There has been a lot of wailing and gnashing of teeth on the part of UK commentators over the actions of Ben Lawsky, the Superintendant of the New York Department of Financial Services, and the way he has dealt with Standard Chartered Bank. (SCB)
However, an article in the Huffington Post of 20th August reveals that Lawsky has made more friends than enemies by his actions.
"...Banks are upset with Lawsky because he's clearly put down a marker that he's going to be an aggressive regulator who defends the interests of New York state in a manner that goes beyond the enablement of the federal regulators in recent years," said Neil Barofsky, former inspector general of the federal Troubled Asset Relief Program that followed 2007's market collapse..."
As the recent settlement in the SCB case has demonstrated, it is the vital element of 'trust' in international banking that has been dangerously eroded. As a result the New York Department of Financial Services has insisted on its own officers being 'embedded' at SCB for the next two years to report back to the regulator on the level of compliance being maintained within the bank.
Such a requirement is a humiliating riposte to SCB because it demonstrates only too clearly that the NYDFS does not believe their word and doesn't trust them to maintain a compliance profile which the regulator can rely on.
When a regulator states publicly that it cannot trust the word of one of its regulated members, then we have reached a nadir in banking relationships, because once trust has gone, then the institution is no more than an empty shell.
On July 4th 2012, Lord (Adair) Turner, chairman of the FSA, gave a clear and blunt message to the banks in a speech entitled ‘Banking at the Crossroads: Where do we go from here?’
He made significant reference to ‘banksters’ and said that when banking is riddled with malpractice, its “credibility shot”, and trust evaporated, they have a major problem. Their excesses and failures are issues to which competitors of the UK banking sector abroad are only too happy to draw attention.
Maintaining the vital element of 'trust' is the crucial component of all banking systems. If 'Trust' is eroded, then not only will the public be less likely to want to use the services on offer, but global regulators will start to question the integrity of the institution, and may impose higher standards or greater controls, and in the most egregious cases, remove the vital banking licence completely.
Since 9-11, the 'trust' component in global banking has gone through a paradigm shift in focus. In these days of increasing vulnerability from terrorist and criminal intervention, it is now necessary to be able to be assured of the regulatory integrity of the financial institution which seeks to do correspondent business with you. Hence the problems faced by Standard Chartered Bank. They had already given prior undertakings to the NYDFS to conform and comply with compliance requirements. They failed to perform this agreement properly and as part of their regulatory settlement, they were required to accept NYDFS officers being embedded into their organisation for up to two years, to make sure that they fulfil all relevant compliance provisions, and to agree to permanently imposed oversight officers who will report back to NYDFS. They are paying the price of not being believed or trusted by the New York regulator and it must be hugely humiliating for the bank!
This humiliation could have been easily avoided if SCB had taken their regulatory responsibilities more seriously. It is not as if they could have been unaware of the attitude of the British lead regulator towards the paucity of banking standards of compliance, and particularly within correspondent banking relationships.
In 2011, the British lead regulator, the Financial Services Authority, had published a very hard-hitting report entitled '...Banks’ management of high money-laundering risk situations - How banks deal with high-risk customers (including politically exposed persons), correspondent banking relationships and wire transfers...' In the document, which did not receive anything like to publicity it deserved, the FSA identified a series of risk elements which British-regulated banks seemed unwilling to remedy or rectify. These activities are key to these banks being acceptable to the US market, and their failure to demonstrate any willingness to take the necessary steps to alleviate such risks, place the individual banks in direct conflict with the demands of global regulators, and in particular, the demands of the US vis-a-vis correspondent banking relationships.
The FSA report demonstrated most clearly how British-regulated banks were willing to ignore and flout US requirements for gaining access to the US dollar-clearing system, and posed a major area of conflict for British banking institutions with their US counterparts in the future.
Among the findings were;
· Some banks appeared unwilling to turn away, or exit, very profitable business relationships even when there appeared to be an unacceptable risk of handling the proceeds of crime. Around a third of banks, including the private banking arms of some major banking groups, appeared willing to accept very high levels of money-laundering risk if the immediate reputational and regulatory risk was acceptable.
· Over half the banks failed to apply meaningful enhanced due diligence (EDD) measures in higher risk situations and therefore failed to identify or record adverse information about the customer or the customer’s beneficial owner. Around a third of them dismissed serious allegations about their customers without adequate review.
· More than a third of banks visited failed to put in place effective measures to identify customers as PEPs. Some banks exclusively relied on commercial PEPs databases, even when there were doubts about their effectiveness or coverage.
· Some small banks unrealistically claimed their relationship managers (RMs) or overseas offices knew all PEPs in the countries they dealt with. And, in some cases, banks failed to identify customers as PEPs even when it was obvious from the information they held that individuals were holding or had held senior public positions.
· Three quarters of the banks in our sample failed to take adequate measures to establish the legitimacy of the source of wealth and source of funds to be used in the business relationship. This was of concern in particular where the bank was aware of significant adverse information about the customer’s or beneficial owner’s integrity.
· Some banks’ AML risk-assessment frameworks were not robust. For example, we found evidence of risk matrices allocating inappropriate low-risk scores to high-risk jurisdictions where the bank maintained significant business relationships. This could have led to them not having to apply EDD and monitoring measures.
· Some banks had inadequate safeguards in place to mitigate RMs’ conflicts of interest. At more than a quarter of banks visited, RMs appeared to be too close to the customer to take an objective view of the business relationship and many were primarily rewarded on the basis of profit and new business, regardless of their AML performance.
· At a third of banks visited, the management of customer due diligence records was inadequate and some banks were unable to give us an overview of their high-risk or PEP relationships easily. This seriously impeded these banks’ ability to assess money laundering risk on a continuing basis. Banks’ management of high money laundering risk situations How banks deal with high-risk customers (including PEPs), correspondent banking relationships and wire transfers.
· Nearly half the banks in our sample failed to review high-risk or PEP relationships regularly. Relevant review forms often contained recycled information year after year, indicating that these banks may not have been taking their obligation to conduct enhanced monitoring of PEP relationships seriously enough.
· At a few banks, the general AML culture was a concern, with senior management and/or compliance challenging us about the whole point of the AML regime or the need to identify PEPs.
· Some banks conducted good quality AML due diligence and monitoring of relationships, while others, particularly some smaller banks, conducted little and, in some cases, none. In several smaller banks, a tick-box approach to AML due diligence was noted. Many (especially smaller) banks’ due diligence procedures resembled a ‘paper gathering’ exercise with no obvious assessment of the information collected; there was also over-reliance on the Wolfsberg Group AML Questionnaire which gives only simple yes or no answers to basic AML questions without making use of the Wolfsberg Principles on correspondent banking. And when reviews of correspondent relationships were conducted, they were often clearly copied and pasted year after year with no apparent challenge.
· Some banks did not carry out due diligence on their parent banks or banks in the same group, even when they were located in a higher risk jurisdiction or there were other factors which increased the risk of money laundering.
· A more risk-based approach is required where PEPs own, direct or control respondent banks. We found there was a risk that some banks’ respondents could be influenced by allegedly corrupt PEPs, increasing the risk of these banks being used as vehicles for corruption and/or money laundering.
· Transaction monitoring of correspondent relationships is a challenge for banks due to often erratic, yet legitimate, flows of funds. Banks ultimately need to rely on the explanations of unusual transactions given by respondents and this can be difficult to corroborate. However, there were some occasions where we felt banks did not take adequate steps to verify such explanations.
· We found little evidence of assessment by internal audit of the money-laundering risk in correspondent banking relationships; this is unsatisfactory given the high money-laundering risk which is agreed internationally to be inherent in correspondent banking.
In light of the recent Standard Chartered Bank findings, and in particular their willingness to flout US regulatory requirements with reference to doing business with Iran, it is extremely doubtful whether SCB was an individual rogue element within the British banking environment. A much more likely interpretation is that such conduct was endemic among many banks. When viewed in context with the other recent findings against Barclays Bank and HSBC, it is obvious that there is a wholesale refusal to provide good compliance with US requirements.
Every single one of these FSA findings would bring British-regulated banks directly into conflict in a number of vital ways with the requirements of the US Patriot Act 2001, and in particular;
Section 311: Special Measures for Jurisdictions, Financial Institutions, or International Transactions of Primary Money Laundering Concern
This Section allows for identifying customers using correspondent accounts, including obtaining information comparable to information obtained on domestic customers and prohibiting or imposing conditions on the opening or maintaining in the U.S. of correspondent or payable-through accounts for a foreign banking institution.
This Section amends the Bank Secrecy Act by imposing due diligence & enhanced due diligence requirements on U.S. financial institutions that maintain correspondent accounts for foreign financial institutions or private banking accounts for non-U.S. persons.
To prevent foreign shell banks, which are generally not subject to regulation and considered to present an unreasonable risk of involvement in money laundering or terrorist financing, from having access to the U.S. financial system. Banks and broker-dealers are prohibited from having correspondent accounts for any foreign bank that does not have a physical presence in any country. Additionally, they are required to take reasonable steps to ensure their correspondent accounts are not used to indirectly provide correspondent services to such banks.
Section 314 helps law enforcement identify, disrupt, and prevent terrorist acts and money laundering activities by encouraging further cooperation among law enforcement, regulators, and financial institutions to share information regarding those suspected of being involved in terrorism or money laundering.
To facilitate the government's ability to seize illicit funds of individuals and entities located in foreign countries by authorizing the Attorney General or the Secretary of the Treasury to issue a summons or subpoena to any foreign bank that maintains a correspondent account in the U.S. for records related to such accounts, including records outside the U.S. relating to the deposit of funds into the foreign bank. This Section also requires U.S. banks to maintain records identifying an agent for service of legal process for its correspondent accounts.
Allows the Secretary of the Treasury to issue regulations governing maintenance of concentration accounts by financial institutions to ensure such accounts are not used to obscure the identity of the customer who is the direct or beneficial owner of the funds being moved through the account.
Prescribes regulations establishing minimum standards for financial institutions and their customers regarding the identity of a customer that shall apply with the opening of an account at the financial institution.
America has already demonstrated her willingness to use her powers under Section 311 of the Patriot Act to deny dollar-clearing facilities to foreign banks which contravene US requirements. Eighteen foreign banking institutions have already been subject to US intervention. What these actions demonstrate is an overriding need for a method of enabling a new form of compliance identification.
At present, every foreign bank which seeks to enter into a correspondent relationship with a US-based bank for the purposes of clearing US dollar transactions is required to self-certify their processes and procedures as providing compliance with US requirements.
The counterparty's acceptance of such self-certification is entirely dependent upon the honesty and the integrity of the bank providing the information, but in reality, there is very little if any independent corroborative proof that the information provided is indeed accurate or true. In the light of the FSA report, it should be doubted that much of the information is really accurate.
No wonder the US regulators don't trust our banks!