"The company's arguments focus mainly on the fundamental question of the reasonableness of the bank's decision to refuse to allow trading in virtual currencies in a bank account - an issue that has not yet been clarified and in any case has not been decided by the Supreme Court's ruling... It should be noted that on the face of it, this issue incorporates a decision regarding the nature of the risk posed by trading in virtual currencies, and in particular in view of the characteristics of the company's activity and the steps it takes to reduce the risk; and legal questions regarding the proper balance between the scope of the bank's obligation to provide banking services, and its responsibility to prevent prohibited activity in the form of money laundering or terrorist financing (see and compare: Civil Appeals Authority 6582/15 Emaar Association for Economic Development and Growth v. Postal Bank, Israel Postal Company Ltd., [published in Nevo], paragraphs 13-14 (November 1, 2015); hereinafter: the Emar Association Case). As things stand, it cannot be said that the chances of an appeal are ruled out." [Civil Appeal 6389/17 Bits of Gold in Tax Appeal v. Bank Leumi Le-Israel in Tax Appeal [Published in Nevo] (February 25, 2018)].
From this determination of the Honorable Justice Baron, as to the chances of the lawsuit, it can be learned that the court is prima facie required, when examining the discretion of the banking corporation, to step into his shoes and examine the proper balance between the duty to provide a service and its responsibility to prevent prohibited activity, and in this context, it is not sufficient that there are (in accordance with the range of reasonableness) a number of reasonable alternatives from which it chooses one. As determined by the District Court.
- I am of the opinion that there is merit in the plaintiffs' arguments, and that there may indeed be room to consider more extensive judicial intervention in the decisions of the banking corporation, especially with regard to the restriction of activity and the closure of their customers' accounts. Support for this approach can first be found in the infrastructure that from the outset led to the establishment of an obligation to provide banking services - based, as detailed above, on the exclusive right of the banking corporations to provide such an essential service. However, this is especially true given the change in circumstances involved in imposing obligations on banking corporations in the framework of the war on money laundering and terrorism, duties that as a result, in some cases, the banking corporations' fear of external sanctions, leads to a lack of motivation to provide service to their customers. In these circumstances, it is possible to relate to the banking corporations as those that do not act as having nothing of their own, and accordingly comprehensively examine the decisions made by them on their merits, including not only whether the decision of the banking corporation is one of the reasonable decisions that can be made, but also whether there is no reasonable or correct decision from it.
At the same time, in the case before my decision, and as will be illustrated and detailed, it is doubtful whether the court was required to exercise extensive judicial review, since in any event, even according to the audit rules as applied to date, there is an impropriety in the bank's decision, mainly since the bank breached the obligations imposed on the banking corporation to act in a manner similar to an administrative authority, while following due process and transparency. Moreover, as will be detailed below, after receiving documents from the plaintiffs, in the framework of the legal proceeding, any relevant concern that existed - to the extent that existed - in the plaintiffs' activity was eliminated, and therefore, from here on, too, there is no reason to order the closure of the plaintiffs' accounts.