The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation

Abstract

A modern approach to private international law must deal adequately with three overall concerns. First, it must provide functional responses to the modern international context of trade and commerce in which cross-border problems arise. Second, it must provide effective and fair remedies in civil disputes when those disputes spill over national borders. Third, it must resolve the otherwise irreconcilable conflicts between national legal systems—not as an end in itself or solely as a means of finding comity among nations, but in order to do substantial justice between the private litigants involved. As Dicey had it in the choice of law context, this “does not arise from the desire of the sovereign of England or any other sovereign to show courtesy to other states. It flows from the impossibility of otherwise determining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners.” It is the burden of this article to examine the way in which the English courts have sought to work out these three general functions in the context of developing rules that govern the ambit of interlocutory orders to disclose and trace the proceeds of fraud internationally. Having identified the problems of abuse presented by the new opportunities of the international banking system, the courts have been quick to innovate in developing new remedies. But just as quickly they have run up against the boundaries of such remedies, both in granting orders themselves and in reacting to foreign orders.