(C2) (1) Provisions for proper banking management are not required to be published in the Official Gazette, but the Supervisor shall publish in the Official Gazette a notice of the issuance of such instructions and the date of their commencement.
(2) The provisions of proper banking management and any changes thereto shall be made available to the public at the Supervisor's offices and published on the Bank of Israel's website, and the Governor may determine additional ways of publishing them."
- Once the Supervisor of Banks has determined (in his reply to the plaintiff) that the refusal to transfer the funds to the plaintiff in the circumstances of the case is reasonable, it is not possible to accept the plaintiff's claims that the bank acted unlawfully or was negligent in breaching its obligations to its customers. There is also no reason to deny the exemption from liability that is also established in this context in section 24 of the Prohibition of Money Laundering Law, 5760-200.
- In order to try to substantiate a claim of negligence, the plaintiff claimed in paragraph 53(c) of the statement of claim that the bank was obligated to "disclose to the plaintiff its policy and procedures regarding the prohibition of money laundering, and to do so in advance and immediately when the policy is implemented in the field under any circumstances."
- I did not find any substance in these claims. I do not believe that the bank should have published its working procedure in relation to the prohibition of money laundering, and in any case the disclosure of such a procedure in its entirety is likely to harm the public interest and the bank's struggle against money laundering.
- In this context, see what was determined in Civil Case (District Court - Tel Aviv) 38805-10-16 Shilat La'Ad in a Tax Appeal v. Bank Hapoalim in a Tax Appeal (February 18, 2018) regarding the disclosure of the Bank's procedures regarding the implementation of Nevat 411:
"38. The banks are currently at the forefront of the fight against money laundering. The role was assigned to them by virtue of the law and in accordance with the directives of the Supervisor of Banks. Against the background of the public's interest and interest in preventing money laundering, the war on black capital and terrorism, the bank should be allowed to carry out the duty imposed on it in the best possible way and without fear of thwarting it. Against the background of the aforementioned role and the requirement that it act efficiently and effectively (a role that is accompanied by criminal sanctions that may be imposed against it), the Bank developed for itself and formulated an internal procedure, inter alia, by virtue of Provision 411, this procedure in its entirety, in my opinion, has no basis for ordering its disclosure.
- Disclosure of the procedure in its entirety will provide the Bank's customers (who wish to open an account or those who already manage an account in it) with information and tools that may harm the Bank's readiness and thwart its ability to carry out its mission and role in the fight against money laundering in the best possible way, while ongoing monitoring (on going monitoring) of the customer's activity after he has become aware of it (customer diligence).
- I have come to the conclusion that in balancing the interests and values, the right of the respondent-the bank - behind which is in fact the right/interest of the public as a whole - prevails over the respondent's right to disclose the procedure in its entirety. The scales are clearly tilted to prevent the disclosure of the procedure in its entirety - a disclosure that in the future and in the long run may turn out to be a discovery that has caused more harm to the public than to its benefit (to the individual), in a clear way."
- However, without derogating from the aforesaid, it turned out that in our case, the Bank published on its website a preliminary and satisfactory disclosure in my opinion with respect to its risk management policy, as well as with respect to the imposition of sanctions. Thus, a review of Appendix "18" to the statement of claim, which was taken from the Bank's website, entitled: "Cross-Border Risk Management Policy", shows that it contains a reference to international sanctions, as stated (hereinafter: the "Publication on the Bank's Website"):
"International sanctions
A number of entities around the world, including OFAC (from the U.S. Treasury Department) and the European Union, have imposed sanctions on certain individuals, entities, and countries. The sanctions of the OFAC and of the European Union do not directly apply to the Bank; However, as part of the Bank's business relations with correspondent banks, the Bank is expected to comply with these sanctions. Therefore, the Bank will not carry out activities that contradict the sanctions programs of the OFAC and of the European Union.
In addition, the Bank's management may decide to adopt "blacklists" established by other countries, of individuals and entities with whom it is prohibited to trade in those countries".
- In other words, there is also no dispute according to the plaintiff's position that the issue of the international sanctions to which the bank was complying was known to him. This is a very broadly worded clause, which anyone who reads understands that the Bank is expected to comply with international sanctions, and that the Bank can adopt "blacklists" set by other countries.
- However, even in the context of this publication of the bank on the Internet, the plaintiff has a grievance. According to him, the bank should have published that Britain had also imposed sanctions on some of the banks in Russia and that the bank would act accordingly. In my opinion, this is an unreasonable demand in the circumstances of the case.
- In my opinion, the plaintiff's attempt to claim now - "But you did not warn that you will also respect the sanctions that Britain will impose on Russian banks" - is a difficult attempt, which arises in retrospect. The Bank's general policy regarding the imposition of sanctions was known and published on the Bank's website, and it acted in accordance with it. In any case, the bank also acted in accordance with the procedures of the Supervisor of Banks. It is also important to clarify that we are talking about events that took place a few days after the outbreak of fighting between Russia and Ukraine, when global sanctions began to "roll" and the uncertainty also required the Bank to organize and act quickly in order not to violate those international sanctions.
- I also agree with the Bank that it has no legal obligation to inform the Claimant of the international sanctions that are being imposed, and that the Bank has fulfilled its duty, which is beyond necessity, when it published the policy on its website.
- The plaintiff complained at the evidentiary hearing that the word "Britain" was not explicitly listed on the bank's website under the heading "international sanctions." I do not have the same opinion as the plaintiff on this matter. On page 72 of the statement of claim, under the heading "International Sanctions," non-binding examples are presented, next to the word: "and between them," and it is also clarified that: "In addition, the bank's management may decide to adopt 'blacklists' established by other countries, of individuals and entities with whom it is prohibited to trade in those countries." In other words, this is a comprehensive and comprehensive clause and it cannot be argued that the absence of the word "Britain" led the plaintiff to believe that if this country imposes sanctions on the Russian banks, the bank will not be obligated to uphold them.
- In the margins, we must note an additional difficulty (which I have already discussed above) in the plaintiff's arguments, which, in my opinion, can reflect on the claims of negligence and breach of the duty of care raised by him. A review of Appendix 3 to the statement of claim shows that on February 28, 2022, the plaintiff informed the bank that the funds to be transferred to his account were from Svetlana, and that they would be transferred through Raiffeisen Bank, namely: "The transfer will be made from Raiffeisen Bank."
THE SECOND SVETLANA TRANSFER, WHICH WAS TRANSFERRED TO THE PLAINTIFF'S ACCOUNT AND WAS NOT DELAYED, WAS RECEIVED BY AO RAIFFEISEBANK BANK. IN ANY EVENT, THE TWO TRANSFERS THAT WERE NOT APPROVED AT THE END OF THE DAY WERE RECEIVED BY OTHER BANKS FROM RUSSIA (SBERBANK AND ALFA BANK) WHICH THE PLAINTIFF DID NOT MENTION AT ALL.