"Article 1 Subject to international treaties or agreements, it is prohibited for any natural person of French nationality or habitually residing on French territory and for any officer, representative, agent or servant of a legal person having its head office or an establishment in France from communicating in writing, orally or in any other form, in any place, to foreign public authorities, documents or information of an economic, commercial, industrial, financial or technical nature, the communication of which is such as to undermine the sovereignty, security, essential economic interests of France or public order, specified by the administrative authority as necessary. Article 1 bis. Subject to international treaties or agreements and applicable laws and regulations, any individual is prohibited from requesting, seeking or disclosing, in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature, with a view to establishing evidence in foreign judicial or administrative proceedings or in relation thereto."
“Another country's decision on what conduct does or does not attract criminal or penal sanctions would rebound on the domestic court. The foreign law would override the domestic court's ability to conduct its proceedings in accordance with its own procedures and law. If an answer would tend to expose the witness to a real risk of prosecution under a foreign law then, whatever the nature of the activity proscribed by the foreign law, the witness would have an absolute right to refuse to answer the question, however important that answer might be for the purposes of the domestic court's proceedings. "This surely cannot be right. Different countries have their own interests to pursue. At times national interests conflict. In its simple, absolute, unqualified form the privilege, established in a domestic law setting, cannot be extended to include foreign law without encroaching unacceptably upon the domestic country's legitimate interest in the conduct of its own judicial proceedings.”
“… I am not concerned with the discovery ... from ordinary parties to English litigation who happen to be foreigners. If you join the game you must play according to the local rules. This applies not only to plaintiffs but also to defendants who give notice of intention to defend. ... adherence to local rules requires also forbearance from taking advantage of more advantageous rules available elsewhere. Of course, a party may be excused from having to produce a document on the grounds that this would violate the law of the place where the document is kept ... But, in principle, there is no reason why he should not have to produce all discoverable documents wherever they are.”
“The orders in question were, respectively, for the provision of further information and disclosure. They were orders of a procedural nature in the pending claims and their making was, therefore, governed by the lex fori, namely the law of England and Wales. The domestic authorities to which we were referred show that the fact that such orders might, if complied with, expose the parties subject to them to the risk of prosecution under a foreign law provides no defence to their making. The English court still retains a jurisdiction under the lex fori to make them, although it has a discretion as to whether to do so in the particular circumstances. In the present cases, both Henderson and Roth JJ correctly recognised that, and they exercised their discretion to make the orders now under challenge.”
“Although not necessary to my decision, I agree with Mr. Sheldon’s submission that the Court should normally lean in favour (probably heavily in favour) of ordering inspection, especially where a substantial number of important documents are involved.”
“(i) In respect of litigation in this jurisdiction, this Court (i.e., the English Court) has jurisdiction to order production and inspection of documents, regardless of the fact that compliance with the order would or might entail a breach of foreign criminal law in the 'home' country of the party the subject of the order. "(ii) Orders for production and inspection are matters of procedural law, governed by the lex fori, here English law. Local rules apply; foreign law cannot be permitted to override this Court’s ability to conduct proceedings here in accordance with English procedures and law. "(iii) Whether or not to make such an order is a matter for the discretion of this Court. An order will not lightly be made where compliance would entail a party to English litigation breaching its own (i.e., foreign) criminal law, not least with considerations of comity in mind ... This Court is not, however, in any sense precluded from doing so. "(iv) When exercising its discretion, this Court will take account of the real – in the sense of the actual – risk of prosecution in the foreign state. A balancing exercise must be conducted, on the one hand weighing the actual risk of prosecution in the foreign state and, on the other hand, the importance of the documents of which inspection is ordered to the fair disposal of the English proceedings. The existence of an actual risk of prosecution in the foreign state is not determinative of the balancing exercise but is a factor of which this Court would be very mindful. "(v) Should inspection be ordered, this Court can fashion the order to reduce or minimise the concerns under the foreign law, for example, by imposing confidentiality restrictions in respect of the documents inspected. "(vi) Where an order for inspection is made by this Court in such circumstances, considerations of comity may not unreasonably be expected to influence the foreign state in deciding whether or not to prosecute the foreign national for compliance with the order of this Court. Comity cuts both ways.”
“... the prosecutions appear to be economically motivated and the targets chosen on purpose. Large American companies are, for the most part, spared from prosecution and only large European and Asian companies, in direct competition with American companies, are targeted. French companies are held hostage by these American procedures, stuck between a rock and a hard place in a process of façade 'negotiation', aggravated by blackmail for access to the American market: in the end, they have no choice but to incriminate themselves by paying astronomical sums to the US Treasury.”
“... in reality a law of referral and referral of foreign requests to the normal channels of international cooperation, has never been seriously and systematically implemented. It is now proving to be dated and insufficient to force foreign authorities to comply with mutual aid treaties and international cooperation agreements in order to obtain documents and/or information about our companies.”
“The intention of the legislator” – back in 1968 – “was indeed to protect French companies called upon to respond to the endless questionnaires of foreign lawyers seeking to accumulate evidence against said companies, often competing with those that these lawyers represent, through the so-called 'discovery' procedure.”
"Bercy ... is not in a punitive approach: we are here to help companies."
“... far greater practical risk of criminal prosecution than was previously the case ...”
“It is obvious that as between obtaining disclosure (i) by a direct order against the parties, and (ii) by a court to court request under the Regulation, the former is plainly the more appropriate course. The latter is likely to be a slow, cumbersome and inadequate alternative, which may well, as Roth J noted, spawn follow-up applications under the Regulation if, as is likely to happen in practice, National Grid considers that yet further disclosure needs to be given. It is obvious that the just and efficient disposal of National Grid's disclosure application required a conventional order directly against the French defendants, and no judge would have contemplated the use of the Regulation unless compelled to do so. Roth J, having decided that it would be appropriate to make a disclosure order, concluded that the existence of the Regulation did not require any different course. He was not only entitled to come to that view, it was, I consider, one that was manifestly correct.”