GUEST ARTICLE: Limitations, Dangers Of Panama Papers Operation - Geneva Professor

Philippe Braillard University of Geneva Emeritus Professor April 13, 2016

GUEST ARTICLE: Limitations, Dangers Of Panama Papers Operation - Geneva Professor

A senior academic in Switzerland, who has already issued a strong defence of that country's offshore financial centre, shifts his gaze to Panama and to the behaviour of the media.

This article, by Professor Philippe Braillard, emeritus professor, University of Geneva, addresses the Panama Papers issue. As readers may recall, Professor Braillard isn’t afraid to state his views bluntly about the world of international financial centres and is a strong advocate of financial privacy and due process of law. (To see a previous article of his, on Switzerland, see here.) This article, originally published in L’AGEFI, the Swiss newspaper, is reprinted here with permission. We are delighted to share this item with readers and invite readers to respond. To see this new service’s own editorial stance on the saga, click here. 

We also urge readers to look at IFC World, the new publication about financial centres, a comprehensive guide covering places such as the British Virgin Islanda, Panama, Labuan, Gibraltar, Jersey and Malta. To obtain a copy, click here.

The Panama Papers affair initiated by the International Consortium of Investigative Journalists, which consists of around 100 media organisations in some 80 countries, is causing shockwaves around the world. It calls for several clarifications and raises a number of questions.

The operation has revealed that Panama-based law firm Mossack Fonseca has set up a large number of shell companies in the last 40 years. The fact that so many of these companies exist is not in itself a surprise. For a long time, Panama has been known to be one of the main places for setting up these legal vehicles, which guarantee complete secrecy regarding the identity of their beneficial owners. However, it is far from being the only country whose laws allow, or even promote, such activity. In the US, hundreds of thousands of shell companies are created and domiciled in Delaware, Wyoming, Nevada and South Dakota. Other countries heavily involved in this type of activity include the British Virgin Islands, Bahrain and Vanuatu.

Neither is it surprising that, in a world where transparency has become a cardinal virtue and where information and communication technologies are central to the way our societies work, such a huge amount of confidential information could have been intercepted and globally distributed. 

The use of shell companies for unlawful or criminal purposes - such as tax fraud, corruption, money laundering, organised crime and terrorist financing - is rightly condemned. However, we should also be aware of the limitations and dangers of the Panama Papers operation that is currently underway. It calls for several comments.

Firstly, the indiscriminate criticism currently being levelled at individuals and companies that have set up or used a Panama-based offshore company ignores a crucial fact: although such companies are sometimes used for unlawful and criminal purposes, that is by no means always the case. Those structures are also used for entirely lawful ends, particularly to meet the legitimate desire for confidentiality. We should therefore avoid hiding this distinction under dangerous and culpable generalisations, as the media so often do. In other words, legitimate criticism of unlawful activities should not be used as an excuse to violate the privacy of everyone using this kind of legal vehicle, branding them as criminals and trying them in the court of public opinion. The current media campaign risks causing irreparable damage to the reputation of some people, who may be falsely accused of wrongdoing and then be unable to remedy the damage despite any evidence to the contrary that they might provide.

Secondly, the data accessed by the consortium covers a period of around 40 years. Using such data requires a sense of perspective, which the media seem to be lacking. Today's transparency standards are a far cry from what was normal 20 years or more ago. We cannot use today's standards to judge past behaviour that took place in a very different context. 

Thirdly, the approach used by the International Consortium of Investigative Journalists is a cause for serious concern. Does it really qualify as investigative journalism? Is it not mainly a compilation of stolen data, rather than any real journalistic investigation? Is the consortium not pandering to commercial pressure, the need to sensationalise? 

Fourthly, rather than simply passing the data, obtained from anonymous sources, to the judicial authorities in all countries concerned, the journalists have set themselves up as the judges. They seem to think they are entitled to violate privacy and protection of the person in the name of a superior moral interest and an absolute value, that of transparency.

Fifthly, in analysing the documents and publishing the results, members of the consortium are ignoring fundamental tenets of the rule of law, such as the presumption of innocence and the right to be heard. They are presenting only the prosecution case, depriving people of the protections that should be available to any citizen.

Sixthly, the information was stolen - intercepted through computer hacking or unlawfully copied within Mossack Fonseca - and sent anonymously to journalists, then studied and processed by those journalists. As a result, there is no guarantee that the information being passed to the media has not been manipulated via additions, deletions or modifications. That is what happened with the HSBC file stolen by Hervé Falciani in 2009: that file was evidently modified, through the deletion of certain sheets, before being sent to the judicial authorities.

Finally, the current focus on Panama as a tax haven should not hide the real situation, which flatly contradicts the aims of international standards requiring transparency and designed to combat international financial crime. Too often, the international institutions that devised those standards - particularly the G20 along with the OECD and its Global Forum on Transparency and Exchange of Information for Tax Purposes - have shown hypocrisy, cynicism and a lack of rigour. An example is the balance of power that influences tax haven black lists and grey lists. Similarly, what are we to think when the OECD closes its eyes to the USA's failure to reciprocate in the automatic exchange of tax information, and the director of its Centre for Tax Policy and Administration - Pascal Saint-Amans - even goes so far as to state that untaxed money flows into totally opaque US offshore companies are merely a marginal phenomenon?

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