De-banking ‘Risky’ Customers: Contractual Exclusion of Customers by Financial Institutions and AML/CTF Ramifications
摘要
De-banking is undertaken by financial institutions pursuant to contractual terms and conditions, often in response to money laundering or terrorism financing concerns, and in furtherance of AML/CTF obligations imposed on such institutions. This chapter provides an overview of recent judicial consideration of de-banking in the United Kingdom (UK), New Zealand (NZ) and Australia. Whilst the case law is in its infancy (and limited), in some cases banks have been successful in defeating legal challenges to de-banking. In others it can be considered whether there is a willingness from courts to tacitly import a duty of good faith or a ‘reasonableness’ requirement for banks in their contractual arrangements with customers holding banks to a higher standard in their contractual arrangements with customers than ordinary commercial parties. Consideration is given to whether there may be an emerging perception and expectation that financial institutions have a societal/corporate responsibility over and above other contracting parties. This chapter examines the interaction between contractual relationship of bank and customer and the not inconsiderable requirements imposed on financial institutions under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act). Ultimately, the balancing of contractual arrangements between parties, AML/CTF obligations, and considerations of fairness together present complexities over and beyond those in an ordinary contractual relationship. Consideration is given to whether there may be a need for legislative intervention around de-banking in Australia both to protect banking customers and to provide clarity and guidance for financial institutions. The chapter will primarily examine the Australian context but with reference to international case law developments in the United Kingdom (UK) and New Zealand (NZ).