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Offshore Banking and Confidentiality in Vanuatu

Under the common law, a duty of confidentiality arises from the express or implied terms of the banker customer relationship. However, banks in offshore financial centres are facing increasing demands from government authorities, such as tax offices investigating tax evasion, and police investigating offences such as money laundering, to disclose account information. Whether these demands come for a domestic or foreign authority, they pose a threat to the inviolability of secrecy and confidentiality. This chapter examines this problem in the context of Vanuatu, a tax haven in the South West Pacific. The chapter commences with some brief background on Vanuatu and then gives an explanation of the sources of law in Vanuatu, which constitute a complex mixture of common law, civil law and indigenous law (known locally as Customary Law or Kastom). It then sets out the current legal position in Vanuatu regarding a banker’s duty of confidentiality, including a discussion of relevant legislation. The chapter explores the exceptions to the duty and analyses the approach of the courts in Vanuatu, with reference to decisions in other common law countries, including England and Australia. It goes on to discuss the competing arguments for and against compulsory disclosure and considers whether the regime in Vanuatu offers any solutions for other small islands states.