summarise:

Question

[109] The central finding of the Tribunal against Commerz Bank was:‘The Commission’s finding against Commerz Bank is that Dousie and Wilson were
employed by and/or represented, Commerz Bank and Dousie was participant in an
implicated chatroom.’
[110] The only information which the Commission sets out in its referral affidavit
against Commerz Bank is that Mr Dousie is said to have ‘shared information with Katz
about a potential customer in the market when Katz represented Barclays Capital.
This was on 28 July 2010. On 29 July 2012 it was alleged that it initiated a so-called
focal point; that is a level of the spot rate at which coordination takes place.
Furthermore, it was said to have occurred on the Reuters trading platform.
[111] There is a further averment that on 20 September 2012 that Commerz Bank
matched the average of Investec Bank at a price of 8.3277.
[112] Bearing in mind that the Commission is taken to have the evidence of Mr Katz
from his DOJ hearing it is significant that the affidavit does not contain any details of
the information about the potential customer which was shared. It does not suggest
that Commerz Bank was acting in concert with any of the other banks including
Barclays, nor does it aver that the information that was shared was commercially
sensitive.
[113] In this connection the use of the Reuters information platform becomes
relevant. It was explained by Mr Ian Sinton in an affidavit to which he deposed on
behalf of the eighth respondent. In evidence which was never contradicted he said:
‘The Reuters information platform that is primarily a news outlet akin to Bloomberg
where trades are not executed but indicative exchange rates are posted by many
institutions in order to show those who have access to the platform the trends in the market. The indicative exchange rates are typically submitted by the market
participants to Reuters by way of an automated feed that may update many times in
an hour. It is not a trading platform and the indicative rates published by Reuters are
neither binding nor used to determine the applicable rate in actual trades.
The Commission (i) identifies which bank allegedly posted the quotes; (ii) is not able
to name the traders that engaged in the conduct (save for an incorrect reference to
Brownrigg to which I return later); (iii) does not attribute any value or volume to the
quotes; (iv) alleges that almost all of the quotes relied upon were posted at times when
SBSA would not have been posting quotes that could give rise to a trade; and (v) does
not allege that any quote posted was accepted. Without access to data sets, the only
reasonable inference that SBSA is able to draw is that the Commission’s reference to
‘market conduct on Reuters trading platform’ refer to automated indicative exchange
rates posted on the Reuters information platform.’
[114] It is significant that in the case of Commerz Bank the Commission pleaded that
only it (Commerz Bank) initiated a focal point. This stands in contrast to the numerous
allegations of focal point which involved the conduct of multiple banks. An allegation
of unilateral conduct without more is hardly evidence of participation in an SOC.
[115] In summary, given the manner in which the Commission pleaded this case,
namely that there was a SOC, there is insufficient evidence to show that Commerz
Bank was a participant in an overall plan pursuing a common economic objective, that
its intentional contribution on its own which conduct indicates such participation and
that it was either aware of the overall conduct planned in respect of the SOC as a
whole or could reasonably have foreseen the existence of a SOC and that it was
prepared to take the risk.[116] At best for the Commission there may have been an explanation to which
Commerz Bank was obliged to provide that there was nothing untoward in two traders
from competing banks sharing information about a potential customer. But on its own
this is insufficient to meet the requirements of the case that was brought by the
Commission, that is the ambitious case of a SOC in which all of the respondent banks
participated.
[117] To the extent that there would be doubt in relation to the Commerz Bank, or for
that matter Nomura, reference should be made again to the provisions of Tribunal
Rule 15 (2) to the effect that the Commission is required to set out a concise statement
of the grounds of a complaint which contains the material facts or the points of law
relevant to the complaint relied on by the Commission in respect of the allegations that
demonstrate that a party was in breach of a provision of the Act; in this case s4(1) (b)
of the Act..
[118] The complaint had to be pleaded with sufficient factual particularity to enable a
respondent to ascertain the case that it is required to meet; in this case that it
participated in a SOC and that its conduct met, at least prima facie, all of the
requirements necessary to show that it was a participant in the alleged SOC. It is this
set of requirements which are a bridge too far for the Commission in regard to these
respondent banks; a burden made significantly more onerous by virtue of the
Commission’s entire case being based on the existence of a SOC. And further that
personal jurisdiction had to be established.

Answer 1

The Tribunal's central finding against Commerz Bank is based on the Commission's allegation that employees Dousie and Wilson were involved in a chatroom linked to the bank and that Dousie shared information about a potential customer with a representative of Barclays, Katz, in July 2010. However, the allegations lack detailed evidence, such as what specific information was shared and there are no claims that Commerz Bank collaborated with other banks in this regard.

The Commission referenced Commerz Bank matching an average price with Investec Bank on a separate occasion, but overall, the evidence presented does not demonstrate that Commerz Bank was part of a broader scheme (referred to as SOC) involving multiple banks. The Tribunal noted that unilateral actions, like the cited sharing of customer information, do not constitute sufficient evidence of concerted action.

The Commission’s claims needed to establish concrete facts indicating Commerz Bank's participation in a SOC, but they fell short of demonstrating intentional collective conducts. The Tribunal stressed that allegations must be sufficiently detailed to inform the accused banks of the claims they must address, and the Commission failed to meet this burden regarding Commerz Bank and other parties involved like Nomura. Thus, the evidence does not convincingly establish any breach of the relevant regulations as proposed by the Commission.