A foreign bank witness located in an offshore tax haven will likely rely on bank secrecy laws to resist discovery about a bank customer’s financial information. A foreign court located where this foreign bank witness resides could however, apply an exception to bank secrecy law. If this happens, the foreign court might then end up directing the foreign bank witness to disclose bank customer information. This whole process may happen via Letters Rogatory, as suggested by "Foreign Bank Secrecy Laws & An Asset Search".
Foreign bank secrecy laws can also play a significant role when a domestic court exercises in personam jurisdiction over a foreign witness in possession of a bank customer’s financial information. To determine whether such a foreign witness is subject to domestic disclosure, a domestic court might analyze foreign bank secrecy laws along with the following factors mentioned in Old Ladder Litigation Co. LLC. v. Investcorp Bank B.S.C, et. al. No. 08-CV-00876 (S.D.N.Y. May 29, 2008):
- the competing interests of the nations whose laws are in conflict;
- the hardship of compliance on the party or witness from whom discovery is sought;
- the importance to the litigation of the information sought and whether there are alternative means to secure the information;
- the good faith of the party resisting discovery;
- whether the information originated in the United States; and
- the specificity of the request." (Id. at 10-11).
(Edited November 12, 2009)
Copyright 2008 Fred L. Abrams