Pre-ordered for next month. This is something that I’ve been engaging with for 10 years. At one hand I’d like colleagues/staff to speed things up, but it also always increases your needs. Having employees is a relentless responsibility. Networked working prevents those additional needs, but usually also has less effect in increasing speed and versatility, as the connections create more overhead than in the case of employees. I’ve seen peers find themselves with dozens of staff, and no longer doing the stuff they love. I’ve seen individuals struggle to keep moving for lack of impulses that a ‘normal’ company would provide. Now, the blurb and preface of this book reads as someone able to ditch a lot of hassle because of privilege, and trying to turn an individual experience into a theory and ascribe outcomes to one’s own individual ability to act. (And then there’s the awful, red flag like, up-sell to ‘take my course’ after you order the book) Whereas context and your starting position matter a lot. Not all of us can afford a move to beautiful Vancouver Island. But the trajectory is very familiar. My friend Robert Paterson left the banking world for PEI and working from home, and found that it greatly also reduced the cost of living as many expected behaviours or symbols of status in a city and in the banking world no longer applied to him. Reducing the level that is ‘enough’ to somewhere much more manageable. There are many more like that in my peer network as well. So I am at least curious.

Liked Company of One – Why staying small is the next big thing in business. by Frank Meeuwsen

“The real key to richer and more fulfilling work could be to not create and scale something into a massive corporation, but rather, to work for yourself, determine your own hours, and become a (highly profitable) and sustainable company of one.”

Two questions I was asked

In the past days people asked me questions about the Panama Papers and how it is connected to open data. Is a leak like the Panama Papers helpful or not to the cause of open data? Is it reasonable that the journalists don’t plan to publish all leaked files?
Before answering those questions, I will explore aspects of the data we’re talking about, the content of the leak, and the legality and morality of it all.

The core concept at stake: beneficial ownership

First let’s look at the data that we are interested in here, and why that data needs to be fully transparant.
There are two elements of importance. One is that in a transaction you need to be able to verify that you are dealing with the right person: can your counterpart deliver, and is your counterpart legally able to enter into a transaction? If you buy my house you need to verify it is mine to sell, and therefore cadastral ownership information is a public register. Similarly if you deal with my company, you need to verify who is allowed to enter into a contract on behalf of that company, and who ultimately owns it. That last bit is called beneficial ownership: cui bono? This information is registered in public company registers.

This means that for my company (The Green Land), you can find out through the Dutch company register (searching by name, or by the company number we provide on our website and letter head) that there are 4 owners with power of signature. Those four are all other companies. One of those owning companies is Interdependent Holding, and if you check that one, you’ll find out that I’m the sole owner (the other three are owned by my partners). This way you can trace that I am the ultimate owner of part of The Green Land. This is relevant information if you do business with my company, and it is important information for the tax office, who want to know when to tax me for what. These sort of checks, which should be possible, means beneficial ownership should be completely transparant. You are thus able to find out personal information about me through the company register.

That is the trade-off I make as an entrepreneur with you and the rest of society. You all allow me, by creating a company, to shield myself personally from several risks: a bankruptcy of my company will mostly not touch me personally (unless it is due to my negligence or misconduct). The overall benefit to society is that more people will feel opportunity to start something new that way. In exchange I need to give up some of my anonymity, so that it is always clear who ultimately owns something.

Shell companies break that trade-off when beneficial ownership is purposefully obscured, especially when it is the primary reason that company was created in the first place. It allows me to make myself invisible to you in a deal, and it allows me to evade taxes without much chance of that becoming easy to spot.

What is in the Panama Papers?

The Panama Papers are a collection of over 11 million of documents and some structured data, about the creation of a wide range of shell companies (210.000!) in the past 40 years. All the documents come from one law firm in Panama, that has assisted in creating companies in jurisdictions where beneficial ownership is not fully recorded. Those jurisdictions don’t record that information because they don’t need it for taxation. The leaked documents contain the correspondence and other material, such as copies of passports, that was used to keep client records at the law firm, and to establish firms. So the leak is not a list of companies and beneficial ownership like you could get from e.g. the Dutch company register. But from the leaked documents that information about beneficial ownership can be derived. Even if it is ultimately not recorded in the company registers of the jurisdictions these companies are established in (such as the British Virgin Islands). And that is what some 400 journalists in 80 countries did this past year: derive the beneficial ownership information from the leaked documents. And then write stories about it. The law firm in Panama involved is just one of many law firms offering these services. It is not the biggest either, though it is in the top 5, it just is a law firm that seems to have had crappy data security.

On legality and morality

It is perfectly legal to create a company in the British Virgin Islands or any other similar jurisdiction, and using a Panama law firm to help you do that. It is also normal in those jurisdictions that beneficial ownership is not always recorded, simply as it is not needed by the local tax office and they have therefore no reason to collect it.
It is however illegal to not disclose such ownership when asked to do so by the tax office in your country of residence.
When beneficial ownership is hidden, and when the law firm you asked to help you do that is also somewhere hard to get at, it becomes easy to not disclose such ownership to your local tax authority and not be found out though.

This leak now ends that purposefully created obscurity for a large amount of companies and the people who have the beneficial ownership of those companies.
Some of that will until now have been undisclosed to tax authorities elsewhere, and thus illegal. This is what is now prompting government investigations in Australia, Peru, Netherlands etc.

Next to legality, there are also issues of morality at play. And this mostly is where the journalistic interest is.
The morality of having a company in a jurisdiction where you do not do any business, but where you happen to be able to obscure your beneficial ownership can be called into question.
Why would a board member of a Chilean transparency organisation need one? Why would a prime minister who demands austerity from all citizens have one? Citizens that cannot use the options the prime minister apparantly does have access to (or draw immediate attention if they do, such as the shop owners of a Welsh village)
Why would an advisory board member of a Dutch bank, that is currently government owned after a bail-out have one? Why would an NGO have one and send public money and donations to them? Why would family and friends of heads of state need them, coinciding with their rise to power? Why would such obscurity be important to art dealers?

The people it concerns apparantly feel those morality issues themselves as well when confronted, though some have above board explanations, such as the NGO mentioned. Why else would a prime minister walk out of an interview about it and later resign? Why else would another prime minister provide 4 different explanations in 4 different days before coming clean?
Why else would a banker give up his position when challenged? Why else would a country whose powerful figures are named have reporting on it censored and firewalled. Why else would a government denounce it as smear campaign even before the Panama Papers were first published?
Why else would a leading transparency activist immediately resign? A FIFA official resign from his organisation’s Ethics Panel? And a minister from another austerity-focussed government? Why else try damage control, while pleading innocence without denying the facts presented, but because of being caught with your hands in the cookie jar?

The full list will come out

One of the defenses out there for those finding themselves cornered in this moral quandary is that only they are targeted. Trying to raise suspicion about the fact not all companies and their owners are yet published. That is attacking the messenger when you don’t really have anything to counter the message. Of course the journalists involved lead with the juiciest stories, so heads of state and prime ministers find themselves first exposed.
The list of shell companies and their owners is of course much longer, 210.000 companies long, and as I said beneficial ownership is the key concept here. So it is needed that that list will come out in full. It will. The ICIJ has announced that the full list will be published early May (last sentence at that link), after the stories prepared in the past year have been published. So we will soon be able to see for ourselves who else we are dealing with.

Getting back to the questions

So should the entire leak be made public? All those 11 million documents or so? I don’t think so. The beneficial ownership information definitely should be. This is the stuff you can get from most company registers around the world. Beneficial ownership being public is part of the deal a company owner makes with society. That is however only the information derived from the leak and not the content of most of the documents leaked. Copies of passports used to register the company are not ours to see. You don’t post yours either, nor is it public through company registers normally. So no, the entire leak does not need to be public I think.
Once you will see the full list of 210.000 shell companies and their owners, you will realize how many people not of public interest are on it. And you’ll realize that disclosing material other than beneficial ownership is a breach of privacy that doesn’t add anything to further challenge the legality or morality of the situation.

Does this help open data? That is uncertain to me. Maybe it helps to put beneficial ownership information at the heart of current discussions of opening up company registers in Europe further. Many of these European registers are public (you can check the records, for a fee), but not open. Only Denmark has a fully open company register. In other words: for you as an individual, Panama isn’t very far away in a certain sense, Panama is right in your own capital. Maybe it helps European governments to understand that they should lead by example in opening up beneficial ownership to the public pro-actively, and that their tax-offices have something to gain by it (because then data across multiple European jurisdictions will be routinely available).
Maybe it shows owners of shell companies that geographical distance and obscurity are much less of a protection than before digitisation, and lead at least some to make different choices. Or maybe it shows that full global transparency of company registers is unavoidable over time: if not voluntarily then forced.