statistical principles continues.”

Allowing these prosecutions to continue within the borders of the European Union surely undermines not only European statistics everywhere and the governance of the Union, but also the fundamental principles of human rights and the rule of law that the European Union is supposed to uphold and champion in the world.

Icelog has covered the ELSTAT case extensively since I visited Greece in 2015. In “Greek statistics and poisonous politics, July 2015, I explained in some detail the whole saga of the falsified statistics, the corrections and then the processes Georgiou put in place. Here is an overview of later blogs on the ELSTAT case. – Here is the link to the crowdfunding page with a short overview of Georgiou’s case and links to international media coverage of his case. Again, please consider donating.

UPDATE: the case of Andreas Georgiou has now taken a turn for the worse. The Greek Supreme Court has rendered “final and irreversible his conviction for not submitting the 2009 deficit and debt statistics to approval by a vote (this was judged to be a violation of duty, despite the fact that the European Statistics Code of Practice is very clear that statistics are not voted upon). This conviction makes final Andreas’ conviction to 2 years in prison, which is suspended for two years unless he gets another conviction in the meantime. Moreover, there is no further recourse in the Greek justice system for this case. The next step would be to take the case to the European Court of Human Rights.” See here, please consider supporting the crowd-funding for Georgiou’s legal defence. – Following the news, around 80 chief statisticians and heads of statistical associations from all over the world have published a statement, declaring their support for the cause of Georgiou, see their statement and names here.

Follow me on Twitter for running updates.

For some years, Iceland has been the new darling of international tourism, giving the economy a real boost and healthy balance of payment. There are however some worrying signs – overheating is a clear and present risk, never far off in Iceland. The Central Bank warns against compounding risk in tourism and real estate, even more worrying if unhealthy practices in the old banks have not entirely been eradicated in the new ones. In addition, the growing dependence on tourism is, in itself, not entirely a healthy sign, especially as Iceland still lacks clear policy for tourism, which should ideally not be based on ever more tourists but sustainability.

“It’s either at ankles or ears” – This Icelandic saying, meaning it’s either too little or too much, certainly fits the Icelandic economy. Navigating the years following the 2008 banking collapse and laying a reasonably sound foundation for the future was done with reasonable success. Lately, tourism is reshaping the Icelandic economy.

In addition to classic crisis policies, luck played its part in the relatively speedy recovery – low oil prices, high fish prices in international markets and last but not least, Iceland’s popularity as a tourist destination. Consequently, Iceland has, again, seen booming growth– 7.5% of GDP 2016 and 3.6% 2017 with forecast of 2.9% this year.

This time the growth is not leveraged; Icelanders can literally see the cash cows walking around in colourful outdoor clothing: since a few years, tourism, not fishing, is the largest sector in the economy. Though tourism has done miracles for the balance of payment and strengthened the króna to record levels, tourism may not bode much good for young Icelanders.

Add to that the interdependence of tourism, housing and foreign workers and the conclusion is the one reached in the Central Bank of Iceland’s latest Financial Stabilityreport: “Risks relating to tourism and high house prices could interact.”

Why did Iceland become such a popular destination?

The huge growth in tourism over the last few years has taken Icelanders by surprise; a common question is: “Why is Iceland suddenly so popular?” followed by: “Will this popularity last?”

As to the “why” did not entirely materialise out of thin air. Icelandair and later Icelandic tourist authorities have over the years and decades run rather successful campaigns. Posters with glorious photos from Iceland have for example appeared regularly on the walls in London tube stations.

The rise in tourism was not as sudden as it might seem – there had been a steady increase since 2003 when the number of tourists were 320.000, then roughly the size of the population, growing by 3.5% to 15.1% a year until a downturn by 1.6% and 1.1% in 2009 and 2010 –  though the great increase 2014 to 2016 were indeed staggering.

Icelandic Tourist Board (International visitors and cruises)

Currency fluctuations have at times made Iceland an expensive destination. That changed for some years after the 2008 banking collapse, making Iceland quite a reasonable destination until around 2014.

Luck helped Iceland when it came to international reports of the banking collapse. At the first Greek bailout in 2010, I did some comparison of international reporting of the crisis in the two countries. As in Greece there had been dramatic scenes of demonstrations and some altercations in the centre of the Reykjavík during the winter of 2008 to 2009.

But quite remarkably, foreign media would often choose to adorn reports from crash-struck Iceland with glorious landscapes rather than demonstrations, fire and fury. Greece also has spectacular and photogenic nature but the Greek financial crisis seemed more often shown in pictures of violent clashes and aggressive graffiti than alluring landscapes.

Far from being the negative impact feared at first, the Eyjafjallajökull eruption in April 2010 proved a gift literally from heaven for Icelandic tourism. An eruption is an awe-inspiring magnificent thing to behold; the Eyjafjallajökull coverage had quite an impact in drawing attention to the island.

The Instagram effect has helped. With the rise of Instagram, the popularity of Iceland was bound to rise – the island is a stunning Instagram backdrop.

Will the popularity last?

“The experience is that if you have a tourism boom of this magnitude, it is there to stay. There might be some ebb and flow, but tourism will, to my mind, continue to be one of the main pillars of the economy. That means we need to manage it well,” said Már Guðmundsson governor of the CBI in an interview with IMF2017.

Common sense dictates that the increase in tourism by 30% to 40% is unlikely to continue but experience from other countries shows that surge in tourism is durable – tourists are not as fickle as fish. According to an IMF study, countries whose travel exports increased by at least 4% of GDP over a decade were likely to see the number of tourists above the pre-surge levels ten years later. Iceland is a case in point – even the drop in arrivals in 2009 and 2010 did not change the underlying trend.

The latest figures show however a dramatic turnaround: the increase the four first months this year was 3.7% compared to last year. The increase was 28.6% 2014 to 2015, 34.7% 2015 to 2016 and a staggering 55.7% 2016 to 2017. The stats do indeed show a decline but all in all still a healthy growth though not the staggering growth of the record years.

In countries where the numbers did indeed decline, the causes are most often political turmoil, crumbling infrastructure – and most interestingly if also worryingly, from the Icelandic perspective – overcrowded tourist sites, environmental degradation and loss in price competitiveness.

The forecast for this year had been 2.2m but there are already some indications that this figure will be lower, even substantially lower. In addition to overcrowding and environmental degradations, difficult to measure, there is the loss in price competitiveness.

With the strong króna Iceland has become the most expensive tourist destination in Europe, even more expensive than Switzerland and Norway. The effect is bordering on the ridiculous: an underwhelming main course at €35 buys in a Reykjavík restaurant doesn’t compare with the quality of a main course at this price in the neighbouring countries.

Manifestos on tourism – but so far, little action

All of this is highly relevant to tourism in Iceland and merits a close scrutiny as it helps to identify the possible weaknesses.

All indicators show that tourists go to Iceland to experience nature. Even if they only go for a long weekend in Reykjavík they will almost certainly go on a tour for a day. The fantastic aspect of Iceland is that nature is not distant to urban areas, i.e. Reykjavík; it’s all around, in sight and easily accessed. The island is small, distances short. But there are some indications that overcrowding and faulty infrastructure is starting to detract from the pleasures of visiting the most famous places.

Arriving at Þingvellir or Geysir, with these spectacular spots hidden on arrival by dozens of buses and the passengers that spill from them, is not optimal. On the other hand, there are plenty of little known places to be enjoyed in solitude though it may take some research to find them.

As both the IMF and the OECD have pointed out in recent reports on Iceland, the varying governments over the last few years have failed to form a coherent policy for tourism in Iceland. The last three governments that came to power – in 2013 Progressives with the Independence party, in 2016 the Independence party with Bright Future and Revival and the present one, 2017 Left Green with Independence party and the Progressives – had all set high goals for tourism in their manifestos.

All of them aimed at forming a coherent policy for tourism, including plans to tax the sector in order to fund the necessary infrastructure for sustainable tourism. Nothing, absolutely nothing, has come of these well-intended manifestos – there is no policy and consequently, no plan on which to form a coherent tax policy.

Rudderless tourist economy

Managing the tourism boom, as governor Guðmundsson mentions, is still lacking in Iceland. The danger is that without a policy that aims at building up a quality tourism, fitting the (unavoidably) high prices, tourists will soon shun Iceland because they hear too much of crowded attractions and crumbling infrastructure with the pictures on social media to prove it.

With nature like the Icelandic one and high prices, the aim should not be to increase the number of tourists but develop tourism where fewer tourists spend more. This is what Costa Rica and Ireland have successfully done. Again, this requires strategic policies, so far wholly lacking in Iceland.

An economy of diminishing opportunities for high skills and education

Once upon a time in Iceland, there was little to be gained from lengthy education in order to be a high earner. Being a fisherman on a trawler meant very high salary and owning a large house as can still be seen in small fishing villages around the country. Working as a tradesman could also mean good salary.

This is no longer the case. There are fewer trawlers than earlier; a job on a good trawler is harder to come by than a highly paid managerial job. And the construction industry is not providing the same well-paying jobs as earlier. The large construction companies are very different from the small-scale constructor who hired his relatives to work for him.

All movements in a small economy like the Icelandic one tend to be rapid. The rise of tourism is no exception. The labour-intensive tourist sector is gobbling up a lot of manpower. The Dutch Disease might be around the corner, especially in an economy where the largest sector is mostly lacking direction and policies.

Recently, I have heard a number of Icelandic parents express their worries of what the labour market will offer their children in the coming years. In this rudderless tourist economy, there is no policy to develop other sectors. There is a budding tech sector in Iceland but some of the most successful Icelandic tech entrepreneurs have moved abroad and encouraged others to do the same, for the lack of tech infrastructure in Iceland. There is also a small pharmaceutical sector that could be developed further.

But a visionary policy of a diversified economy needs a government with a vision – and that has so far been lacking. The strong economic growth seems to lull Icelandic politicians into complacency. But a country that does not offer its young people the opportunities to seek education and then make use of it at home is not a good place to be. That’s greatly worrying many Icelandic parents.

More Icelanders leaving than returning

The demographics of Iceland is pretty healthy, it’s a nation of young people, compared to some other European nations. Icelanders are now just over 350.000, the number rises steadily. Except for a few years in the 1960s, 1970s and 1990s and then more recently in 2009, 2010 and 2011, more people enter the country than leave.

This looks promising – the nation is growing and more people move to Iceland than leave. However, there is potentially a more worrying underlying trend: in spite of the boom, more Icelanders are leaving Iceland than Icelanders moving home. Foreign nationals are keeping the inflow figures up – more foreigners come to Iceland than leave.

After the 2008 banking collapse whole sectors like construction were nearly wiped out, meaning not only the construction workers and tradesmen but also architects and engineers. Icelanders left in droves, both families and individuals, for work abroad. Norway was a particular popular destination as well as Denmark and Sweden.

The interesting – and for the Icelandic economy, worrisome – thing is that this flow has not stopped though the figures are lower. Icelanders are still leaving for jobs abroad. This, in addition to the decades-long tradition of young Icelanders seeking education abroad, returning as they graduate.

In 1999, 2000 and 2005 more Icelanders moved to Iceland than left but that is the exception. The rule is the other way around: more Icelanders leave than return. The one question Icelandic politicians really do not like to be asked is how they explain that in spite of the boom, there are still more Icelanders moving abroad than returning:

Statice

The intriguing fact is that going back as far as the stats show, more Icelanders have been leaving than foreigners immigrating, with over 2.500 foreigners arriving in 2005, 2006 and 2007 – and again since 2015.

There is no statistics to show clearly who is leaving but the Icelandic Statistics is working on a more informative registry. Anecdotal evidence indicates that the Icelanders who leave are better educated than the foreigners who immigrate; young people who leave to study look for jobs after studying abroad and do not necessarily return.

Also, that it is not just young people leaving but people in mid career. As Icelanders tend to have children early (though not as early as twenty years ago) some might be tempted to leave as the children have left home. One thing that all Icelanders notice when travelling abroad is how expensive food is in Iceland, one good reason to move, in addition to a primitive rental market. More Icelanders living abroad now own property in Iceland as a pied-à-terre. Iceland is well connected to Europe and the US, which does not only facilitate tourism but makes it easier for Icelanders to visit.

My sense is that the old tradition of faithfully returning after studying abroad might be changing. In international studies on migration the general reference is that if people do not return after eight years abroad it is unlikely they return. If the Icelandic pattern is indeed changing it might take some time before the statistics capture it clearly.

The main risk: the combined effect of falling tourist numbers and falling property prices

What could be the interaction between tourism and property prices that the CBI is warning against? To a certain degree it comes down to the classic effect of leverage and falling demand.

At first sight, the connection between tourism and property prices may not be an obvious one. However, one figure connects the two sectors: 16.5% of working people in Iceland are foreigners, up from just under 6% in 2005.

Since 1996, Poles have consistently been the largest number of immigrants each and every year, except in 2004, when they were beaten by Portuguese workers. Consequently, the largest foreign community in Iceland is the Polish one, just under 4% – in total, 8.9% of Icelanders are foreigners, i.e. born abroad. The foreign workers who came in the 1990s mostly came to work in the fishing industry. Later, the construction industry needed foreign workers – building sites in Iceland and London look the same, mostly foreigners from Eastern and Central Europe working there – and now there are the jobs in tourism.

The foreigners are, for obvious reasons, more likely to live in rental accomodation than own their home. If there is a real downturn in tourism, the foreigners will most likely be the first to lose their jobs. If there are few or no jobs to go around, the foreigners leave meaning they will leave their rented accommodation. This would most likely cause a downturn in the rental market, largely catered for by few large property companies. A downturn in tourism will to a certain degree affect construction work, with a compounding effect on the rental market.

This is how Iceland might be hit by the combined effect of falling number of tourists and falling property prices. In addition, external changes affect foreign workers such as changing circumstances in their countries. Poland is doing better, which might tempt some of the Polish workers to return home.

Tourism and the real estate market dominated by few large unlisted companies

An IMF 2014working paper on determinants in international tourism found that tourism “to small islands is less sensitive to changes in the country’s real exchange rate, but more susceptible to the introduction/removal of direct flights.”

Consequently, one risk to the Icelandic tourism economy is a rupture in flights. The eruption in Eyjafjallajökull was one example of how that might happen. That eruption luckily only caused disruption in flights for a few days. Other scenarios might be different.

But man-made havoc may be a cause for greater concern. The two Icelandic airlines, Icelandair and Wow Air carry between 70 and 80% of tourists coming to Iceland; this figure was 73.5%in April. The rest was shared by 13 international airlines with EasyJet having the largest market share among the foreign ones.

Icelandair is a listed company; Wow Air is privately owned. Icelandair has often had a bumpy ride in terms of profits and profitability. With new management and some new board members there is good reason to believe it will be better run now than in the past.

Wow Air is a different story. Early last year it published some financial indicators, which were not great. This year, so far – a total silence. Quite remarkably, its CEO and main owner Skúli Mogensen mentioned in a recent interview that the company was thinly capitalised – a statement that had some wow factor to it. It’s unlikely it was just a slip of the tongue, more likely a message but to whom is less clear.

In general, budget airlines have been experiencing problems; the demise of Monarch and the troubles of Norwegian are two cases in point. It’s difficult to see why Wow Air would be doing that much better. An under-capitalised company in a market of fewer customers and diminishing returns sounds ominous though they claim their sales went up this winter when Icelandair sold fewer seats.

The three largest property companies – Gamma, Heimavellir and Almenna leigufélagið – are all privately held. Again, the question is how well capitalised they are, how leveraged and how prepared for a down-turn in property prices, demand and rental prices. Gamma has recently shed its CEO and founder, shrunk its foreign operations (which seemed more based on dreams of 2007 than reality) but claims it is otherwise doing well.

Are there still “favoured” clients in the Icelandic banks?

The CBI risk warning related to the interlinked tourism and property market. A compounding factor is the relative opacity of the privately-held companies, quite large in the context of the Icelandic economy. The question is if any of the unhealthy practices of Icelandic banking pre-collapse can still be found such as the banks having, what I have called, “favoured” clients they serviced in a wholly abnormal way.

The Icelandic financial regulator, FME, has recently given noticeto Stefnir, an Arion Bank investment fund, for its risk management: Stefnir had, amongst other things, seven times exceeded its legal investment limits during the year from July 2016 to end of June 2017.

The FME notice does not mention what the investments relate to but most likely they are investment in United Silicon, a now failed venture that Arion was highly exposed to. The story of United Silicon is a sorry saga (which I investigated in detail for Rúv) of fraud and greed where Arion played a rather doubtful role as a lender and investor. In addition, pension funds managed by Arion were investors in United Silicon and kept investing well after it was clear that something was seriously wrong in United Silicon.

The Arion involvement with United Silicon smacked of how Kaupthing (and the two other large banks, Glitnir and Landsbanki) went out on a limb for their largest shareholders and their fellow travellers: the rule was that the “favoured” clients never lost, only the banks (i.a. by buying assets above market price). That the pension funds lost on United Silicion, is a sad reminder of how the old banks used (or abused) pension funds before the collapse, leading to gigantic losses after the collapse.

Given these indications of the return of bad banking, the large privately held and possibly thinly capitalised tourism companies and property companies take on a whole new dimension of risk.

If the risk materialises?

The short- and medium-term risk to the Icelandic economy is as the CBI has identified, overheating and the interconnection between tourism and the real estate market. Were this risk to materialise the effect would be nothing like the 2008 collapse, more the classic contraction of the economy Iceland has known for decades where depreciating króna and inflation eat away purchasing power, with rising unemployment (but not necessarily in a dramatic way; the foreigners partly take the hit and leave) and a lower standard of living.

To my mind, the no less worrying risk related to tourism is however the Dutch disease and lack of job opportunities for people with higher education or good skills – circumstances, that would cause young Icelanders to move abroad or stay abroad after studying and might also tempt mid-career people to leave.

Given that Icelanders who leave are more likely to be better educated than the foreigners who move to Iceland there might already be an on-going brain-drain in Iceland. All of this would in the long run make Iceland less attractive for Icelanders.

This risk is growing bigger every year as Icelandic governments seem sadly complacent in forming a long-term policy for tourism – a policy that would develop a high-yield tourism economy and tax it, both to invest in infrastructure and the diversification of the economy.

Next October there will be ten years since the banking collapse. Over the comings months I’ll be publishing blogs that in some way reflect on where Iceland is at now. This is the first “10 years on” blog.

Follow me on Twitter for running updates.

Recent movements around ownership of Arion bank indicate that opacity and under-cover deals are again rife in Iceland, this time with foreigners involved. It could be seen coming: last year, the International Monetary Fund pointed out that an IPO of Arion bank would pose a test for the banking regulator; IMF also stated its worries about a weak regulator, exposed to political pressure, indeed worrying signs.

Mid February, Arion bank published its 2017 annual accounts. At the same time, changes to its ownership were announced: Kaupthing, Arion’s largest shareholder is buying the Icelandic state’s 13% shareholding in Arion. This seems to be a move towards fulfilling an agreement from last year, kept secret at the time: four of Kaupthing’s almost 600 owners, who last year bought shares directly in Arion, aim at getting hold of an Arion subsidiary, Valitor, a payment solution company, before Arion’s IPO, planned in the coming months. – The four particularly active funds are Taconic Capital Advisors, Attestor Capital, Och-Ziff Capital and Goldman Sachs.*

The International Monetary Fund sees the sale of Arion as a major test for the Icelandic financial regulator, FME, post-2008 collapse. As the IMF pointed out last year in its Article IV Consultations: “The Arion transaction poses a test for Fjármálaeftirlitid (FME, the banking, securities, and insurance regulator), which must ensure its fit and proper assessments are stringent and evenhanded.” According to the IMF FME is currently “not sufficiently insulated from the political process…”

The Arion test is now on-going and so far, it is not obvious that the Icelandic authorities will pass with flying colours.

Foreign funds buy into Arion – for a reason

Arion bank was founded on the ruins of old Kaupthing. Until last year, its owners were the Icelandic state, holding 13% and the rest by Kaupthing, the old bank’s estate owned by Kaupthing’s creditors. Kaupthing’s ownership in Arion is through a subsidiary, Kaupskil, set up to create an arm’s length between Kaupthing and Arion. Events over the last year or so do however cast doubt over this exercise: Kaupthing has all the power over Arion it wishes, i.e. in selecting and de-selecting board members.

In 2015, some Icelandic pension funds approached Kaupthing and indicated willingness to buy shares in Arion. After talks for over a year, Kaupthing brought the talks to an abrupt end last year. At the same time Kauphing unexpectedly announced four new Arion shareholders: Taconic Capital Advisors, Attestor Capital, Och-Ziff Capital and Goldman Sachs,* respectively holding 9.99%, 10.44%, 6.58% and 2.57%. After these transactions Kaupskil owned 57.41% and the Icelandic state 13%.

This came as a surprise to the pension funds that had not known of other Kaupthing negotiations. “This was just business,” a representative of one of the funds said to me, indicating that there had been no hard feelings. Yet, both he and others I have talked to felt that Kaupthing had fooled the pension funds. The result was a breach of trust, seen from the pension funds’ perspective.

Arion and Icelandic ministers made much of the fact that new shareholders were now on board, indicating a trust in the bank. Another way to look at it was that these four funds were all previously shareholders in Kaupthing. Therefor, Kaupthing was effectively selling to a part of itself.

These transactions between related parties did not bring any new shareholders aboard. The four funds are now both directly and indirectly, through Kaupthing, shareholders in Arion.

The secret agreement hidden in the 2017 transaction: Valitor

Part of this transaction between Kaupthing and four of its shareholders was however kept secret: the four funds made an agreement with Kaupthing that should Kaupthing come into possession of shares in Valitor the four funds would have an option on the Valitor shares.

Since this agreement, all moves by Kaupthing and the four new Arion shareholders have been aimed at bringing this to fruition, i.e. that Kaupthing would come to possess Valitor shares, which the funds would then buy. Buying Valitor in a transparent normal sale, competing for this asset with other buyers, was apparently never part of the plan.

Why this interest in Valitor? Over half of Valitor’s earnings comes from its foreign operations, it has some clever technical solutions and operates in a market the foreign funds understand well. Therefor, the funds are well positioned to make the most of this asset in a future sale. According to Icelog sources Valitor’s value is easily twice p/b.

Kaupthing wooing the pension funds

In January this year, Kaupthing approached some Icelandic pension funds with an offer to buy up to 5% in Arion. The deadline was 12 February, two days before Arion’s annual accounts were due to be published.

One Icelog source said that late in the day, the foreign funds had realised that in Iceland you can’t do any major deal without having some of the pension funds on board: their money is useful but most of all, transactions are lacklustre if the pension funds don’t give their blessing by participating. And in this case, selling before a planned IPO later this year would give an indication of price and interest.

It soon became apparent that the pension funds were not too keen to accept the offer and in the end none of them agreed to buy. The reasons given varied: the time was too short, they would have liked to see the annual accounts first, they felt the present major shareholders had an unclear vision of the bank’s future. – But underneath, there was still the lingering rancour from the abruptly ended negotiations last year.

Not Onegin – but a story of twice fooled

With the rejection from the pension funds Kaupthing looked like Pushkin’s Onegin who didn’t accept Tatjana’s love when she offered it to him but then got rejected when he finally did fall in love with her – if you don’t want when you can, you can’t when you want to…

Then, lo and behold, the story turned out to an entirely different one: Kaupthing did (of course!) have a plan B, in case the pension funds rejected the offer. The story from last year was repeated: within 24 hours of the lapsed deadline, Kaupthing announced a sale of just over 5%: four Icelandic investment funds, managed by four Icelandic banks, materialised as buyers of 2.54%, with Attestor Capital and Goldman Sachs, buying in total 2.8%.

The four funds, i.e. the new Icelandic shareholders, are managed by Kvika, which is also Kaupthing’s advisor, Stefnir managed by Arion, where Kaupthing is the largest owner, Landsbréf by Landsbankinn and Íslandssjóðir by Íslandsbanki. The share division between the individual buyers has not been announced.

As one Icelog source said this was worse than anticipated in the sense that it only brings a very small amount of new owners in Arion and again, the Kaupthing-related Valitor-interested funds are participating.

The road to Valitor – and yet another opaque transaction

From this point, the plot thickens.

The 5% sale was crucial since the Arion board had agreed at its meeting 12 February that a sale of 5% of Arion shares was needed to unleash a dividend of ISK25bn. It also agreed to allow Arion to buy up to 10% of its own shares, a transaction that would then be deducted from the dividend.

The representative of the Icelandic state on the Arion board voted both against linking dividend payment to other transactions and against Arion buying own shares, both of which ran counter to the government’s ownership policy.

The Arion board, controlled by Kaupthing, however had its way here, i.e. the dividends are connected to other transactions and Arion could buy own shares. The share-buying sounds particularly ominous in Icelandic ears since this characterised the boom-time banking in Iceland.

Following the board meeting two things happened: Arion bought 9.95% of its own shares from Kaupthing (via Kaupskil) – and Kaupthing (via Kaupskil) made use of its option since 2009, buying the state’s 13% stake in Arion. This means that the Icelandic state will have no say, neither on the board or elsewhere, over Arion. Alors, all hindrance out of the road to Valitor.

The state leaves the Arion stage

In principle, this should be a good move; the state was only ever an involuntary shareholder. It owns quite enough of the financial sector, owning the two other big banks, Íslandsbanki and Landsbankinn. – However, given that this is being orchestrated by Kaupthing adds an unsettling feel to the sale.

Dividend in kind is another thing that has a particular ominous echo in Iceland, both from the boom years and also from some transactions in the last few years. The experience in Iceland is that this has mostly been done in order to tunnel assets to major shareholders, in effect cheating other shareholders and creditors. Tunnelling played a large part in the transition in Russia and Eastern Europe, a rather inglorious comparison. And how many systemically important banks in Europe pay out dividend in assets?

In an interview I did for Rúv in January with deputy director of FME, Jón Þór Sturluson, he emphasised there is nothing illegal in this. He did however point out that it is a doubtful action since estimating the value of a payment-in-kind may cause problems. And in particular, it causes reputational damage.

Strong words when they come from the regulator but, according to some of my sources, not strong enough. This is a serious issue since Arion is a systemic important bank. Thousands of Icelanders, Arion clients, are stakeholders.

Back to Valitor

Given that Valitor is one of Arion’s most valuable assets, distributing it with a secret agreement attached instead of selling it, gives the transaction a sense of tunnelling out valuable assets to preferred shareholders before the IPO. It has not yet happen but it is expected to be imminent.

Sources connected to Arion tell Icelog that Valitor might be worth more in the hands of experts such as the foreign funds. That is correct but handing Valitor over to Arion shareholders instead of selling to highest bidder seems far from being evenhanded. Sadly, it is a repetition of events seen in the last few years. The sale of Bakkavor, by Arion, and of Borgun, by Landsbanki both had a foul smell of friendly favours.

According to minister of finance Bjarni Benediktsson, leader of the Independence party, agreements between the state and Kaupthing hinder that assets would be tunnelled out of the bank. So far, it has clearly not been the case that the agreement secures some governmental oversight via the Kaupskil set-up. The most active Kaupthing creditors now rule the bank.

There has been some discussion in Iceland if the price for the Arion shares taken over by Kaupthing is the right price. To my mind, that is not the main issue – the main issue is how the Kaupthing creditors have manipulated events in Arion so far. If they achieve their goal of getting Valitor without bidding for it is the proof that the agreement was not worth much.

The intriguing thing is also that Benedikt Gíslason, who was the government’s main advisor in reaching the agreement with creditors in 2015, is now working for Kaupthing.

In plain sight

All of this is happening in broad daylight – and Icelanders have seen tunnelling before. Now it’s being done together with foreign investors. Iceland is tiny and often beyond the horizon of international media but the IMF comments last year underline the gravity of these matters.

An IMF is due to visit Iceland now in March. Just in time to evaluate how Icelandic authorities are doing on the Arion test.

Follow me on Twitter for running updates.

Special-interest billionaire-funded organisations have for years been a common feature in US politics but less prominent in the UK. The UK Legatum Institute, now influential in pro-Brexit government quarters, seems to fit the US formula. It played a curious role in an Icelandic dispute in 2016 with some US funds holding offshore króna. That story throws an unflattering light on Legatum’s research and exposes intriguing US connections. In a wider context it is a cause for concern that sponsors of British charities can hide behind the offshore veil.

In October 2016 the Icelandic government suddenly found itself the target of an international ad campaign. With a photo of Central Bank governor Már Guðmundsson the Icelandic Central Bank was accused of corruption. The government was said to follow “protectionist economic policies” discriminating against offshore króna investors, in reality four American funds. Not a word on the fact that the policy of the Icelandic government was formed in close cooperation with the International Monetary Fund.

The ads ran in international media like the Financial Times, WSJ and Danish media, in addition to Icelandic media. The ads were signed by “Iceland Watch,” run by Institute for Liberty, which claimed to be a think tank.

One of the ads cited “a research team in Britain” that claimed the action against the offshore króna investors cost each Icelander between $15,000 and $27,000 a year, causing the loss of 30,000 jobs, quite fantastical figures in the context of the Icelandic economy. These findings were taken from a report, Frozen Capital: a Case Study of Icelandic Distortions by Shanker A. Singham and A. Molly Kiniry at the Legatum Institute.

Now that Legatum’s staff is publishing Brexit reports and popping up as Brexit-advisers in Whitehall Legatum’s Icelandic report and the ties it shows throws an interesting light on the Institute’s operations.

Iceland Watch and “Dark Money”

Until the ads appeared, Institute of Liberty and its Iceland Watch had been wholly unknown in Iceland. Institute of Liberty was however a familiar name in US politics. In her book, Dark Money; The Hidden History of the Billionaires Behind the Rise of the Radical Right, the American journalist Jane Mayer recounts how billionaires like David, Charles and Bill Koch, Peter Singer and lately Richard Mercer, much strengthened by the 2010 Citizens United ruling, have poured money into politics for decades, inter alia advocating in favour of tobacco and petro-interests and against Barack Obama’s healthcare.

Part of the funds to fight Obamacare flowed into a tiny organisation called Institute for Liberty. In 2008 its budget had been $52,000. The following year, it got $1.5m from the DCI Group, a Washington PR company, used for “a five-state advertising blitz targeting Obama’s health-care plan;” $400,000 were channelled back to DCI Group for “consulting.” (Mayer, p.192)

DCI turned out to be instrumental in spreading funds to groups fighting Obamacare, some of which, according to Mayer, “appeared to be shell organizations fronting for DCI Group.” One of them was Institute for Liberty. As a recent Bloomberg story (with a link to Icelog) shows the DCI Group’s operations are essentially lobbying in disguise, greased by ample funds from opaque sources.

The “dark art” of the DCI Group and Legatum Institute

At the end of October 2016 the following ad ran in Icelandic and international media, under a photo of Central Bank governor Már Guðmundsson:

“Who is paying for public corruption and discriminating rules in Iceland? You do!

The decision taken by the Central Bank of Iceland to discriminate between investors so that only those of domestic origin can invest there has been criticised internationally.

According to a new study done by a research team in Britain the discriminatory policy of the Icelandic capital control hinders the creation of 30.000 new jobs and costs the nation between 5.000.000.000 and 9.000.000.000 US dollars in GDP annually.

This costs each Icelandic citizen between 15.000 and 27.000 US dollars annually.”

In the context of the Icelandic economy these figures are rather implausible. How could offshore króna controls hinder the creation of 30.000 jobs in an economy with close to full employment in a country of 332.000? The stated cost of $5bn to $9bn amounted at the time to 25 to 40% of Icelandic GDP. – In short, the figures were outrageously unintelligent.

The figures came from a Legatum report, Frozen Capital: a Case Study of Icelandic Distortions by Shanker Singham and Molly Kiniry, published in autumn 2016. At the same time, the Legatum Institute held a debate on Iceland and the capital controls (which by then had been lifted except for the offshore króna controls), Post-Brexit Briefing: Frozen Capital – A Case Study of Iceland. Judging from the recording, using Iceland as an example of harmful trade distortions was greatly undermined by the fact that the speakers, Singham and Iain Martin former editor of the Scotsman were rather uninformed on Iceland, in line with the report.*

My own inquiry at the time showed that the DCI Group orchestrated the Iceland Watch ad campaign in autumn 2016 on behalf of three of the four American funds that held Icelandic offshore króna – Autonomy Capital, Eaton Vance and Discovery Capital Management. My understanding was that DCI, on behalf of the funds, had turned to the Institute of Liberty, i.e. the initiative came from the DCI, just as it had used Institute of Liberty and other organisations in fighting Obamacare.

Legatum’s Brexit reports

The Legatum report on the Icelandic offshore króna was remarkably unenlightened but had, for obvious reasons, a rather limited effect.

A Legatum report in November last year on Brexit, The Brexit Inflection Point; the Pathway to Prosperity, by Singham, Radomir Tylecote and Victoria Hewson is a different matter, dealing not with a minor matter in a liliputian nation but the a vital issue for a rather bigger nation and 27 other European countries.

The November report was not the first Brexit report from Legatum but it caught much greater attention than the earlier ones because by November, the British media had become aware of Legatum’s role in Westminster. Some journalists who gave it a close reading were less than impressed. FT’s Martin Sandbu wrote of “Beware the global Britain con trick.” In the same paper, Martin Wolf wrote on “Six impossible notions about “Global Britain” referring to the White Queen in C.L. Lewis book Through the Looking Glass who claimed to believe six impossible things before breakfast. Singham published an answer to Wolf’s article on CapX and a shorter version in The Telegraph, £) but ignored other critics.

Earlier Brexit-related reports were Mutual Interests: How the UK and EU can resolve the Irish border issue after Brexit published in September 2017. The point that caught media attention was that the border issue could be solved by technology; a claim that proved short-lived. In April there was a report on A new UK/EU relationship in financial services – A bilateral regulatory partnership. Two reports papers in February dealt with the negotiations and trade, Brexit: World Trade Organisation Process and Negotiation of Free Trade Agreements and Brexit, Movement of Goods and the Supply Chain. In November 2016 a report dealt with the Cost of EEA Membership for UK Briefing.

All reports were written by Singham, mostly in cooperation with other Legatum staff. The general tone is the one of the same kind of impossibility that Martin Wolf pointed out.

Legatum’s “Brexiteering”

At the Legatum Institute its main Brexit expert, Shanker Singham has the titles Chair, Special Trade Commission and Director of Economic Policy and Prosperity Studies.

Singham has two LinkedIn profiles; one states he is managing director for Competitiveness and Enterprise Development Project at Babson Global, the other that he is the Director of Economic policy and prosperity studies at Legatum and the CEO and Chair of Competere Group, operating all over the world. There is little information on Competere but according to the Legatum website it is an “Enterprise City development company incubated at Babson College.”

On the latter LinkedIn profile Singham states that Competere was set up in 1997 but later rebranded and has “successfully engaged governments around the world who seek to harness the power of the market economy through a comprehensive pro-competitive regulatory framework. Our economic reform practice is based on the use of our econometric modelling to help (23) countries successfully realize their own reform efforts.”

In the summer of 2015, Singham incorporated Competere Limited with 1,000 GBP in the UK. A year later the company was in deficit of just over £17,000.

Together with a Washington lobby group, Transnational Strategy Group and EPPA Brussel, Competere has set up a Brexit “practice group.” TSG claims to be a “boutique international business and foreign policy consultancy focused exclusively on achieving real results for clients.” EPPA claims to be a consultancy for “creating a constructive dialogue with policy-makers” elaborated with a quote from FT’s Martin Wolf: “We need a balance between markets and governments.” EPPA does not seem to flag the cooperation with TSG and Competere on its website (at least not within easy sight).

Singham, who has a dual UK US citizenship, worked at Squire Sanders, a US law firm from 1995 to 2013. Since April last year Michael Cohen, president Donald Trump’s personal lawyer has had a strategic alliance with Squire Sanders, now Squire Patton Bogs. Cohen is one of many in Trump’s inner circle with alleged ties to Russia and Russia’s president Vladimir Putin.

Singham’s co-author on the Brexit report in November, Radomir Tylecote, was active on the Vote Leave campaign before the 2016 referendum as was Victoria Hewson, the third author of the report.

Molly Kiniry, Singham’s co-author on the Icelandic report and other Legatum publications, is also listed as a consultant with Competere since 2016, earlier at Babson Global. She writes regularly for Daily Telegraph, where two of her recent columns dealt with “The virtue-signalling British Politicians snubbing Trump are embarrassing themselves” and “Americans are sick of sending money to other countries for no discernible benefit.” – The connection with Daily Telegraph is interesting given that the paper is owned by the Barclay brothers, two Brexiters with their wealth firmly offshore.

Former Chief Executive of the Vote Leave campaign Matthew Elliott, now a frequent voice in the British media, is a Legatum senior fellow. Georgiana Bristol, Legatum’s Corporate Membership Director, ran fundraising for Vote Leave. Two well-known names from UK politics have recently joined the Institute as Fellows: the fervent Brexiter ex-MP for Labour Gisela Stuart and Sir Oliver Letwin and MP. He voted remain, was briefly in charge of Brexit after the 2016 referendum before being replaced by David Davis by Theresa May and has been seen as a Tory intellectual close to libertarian ideas.

An ex-Legatum employee is already a Whitehall Brexit-insider: Crawford Falconer, who was on Singham’s trade commission at the Legatum Institute, is working as a Brexit negotiator under International Trade Secretary Liam Fox.

Legatum’s CEO Baroness Stroud has in the past made some unsuccessful attempts to be chosen as a Conservative Party candidate. She set up the Centre for Social Justice in 2004 with Ian Duncan Smith for whom she acted as a specialist adviser 2010 to 2015 at the Department for Work and Pensions. Stephen Brien, who leads Centre for Metrics at the Legatum is on the board of CSJ and was also Duncan Smith’s adviser, 2011 to 2013. Legatum and CSJ have had some collaboration.

From corruption to Brexit

In 2015 the Legatum Institute organised some events on corruption chaired by Anne Applebaum, i.a. one where she interviewed Sarah Chayes on her book Thieves of State: Why Corruption Threatens Global Security. It was at that time I first noticed Legatum. I welcomed Legatum’s focus and the clout and eminent experience that Anne Applebaum brought to the Institute as its director of Transitions Forum 2011 to 2015, focusing on new threats to democracy.

Judging from Legatum’s website the Transitions Forum no longer exists. Applebaum is now Professor in Practice at LSE’s Institute of Global Affairs where she leads Arena, a programme on the challenges of disinformation.

Legatum’s expanding role in Westminster has drawn media attention. A whole-page FT article in December 2017 on “Legatum: the think tank at intellectual heart of “hard” Brexit” claims the focus of Legatum shifted in autumn of 2016 when Baroness Stroud became a director and a trustee.

Former employees, said to be worried about the direction taken by the Baroness talked of purges. According to them, the organisation seemed to use its influence in Westminster “to push for a libertarian and socially conservative agenda that goes beyond its educational remit as a charity emphasising “prosperity and human flourishing”.” The question posed was if Legatum’s activities were compatible with its status as a charity.

FT mentions that Brexit minister David Davis has taken fees from Legatum. That was however in 2009 and 2010, according to They Work For You: £5000 for a speech and, interestingly, unspecified travel expenses to attend a conference at the Milken Institute that attracts those with libertarian leaning. According to information on They Work for You neither Michael Gove, Boris Johnson nor Liam Fox have accepted funds from Legatum. Davis gave however a talk at a Legatum Brexit event in January 2017, Gove was a guest speaker at the Legatum’s summer party in 2016 (according to Legatum’s 2016 annual accounts); neither seems to have been paid for their input according to the They Work For You data.

In late November Daily Mail published an article on Legatum’s political connections, ‘Putin’s Link to Boris and Gove’s Brexit Coup’. According to the paper, Singham had helped two Cabinet members, Boris Johnson and Michael Gove, to pen a letter to Prime Minister Theresa May. In the letter, not meant for publication, the duo called on May to put pressure on Chancellor Philip Hammond to prepare for “hard” Brexit, to use Brexit to scrap EU rules and regulations and to appoint a new “Brexit Tsar.” No Tsar has officially been appointed but the tabloid maintains that Singham effectively has that role.

Daily Mail pointed out that Legatum’s founder Christopher Chandler and his brother Richard got rich in Russia following the collapse of the Soviet Union. The tabloid tells the story of the brothers taking part in a boardroom coup in Gazprom in 2000, installing Alexey Miller, close ally of Vladimir Putin from their St Petersburg years. This enabled Putin getting a share in Gazprom’s profit.

Chandler and the Legatum Institute deny all allegations of Russian ties and also denied allegations made by The Sunday Times and Sunday Mail in early December regarding its status as a charity.

Legatum, on- and offshore

Legatum Group (legatum.com) is based in Dubai where it was set up in 2006 by Christopher Chandler. It describes him as former President of Sovereign Asset Management he set up in 1986 with no mention of his earlier Russian activities. Its website lists a whole raft of philanthropic organisations under its umbrella, the Legatum Institute being one of them.

The Legatum Institute’s own website is somewhat vague on the Institute’s funding. Under the heading “How we are funded” there is a list of four other philanthropic enterprises, funded by the Legatum Foundation (legatum.org), also listed under Legatum.com, but the link attached leads only to a website with the four enterprises.

There are two relevant Legatum entities listed with Companies House, The Legatum Institute Foundation, which is the registered limited company operating in London and the Legatum Institute, a fund registered in the Cayman Islands.

The Foundation is registered with the Charity Commission. Out of the £4.4m of its total income in 2016, £3.9m came from Legatum Foundation Limited, according to the Legatum Institute Foundation’s 2016 full accounts at Companies House. That year the Foundation received £437K from other sponsors than its “lead sponsor, Legatum Foundation ltd … demonstrating its continued journey towards financial independence.”

The accounts do not hold any information on the real sponsor, Legatum Foundation Limited nor is it registered in the UK, judging from Companies House. The Legatum Institute Foundation has confirmed it will fund the Institute until end of 2019. As can be seen from the above figures there is still some funding to cover to match the Foundation’s funding.

According to the FT the charity has 40 donors in addition to its lead sponsors, but interestingly the charity is unwilling to disclose who these donors are – a peculiar situation for a charity.

The Legatum Institute fund was registered in the Cayman Islands in 2008. Its objective is “Philanthropic development.” The three present directors, Alan McCormick, Mark Stoleson and Philip Vassiliou, are all registered at Legatum Group’s address in Dubai. According to the 2016 full accounts of the Cayman fund at Companies House, its assets in 2016 were $8,9m, $24m in 2015.**

Christopher Chandler and Mark Stoleson have recently obtained EU passports through the widely criticised Maltese passport-for-investment scheme.

Legatum fits the “Dark Money” format of billionaire-funded partisan US think tanks

Intriguingly, Legatum’s founder and main sponsor fits the model of the American billionaires who for decades have been funding make-believe institutions to influence politics and confuse public debate. Christopher Chandler keeps firmly out of the limelight and his name off documents: people working from him are directors of his companies. The array of Legatum entities, on- and offshore, is rather bewildering and runs contrary to the transparency that charities could be expected to adhere to.

There are indications that some of those fighting for Brexit are inspired by Russian and American ideas of how to gain power by dividing and ruling, by sowing disharmony. The Kremlin propaganda machine is inspired by Vladimir Putin’s longtime political technologist Vladimir Surkov and his ideas of “non-linear wars” and other means of profiting from confusion and shifting alliances.

Paul Manafort, Trump’s campaign manager, has been indicted with conspiracy against the US, tax evasion and money laundering, as part of the investigations into Russian collusion in the US presidential elections. The Ukrainian journalist and politician Serhiy Leshchenko has explained how Manafort operated in Ukraine by putting into practice the politics of division and social polarisation.

There is of course nothing wrong with airing one’s views. But airing it on false premises is insidious and undermines public debate. And false or biased information is one way of playing the politics of division.

As Jane Mayer describes so well in her book, key strategy of billionaires is to fund organisations that produce something that looks like “research” but is indeed propaganda. This has been an effective strategy in fighting for the interests of the tobacco industry and the petro-industry, not to mention Obamacare. The damage is done when the media embraces this research as equally valid to thoroughly researched material. The danger is media unwilling to or uninterested in distinguishing between the propaganda and carefully researched studies.

Another aspect of the propaganda-driven organisations is the opacity of their sponsors, normally offshored and out of sight. The offshoring should indeed be a sure sign of warning.

These propaganda organisations have so far not been prominent in the UK. Legatum Institute, funded by Christopher Chandler, seems to fit the US model of a propaganda-driven “think tank.” Thus, their reports should be read with that in mind. The two reports, on Iceland and Brexit, certainly seem a poor addition to an enlightened discourse on these two topics.

* I pointed these figures out to a Legatum employee who forwarded them to Singham. His response was that the data was “based on the application of our ACMD productivity simulator (for more information, please see the attached link).” He agreed I made a valid points regarding the employment effects and Iceland’s small size. Consequently, they would “probably … not focus on employment effects too much in the deeper analysis.  While capital controls are generally distortionary from the perspective of an open and liberalized trading environment, the precise manner of their amendment or repeal also can have distortionary effects. The data is picking up the implicit national treatment violation as a function of the key variables on property rights and foreign investment in our simulator.” – The analysis on the website is still as it originally was, with the implausible figures.

**According to Companies House records 8 March 2018, the Cayman fund is now in administration.

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The Paradise Papers emphasises, yet again, that the damaging effect of offshore is much more pervasive that robbing countries of tax. Offshore creates a two-tier business environment, hiding ownership and in general throwing an opaque veil over the offshored part, thus undermining competition, regulation and ultimately the rule of law. The offshore alchemists also need the rule of law – the heart of the offshore industry is firmly onshore in countries with the stability provided by rule of law. As juicy as it is to read about famous individuals benefitting from insane offshore projects, the offshore enablers are onshore in fancy metropolitan offices, the heart of the offshore industry. Shaming, scrutinising and exposing the enablers needs to be part of anti-offshoring policies.

Yet again, a major leak is deepening our understanding of how wealthy individuals and companies make use of the offshore universe. The Panama Papers provided insight into wealth management of private individuals. Apart from further insight into the same, the Paradise Papers show how big companies like Apple and Nike use the power of wealth and offshore craft to negotiate tax reductions with governments and authorities.

In addition, the leaks underline that offshore isn’t just about tax. It’s about secrecy and opacity; the concept of secrecy jurisdiction as the Tax Justice Network defines it gives a much clearer understanding of the nature of offshore. And secrecy undermines markets, governments and the rule of law.

Intriguing as it is to think of warm and exotic places like the Bahamas or Seychelles, places lacking any infrastructure needed to oversee the oceans of money floating through them, at least on paper, the heart of the offshore industry is firmly onshore. It is in cities like London and countries like Switzerland and the US where the best paid offshore experts and enablers live and work.

Iceland – (possibly) the most offshorised country in the world

Through serendipity and coincidence, the first thing I started digging into after the collapse of the three main Icelandic banks in 2008 was their offshore operations, mostly in Luxembourg. A whole new dimension of the Icelandic banks and businesses opened up when I discovered how to search the Luxembourg Gazette for Icelandic links.

Apart from the well-known Icelandic tycoons operating abroad I found dozens of Luxembourg companies connected to people I had never heard of. When I contacted some of them it turned out they were mainly owners of small companies. One of them had sold a small fishing boat for around £15.000.

In all of the cases I looked into, the banks had suggested the client should offshorise, set up a company in Luxembourg and move their funds abroad – a good example of the role of the enablers. If the client both paid tax and the offshore fees offshoring didn’t make much financial sense; it was more lucrative to hide this from the tax and then for example have a foreign credit card to make use of the funds in Iceland, out of sight from the Icelandic Inland Revenue (which now keeps an eye on the use of foreign credit cards by Icelanders in Iceland).

What made the Icelandic offshoring so interesting was its pervasiveness: in no other country I know of did the banks set the asset bar so low, i.e. they advised offshoring as little as £10.000-15.000. After the collapse, some of these owners discovered how difficult and costly it was to revert the offshorisation and move their funds again to Iceland.

A 2016 report (in Icelandic) on Icelandic offshore assets, published in the aftermath of the Panama Papers, estimates that Icelandic assets in low-tax regimes 2015 amounted to ISK580bn, just over 25% of GDP that year. A staggering amount, four times the Danish figure; it explains to some degree why so many Icelandic names were found in the Panama Papers.

Offshore ultimately undermines the rule of law

In a small country like Iceland it is easy to see how offshore creates a two-tier business environment where only the onshore is in sight but the offshore part hidden from authorities and the public.

The operations of banks and businesses, the main players in the boom up to the collapse of the banks in October 2008, were thoroughly exposed in the 2010 report of the independent Special Investigation Commission, SIC. One of its findings was that fourteen foreign entities with unidentified owners owned more than 10% in 410 Icelandic companies (see Vol. 9 p. 79-83; in Icelandic).

Hidden ownership can be (ab)used in various ways. With ownership hidden abroad, large shareholders can control companies but avoid take-over regulations. Small investors who might steer clear of investing in companies of certain owners or under majority control, will be misled if some shareholders hide ownership offshore.

The latest example of intriguing interplay of offshore and ownership is the story of Alisher Usmanov in the Paradise Papers and his allegedly hidden ownership of Everton, in addition to his 30% of Arsenal; possibly a breach of Premier League rules.

The offshorised life: offshorised watch, offshorised children

Apart from the insight into the offshore craft, how offshore experts organise the offshore affairs of wealthy individuals and international companies, the story of the self-acclaimed “tax alchemist” James O’Toole is shows how offshore is now a life style.

O’Toole is a British lawyer, an offshore enabler. He runs a company called Ashton Court Chambers and has himself offshored his life down to assets such as his £25.000 Rolex. Not a major financial asset though slightly more expensive than an Icelandic fishing boat but valuable enough to be offshorised. To satisfy British tax authorities O’Toole surmised it would be enough to pay his own offshore watch-holding company £50 a month to make it look like a wholly legitimate set-up.

Another example of Ashton Court tax alchemy is the “Educational Purpose Trust,” set up in Mauritius in 2013. It’s not for the benefit of school children on the island but for children of some wealthy individuals, clients of Ashton Court attending British private schools. Once their application was accepted (no examples of the contrary) the applicants were asked to make a “charitable donation” to EPT, exactly equivalent to the school fees/grant, in addition to a donation of £1000 – not for administration but for an “orphan child.”

Legal or not? Not the most pertinent question

Much of offshore activities is entirely legal. But the distinction between legal and illegal is far from always visible to the naked eye.

Statements issued by lawyers working for those whose names have come up in the Panama Papers and now in the Paradise Papers, claiming there is nothing illegal in the exposed schemes are rarely worth the paper they are printed on. These statements almost never come with any tangible evidence. The statements mainly show that those offshorised are likely to be well lawyered.

Further, the question of legality isn’t even the most important question. The effect of offshore is to hide and that in itself is the damaging effect. The corroding influence is the two-tier business environment, the visible onshore, the invisible offshore.

The offshore effect on poor … and rich countries

In exposing hidden offshore wealth, the focus is often on how poor countries lose substantial amount of their wealth abroad, often due to the vicious combination of corruption and offshorisation.

Offshoring corrupt funds exacerbate the underlying corruption. In order to make full use of corrupt money at home it is crucial that it can’t be seen who really owns the funds. That is done by offshoring them: by sending the money out of the country and back ownership and origin of the funds become invisible. Creating this invisibility is largely the work of offshore alchemists – bankers, lawyers and accountants – in London and other Western countries.

However, I would argue that the corrosive effect of offshored wealth is no less damaging to the wealthy developed countries but measuring and demonstrating this effect is more difficult.

The two-tier business environment is one thing: it undermines competition and regulation by exempting part of the business community from rules and regulation. Further, offshore funds make it easier for big business and wealthy individuals to influence politics, again by creating loops to send money out and get them back, for example when paying lobbyists, funding think tanks and in other ways influencing the political debate and legislation.

Ultimately, if flow of funds from offshore into these activities is pervasive enough, it could be argued that the rule of law, the fundament and pride of Western democracies, is dangerously undermined. What the offshore enablers don’t seem to understand is that undermining the rule of law is also harmful to their business: after all, the reason why it’s better to run an offshore business from London rather than Kinshasa is exactly the rule of law. Rule of law provides stability in addition to respectability.

That is why the heart of the offshore is onshore. Without the onshore heart, where offshore experts at the Big Four – PwC, EY, Deloitte and KPMG – and others in similar position feel at ease, the offshore business and its enablers would be a lot less potent. Actions to throw open the offshore universe, the secrecy jurisdictions, need to be directed at the onshore heart of the offshore industry.

The onshore presence, found at fancy addresses in gleaming offices in London, New York and elsewhere gives the offshore business legitimacy and gravity. Gravity the offshore enablers use to influence the legislative process, politicians and regulators in Western democracies in order to nourish the socially harmful industry of offshoring.

Shared by Tax Justice Network blog.

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Deutsche Bank has studiously tried to hide some transactions with Kaupthing in 2008 – and in December 2016 probably thought it had succeeded when it agreed to settle for €425m to Kaupthing and two now bankrupt BVI companies set up in 2008 by Kaupthing. The story behind these deals figured in two Icelandic court cases and one of them, the so-called CLN case, has now taken an unexpected turn: the Supreme Court has ordered the Reykjavík Country Court to scrutinise the transactions as it reopens the CLN case. But what is Deutsche Bank hiding? “It’s not unlikely that an international bank wants to avoid being accused of market manipulation,” said Prosecutor Björn Þorvaldsson in Reykjavík District Court on October 11.

In early 2008 Kaupthing managers were rightly worried about the sky-rocketing credit default swap, CDS, spreads on the bank; in spring of 2008 the spreads had crept up to 900 points, a wholly unsustainable rate for any bank. According to multiple sources over the years, Deutsche Bank came up with a simple plan: Kaupthing should buy CDS on itself linked to credit linked notes, CLNs, Deutsche Bank would issue. Except Kaupthing should not be seen doing it: finance it, yes – but through two BVI companies owned by trusted clients in deals set up by Deutsche Bank. Thus, the market manipulation was neatly out of sight.

Only later did it transpire that Deutsche Bank was not only the broker in deals it knew were set up to manipulate the market – hence the remark by Prosecutor Björn Þorvaldsson – but it was actually on the other side of the CDS bets, a player in that market. Consequently, the bank profited handsomely, both from fees and from the actual CDS deals.

In the Deutsche Bank universe this unglorious saga of transactions to manipulate the market etc is however not at all true. Yes, Deutsche Bank admits it was the broker but it knew nothing of the purpose of the transactions, had no idea Kaupthing did finance the two BVI companies and certainly was not on the other side of the bets. This is what Deutsche Bank has stated in a London court and in witness statements in criminal proceedings Iceland (where Deutsche Bank is not being charged).

However, outside of the Deutsche Bank universe (and well, probably in some hidden corners inside Deutsche given the email trail that has surfaced in Icelandic court) there is abundant evidence showing the Deutsche Bank involvement. Certainly, Icelandic prosecutors are in no doubt Deutsche Bank was involved in the planning, knew of the Kaupthing funding and made money from the funds.

Kaupthing had poured €510m into the CDS bets. Early on, the administrators of Kaupthing and the two BVI companies eyed an interesting opportunity to claw these funds back. Until December last year, the administrators, in separate actions, have been suing Deutsche Bank in various places over these transactions.

When the legal fights were about to come up in court Deutsche Bank relinquished: to avoid having the whole well-documented saga exposed in court, with evidence running counter to the Deutsche Bank version of the CDS saga, Deutsche Bank finally agreed to pay €425m, around 85% of the millions that went through Deutsche Bank into the CDS schemes.

Intriguingly, in 2010 the Serious Fraud Office, SFO, had its eyes on Deutsche Bank’s CDS transactions with Kaupthing but this case seems to have evaporated as so many of the suspicious deeds in UK banks.

The story of these CDS transactions is a central part in the still on-going so-called CLN case. Kaupthing bankers have been charged for fraudulent lending and breach of fiduciary. Below, the focus is on the role of Deutsche Bank in the CDS transactions – what its real role was and why Deutsche Bank was in the end so keen to settle when nothing in the original 2008 agreements obliged it to pay anything back.

DB’s own version

In June 2012, Kaupthing hf, an Icelandic stock corporation, acting through its winding-up committee, issued Icelandic law claw back claims for approximately € 509 million (plus costs, as well as interest calculated on a damages rate basis and a late payment rate basis) against Deutsche Bank in both Iceland and England. The claims were in relation to leveraged credit linked notes (“CLNs”), referencing Kaupthing, issued by Deutsche Bank to two British Virgin Island special purpose vehicles (“SPVs”) in 2008. The SPVs were ultimately owned by high net worth individuals. Kaupthing claimed to have funded the SPVs and alleged that Deutsche Bank was or should have been aware that Kaupthing itself was economically exposed in the transactions. Kaupthing claimed that the transactions were voidable by Kaupthing on a number of alternative grounds, including the ground that the transactions were improper because one of the alleged purposes of the transactions was to allow Kaupthing to influence the market in its own CDS (credit default swap) spreads and thereby its listed bonds. Additionally, in November 2012, an English law claim (with allegations similar to those featured in the Icelandic law claims) was commenced by Kaupthing against Deutsche Bank in London (together with the Icelandic proceedings, the “Kaupthing Proceedings”). Deutsche Bank filed a defense in the Icelandic proceedings in late February 2013. In February 2014, proceedings in England were stayed pending final determination of the Icelandic proceedings. Additionally, in December 2014, the SPVs and their joint liquidators served Deutsche Bank with substantively similar claims arising out of the CLN transactions against Deutsche Bank and other defendants in England (the “SPV Proceedings”). The SPVs claimed approximately € 509 million (plus costs, as well as interest), although the amount of that interest claim was less than in Iceland. Deutsche Bank has now reached a settlement of the Kaupthing and SPV Proceedings which has been paid in the first quarter of 2017. The settlement amount is already fully reflected in existing litigation reserves and no additional provisions have been taken for this settlement. (Emphasis here and below is mine).

This is Deutsche Bank’s very brief story of the CNL saga and the settlement in the bank’s 2016 Annual Report. – Not admitting anything and yet, for no reason at all judging from the Annual Report, it paid Kaupthing an undisclosed sum, now known to be €425m.

Sigurður Einarsson’s letter to friends and family January 2009: the first tangible evidence of the CDS transactions

As recounted in an earlier Icelog there were rumours soon after the October 2008 banking collapse that Kaupthing had funded transactions connected to the bank’s CDS in order to manipulate the spread, thus lowering the bank’s ominously high financing cost.

At the end of January 2009 former chairman of the Kaupthing board Sigurður Einarsson told his side of the various stories swirling in the media. Yes, it was true that Kaupthing had funded transactions by what he called Kaupthing’s “trusted clients” to influence the bank’s CDS spread but it had done so on advice from Deutsche Bank.

The SIC report April 2010, the CDS story in some details

The story was told in greater detail in the 2010 report by the Icelandic Special Investigations Committee, SIC (p. 26-28, Vol. 2; in Icelandic). It was clearly stated and documented that Deutsche Bank came up with and concocted the plan. Summarised, the SIC recount of the CDS transactions is the following:

Kaupthing set up two BVI companies, Chesterfield and Partridge, for the sole purpose of carrying out the CDS transactions. Chesterfield was owned by three companies, in turn owned by four Kaupthing clients: Antonios Yerolemou, Skúli Þorvaldsson and the fashion entrepreneurs Karen Millen and Kevin Stanford, respectively owning 32 %, 36% and 32%. The Icelandic businessman Ólafur Ólafsson owned Partridge, also through another company.

Kaupthing lent funds to the four companies owning the two BVI companies that acted in the CDS transactions – all the companies were in-house with Kaupthing, which carried out all the transactions. The beneficial owners were only asked for consent to begin with but were not involved in the transactions themselves.

All of the owners were, as Einarsson said in his letter, longstanding and “trusted clients” of Kaupthing. In 2001, Yerolemou, a Cypriot businessman prominent in the UK Cypriot community and a Conservative donor, had sold his business, Katsouris, to Exista, Kaupthing’s largest shareholder and stayed close to Kaupthing, also briefly as its board member. Stanford had a long-standing relationship with Kaupthing as with the other Icelandic banks and Ólafsson was the bank’s second largest shareholder.

Like Einarsson, the SIC report traced the origin of the transactions to Deutsche Bank:

“At the beginning of 2008, Kaupthing sought advice from Deutsche Bank as to how it could influence its CDS spreads. In a presentation in early February, Deutsche Bank advised Kaupthing, for instance, to spend all liquid funds it received to buy back its own short-term bonds in an attempt to normalise the CDS curve. In the summer the idea of a credit-linked note transaction appeared in an email communication from an employee of Deutsche Bank. It states that this would mean a direct impact on the CDS spreads rather than an indirect one, as in the case of buy backs of own notes. It also states that this transaction will be financed. The message concludes by stating that the issue has to be timed right to get the ‘most “bang” for the buck’. In e-mail messages exchanged by Sigurdur Einarsson and Hreidar Mar Sigurdsson following this, the two agree that they do not need to involve pension funds, but that there is ‘no question’ that they should do this. 


Sigurdur Einarsson said that the initiative for the transaction had come from Deutsche Bank. ‘It involved getting parties to write CDSs against those who wanted to buy them. This was to create a supply of CDSs, of which there were none. Because what we saw was happening on the market, or what we thought we saw, was that the screen price was always rising and there were certain parties, certain funds that put in a specific bid, no transaction, raised the bid, no transaction, raised it, raised it, raised it, raised and raised.‘” (As translated in Akers and Anor v Deutsche Bank AG 2012.)

According to the SIC the CLN transactions “can be assumed to have actually made an impact on the CDS spreads on Kaupthing.” The SIC report came up with the total amount lost by Kaupthing on these trades: €510m, all of which had been paid to Deutsche Bank as the broker of the underlying deals.

The administrator of Partridge and Chesterfield also wondered about Deutsche Bank’s role

Further information came up in a London Court in 2012: soon after Kaupthing failed, Partridge and Chesterfield unavoidably went bankrupt; after all, their only assets were the CLN linked to the failed CDS bet. Their administrators, Stephen Akers from Grant Thornton London and his colleague, quickly turned to Deutsche Bank to get answers to some impertinent questions regarding the two companies. When Deutsche Bank was not forthcoming Akers took a legal action demanding from Deutsche Bank documents related to the transactions. A decision was reached in February 2012.

In his affidavit in the 2012 Decision, Akers said: “It is very difficult to see how the transactions made commercial sense for the Companies. This request for information is in part to explore how the Companies might have expected to benefit from the transactions, to identify what the Companies’ purposes and objectives in entering into the transactions were and how the Companies were expected to repay the loans from Kaupthing if there was movement in the market in the ‘wrong’ direction (as transpired). … The Joint Liquidators are keen to understand, through requests for information and documents from key parties, why these particular transactions were entered into by these particular companies. 

46. From the information that the Joint Liquidators have been able to gather about the transactions …, it seems possible that the Companies were involved in a wider package or scheme, although it is too early to comment definitively on the purpose of such scheme, contemporaneous reports and documents suggest that the purpose might have been to manipulate the credit market for Kaupthing.“

In his Decision, Justice Newey holds up the “possibility of market manipulation” quoting the above statement from the SIC report, noting the report’s conclusion “that the CLN agreements “can be assumed to have actually made an impact on the CDS spreads on Kaupthing.””

In the 2012 Decision it’s pointed out that “Deutsche Bank strongly denies any suggestion that it entered into the CLN transactions in order to manipulate the market. In other respects, too, it takes issue with the picture painted in the Icelandic report. Among other things, it says that the CLNs were not in any way unusual or commercially unreasonable transactions; that it was not aware that Kaupthing was itself financing the purchase of the CLNs, if that is what happened; and that it did not act as adviser to Chesterfield, Partridge or Kaupthing.”

DB was right that the CLNs were not in any way unusual – but the CLNs per se were not the problem that drove Akers to collect information but the whole transactions. However, there is abundant documentation, inter alia emails to and from Deutsche Bank etc. to show that Deutsche Bank was indeed aware that Kaupthing was financing the two companies’ bet on the Kaupthing CDS. And Deutsche Bank definitely advised Kaupthing in this set up, again born out by emails.

The “bang for the buck” email, quoted in the SIC report was written by Venkatesh Vishwanathan, a senior Deutsche Bank banker who oversaw the CDS deal with Kaupthing. In his witness statement in the Akers 2012 case he gave his interpretation: “I say the way to proceed would involve ‘hitting the right moment in the market to get the most bang for the buck’ because an investor investing in a CLN product would want the best return and the coupon available over the term of the CLN, should it run to maturity, is set when the CLN is issued. That was why market timing was important. I was not suggesting, as Mr Akers says, that Kaupthing would get ‘bang for its buck’ by Deutsche selling CDS protection.”

Vishwanathan’s interpretation runs contrary to what Akers claimed and other sources support: that the transactions were set up for Kaupthing, via the two companies, in order to influence the market.

DB placed Wishwanatahn on leave in 2015, in autumn 2016 he had sued the bank for unfair dismissal. According to his LinkedIn profile, Wishwanathan now lives in Mumbai (he has not responded to my messages).

Additional evidence: the Icelandic CLN case

In 2014, Sigurður Einarsson, Kaupthing’s CEO Hreiðar Már Sigurðsson and head of Kaupthing Luxembourg Magnús Guðmundsson were charged of breach of fiduciary duty and fraudulent lending to the two BVI companies, Partridge and Chesterfield, causing a loss of €510m to Kaupthing.

The charges (in Icelandic) support and expand the earlier evidence of Deutsche Bank role in the CDS trades. Deutsche Bank made for example no attempt to be in contact with the Kaupthing clients who at least on paper were the owners of the two companies. Deutsche Bank was solely in touch with Kaupthing. When the two companies needed for example to meet margin calls its owners were not averted; Deutsche Bank sent all claims directly to Kaupthing, apparently knowing full where the funding was coming from and who needed to make the necessary decisions.

But who was on the other side of the CDS bets, who gained in the end when the Kaupthing-funded companies lost so miserably?

According to the Icelandic Prosecutor, the three Kaupthing bankers “claim they took it for granted that the CDS would be sold in the CDS market to independent investors and this is what they thought Deutsche Bank employees had promised. They were however not given any such guarantee. Indeed, Deutsche Bank itself bough a considerable part of the CDS and thus hedged its Kaupthing-related risk. Those charged also emphasised that Deutsche Bank should go into the market when the CDS spread was at its widest. That meant more profit for the CLN buyer Chesterfield (and also Partridge) but those charged did not in any no way secure that this profit would benefit Kaupthing hf, which in the end financed the transactions in their entirety.”

DB fees amounted to €30m for the total CDS transactions of €510m.

The oral hearings in the CLN case were in Reykjavík in December last year. I attended the hearings, which further not only supported the story of Deutsche Bank’s involvement but provided ample tangible evidence as witnesses were questioned and emails and other documents projected on a screen.

The side story in the al Thani case

A short chapter in the CDS saga is the fact, already exposed in the SIC report, that Kaupthing had indeed planned with Deutsche Bank to set up yet another company to trade on Kaupthing’s CDS. Kaupthing issued a loan of $50m to Brooks Trading Ltd, via another company called Mink Trading, both owned by Sheikh Mohamed Khalifa al Thani. The purpose was to invest in CLN linked to Kaupthing’s CDS, via Deutsche Bank, identically structured as the CDS transactions through Chesterfield and Partridge. CDS transactions through Brooks were however never carried out.

Sheikh al Thani played a role in another Kaupthing case, the so-called al Thani case; the Sheikh was not charged but the three Kaupthing managers, charged in the CLN case, and Ólafur Ólafsson were sentenced to three to 5 ½ years in prison. The bankers for fraudulent lending, breach of fiduciary duty and market manipulation; Ólafsson was sentenced for market manipulation.

The 2008 last minute CBI loan to Kaupthing

The evidence brought out in the CLN case – the tracing of the transactions, emails, phone calls etc. – shows that the Kaupthing managers were extremely focused on exactly these transactions. Kaupthing was teetering and yet they never wavered from paying to Deutsche Bank, the agreed sums and the margin calls that followed. It almost seemed as if nothing else mattered in their world, a sense further strengthened by some back-dated documents related to the CDS transactions.

The last payments were made just as the bank was collapsing, 7 October 2008; the bank went into administration 8 October. During these last weeks, foreign currency was scarce at the bank in Iceland where the payments originated. On 6 October, prime minister Geir Haarde addressed the stunned nation on radio and television at 4pm, to announce the Emergency Act enabling Icelandic authorities to deal with collapsing banks in an orderly manner. – Hreiðar Már Sigurðsson, then CEO of Kaupthing but only for 48 more hours, has said in court that when he heard of the Emergency Act he knew it was over for the banks.

At noon of 6 October, Geir Haarde and the governor of the Central Bank, CBI, Davíð Oddsson, who both knew the Emergency Act was coming later that day, agreed the very last lending to the banks: Kaupthing would be given a loan of €500m. This, to permit Kaupthing to meet payments the Bank of England and the FSA were demanding as a guarantee for the bank’s UK subsidiary, Kaupthing Singer & Friedlander.

The reasons for this loan have never been completely clarified (see Icelog on this story): documents and an audio of the phone call between Oddson and Haarde remains classified in spite of valiant attempt by the Icelandic media to unearth this evidence. The CBI has promised a report on the Kaupthing loan “soon” but so far without a publication date.

Whatever the motivation, the CBI issued the loan directly to Kaupthing without securing it would be used as promised, i.e. to strengthen Kaupthing’s UK subsidiary. Instead, part of it was used 7 October when Kaupthing paid, via the two BVI companies, the last €50m CDS transactions to Deutsche Bank.

This is how much the CDS transactions mattered to the Kaupthing managers who never, not even in the mid of the cataclysmic events engulfing the bank these early days in October 2008, took their eyes off the CDS transactions with Deutsche Bank.

When the Deutsche Bank December 2016 agreement surfaced…

In January 2016, the Reykjavík District Court acquitted the three Kaupthing managers of the fraudulent lending and breach of fiduciary duty they had been charged with in the CLN case. In February this year, the Office of the Special Prosecutor (now Office of the District Prosecutor, encompassing the earlier OSP and other duties), appealed that decision to the Supreme Court.

In March 2016, I reported on Rúv (in Icelandic) that Deutsche Bank had indeed come to an agreement with Kaupthing: on-going legal cases, mentioned in Deutsche Bank’s annual reports 2015 and 2016 (but not in earlier reports), had now been settled with Deutsche Bank agreeing to pay Kaupthing more than €400m.

The agreement had been sealed in December 2016. Kaupthing made no big deal of the millions accruing from Deutsche Bank – no press release, just silence.

I pointed out that what Deutsche Bank had stated in the 2012 court case in London was not in accordance with other sources. Also that the bank had mentioned the Kaupthing claims in its 2015 Annual Report but stated it had filed defence and continued to defend them.

I concluded that Deutsche Bank 1) refuted it knowingly participated in transactions knowing set up to mislead the market 2) refuted that Deutsche Bank planned the transactions 3) denied knowing Kaupthing was itself financing the transactions aimed at lowering its CDS spreads. Further, I pointed out that statements from the Prosecutor in the CLN case showed that Deutsche Bank was not only the broker in these transactions but was actually on the other side of the bet it set up for Kaupthing and gained handsomely when Kaupthing failed.

I did at the time send detailed questions to Deutsche Bank regarding the bank’s statements in the 2012 London court case and its version of the case in its annual reports. Deutsche Bank’s answer to my detailed questions was only that bank was not commenting “on specific aspects of this topic,” only that “Deutsche Bank has reached a settlement over all claims relating to credit-linked note transactions referencing the Icelandic bank Kaupthing. The settlement amount is already fully reflected in existing litigation reserves.”

In my email exchange with Deutsche Bank I mentioned that this matter had wider implications – Deutsche Bank has stated in court and in its annual reports that it had nothing to do with the CDS trades except selling the CLN related to it. Thus, it could be argued that the stance taken by Deutsche Bank, compared to abundant evidence, has been misleading and that has much wider implications than just being a matter between Deutsche Bank and Kaupthing. – The answer was, as before: settlement reached, no further comments.

It’s interesting to note that at the time Deutsche Bank reached an agreement of paying €425m to Kaupthing it was struggling to reached its required capital level, looking for €8bn. That did allegedly force the bank to finish several outstanding cases, the Kaupthing case being one of them.

Why did Deutsche Bank change its mind and meet 85% of the Kaupthing claims?

Following my March reporting on the agreement between Deutsche Bank and Kaupthing where Kaupthing did indeed recover around 85% of its CDS transactions with Deutsche Bank the three Kaupthing managers charged in the CLN case, now fighting an appeal by the Prosecutor, turned to the Supreme Court asking for the case to be dismissed: according to them, the basis of the claims had been the €510m loss to Kaupthing – and now that there was apparently hardly any loss the case should be dismissed.

Their demand for dismissal came up at the Supreme Court 11 October where the Court stipulated that in order to understand the demand for dismissal the Court needed to get a deeper understanding of the Deutsche Bank agreement with Kaupthing. The District Prosecutor had obtained a copy of the agreement handed to the Court but not made public in its entirety.

During the oral hearings that day Prosecutor Björn Þorvaldsson maintained that the agreement did not change the charges in the CLN case to any substantial degree: the loans had been illegal, no matter if the money was then much later clawed back. He said that according to the agreements in 2008, Deutsche Bank had been entitled to the funds and Kaupthing had no claim for clawing them back.

So what did then change, why did Deutsche Bank decide to meet the Kaupthing claims and pay back €425m of the original €510m it got from the CDS transactions?

The Prosecutor said one could only guess: 1) Perhaps Deutsche Bank wanted to hide that the Kaupthing loans to the two companies did indeed end up with Deutsche Bank 2) Did Deutsche Bank see it as harmful to the bank’s reputation that the details of the transactions would be exposed in a court case? 3) Was it accusation of being part of market manipulation that irked Deutsche Bank?

As Þorvaldsson said in court 11 October: “It’s not unlikely that an international bank wants to avoid being accused of market manipulation.”

The Supreme Court ruling on issues related to the Deutsche Bank Kaupthing agreement

The Supreme Court decided on the dismissal request 19 October. According to the Decision, Deutsche Bank signed two agreements in December 2016 regarding the 2008 CDS transactions. One was an agreement with the two companies involved, Chesterfield and Partridge. The other one is with Kaupthing.

The aim was to effectively end three court cases where Kaupthing was suing Deutsche Bank in addition to cases brought by the two companies against Deutsche Bank. According to the agreement the two companies and Kaupthing agreed to put an end to their legal proceedings against Deutsche Bank – and Deutsche Bank concurred to pay €212.500.000 to Kaupthing and the same amount to the two companies, in total €425m. Further, the agreement stipulated that Kaupthing (as the largest creditor of the two companies) would get 90% of the Deutsche Bank payment to the two companies. In total, Deutsche Bank paid €425m to end all dispute, whereof over €400m would go to Kaupthing.

The thrust of the arguments, on one side the Prosecutor, on the other side the three defending bankers was that the Prosecutor said that issuing the loans was the criminal deed, that’s what the three were being charged for – whereas the three defendants claimed that since Deutsche had now paid most of the transactions back it showed that the bank felt legally obliged to pay on the basis of the 2008 contracts.

In its Decision the Supreme Court scrutinised the final settlement of the CDS transactions concluded at end of October 2008, which indicated that Deutsche Bank did indeed not feel obliged to pay anything back to the owners of the CLNs. Same when Icelandic police interrogated two (unnamed) Deutsche employees: nothing that indicated Deutsche Bank thought it was obliged to pay anything back.

The Supreme Court concluded that based on the information at hand on the December 2016 settlement it was neither clear “why the bank (DB) agreed to issuing these payments, what the arguments were nor what material was the basis for the claims by Kaupthing and the two companies in their legal actions against Deutsche Bank. It is also not clear what was the nature of the (December 2016) payments, if they related to earlier contracts (i.e. the 2008 contracts) or if they were damages and if they were damages then what was their nature.

Based on this, the Supreme Court then decided against dismissal, as demanded by the three bankers, sending the case back to the Reykjavík District Court for a retrial where questions regarding the December 2016 settlement should be clarified in addition to the charges brought by the District Prosecutor.

This means that although Deutsche Bank settled with Kaupthing and the two companies the actions of Deutsche Bank will be scrutinised by Icelandic Court, probably already next year.

A short revision of dodgy Deutsche Bank transactions

As other international banks, Deutsche Bank has had a lot to answer for over the last few years and paid billions in fines for its rotten deeds. Contrary to Iceland, bankers in the UK and the US, have mostly been able to wipe the cost of their criminal deeds on shareholders (and why on earth have shareholders such as as pension funds and other public-interest organisations been so patient with banks’ criminal deeds?)

In April 2015 Deutsche Bank settled LIBOR manipulation cases with US authorities, paying $2.175bn and £226.8m to the UK Financial Conduct Authority, FCA as mentioned in the bank’s 2015 Annual Report.

In January this year it paid £163m to the FCA, the largest fine ever paid to the FCA, for “serious anti money-laundering controls falings” in the so-called mirror trades, where $10bn were sent out of Russia to offshore accounts “in a manner that is highly suggestive of financial crime.” At the same time, US authorities fined the bank $425m for the same offense, pointing out that “Deutsche Bank and several of its senior managers missed key opportunities to detect, intercept and investigate a long-running mirror-trading scheme facilitated by its Moscow branch and involving New York and London branches.” – Many years ago, a source said to me Deutsche Bank really should be called Russische Bank.

In May, the US Fed fined Deutsche Bank $41m “for failing to ensure its systems would detect money laundering regulations.”

In additions, there have been fines for violating US sanctions. Lastly, there is focus on Deutsche Bank and its tight connection to US president Donald Trump. And so on and so forth.

Summing it up – seen from Iceland: why Deutsche Bank would want to settle

In this context it is interesting that Deutsche Bank has decided to pay €425m to Kaupthing, a high sum in any context, even in the context of fines Deutsche Bank has had to pay over the years.

From all of these various sources it is easy to conclude as did the State Prosecutor in October that yes, one reason why Deutsche Bank would want to bury it involvement in Kaupthing’s CDS trades in the summer of 2008 is that this looks like a market manipulation by a major international bank. Further, Deutsche Bank has questions to answer regarding its own involvement in the market, i.e. it did not only broker the CDS deals, knowing full well who financed the two BVI companies, but it was actually a player in that market, making a lot more from the deal than only the fees.

Updated 14.6.2018: a retrial has been ordered, the case will come up next winter. This time, there will also be some focus on DB’s role in order to understand the context better though neither DB nor any DB bankers are charged. 

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“If bankers who act fraudulently are not put in jail with their bonuses returned, assets confiscated and banned from future practice, we will only give a green light to similar risk-laden behaviour in new forms.”

According to The Guardian, Gordon Brown adds, in a convoluted way, that if the conduct of bankers was dishonest judging from what would be considered reasonable and honest, then there was a case for Britain following the example of Ireland, Iceland, Spain and Portugal and in launching prosecutions.

So, now we know: Gordon Brown former prime minister and leader of the Labour Party now thinks banks and bankers should have been investigated and prosecuted in connection to the financial crisis; the crisis that struck in August 2007, when Brown had been prime minister for only a few months. He had however been Chancellor of the Exchequer for a decade.

We know of his change of heart because this is what he writes in his coming memoir, My Life, Our Times.

He’s right that something has been in Ireland, Spain and Portugal but only in Iceland were the banks investigated in a fairly concise way. So far, over twenty bankers and others connected to financial wrongdoing in the months and years up to the 2008 banking collapse have been sentenced to imprisonment.

Better late than never – but this is a staggering admission from the man who more than anyone formed that atmosphere that allowed the banks to act with impunity. From his seat of great power he watched the crisis unfold and followed its aftermath until the Labour party lost the elections in the spring of 2010: Brown first had ten years as a Chancellor and then three years as prime minister to shape the banking environment.

Soon after the events in the UK in early October 2008, when the Icelandic banks, also operating in the UK, collapsed and British banks like RBS, HBOS and Lloyds TSB were bailed out, the Serious Fraud Office, SFO, started scrutinising the ongoings. It did look at the Icelandic banks but it had its eyes also on the interaction between the Icelandic banks and international banks operating in London. One case was mentioned in The Guardian in June 2010, focusing on an intriguing connection between Kaupthing and Deutsche Bank. Nothing has apparently come of that investigation.*

We know that the SFO was suffering at the time from lack of funds which in turn led to difficulties in attracting highly skilled people who would always be able to get better paid jobs elsewhere. Gordon Brown, as Chancellor and as prime minister, did little to nurture the SFO.

It’s good that Gordon Brown has seen the error of his earlier days, an error that profoundly shaped the atmosphere of impunity the banks operated in – but it’s very very sad that he totally wasted the opportunities he had to stimulate a healthy atmosphere where banks, like any other business and bankers, like any other persons, would be scrutinised, investigated and, if needed, prosecuted, without fear or favour.

*This case touched an Icelandic criminal case, the so-called CLN case. More evidence has come up on this lately, more coming soon on Icelog.

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