New Jersey fails to enforce anti-BDS law with Danish bank
Danske Bank, sanctioned by New York, seeks business with Iran
The State of New Jersey has come under fire for allegedly not punishing a giant Danish bank that engages in anti-Israel economic activity.
Danske Bank, the largest bank in the Scandinavian country, is blacklisted by New York State for violating its anti-BDS law shielding Israel from economic warfare. An intense row over whether Danske – a financial institution that seeks to aid its clients in Iran – is in violation of New Jersey’s 2016 anti-BDS law unfolded in August.
Marc Greendorfer, an attorney and founder of the Zachor Legal Institute, told The Jerusalem Post by email this week that New Jersey “has investments in Danske Bank, but the state refuses to divest from Danske even though under the New Jersey law, there is no question that Danske qualifies as a company that is boycotting Israel (and is thus subject to divestiture by the state).”
The Zachor Legal Institute is a legal think tank and advocacy organization that combats BDS.
Danske, with a customer base of over 3.5 million, blacklisted two Israeli defense companies – Aryt Industries and Elbit Systems – from its customers’ investments.
A nine-page, unpublished report from a private research organization on the bank’s investment policies and relations with Israel concluded that “Danske was never legally required to divest form any Israeli company... Dankse’s alignment with a specific political agenda concerning Israel reveals Danske’s intentions to penalize the State of Israel to create an environment of political duress to influence Israeli state policy.”
Critics assert that Christopher McDonough, the director of the Division of Investment with New Jersey’s Department of the Treasury, has not enforced the anti-BDS law and permitted a former Swedish-owned company, ISS-Ethix, a provider of corporate governance services with a long-standing bias against Israel, to insulate Danske from punitive measures.
Willem Rijksen, a spokesman for McDonough, told the Post in early September that “following a review of information provided by nonprofit organizations, other [US] states with similar divestment laws, Danske Bank, and in consultation with a leading independent third-party research firm responsible for identifying companies that boycott Israel, the New Jersey Division of Investment determined not to include Danske Bank on its list of prohibited companies.”
Rijksen continued: “It also is worth noting that the Illinois Investment Policy Board and the Florida Board of Administration have also recently concluded that Danske Bank should no longer be included on their respective lists.”
Greendorfer countered: “The definition of ‘boycott’ under the laws of Illinois and Florida differs substantially from the definition in New Jersey’s law. Both Illinois and Florida limit their definition to boycotts that have specific characteristics (either political or discriminatory boycotts). These qualifications are not present in New Jersey’s law.”
He added: “In addition, the State of New York didn’t remove Danske from its list, but the State of New Jersey didn’t attribute any weight to this fact.”
Thomas Hyldahl Kjaergaard, the bank’s head of responsible investments, told the Post on Monday that “Danske Bank does not boycott Israel or Israeli companies as such, and we do not take part in the so-called BDS campaign targeting Israel.”
He said: “The inclusion of the two Israeli companies [Aryt Industries and Elbit Systems] on the list does not reflect a decision by Danske Bank to boycott Israel or otherwise restrict its business with Israeli companies. Rather, we included those two companies on our list because we determined that those two companies, like 25 other companies currently on our list, were engaged in commercial activities that were not consistent with the our Responsible Investment Policy.”
Greendorfer responded that “Danske claims that boycotting Elbit is consistent with the way it treats similar defense companies in other countries, but Danske’s own published ‘excluded companies’ list shows that Elbit, an electronics, security and conventional defense contractor that has nothing to do with nuclear weapons or cluster munitions, is being treated in the same way that producers of nuclear weapons and cluster munitions are being treated. If Danske isn’t holding Elbit to a different standard, one only applicable to Israeli companies, then why aren’t all defense contractors and security infrastructure companies on the excluded companies list?”
Dankse’s webpage titled “Areas of conflict” devotes – when compared to other territorial conflicts – a disproportionate number of mentions to Israel and the conflict with the Palestinians.
Kjaergaard said: “We do not make investments in these companies on behalf of our clients. The list currently includes companies based in countries as the United States, United Kingdom, Canada, France, Netherlands, Romania, South Korea, Australia, Russia and Morocco, as well as two companies based in Israel.”
He continued: “The inclusion of the two Israeli companies on the list does not reflect a decision by Danske Bank to boycott Israel or otherwise restrict its business with Israeli companies.”
When asked if Danske considers BDS antisemitic, Kenni Leth, a media spokesman for the bank, said: “We have no view on this as we do not engage in BDS.”
Danske faces new sanctions in additional US states for its alleged BDS activity. Colorado is slated to include Danske on its blacklist of companies violating the state’s anti-BDS law. According to an email obtained by the Post, Jennifer Schreck, a senior staff attorney with the Colorado Public Employees’ Retirement Association, wrote: “Danske Bank did not respond to our inquiry. Therefore, we are proposing to the Board of Trustees at the September 22, 2017, board meeting to add Danske Bank to the Restricted Companies List.”
Illinois is considering inclusion of Danske on its list of companies that state entities are prohibited from doing business with, according to a Post source.
Kjaergaard said Danske Bank “has contracted with an independent firm with significant experience in conducting responsible investing evaluations, and this company provides us with a regularly updated list of excluded companies that do not meet the requirements of responsible investing principles.”
The company – Institutional Shareholder Services, Inc. (ISSEthix) – was used by New Jersey to evaluate Danske’s alleged BDS activities.
According to the private research report, “Ethix has had a policy against Israel and Israeli companies since at least 2008 concerning controversies over French companies Veolia and Alstom participation in construction of the Jerusalem Light Rail. Since then, companies that have hired Ethix frequently choose to divest from or blacklist Israeli companies. To date, there has been no publicly available evidence that Ethix SRI Advisors [part of ISSEthix] has changed its assessments on any topic regarding Israel.”
Marija Kramer, head of ISS’s responsible investment business, told the Post by email that “ISS-Ethix is not in violation of any US state laws barring boycott, divestment and sanctions (BDS) activity against the State of Israel, nor is ISS engaged in any such BDS activity. We reject any implication that we have an anti-Israel bias.”
“ISS-Ethix has not advised companies or states to shun or boycott or divest business with Israel or Israeli companies,” she added.
Greendorfer said: “We believe Illinois and Florida removed Danske from their [prohibited for state business] lists based, in part, on information provided by ISS-Ethix (a company which was hired by Danske itself and we believe has an inherent conflict of interests). We are currently providing both states the information about the apparent ISS-Ethix conflict of interest so they can reverse their decision and reinstate Danske on their boycott lists.”
When asked about Dankse’s business with the Islamic Republic, Dankse’s spokesman said: “To a limited extent and within the international framework, we are open to supporting our clients with activities in Iran financially.”
The spokesman added this “refers to primarily Nordic companies doing business in Iran, and only to the extent that we live up to international agreements and respect sanctions.”
The US State Department classifies Iran as a leading state sponsor of terrorism.