p. 2539. The Duty of Confidentiality
- Ross Cranston, Ross CranstonProfessor of Law at the London School of Economics
- Emilios Avgouleas, Emilios AvgouleasProfessor of International Banking Law and Finance at the University of Edinburgh; European Banking Authority Stakeholder Group
- Kristin van Zweiten, Kristin van ZweitenClifford Chance Associate Professor of Law and Finance at Oxford University and a Fellow of Harris Manchester College
- Theodor van SanteTheodor van SanteBarrister at 3 Verulam Building, Gray's Inn, London
- and Christoper HareChristoper HareTravers Smith Associate Professor of Corporate and Commercial Law at the University of Oxford and a Fellow of Somerville College
This chapter discusses the legal duty of confidentiality (or secrecy) that banks owe their customers. The real problems in the application of the doctrine in practice are two-fold. First, confidentiality has a habit of getting in the way of commercially acceptable practices. There is the potential for breaches of confidentiality where a bank performs different functions. For instance, banks may like to distribute information throughout the corporate group so that a range of financial, insurance, and other services can be marketed to customers. Secondly, confidentiality can act as a cloak for wrongdoing, often on a massive scale. Political leaders who have exploited their people, drug barons, and criminals have used the banking system to spirit away their ill-gotten gains. Bank confidentiality has then acted as an obstacle to bringing the culprits to justice and recovering the booty. Confidentiality also provides one of the explanations of how international terrorists have transferred financing round the world without detection.