{"id":"court_ctb_1409_7","court":"CTB","case_no":"22-50073","doc_number":1409,"sub_number":7,"doc_type":"ORDER","filed_date":null,"title":"Exhibit 7 464 All England Law Reports [1983] 2 All ER","summary_zh":null,"summary_en":null,"body_en":"# Exhibit 7\n\n464 All England Law Reports [1983] 2 All ER\n\nI would accordingly uphold the lessor's submission, affirm the judgment of the deputy judge and dismiss the appeal.\n\nKERR LJ. I agree; there is nothing I wish to add.\n\nAppeal dismissed.\n\nSolicitors: Richard Southern (for the sureties); Slowes (for the lessor).\n\nDiana Brahams Barrister.\n\n## X AG and others v A bank\n\nQUEEN'S BENCH DIVISION (COMMERCIAL COURT) LEGGATT J 24, 25, 26, 27 JANUARY 1983\n\nConflict of laws - Contract - Proper law of contract - Swiss company having account with d London branch of New York bank – Relationship between bank and customer commencing in London - Whether proper law of banking contract English law or New York law.\n\nConflict of laws – Foreign order – Enforcement – New York subpoena – Swiss company having account with London branch of American bank – New York court issuing subpoena against bank to produce documents relating to company held by London branch of bank – Production of documents likely to constitute breach of banking contract and breach of bank's duty of confidentiality - Whether private interest of confidentiality between banker and customer should prevail over duty of disclosure to foreign court - Whether court should restrain bank from disclosing documents.\n\nInjunction - Balance of convenience - Bank - Confidential information between bank and customer - Bank seeking to comply with foreign subpoena to produce in foreign court documents belonging f to customer - Disclosure of documents likely to harm customer beyond adequate compensation -Bank fearing it would be liable to proceedings in for contempt of court if documents not produced - Whether court should grant injunction restraining bank from complying with subpoena.\n\nThe plaintiffs, X, a multinational corporation incorporated under Swiss law and based in only of the states of the states of the states of the states Switzerland, and Y, an American subsidiary of X incorporated in Switzerland but having a major branch in New York, were both companies concerned in the marketing of oil, metals and fertilizers. X conducted its business wholly outside the United States and all its books and records were kept in Switzerland. Y handled business emanating from and destined for New York, but its other business was operated from Switzerland. Both plaintiffs had accounts with the London branch of the defendant, an American bank, h that branch being used for a major part of the plaintiffs' general banking operations. In 1977 investigations were commenced by the United States Department of Justice into the crude oil industry as a result of which the investigators wished to produce before a federal grand jury documents belonging to the plaintiffs. When the plaintiffs refused to produce certain documents, on the ground that they were not subject to the jurisdiction of the United States courts, a subpoena was served on the bank to produce all documents relating to any accounts maintained by the plaintiffs at the bank's London branch. The bank declared its intention to comply with the subpoena, whereupon the plaintiffs sought and were granted injunctions in the High Court to restrain the bank from producing the documents, on the grounds that if the bank were to produce the documents it would thereby be in breach of the duty of confidentiality it owed to the\n\nb\n\nC\n\n#### QBD\n\n#### X AG v A bank\n\n465\n\n- plaintiffs. An order was then obtained in the New York District Court, ex parte and in a camera, requiring the bank to comply with the subpoena. In proceedings by the plaintiffs to continue the injunction, the bank conceded that it was under a duty of confidentiality towards the plaintiffs and that disclosure of the documents under the subpoena would constitute a breach of that duty but it claimed that the subpoena required the production of all bank records over which the bank had control regardless of their location and that if the bank failed to comply with the subpoena it would, as a United States corporation,\n- be subject to proceedings for contempt of court in the United States. The bank contended (i) that the proper law of the banking contract was New York law and therefore, since New York law governed both the subpoena and the contract, the order of the New York court relating to the subpoena should prevail over the contract, (ii) that, as a matter of law, an English court would not compel performance of, or enforce, a contract if performance of the contract required the doing of an act which violated the law of the\n- c place of performance, at least where the person required to do the act was resident in or amenable to the law of the place of performance, and therefore, since the contract was to be performed at least partly in New York, an English court would not compel the bank to perform its contractual obligation of confidentiality to the plaintiffs when to do so violated the law of New York, (iii) that an English court would not prevent a party to a contract from doing an act in the place where the contract was to be performed when\n- d that party was obliged to do that act by the law of that place, and that as a matter of policy an English court should decline to impede legitimate proceedings in other jurisdictions or orders (such as the subpoena) issued in the course of such proceedings when directed to a person within the jurisdiction of the foreign court, and that the primary effect of the United States order was in New York and only incidentally in London, (iv) that the public policy of respecting the order of a foreign court should prevail over requiring a banker\n- e to preserve confidentiality in relation to his customer's accounts and dealings, and (v) that in any event the subpoena should prevail over the duty of confidentiality because the bank had a genuine and legitimate interest of its own in obeying a subpoena issued under the law of the country to which it was subject and avoiding the genuine and not unreasonable possibility of being held in contempt of court.\n- f Held (1) Since instructions in relation to the plaintiffs' bank accounts were received and acted on in London, since the relationship of banker and customer was centred in London and since the plaintiffs had contemplated that their transactions with the bank would be governed by English law, it followed that English law was the proper law of the banking contract between the plaintiffs and the bank, not only because the branch with which the contracts were originally made was in London, but because that was\n- where the relationship began and where the contract was made in circumstances such that the contract was to be taken to have had English law as its proper law from its inception (see p 474 h to p 475 b, post).\n\n(2) It did not follow from the fact that the production of the documents had been ordered to be made in New York pursuant to the subpoena that confidentiality on the part of the bank could be said to have been rendered unlawful in New York, because a\n\n- h subpoena requiring disclosure was to be contrasted with legislation or a judgment requiring disclosure, since failure to produce the documents might be excused if an adequate excuse was produced and, furthermore, the subpoena and the subsequent order had been obtained without any form of hearing on the merits or inter partes (see p 475 g to j, p 476 a and p 480 e f, post).\n- (3) In determining whether the injunctions should be continued the court had to determine the balance of convenience, having regard to (a) the fact that the order of the New York court would take effect in London in breach of both a private interest, namely a contract between a banker and a customer, and the public interest in maintaining the obligation of confidentiality imposed on banks conducting business in the City of London, (b) the effect of the subpoena of the New York court and the fact that under the United States doctrine of foreign government compulsion the New York court would\n\n18\n\n#### [ 1983] 2 All ER\n\nnot hold the bank liable in contempt for complying with an injunction issued by a foreign court (ie the English court) which had jurisdiction over the branch where the documents were located (ie London) and would treat the English injunction as being an adequate excuse for the non-production of the documents, (c) the fact that, although the court would not be 'enforcing' a foreign revenue or penal law if the New York subpoena was permitted to be enforced in London, nevertheless the mere fact of not impeding the subpoena would involve a measure of assistance and approbation of the subpoena since, in particular, it would involve the court tolerating a breach of that obligation. of confidentiality which in the ordinary course it would maintain in the public interest, and (d) the fact that there was no evidence that delay in producing the documents caused by continuing the injunctions would be significant. Accordingly, the balance of convenience was between, on the one hand, impeding the New York court in the exercise in London of powers which, by English standards, were excessive without in so doing m London of powers willing of Eighstr standards, were excessive writiout in so doing\neausing deriment to the bank, and, on the other hand, causing very considerable commercial harm to the plaintiffs by not continuing the injunctions. In the circumstances the balance of convenience clearly favoured the plaintiffs and accordingly the injunctions would be continued (see p 471 e f, p 473 a b d and h j, p 474 e to g, p 476 j to p 477 b, p 478 c to e and j and p 479 a to d and j to p 480 d and f g, post); American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 applied; Tournier v National Provincial and Union Bark of England [1923] All ER Rep 550, Brjtish Nylon Spinners Italy Imperial Chemical Indontries Ltd\nEngland [1923] All ER Rep 550, British Nylon Spinners Indones Pries Ltd. [1952] 2 All ER 780, Regazzoni v K C Sethia (1944) Ltd [1957] 3 All ER 286, Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 and British Steel Corp v Granada Television Ltd [ 198 1 ] 1 All ER 417 considered.\n\n#### Notes\n\n466\n\nج مع آباد diction of the court to grant injunctions to restrain enforcement of a foreign .\nمن المحمد الملي judgment, see 8 Halsbury's Laws (4th edn) para 730, and for cases on the subject, see 11 Digest (Reissue) 641-642, 1747-1753.\n\n#### Cases referred to in judgment\n\n- American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, [1975] AC 396, [1975] 2 WLR 316, HL.\n- British Nylon Spinners Ltd v Imperial Chemical Industries Ltd [1952] 2 All ER 780, [1953] Ch 19, CA.\n\nBritish Steel Corp v Granada Television Ltd [1981] 1 All ER 417, [1981] AC 1096, [1980] 3 WLR 774, Ch D, CA and HL.\n\nCable (Lord), Re, Garratt v Waters [1976] 3 All ER 417, [1977] 1 WLR 7.\n\nKleinwort Sons & Co v Ungarische Baumwolle Industrie AG and Hungarian General Creditbank [1939] 3 All ER 38, [1939] 2 KB 678, CA.\n\nNWL Ltd v Woods, NWL Ltd v Nelson [1979] 3 All ER 614, [1979] 1 WLR 1294, HL. Ralli Bros v Compañia Naviera Sota y Aznar [1920] 2 KB 287, [1920] All ER Rep 427, CA.\n\nRegazzoni v K C Sethia (1944) Ltd [1957] 3 All ER 286, [1958] AC 301, [1957] 3 WLR 752,\n\nHL; affg[1956] 2 All ER 487, [1956] 2 QB 490, [1956] 3 WLR 79, CA. Rio Tinto Zinc Corp v Westinghouse Electric Corp, RTZ Services Ltd v Westinghouse Electric\n\nCorp[1978] 1 All ER 434, [1978] AC 547, [1978] 2 WLR 81, HL.\n\nTournier v National Provincial and Union Bank of England [1924] 1 KB 461, [1923] All ER Rep 550, CA.\n\nUS v First National City Bank (1968) 396 F 2d 897.\n\n#### Interlocutory applications\n\nBy writs issued on 15 and 22 November 1982, the first plaintiffs, X AG, and the second 1 plaintiffs, Y AG, severally brought actions against the defendants, an American bank, seeking a declaration that by virtue of the contract between the plaintiffs as customer and the branch of the defendants as bank, the defendants owed the plaintiffs a duty of secrecy and confidence in respect of the plaintiffs' accounts with the branch, all transactions thereon, all securities in respect thereof and all documents and information relating\n\n#### QBD\n\n#### X AG v A bank (Leggatt J)\n\n467\n\nthereto, and an injunction restraining the defendants by themselves, their servants or agents or otherwise howsoever from passing to the head office of or to any other office or a branch of the defendants or to any person any information or documents relating in any way whatsoever to any accounts maintained by the defendants in the name of the plaintiffs in London, any transactions thereon or connected therewith or any securities in respect thereof. By a writ issued on 19 November 1982 the third plaintiffs, Z Inc, sought an injunction in similar terms. On 25 November 1982 Lloyd J granted ex parte the injunctions sought and on 20 December 1982 they were renewed by Mustill J. The proceedings were adjourned for the hearing of full argument by the parties. The\n\napplications were heard in chambers but judgment was given by Leggatt J in open court. The facts are set out in the judgment.\n\nPeter Cresswell and Ali Malek for the first and second plaintiffs.\n\nC Jonathan Hirst for the third plaintiffs. Andrew Longmore for the bank.\n\nLEGGATT J. There is before me an application in each of three actions. At the request of the parties, this judgment is given in open court. This is another of those cases in this of the partist, in joing must give way to celerity, in which the urgency of the matter\n\n- must outweigh the desirability of reserving judgment in deference to the importance which both sides understandably ascribe to it. I shall refer to each of the plaintiffs by initials, arbitrarily selected, that is to say as the 'X company', the 'Y company' and the 'Z company', and the defendants, who are the same in each of the three applications, I shall refer to as 'the bank'. Although I cannot direct, I shall certainly expect that that anonymity\n- will be preserved in any report of this judgment. The bank has its head office in New\nYork and it is with the London branch of the bank that these applications are immediatel concerned. The applications in the three actions have been heard together and all applications are in similar form. In short, they raise the question whether injunctions already issued should be continued to trial so as to prevent obedience by the London branch of the bank to subpoenas issued in New York requiring production by the London\n- + branch of documents relating to an account of each of the three plaintiffs, who are customers of the bank, two of the plaintiffs being incorporated in Switzerland and one in Panama. The X company was formed under the laws of Switzerland in the early 1970s. It has over 40 offices located in some 30 different countries throughout the world. The Y company, which is a subsidiary of the X company, is also incorporated in Switzerland and has a major branch in New York. The Z company is a company associated with the X company, incorporated in Panama, but having its headquarters, like the X company,\n- in Switzerland. The X company and its subsidiary, the Y company, are concerned in the marketing of crude oil and oil products, ferrous and non-ferrous ores and metals, and also fertilizers. Both the X company and the Z company conduct their business wholly outside the United States; they have no presence there, that is to say no employees nor any business conducted there, and all the books of both companies, together with their\n- records, are kept in Switzerland. The Y company, on the other hand, handles business emanating from and destined for New York, but its other business is operated from its headquarters in Switzerland and, in particular, through use of its London account with the London branch of the bank. Accounts have been maintained by the plaintiffs with the bank for some time now, in the case of the X company since 1975, of the Y company since 1978 and of the Z company since 1980.\n- The relationship enjoyed by the X company with the bank is explained in an affidavit by a gentleman who is, in effect, the company secretary of that plaintiff. He asserts that the company did not, in forming its relationship with the bank, contemplate that United States law would govern the banking relationship for the reason that, since that relationship would be centred in London, it was naturally contemplated that it would be subject to English law. It is a relationship which has grown over the years and the London branch of the bank is used by the X company for a major part of its general\n\nAll England Law Reports\n\n468\n\n[1983] 2 All ER\n\nbanking affairs, including loans, deposits, letters of credit, guarantees, confirmations, credit references and presentments. All the instructions from the X company emanate from Switzerland or via an English subsidiary of the X company. The X company uses the London branch as its centre for worldwide dollar denominated banking arrangements and that deponent asserts, in common with those who have sworn affidavits on behalf of the other plaintiffs, that the X company would not have placed any business with the London branch of the bank unless it was confident that its business secrets would remain secure in accordance with the stringent standards observed in London. This is of of particular consequence in the context of letters of credit, because the documents held in the London branch in relation to letters of credit would contain instructions received from the X company or its London subsidiary and include\n\n'the application for the credit, the terms and conditions upon which it is to be opened and paid, the terms of the underlying transaction, the buyer, the documentary conditions for the transaction, the place of presentment and expiration, C and countless other commercial and proprietary items'.\n\nIt is said that the London branch files, that is to say the files of the London branch of the bank, also contain not only instructions concerned with general banking matters, investments and business facilities, but multifold data communicated to and shared with the branch in reliance on what the deponent terms 'the sanctity of the professional and confidential relationship between a customer and a bank carrying on business in London'.\n\nIn response to this aspect, an affidavit has been sworn by the general manager of the London branch of the bank. After explaining that the plaintiffs are, like many of the bank's customers, large, multinational corporations, whose banking requirements transcend national boundaries, he explains that the bank provides a co-ordinated worldwide service to its customers through its international department, so as to meet the customers' requirements. This deponent says:\n\n'However complex and geographically widespread a customer's requirements may be his banking relationship with [the bank] will be subject to overall direction, co-ordination and control from a relationship manager at one location. The relationship manager is usually based at [the New York office of the bank] or at the particular location of [the bank] where the customer has its head office or main f management centre.'\n\nHe concludes this passage by saying that, so far as the bank is concerned, its banking relationship with the plaintiffs is centred in New York.\n\nWith this passage I must, however, contrast the affidavit of the gentleman who appears to be the relevant relationship manager himself. He says that he is a vice-president of the\nbank presently assigned to the London branch and he declares: 'I am responsible fo managing [the bank's] business relationship with numerous commodity customers at' the London branch, including those of the plaintiffs.\n\nIt seems to me that, by way of application of the principles described in the first affidavit sworn on behalf of the bank, it is the second deponent who is to be identified as athe relationship manager and he samle services present in 16 ondon for most of the time, as it would appear. Whatever may be said in the affidavit of the first deponent to the effect that the bank's banking relationship with the plaintiffs is centred in New York, it seems to me that it can only be as a matter of internal administration of the bank and then only in a limited sense which does not detract from the fact that the bank maintains its own relationship manager in London.\n\n which their English dealings are conducted and of their own and the bank's close connections with New York. He then says:\n\n'Unlike a domestic U.K. customer of an English bank in London the plaintiffs (with the possible exception of [the Z company]) must, in my belief, have anticipated\n\nOBD\n\n469\n\nthat their dealings with [the bank] would be subjected to the necessary incidents of an overall international relationship having close connections with New York.\n\nI have some difficulty with that statement. First of all, it appears to me that the reference to the dealings being subject to the necessary incidents of an overall international relationship begs the question of what incidents are to be regarded as necessary, and, second, I am not sure that I understand the meaning of the phrase 'dealings . . . would be subjected to the . . . incidents of an overall international relationship'.\n\nThis part of the deponent's affidavit concludes by saying that in the much wider context of dealings between the bank and the plaintiffs-\n\n'the bank must, notwithstanding its efforts and obligations to provide a full service to very valued customers, have regard to and comply with the legal obligations of the country in which it is incorporated and in which its head office is based and where its relationship with the plaintiffs is centred.'\n\nComment about the relationship between the bank and the plaintiffs I have already made; but it is noteworthy that in that passage there is nothing said about the bank having regard to or complying with the legal obligations of the country in which its branch is situated. Nor, indeed, is there any reference to any regard that might be paid to the welfare of the bank's customers, although it is fair to say, and I say it now, that if\n\n- d there may appear in affidavits sworn on behalf of the bank to be a dearth of reference to the bank's concern for the welfare of its customers that may be, having regard to the doctrine which it is said may be material in New York, that the bank must be in a position to show that it has made what are termed 'good faith efforts' to comply with the requirements of the subpoenas served on it and too much concern for the welfare of customers might be misconstrued as a lack of good faith in the efforts being made by the\n- e bank to do what the subpoenas require it to do. The subpoenas are apparently the product of an investigation begun in about 1977 in the United States of the crude oil industry by various agencies there. It does not seem that the X company and its associated companies in the first instance were in any way concerned. Certain it is that no charges in consequences of any investigation undertaken over the years have ever been preferred against any of the plaintiffs. At the end of 1981\n- the Department of Justice in particular started an inquiry into crude oil trading of the Y company in the United States and one of the plaintiffs, I think the Y company, was served with a subpoena, in pursuance of which some 75,000 documents have been produced to the Department of Justice. But, notwithstanding the production of those documents, there was on 15 April 1982 a subpoena served on the X company, which was thereafter considered by its board. On I June 1982 the board, on the advice of Swiss and United\n- 9 States lawyers, decided not to comply with that subpoena. The X company believed that it was not and is not subject to the jurisdiction of the United States and that for the best of all reasons: that it is not conducting any business in the United States. Proceedings were therefore instituted to quash this subpoena. On 25 August the United States District Court for the Southern District of New York refused to quash the subpoena and on 13 September the same court held the X company to be in contempt for its failure to comply\n- h with the subpoena. On 15 October X company's appeal against the findings of the District Court was heard, but a decision on that appeal is still awaited. Meanwhile, on 8 October a subpoena had been served on the bank and it is with that subpoena that I am particularly concerned. It was followed by certain correspondence between those acting for the bank and solicitors for the plaintiffs, and, the bank having declared its intention to comply with the subpoena, injunctions were applied for. On 12 November Staughton J granted\n- an ex parte injunction to the X company, restraining the defendants in relation to the X company; on 26 November Lloyd J continued that injunction and granted injunctions in respect of the Y company and the Z company in similar terms; and on 20 December all three injunctions were continued by Mustill J. It seems that on the same day a subpoena was served on the Z company itself, which, for the first time, became directly implicated in the investigation. On I I January the bank's subpoena or the effect of it was\n\nC\n\na\n\n470\n\nindorsed by an order made on that day by the United States District Court for the Southern District of New York.\n\nIt is necessary to look in a little more detail at the terms of the subpoena. It is addressed to the bank, for the attention of 'Any officer or authorised custodian of records', and it commands the person addressed to attend before what is called the Grand Inquest of the body of the people of the United States of America for the Southern District of New York 'to testify and give evidence in regard to an alleged violation' of two Titles of the United States Code, which are specified in the subpoena. I have been told that they relate b respectively to conspiracy to commit an offence or defraud the United States and to an attempt to evade or defeat tax. The subpoena requires the person addressed to produce what is then set out in an extensive rider. The rider reads:\n\n'For the period of January 1st 1979 through December 31st 1981 [in other words a period of three years] any and all books, records and other documents regarding all accounts (including the known accounts listed below) and transactions of the G following companies, to include, but not be limited by, all bank statements (with debit and credit advices), loan documents, letters of credit (including bills of lading, invoices, contracts and other subsidiary documents), correspondence, internal memoranda, signatory and/or authorisation documents'\n\nand there are then specified the account of the X company in London, the account of the d Z company in London and the account of the Y company in London, in each case being, presumably, the account of that company held by the bank's London branch. The subpoena concludes by saying in its printed form that 'for failure to attend and produce the said documents you will be deemed guilty of contempt of court and liable to penalties of the law'.\n\nThe order of the United States District Court, Southern District of New York, which e was made on 11 January was one expressed to be in the matter of a grand jury subpoena directed to the bank, a reference no doubt to the subpoena which I have just recited. The order says that, the bank having been subpoenaed to appear before a federal grand jury to produce various documents and the bank having failed to produce various records maintained in its London branch as a result of a restraining order (as it is called) issued by the High Court of Justice, Queen's Bench Division-\n\n'and upon representation that it is necessary for the better enforcement of said Grand Jury subpoena, and the court being satisfied that the production of the documents requested by the subpoena is necessary in the best interests of justice and the Grand Jury investigation, it is hereby ordered and adjudged that [the bank] produce all the documents ... relating to any accounts [of the X company, the Y company and the Z company] maintained in its London, England, branch.\"\n\nI am told that this order was obtained ex parte and in camera and there is no evidence about what material, if any, was available to the district judge when the order was made.\n\nThe predicament in which the bank in consequence finds itself is obvious. The subpoena is binding on it. United States law obliges the bank to comply with it. It involves the relevant documents (when I say 'relevant' I mean relevant in the sense of being those documents which are identified in the subpoena) being produced to the court and there is by way of indorsement of the subpoena an express order of the court also binding on the bank. On the other hand, there are now current in this country injunctions prohibiting the bank from obeying that subpoena, being a subpoena supported by the order of a competent court of the United States.\n\nThere is no dispute that the bank is subject to a duty of confidentiality. Apparently the nature of the duty is no different in New York from the duty to which it is regarded as subject in London. For convenience, I would describe the duty as arising from an implied term of the contract governing the relationship of banker and customer and as being that, subject to certain qualifications which it may be material to consider, a banker shall not without the consent of the customer disclose to any other person any document or other information obtained by the banker in the course of that relationship.\n\n### OBD\n\nC\n\ng\n\nh\n\n#### X AG v A bank (Leggatt J)\n\n471\n\nThere is no dispute that disclosure of the documents to the grand jury would constitute or create a breach of that duty. It would be so, as it appears from the evidence, not merely in the technical sense of the grand jury itself constituting a third person to whom disclosure of confidential documents would constitute a breach of that confidentiality, but also in the far wider and more material sense that, as it would appear, there is in practice no secrecy in relation to matters entrusted to grand juries. I have this on the authority of Mr Marvin Frankel, now advising the plaintiffs in New York, who himself has served as a district judge there and is the author of a book entitled The Grand Jury : An\n\nInstitution on Trial (1977). Apart from the fact that work refers expressly to leaks which are common of material entrusted to grand juries, Mr Frankel refers in his affidavit to disconcerting matters arising in this very case, because he says that the United States attorney-\n\n'sought and obtained the District Court's acceptance of a secret affidavit and documentary exhibits, characterised as decisive against [the X company's] motion to quash [the subpoena served on them, but not shown to the X company's attorneys] on the plea that to do so would reveal the government's theory of the case and identity of co-operating witnesses to the possible prejudice of the government's investigation.'\n\n### d But, says Mr Frankel-\n\n'almost immediately following the argument of an appeal in that case ... newspapers at several places in the United States were publishing supposedly secret information about this very matter and attributing the revelations both to identified \"secret\" witnesses, and, more importantly, to \"government sources\"\n\ne and he exhibits a copy of an article which in lurid terms contains or purports to contain such revelations.\n\nThe other matter which is not in dispute is the nature and the extent of the harm which the plaintiffs would suffer were such breach of confidentiality to occur in this case. The damage which the X company would sustain is described as immediate, irreparable and incalculable, and similar descriptions are given to that which would be suffered by the other plaintiffs in like circumstances.\n\nFor the purpose of explaining himself the deponent in relation to the X company takes by way of example letters of credit. He says that for those translations in which the X company-\n\n'is the purchaser of commodities, and in which a letter of credit is opened by [the London branch of the bank] for the benefit of [the X company's] supplier, and for those transactions in which [the X company] is the seller, and in which [the London branch of the bank] either confirms a letter of credit opened by [the X company's] customer or collects on a letter of credit under which [the X company] is the beneficiary [the London branch of the bank] receives all of the shipping and title documents including bills of lading and invoices. From these documents the following information may be obtained: (a) the name of [the X company's] supplier or customer; (b) the type of commodity bought or sold; (c) the quantity of the commodity bought or sold; (d) the price at which the commodity was bought or sold; and (e) the relevant shipping information. In many cases it would be possible to determine from such information [the X company's] margin on a particular transaction and, where [the X company] acts as intermediary, to identify the trading parties on both sides of a transaction.\"\n\nEngaged in various trades, as the X company is, this would have very serious repercussions. For example, it is said that the X company operates in and trades with countries which are in politically sensitive areas of the world, with the result that their governments or their agencies often prefer to trade through an intermediary in order not to reveal the buying and selling strategies for particular commodities or, in some instances, the fact that the governments or their agencies may have entered into such transactions contrary\n\n18\n\n### [1983] 2 All ER\n\nto some policy which publicly may have been professed on the governments' behalf. Many transactions, it is said on the X company's behalf, are concluded with governments or governmental agencies in countries in which the commodity in question is one of the chief sources of foreign exchange revenue and for that reason alone the details of such transactions are highly confidential. Similarly, damage might well be caused if knowledge of the trading patterns of the X company were to reveal, for example, that there was stockpiling of particular strategic materials by any of the Western customers. There might be revealed a breach of some restriction imposed on particular Middle Eastern, b Latin American or Iron Curtain countries on the dealing with other particular countries in respect of certain materials. Finally, and perhaps most obviously, disclosure of information of the character held by the London branch of the bank would put the X company at a severe disadvantage in relation to its competitors in that it would allow what the deponent calls 'a window into the X company's commercial secrets'. The X company's suppliers and customers, its pricing decisions, its margins and its delivery c dates would all be liable to become public knowledge and an analysis of such information would obviously enable competitors to tell much, and, as it may be, all that they need to know, about the X company's operating methods, resources and strategy. That those consequences would be liable to occur is not controverted.\n\nA review of the evidence in this case must include reference in particular to the expert evidence sworn on each side.\n\nThe bank relies on an affidavit of an attorney who is a member of a New York law firm, Mr Connick. After asserting that the federal grand jury subpoena requires the production of all bank records over which the bank has control, regardless of their location, and citing authority for that proposition, the deponent states:\n\n'[Should the bank] fail to comply with the subpoena it would be subject to en proceedings under the Federal Rule of Criminal Procedure 17(g) which reads: \"Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued\" . . . '\n\nHe then refers to the leading case of US v First National City Bank (1968) 396 F 2d 897, in which the United States Court of Appeals for the Second Circuit dealt with the question of a New York bank's obligation to comply with a grand jury subpoena. He remarks T that, after balancing certain factors, the court ordered compliance with this subpoena 'despite the apparently conflicting law of the nation where the records were kept, West Germany', and he says that a recent decision of the United States District Court for the Southern District of New York has affirmed the validity of that case with respect to process issued by United States government investigators. The case in which that affirmation was made was one in which the court ordered a Swiss bank to comply with g informational demands of the Securities and Exchange Commission, despite the possibility of criminal prosecution in Switzerland for such compliance. Conservatively, the deponent remarks that there are some factual differences between those two cases and the present, and he says that, for that reason, as well as the uncertainty of the outcome of the balancing test, it is impossible to predict with certainty what the United States attorney or the federal courts would do should the High Court continue the outstanding injunctions against the bank in this matter. However, he says that it is 'entirely possible' that a bank officer in New York would be summoned to appear before the United States District Court and directed to produce the documents, that on the basis of the balancing test the District Court would not recognise the High Court's injunction as an adequate excuse for failure to produce such documents, and that if thereafter the bank refused to produce the documents the District Court would imprison the bank officer and impose J a daily fine on the bank until the documents were produced. He does, however, end his affidavit by saying:\n\n'Should the High Court continue the outstanding injunctions [the bank] would have no choice but to oppose vigorously any contempt proceeding in New York and to incur additional substantial legal expenses toward that end.\"\n\n#### OBD\n\ng\n\n#### X AG v A bank (Leggatt J)\n\n473\n\nI am bound to say that had the matter ended there I should have been left in very great doubt whether the bank stood in any real jeopardy in New York. Although it might have understandable apprehension so long as the subpoena remained outstanding and not complied with, my feeling would stem quite simply from the fact that no suggestion is made how the prohibition of this court on the production of relevant documents would not constitute an adequate excuse for failure by the person to whom the subpoena was addressed to produce the documents in question.\n\n- But the matter does not end there, because a substantial affidavit has been sworn on b behalf of the plaintiffs by Professor Lowenfeld, Professor of Law at the Law School of New York University. He is a person of the greatest academic distinction and one of the leading authorities in the particular field of law with which this case is concerned. He is, indeed, an associate reporter of the American Law Institute's current revision of the Restatement of the Foreign Relations Law of the United States. His principal responsibility\n- c in that capacity is for Part IV of the Restatement, concerning jurisdiction and judgments, and including in particular the sections concerning resolution of conflicting exercises of jurisdiction, which are the subject of the present dispute.\n\nThe professor says that he believes it highly unlikely that a United States bank or its officers would be held in contempt for conduct in compliance with the order of a British court in the circumstances stated, that is an injunction restraining the transfer or\n\n- d disclosure of records kept in London in respect of a bank account maintained by a non-American corporation at the bank's London branch. He declares himself quite certain 'that no United States court has ever held a bank or other party in contempt in such circumstances', assuming, as he does, that there is no suggestion of wrongdoing by the bank either in transferring overseas records ordinarily kept in New York or in any way assisting the depositor in a scheme of concealment or non-disclosure.\n- After reciting the basic rule in the event of conflict between commands of the courts e of different jurisdictions, which apparently is that no one is to be put in the position of fearing punishment irrespective of whether he does or does not do an act, the professor cites authority for that proposition.\n\nThe authorities include one which it behoves me to mention and that is British Nylon Spinners Ltd v Imperial Chemical Industries Ltd [1952] 2 All ER 780, [1953] Ch 19. That f case is of general importance in this matter for the comments of Evershed MR where he said (f 1952] 2 All ER 780 at 783-784, [1953] Ch 19 at 27):\n\n. . . the courts of this country will, in the natural course, pay great respect and attention to the superior courts of the United States of America, but I conceive that it is none the less the proper province of English courts, when their jurisdiction is invoked, not to refrain from exercising that jurisdiction if they think that it is their duty so to do for the protection of rights which are peculiarly subject to their protection. In so saying, I do not conceive that I am offending in any way against the principles of comity . . . '\n\nLooking at that case, it is convenient also to mention the comment of Denning LJ ([1952] 2 All ER 780 at 784, [1953] Ch 19 at 28): 'The writ of the United States does not h run in this country, and, if due regard is had to the comity of nations, it will not seek to run here.'\n\nThere is, as would appear from the professor's affidavit, a doctrine in the United States, or at any rate in New York, known as the doctrine of foreign government compulsion, which depends, as he explains, on a prohibition in one state conflicting with a command in another. The professor considers the case mentioned in Mr Connick's affidavit, US v\n\nj First National City Bank (1968) 396 F 2d 897. He describes how the District Court held that the defence based on German law in that case was speculative, based at most on possible exposure to civil liability or loss of standing in the financial community, and that on appeal the district judge's holding was affirmed, with the court pointing out in detail the distinction between the Swiss bank secrecy law, which was a mandatory law, backed by criminal sanction, and German law, for breach of which there was at most a civil liability.\n\nAll England Law Reports\n\n474\n\n#### [1983] 2 All ER\n\nThe professor then proceeds to consider the special rules concerning the discovery of documents. He says that it has been the pattern, although not followed in all cases, for United States courts faced with discovery requests or subpoenas calling for the production of documents located abroad to issue an order to produce and, if a foreign prohibition against production is asserted, to order the party before the court to make a good faith effort to secure release or waiver from the prohibition, but, if no release from the prohibition has been obtained, to dismiss petitions for contempt.\n\nCertain authorities for that proposition are considered, including the other recent case b in the United States District Court referred to by Mr Connick, on which the professor comments that the bank there in question was held to have failed to make a good faith effort to comply with the request for production. In addition, the government of the state where the records were kept had not acted to prevent the bank from complying with the subpoena; or, in other words, in that case the bank was not subject to an injunction in the manner that the bank in the present case is. The professor expresses c some doubt whether that case was properly decided and summarises the matter by reference to his current draft of para 420 of the Restatement of Foreign Relations Law, which deals specifically with requests for disclosure and foreign government compulsion. Sub-paragraph (2) of that paragraph reads, so far as is material :\n\n(a) the person to whom the order is directed may be required by the court to make a good faith effort to secure permission from the foreign authorities to make d the information available; (b) the court may not ordinarily impose the sanction of contempt, dismissal, or default on the party that has failed to comply with the order for production, except in cases of deliberate concealment or removal of information or of failure to make a good faith effort in accordance with paragraph (a).\n\nIt has been explained that the restatement is intended to be declaratory of existing law in the United States.\n\nIn those circumstances, the professor summarises his conclusion by saying that an injunction by a foreign court having jurisdiction over the branch where the documents are located-\n\n'would, I believe, come within the foreign compulsion defence, provided (a) the bank at all times acted in good faith as defined; and (b) disobedience of the injunction f would subject the branch and its officers to serious sanction.'\n\nI accept that conclusion. It represents, in my judgment, an accurate summary of the law of New York so far as applicable, from which it follows that the bank, having properly pursued its good faith efforts to relieve itself from the consequences of an injunction in this country, ought not to be held liable for contempt in any proceedings g brought to that end in New York.\n\nIt is convenient to consider the arguments of counsel addressed to me by reference to these matters by following the structure of counsel's argument for the bank. He was content in offering his propositions of English law to assume at the outset that English law is the proper law. Advocate that he is, he left until the end any suggestion that the proper law should be regarded as being anything other than English law. When he came to it he argued that the law of New York should apply to the transaction as a whole for the reason that that was the law with which, so he bravely asserted, the contract has its closest and most real connection in each case.\n\nI unhesitatingly reject that submission. It seems to me, for such reasons as counsel advanced on behalf of the first and second of the plaintiffs, concurred in by counsel for the third of the plaintiffs, that English law is the proper law, not only because the London branch with which the contracts were initially made is in London, but because that is where the relationship started and where the contract was made in circumstances where that contract must be taken to have had a proper law from its inception. Instructions in relation to the account are received and acted on in London. The reality of the matter, as it appears to me, whatever comments to a contrary effect may be made on behalf of the\n\n#### QBD\n\n#### X AG v A bank (Leggatt J)\n\n475\n\nbank, is that the relationship between banker and customer is in truth centred in London. The plaintiffs all say, and I accept the truth of their assertions, that they contemplated that their transactions with the bank would be governed by English law. For all those reasons, quite apart from the more general description of the contract as being one which has its closest and most real connection with English law, I hold that English law is, indeed, the proper law of the contract.\n\n- The first proposition of counsel for the bank was that as a matter of English law an h English court will not compel performance of or enforce a contract if performance requires the doing of an act which violates the law of the place of performance, at any rate where the doer is resident in or amenable to the law of the place of performance; nor will an English court prevent a party to a contract from doing an act in the place where the contract is to be performed when he is obliged to do that act by the law of that place. In pursuing this argument, counsel for the bank contended that the contract cannot\n- c be enforced in so far as it requires confidence to be respected in the United States. Thereby he raised the curious concept of confidentiality which no longer was. This seems to me to be a true example, if one were prepared to envisage it, of the curate's egg, that is to say good in parts. The reality of the matter is that once confidence escapes, like air from a punctured tyre, the confidence is no more. But in aid of this argument counsel for the bank relied on Ralli Bros v Compañia Naviera Sota y Aznar [1920] 2 KB 287 esp at\n- d 290, 299, [1920] All ER Rep 427 esp at 431, 435 per Lord Sterndale MR and Scrutton LJ. That was a case involving a contract which was to be performed partially in Spain and it was held pro tanto to be invalid in the event that performance was unlawful in Spain. The argument is that this contract is to be performed, at least in part, in the United States and, as counsel for the bank characterises it, it requires violation of United States law, by which he means the keeping of confidentiality, with the result that the bank should not\n- e be restrained from doing the act of disclosure as being one which it is required to do in the place where the contract is to be performed. In aid of this he relied also on Re Lord Cable, Garratt v Waters [1976] 3 All ER 417, [1977] 1 WLR 7, in which it was held that where compliance with an injunction would expose the relevant trustees to serious risk of penal consequence the injunction would not issue.\n- In opposition to this argument counsel for the first and second plaintiffs relied in f particular on Kleinwort Sons & Co v Ungarische Baumwolle Industrie AG and Hungarian General Creditbank [1939] 3 All ER 38, [1939] 2 KB 678. That was a case in which an English bank opened an acceptance credit for a Hungarian firm. When the credit expired the Hungarian firm refused to pay in London on the ground that under Hungarian legislation it was illegal for them to remit money abroad. But it was held that this was no defence to the bank's claim. English law was the proper law of the contract, the\n- money was payable in London and the Hungarian law could not affect the legality of a contractual promise in fact governed by Hungarian law but not to be performed in Hungary.\n\nIn my judgment it does not follow from the fact that the production has been ordered pursuant to a subpoena that secrecy can be said to have been rendered unlawful, especially in circumstances where it is no doubt the argument, even if perhaps it be only a fiction,\n\n- h that security is still preserved in respect of grand jury proceedings. The fact is that confidentiality is not rendered illegal by a subpoena requiring disclosure, which is to be contrasted with some form of legislation to that end; and I have in mind in particular that from the terms of the relevant procedural rule failure to produce the documents may be excused if the excuse be adequate.\n- Counsel for the first and second plaintiffs remarked that, since a foreign judgment i may be a good defence to an action in England when the judgment is in favour of the defendant and finally conclusive on the merits, he could envisage that an argument might be advanced which sought to equate a subpoena with a judgment; and so, indeed, it proved, because counsel for the bank duly contended that, if need be, he would argue that the subpoena operates as a defence, final and conclusive as it is in the absence of challenge.\n\n476\n\nIt seems to me that there is no analogy for present purposes between a judgment and a subpoena and, in particular, there is no suggestion whatever that the obtaining of this subpoena or the order which has subsequently indorsed it has involved any form of hearing on the merits. Certainly it has not as yet involved any form of hearing inter partes.\n\nNext, counsel for the bank argued that as a matter of the policy of English law an English court should decline any invitation to impede legitimate proceedings in other jurisdictions and orders such as the subpoena issued in the course of proceedings, h especially where directed to a person within the jurisdiction of the foreign court.\n\nFor this he admits that it is difficult to find precise authority. He asserts it as a matter of common sense dictated by international comity, and he seeks to found on the wellestablished rule of English law that it will not enforce a contract to do something illegal in another country. He relies on Regazzoni v K C Sethia (1944) Ltd [1957] 3 All ER 286, [1958] AC 301, which is authority for the proposition that that public policy will avoid at least some contracts which violate the laws of a foreign state. He says that properly regarded it is wrong to think of this subpoena as being extra-territorial in its effect. At that stage he meets Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434, [ 1978] AC 547, much relied on by counsel for the first and second plaintiffs. That was a case, according to counsel for the bank, which merely affords guidance as to the interpretation of the Evidence (Proceedings in Other Jurisdictions) Act 1975 and, having regard to the narrow way in which particular comments were expressed, should be regarded as applicable only to attempts made by means having extra-territorial effect to make United Kingdom companies amenable to the investigation of a foreign court. The case was, indeed, concerned with the use that might be made in this country of letters rogatory and a possible conversion of the letters rogatory into a request for evidence for the purposes of a grand jury investigation. Counsel for the bank says that the primary effect of the United States order in the present case is in New York and only incidentally in London, with the result that it does not represent any invasion of United Kingdom sovereignty and all that is at issue is a matter of private law.\n\nCounsel for the first and second plaintiffs contends that the case is what he terms 'vitally relevant'. He says that it shows how a subpoena is to be regarded here and, in particular, by reference to submissions there made by the Attorney General, what the attitude would be of the United Kingdom government. In that case the Attorney General had submitted that the government considers that the wide investigatory procedures under the United States anti-trust legislation against persons outside the United States who are not United States citizens constitutes an infringement of a proper jurisdiction of sovereignty of the United Kingdom.\n\nBoth counsel read to me with great emphasis a passage from the speech of Lord of Wilberforce where he said ([1978] 1 All ER 434 at 448, [1978] AC 547 at 617):\n\n'The intervention of Her Majesty's Attorney-General establishes that quite apart from the present case, over a number of years and in a number of cases, the policy of Her Majesty's Government has been against recognition of United States investigatory jurisdiction extra-territorially against United Kingdom companies. The courts should in such matters speak with the same voice as the executive . . . h they have, as I have stated, no difficulty in doing so.\"\n\nCounsel for the bank relied on that for its specific application to United Kingdom companies which he said is absent here and counsel for the first and second plaintiffs relied on it as betokening the attitude which Her Majesty's government may be expected to take about the use in this country by the United States of the investigatory jurisdiction\nof the relevant character. Counsel for the bank concludes his argument under this by asserting that if the English law issued a subpoena it would expect what he calls 'credence' to be given to its order and that it must be a matter of discretion whether or not that is accorded to it.\n\nIt seems to me that the proper use which I should make of the Westinghouse case is to\n\n#### OBD\n\nd\n\ne\n\n#### X AG v A bank (Leggatt J)\n\n477\n\nregard it in the circumstances not as definitive either way, but as raising one important a factor which I ought to take account of in determining whether this is a case in which the injunction should be continued. The factor that is involved in the exercise of jurisdiction by the United States court in this case is that its order would take effect in London for the production of documents in breach of what might be termed a private interest in the sense that what is directly involved is a contract between banker and customer. But this indubitably is also a matter of public interest, because it raises issues of wider concern than those peculiar to the parties before me.\n\nThe third proposition of counsel for the bank is that public policy is not defeated by the rule of private law between banker and customer that the banker should preserve confidentiality in relation to the customer's accounts and dealings. He says that it is not uncommon for confidentiality to be displaced in favour of a higher interest. The bank has to do a balancing act to see whether confidence or the order of a foreign court should C take precedence.\n\nIt is an argument which he considerably elaborated, starting first with British Steel Corp v Granada Television Ltd [1981] 1 All ER 417 at 455, [1981] AC 1096 at 1168-1169, relying in particular on a passage from the speech of Lord Wilberforce where he says:\n\n. . . as to information obtained in confidence, and the legal duty, which may arise, to disclose it to a court of justice, the position is clear. Courts have an inherent wish to respect this confidence, whether it arises between doctor and patient, priest and penitent, banker and customer, between persons giving testimonials to employees, or in other relationships. A relationship of confidence between a journalist and his source is in no different category; nothing in this case involves or will involve any principle that such confidence is not something to be respected. But in all these cases the court may have to decide, in particular circumstances, that the interest in preserving this confidence is outweighed by other interests to which the law attaches importance. The only question in this appeal is whether the present is such a case.\"\n\nCounsel for the bank relies on that passage as showing that there is a process of weighing to be undertaken. Counsel for the first and second plaintiffs, on the other hand, points out that it expressly relates to information obtained in confidence, and the legal duty which may arise to disclose it to a court of justice and is, therefore, directly within one of those qualifications to which the obligation of confidentiality is normally treated as subject.\n\nThe scope of the obligation was reviewed in Tournier v National Provincial and Union Bank of England [1924] I KB 461, [1923] All ER Rep 550. To understand the argument in\n\n- g this case it is necessary to read some short passages from the judgments of each of the Lords Justices. First, Bankes LJ considered in a classic passage what the qualifications are of the contractual duty of secrecy implied in the relationship of banker and customer, remarking that there appeared to be no authority on the point. He said ([1924] I KB 461 at 473, [1923] All ER Rep 550 at 554):\n- 'On principle I think that the qualifications can be classified under four heads: h (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.'\n\nIn referring in particular to examples of the third class, he mentioned the issue by a bank of a writ claiming payment of an overdraft stating on the face of the writ the I amount of the overdraft. In a comparable passage Scrutton LJ gave a similar example (see [1924] I KB 461 at 481, [1923] All ER Rep 550 at 558-559), whilst Atkin LJ expressed himself somewhat more widely, saying ([1924] 1 KB 461 at 486, [1923] All ER Rep 550 at 561):\n\n'It is difficult to hit upon a formula which will define the maximum of the\n\nAll England Law Reports\n\n478\n\n[1983] 2 All ER\n\nobligation which must necessarily be implied. But I think it safe to say that the obligation not to disclose information such as I have mentioned is subject to the a qualification that the bank have the right to disclose such information when, and to the extent to which it is reasonably necessary for the protection of the bank's interests, either as against their customer or as against third parties in respect of transactions of the bank for or with their customer, or for protecting the bank, or persons interested, or the public, against fraud or crime.'\n\nCounsel for the bank remarks that this duty is not absolute. He treats the first three of Bankes LI's qualifications or exceptions as only examples of public policy. He says that the case does not constitute a statute and does not fall to be construed as such, and he says that what are given by the Lords Justices are no more than indications of occasions when the confidence is to be displaced. The contention is that an English court will respect the order of a foreign court. If it finds the order to be in conflict with the private law of confidentiality the English court will, so it is submitted, proceed with caution to uphold the order of the foreign court unless there is compelling reason not to do so.\n\nIt seems to me that, even if it be right to regard the exercise which has to be undertaken here ultimately as being a balancing exercise, it must involve an evaluation of the relevant order of the foreign court. It would be necessary for this court in particular to consider the nature, scope, quality and effect of the foreign order and to analyse it with some care,\nbecause the fact is that to allow that order to take effect on a bank conducting in the City of London would be, as it would appear, to allow a fairly large cuckoo in the domestic nest. But I say 'would be necessary' because the balance with which I am immediately concerned in this interlocutory matter is the balance of convenience and not the performance of that balancing act which counsel for the bank has in mind.\n\n The balancing act which he urges on me he seeks to support by three arguments. The\nfirst is that it is in the public interest that affairs of multinational companies shou investigated across borders in a proper case. That must be so, although I would add: with due regard to the public interest in the preservation of banking confidence.\n\nSecond, he says that it is no answer for the plaintiffs to point to internal English considerations, as he characterises the basis of the argument, for example, in the Westinclude case [1978] I All ER 434, [1978] AC 547, to which I have already referred. He says that that case and those like it only apply to English internal policy, which may have to yield to some of the ways in which a foreign court may govern its own procedures. An English court, so he acknowledges, may have jurisdiction, but in its discretion should not exercise it against the bank. In that way he is able to dispose of difficulties such as are raised by an article of Dr Mann ((1964) 111 Hague Recueil 146), where he said:\n\n'In those cases in which the enforcing state asserts a prerogative right and demands g obedience to it abroad, an additional point of some significance is available. The enforcing state ... cannot achieve respect for its prerogative rights in foreign countries by proceedings taken there. It is precluded, a fortiori, from achieving its ends indirectly by having orders made in its own territory, which are to take effect abroad and thus attribute to themselves a power equal to that of an order which the foreign country could, but refuses, to make. The crux of the matter lies in the fact h that the enforcing state requires compliance with its sovereign commands in foreign countries where its writ does not run and where it cannot be made to run by clothing it into the form of judgments of courts, whether they be its own or those of the foreign country.'\n\nI consider that, on a true view, the effect of the foreign order is at any rate one factor of which I am entitled to take account in exercising my discretion whether or not to grant or to continue the injunction sought.\n\nThird, counsel for the bank, in contending for the balancing act to be performed by means of gauging the effect of public policy, says that it is natural that the bank should wish to obey the law of the United States, especially since it is quite possible in the light\n\n### OBD\n\nX AG v A bank (Leggatt J)\n\n479\n\nof the American cases that the bank will be liable for contempt in the United States; and a he made some limited submissions about the American cases designed merely to show that the bank's fear is not fanciful. But as to that I have considered the evidence of the American lawyers and it appears to me that the reality of the bank's fear is for present purposes a matter for my determination.\n\nCounsel for the bank says that it is irrelevant that the subpoena was made in aid of foreign criminal or revenue matters, because that consideration does not justify any\n\n- b impediment being made by English courts to the legitimate processes of United States courts. Although it is true that the English court will not enforce foreign revenue or penal law, he says that the English court is not being invited to undertake enforcement in this case, but merely not to impede; and at the heart of many of the submissions of counsel for the bank is the suggested distinction between enforcement on the one hand and not impeding on the other. He relies, for example, on Regazzoni v K C Sethia (1944)\n- c Ltd [1956] 2 All ER 487, [1956] 2 QB 490, which is authority for the proposition that, if two people agree to break the laws of a foreign friendly country, the court will not enforce the agreement, the application being that by implication the parties here, so he contends, have agreed to keep confidential what has been rendered illegal by the law of the place of performance.\n\nI think that this submission is attended by a certain unreality. The fact is that the a gamekeeper is invited to turn a blind eye whilst the poacher takes a brace of pheasants, or three peasants. In this context, it appears to me that not impeding involves a measure of assistance and, indeed, approbation, because, in particular, it would involve this court tolerating a breach of that obligation of confidentiality which, as I have pointed out, in the ordinary course must be maintained in the public interest.\n\n- The fourth argument on which counsel for the bank relies is that, if Tournier v National e Provincial and Union Bank of England [1924] 1 KB 461, [1923] All ER Rep 550, to which I have referred, does indeed contain the whole law on the topic without elaboration and public policy is irrelevant, the subpoena should still prevail over the duty of secrecy, because the bank has a genuine and legitimate interest of its own to obey the subpoena since it is issued pursuant to the law of the country to which it is subject and the fear of being held in contempt is genuine and not unreasonable. Suffice to say that the protection\n- + which the bank seeks appears to me to be different in character from that which was contemplated in the Tournier case, where the circumstances before the court were totally different.\n\nCounsel for the bank was not content to accept that American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 esp at 510, [1975] AC 396 esp at 407-408 per Lord Diplock would necessarily have effect in this case. Alternatively, if it did take effect, he argued that it meets be with an important case it, which he sought to derive from NWL Ltd v Woods\n\n[1979] 3 All ER 614 at 625, [1979] 1 WLR 1294 at 1306, where Lord Diplock said:\n\n. . . there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial the defendant may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff.respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other . . .\n\nWith an eye to what might occur between this date of trial in the actions out of which these applications arise, I must proceed to consider the matters rendered material by the American Cyanamid case, with the comment in mind that I have just read from the later speech of Lord Diplock in the NWL case.\n\nThese being interlocutory applications, I intend to deal with them strictly in conformity with the principles enunciated in the American Cyanamid case, whilst taking account, as is implicit in what I have said, of the fact that contempt proceedings, if any be taken, will probably fall to be dealt with before a trial of the present actions and also of the fact that\n\nh\n\n18\n\n[1983] 2 All ER\n\nproduction of any documents to which the grand jury may be entitled and which might prove useful to it would be delayed by my continuing the injunctions sought, although there is no evidence that delay of such a period as would be involved in their review of this particular aspect of the investigation, already running for some time, will prove significant.\n\nI can summarise in a sentence the balance of convenience as I see it. On the one hand, there is involved in the continuation of the injunction impeding the exercise by the United States court in London of powers which, by English standards, would be regarded as excessive, without in so doing causing detriment to the bank: on the other hand, the refusal of the injunctions, or the non-continuation of them, would cause potentially very considerable commercial harm to the plaintiffs, which cannot be disputed, by suffering the bank to act for its own purposes in breach of the duty of confidentiality admittedly owed to its customers.\n\nThat represents the balance of convenience, against the background that indisputably C there is a serious issue to be tried. Damages would not constitute an adequate remedy for the plaintiffs. I am not satisfied that the bank will suffer any detriment, even allowing for the probability that any contempt proceedings that might be brought would be dealt with before the trial of the actions. In those circumstances, it appears to me that the balance of convenience clearly favours the plaintiffs.\n\nIf and in so far as it is necessary for me to pay any regard to the merits of the matter at d this stage, I am firmly on the side of the plaintiffs. I have considered the position of the plaintiffs separately, but I am not satisfied that the case is so much stronger against the Y company that I should be justified in distinguishing between it and the other plaintiffs. The circumstances in relation to either that company or the others may change and further evidence may put a different complexion on the matter.\n\nI would not leave these applications without remarking that I do not see this as a matter of conflict between jurisdictions. I can fully understand that the United States District Court would wish to see where the line is in practice drawn by the courts of this country; but, having been drawn where it has, I find it hard to believe that the bank is in any danger of being held to be in contempt, since the adequacy of the excuse that it makes for non-production of the documents sought is now obvious indeed. Any sanction imposed now on the bank would look like pressure on this court, whereas, as it seems to me, it is for the New York court to relieve against the dilemma, in which it turns out to have placed its own national, by refraining from holding it in contempt if contempt proceedings are issued.\n\nFor those reasons, I shall continue the injunctions now running against the defendants.\n\nInterlocutory injunctions continued until trial or further order.\n\nSolicitors: Allen & Overy (for the bank); Simmons & Simmons (for the first and second plaintiffs); Norton Rose Botterell & Roche (for the third plaintiffs).\n\nK Mydeen Esq Barrister.\n\ng\n\n480","body_zh":"证物 7\n\n464 All England Law Reports [1983] 2 All ER\n\n因此，我将支持出租人的主张，维持副法官的判决书，并驳回上诉。\n\nKERR LJ. 我同意；我没有任何补充。\n\n上诉驳回。\n\n律师：Richard Southern（代表保证人）；Slowes（代表出租人）。\n\nDiana Brahams 大律师。\n\nX AG（X股份公司）及其他人诉 A bank（某银行）\n\nQUEEN'S BENCH DIVISION (COMMERCIAL COURT)（王座法院王座法庭〔商事法院〕） LEGGATT J 24, 25, 26, 27 JANUARY 1983\n\n冲突法——合同——合同准据法——在纽约银行伦敦分行设有账户的瑞士公司——银行与客户之间的关系始于伦敦——银行合同的准据法是英国法还是纽约法。\n\n冲突法——外国命令——执行——纽约传票——在美国银行伦敦分行设有账户的瑞士公司——纽约法院向该银行发出传票，要求其出示由该银行伦敦分行持有的与该公司有关的文件——出示文件可能构成违反银行合同及违反银行的保密义务——银行与客户之间的保密私人利益是否应优先于向外国法院披露的义务——法院是否应禁止银行披露文件。\n\n禁令——便利衡量——银行——银行与客户之间的保密信息——银行寻求遵从外国传票，在外国法院出示属于客户的文件——披露文件可能对客户造成无法以充分赔偿弥补的损害——银行担心如不出示文件，将因藐视法庭而面临程序——法院是否应授予禁令，禁止银行遵从传票。\n\n原告X是一家依瑞士法设立并设于瑞士的跨国公司，Y是X的一家美国子公司，依瑞士法设立但在纽约设有主要分支机构；两家原告公司均从事石油、金属和化肥的营销。X完全在美国境外经营，其全部账簿和记录均保存在瑞士。Y处理源自纽约及以纽约为目的地的业务，但其其他业务在瑞士经营。两名原告均在被告A bank（一家美国银行）的伦敦分行设有账户，该分行被用于原告一般银行业务的主要部分。1977年，美国司法部对原油行业展开调查，调查人员因此希望在联邦大陪审团面前出示属于原告的文件。原告以其不受美国法院管辖为由拒绝出示某些文件后，银行收到传票，要求出示与原告在该银行伦敦分行维持的任何账户有关的全部文件。银行表示其拟遵从该传票，原告随即在高等法院申请并获授禁令，禁止银行出示文件，理由是银行如出示文件，即会违反其对原告负有的保密义务。\n\nQBD\nX AG诉A bank\n\n随后，纽约地区法院单方并不公开地取得一项命令，要求银行遵从传票。在原告申请继续维持禁令的程序中，银行承认其对原告负有保密义务，且根据传票披露文件将构成违反该义务；但银行主张，传票要求出示银行控制下的全部银行记录，不论其所在地为何处；且银行如不遵从传票，作为一家美国公司，将在美国面临藐视法庭程序。银行主张：(i) 银行合同的准据法为纽约法，因此，既然纽约法同时管辖传票和合同，纽约法院关于传票的命令应优先于合同；(ii) 作为法律问题，如履行合同要求作出违反履行地法律的行为，英国法院不会强制履行或执行该合同，至少在被要求作出该行为的人居住于履行地或受履行地法律管辖时如此；因此，既然合同至少须部分在纽约履行，英国法院不会强制银行履行其对原告所负的合同保密义务，因为这样做违反纽约法；(iii) 英国法院不会阻止合同一方在合同履行地作出其依该地法律有义务作出的行为；并且，作为政策问题，英国法院应拒绝妨碍其他司法管辖区的合法程序，或在该等程序中向受外国法院管辖的人发出的命令（如该传票），而美国命令的主要效力在纽约，仅附带地发生于伦敦；(iv) 尊重外国法院命令的公共政策应优先于要求银行家对其客户账户和交易保守秘密；以及，(v) 无论如何，传票应优先于保密义务，因为银行自身具有真实且合法的利益，即遵从其所受管辖国家法律下发出的传票，并避免真实且并非不合理的被认定为藐视法庭的可能性。\n\n判定：(1) 由于有关原告银行账户的指示在伦敦接收和执行，银行与客户之间的关系以伦敦为中心，且原告预期其与银行的交易将受英国法管辖，因此，英国法而非纽约法是原告与银行之间银行合同的准据法；不仅因为最初订立合同的分行位于伦敦，而且因为该关系始于伦敦，合同亦在伦敦订立，且在此等情形下，该合同自成立之时起即应被视为以英国法为其准据法（见后文第474页h至第475页b）。\n\n(2) 文件依传票被命令在纽约出示这一事实，并不意味着银行的保密行为可被称为在纽约已属违法；因为要求披露的传票应与要求披露的立法或判决书相区别，未能出示文件如提出充分理由，可能得到宽免；此外，传票及其后续命令均未经任何形式的实体审理或当事人双方审理而取得（见后文第475页g至j、第476页a及第480页e、f）。\n\n(3) 在决定是否应继续维持禁令时，法院必须确定便利衡量，并顾及：(a) 纽约法院的命令将于伦敦生效，并违反一项私人利益，即银行家与客户之间的合同，以及维持在伦敦金融城经营业务的银行所负保密义务这一公共利益；(b) 纽约法院传票的效力，以及根据美国外国政府强制原则，纽约法院不会因银行遵从由对文件所在地分行，即伦敦，具有管辖权的外国法院，即英国法院，发出的禁令而认定银行藐视法庭，并会将英国禁令视为未出示文件的充分理由；(c) 尽管如允许纽约传票在伦敦执行，法院不会“执行”外国税收法或刑罚法，但仅仅不妨碍传票的事实仍会涉及对传票的一定协助和认可，尤其是这将涉及法院容忍违反保密义务，而该义务在通常情况下法院会出于公共利益予以维持；以及(d) 没有证据表明因继续维持禁令而延迟出示文件会造成重大影响。因此，便利衡量一方面是在不对银行造成损害的情况下，妨碍纽约法院在伦敦行使依英国标准属过度的权力；另一方面则是如不继续维持禁令，将对原告造成极为重大的商业损害。在该等情形下，便利衡量显然有利于原告，因此禁令应继续维持（见后文第471页e、f，第473页a、b、d及h、j，第474页e至g，第476页j至第477页b，第478页c至e及j，以及第479页a至d及j至第480页d及f、g）；American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 适用；Tournier v National Provincial and Union Bank of England [1923] All ER Rep 550、British Nylon Spinners Ltd v Imperial Chemical Industries Ltd [1952] 2 All ER 780、Regazzoni v K C Sethia (1944) Ltd [1957] 3 All ER 286、Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434及British Steel Corp v Granada Television Ltd [1981] 1 All ER 417获审议。\n\n注释\n\n关于法院授予禁令以禁止执行外国判决书的管辖权，见8 Halsbury's Laws (4th edn) para 730；关于该主题的判例，见11 Digest (Reissue) 641-642, 1747-1753。\n\n判决书中援引的案件\n\nAmerican Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, [1975] AC 396, [1975] 2 WLR 316, HL。\n\nBritish Nylon Spinners Ltd v Imperial Chemical Industries Ltd [1952] 2 All ER 780, [1953] Ch 19, CA。\n\nBritish Steel Corp v Granada Television Ltd [1981] 1 All ER 417, [1981] AC 1096, [1980] 3 WLR 774, Ch D, CA and HL。\n\nCable (Lord), Re, Garratt v Waters [1976] 3 All ER 417, [1977] 1 WLR 7。\n\nKleinwort Sons & Co v Ungarische Baumwolle Industrie AG and Hungarian General Creditbank [1939] 3 All ER 38, [1939] 2 KB 678, CA。\n\nNWL Ltd v Woods, NWL Ltd v Nelson [1979] 3 All ER 614, [1979] 1 WLR 1294, HL。\n\nRalli Bros v Compañia Naviera Sota y Aznar [1920] 2 KB 287, [1920] All ER Rep 427, CA。\n\nRegazzoni v K C Sethia (1944) Ltd [1957] 3 All ER 286, [1958] AC 301, [1957] 3 WLR 752, HL；维持[1956] 2 All ER 487, [1956] 2 QB 490, [1956] 3 WLR 79, CA。\n\nRio Tinto Zinc Corp v Westinghouse Electric Corp, RTZ Services Ltd v Westinghouse Electric Corp [1978] 1 All ER 434, [1978] AC 547, [1978] 2 WLR 81, HL。\n\nTournier v National Provincial and Union Bank of England [1924] 1 KB 461, [1923] All ER Rep 550, CA。\n\nUS v First National City Bank (1968) 396 F 2d 897。\n\n中间申请程序\n\n1982年11月15日和22日签发的令状中，第一原告X AG（X股份公司）和第二原告Y AG（Y股份公司）分别对被告A bank（A银行）提起诉讼，请求宣告：根据原告作为客户与被告作为银行的分行之间订立的合同，被告就原告在该分行开立的账户、其上的所有交易、与其有关的所有证券，以及所有与之相关的文件和资料，对原告负有保密及信赖义务；\n\n王座法院庭（QBD）\nX AG 诉 A银行（Leggatt法官）\n\n并请求禁令，禁止被告本人、其雇员、代理人或以其他任何方式，向被告总行、被告的任何其他办事处或分行，或向任何人，披露任何以原告名义在伦敦由被告维持的账户、该等账户上的或与之有关的任何交易，或与之有关的任何证券的任何资料或文件。根据1982年11月19日签发的令状，第三原告Z Inc（Z公司）请求作出内容相似的禁令。1982年11月25日，Lloyd法官单方准予所请求的禁令；1982年12月20日，Mustill法官续予该等禁令。诉讼程序延期，以供当事人进行充分辩论后审理。各项申请在内庭审理，但Leggatt法官在公开法庭作出判决。事实载于判决书中。\n\n第一及第二原告由Peter Cresswell（彼得·克雷斯韦尔）和Ali Malek（阿里·马利克）代理。\n\n第三原告由Jonathan Hirst（乔纳森·赫斯特）代理。该银行由Andrew Longmore（安德鲁·朗莫尔）代理。\n\nLEGGATT法官。现有三宗诉讼中的各一项申请呈于本人面前。应当事人请求，本判决在公开法庭作出。这又是一类案件，其中应将迅速处理置于优先地位；案件的紧迫性必须超过因双方可以理解地均赋予其重要性而希望暂缓作出判决的愿望。我将以任意选定的首字母指称各原告，即“X公司”“Y公司”和“Z公司”；三项申请中的被告均相同，我将其称为“该银行”。尽管我无权作出指示，但我当然期望，在任何有关本判决的报告中均应保留该等匿名。该银行总行位于纽约，本案各项申请直接涉及该银行的伦敦分行。三宗诉讼中的申请一并审理，且所有申请的形式相似。简言之，争议在于：为阻止该银行伦敦分行遵从在纽约签发的传票——该传票要求伦敦分行出示与三名原告各自在该银行开立的账户有关的文件——已经作出的禁令是否应持续至审判。三名原告均为该银行客户，其中两名原告在瑞士注册成立，一名在巴拿马注册成立。X公司于20世纪70年代初依瑞士法律成立。其在世界约30个不同国家设有40多个办事处。Y公司为X公司的子公司，也在瑞士注册成立，并在纽约设有主要分行。Z公司为与X公司有关联的公司，在巴拿马注册成立，但与X公司一样，其总部位于瑞士。X公司及其子公司Y公司从事原油和石油产品、黑色及有色矿石和金属以及化肥的营销。X公司和Z公司的业务完全在美国境外开展；两公司在美国均无业务存在，即在美国既无雇员，亦无经营业务，且两公司的所有账簿及记录均保存于瑞士。另一方面，Y公司处理源自纽约及发往纽约的业务，但其其他业务则由其瑞士总部运营，尤其是通过使用其在该银行伦敦分行开立的伦敦账户。原告已在该银行维持账户一段时间，其中X公司自1975年起、Y公司自1978年起、Z公司自1980年起维持账户。\n\nX公司与该银行之间的关系，在一名实际上担任该原告公司秘书的人士所作的宣誓书中得到说明。他主张，该公司在与该银行建立关系时，并未预期美国法律会规管该银行关系，理由是该关系将以伦敦为中心，因而自然预期其将受英国法律管辖。该关系历经多年发展，X公司将该银行伦敦分行用于其一般银行事务的主要部分，包括贷款、存款、信用证、担保、保兑、资信证明和交单。X公司的所有指示均来自瑞士，或经由X公司的一家英国子公司发出。X公司将伦敦分行作为其全球美元计价银行安排的中心；该宣誓人主张，与代表其他原告作出宣誓书的人士一致，除非确信其商业秘密会按照伦敦所遵守的严格标准得到保障，否则X公司不会向该银行伦敦分行安排任何业务。在信用证情形下，此事尤为重要，因为伦敦分行所持有的有关信用证的文件将载有从X公司或其伦敦子公司收到的指示，并包括\n\n“信用证申请、开立及付款的条款和条件、基础交易的条款、买方、交易的单据条件、交单地点及到期地点，以及无数其他商业和专有性事项”。\n\n据称，伦敦分行的档案，即该银行伦敦分行的档案，不仅载有涉及一般银行事项、投资和商业便利的指示，还载有依赖宣誓人所谓“在伦敦经营业务的客户与银行之间专业及保密关系的神圣不可侵犯性”而传达给该分行并与其共享的大量资料。\n\n针对这一方面，该银行伦敦分行的总经理作出了宣誓书。在说明原告与该银行许多客户一样均为大型跨国公司，其银行业务需求超越国界后，他说明该银行通过其国际部向客户提供协调一致的全球服务，以满足客户的需求。该宣誓人称：\n\n“无论客户的需求多么复杂及在地域上多么分散，其与[该银行]的银行关系均将受位于某一地点的客户关系经理的总体指导、协调和控制。客户关系经理通常设在[该银行纽约办事处]，或者设在客户总部或主要管理中心所在的[该银行]特定地点。”\n\n他以如下陈述结束该段：就该银行而言，其与原告的银行关系以纽约为中心。\n\n然而，我必须将该段陈述与看来正是相关客户关系经理本人的宣誓书相对照。他称自己是目前派驻该银行伦敦分行的一名副总裁，并声明：“我负责管理[该银行]与伦敦分行众多大宗商品客户的业务关系，其中包括与原告的业务关系。”\n\n我认为，根据代表该银行作出的第一份宣誓书所述原则的适用，应将第二名宣誓人认定为客户关系经理；看来他大部分时间均在伦敦提供相同服务。无论第一名宣誓人的宣誓书如何称该银行与原告的银行关系以纽约为中心，我认为那只能是该银行内部管理事项，而且仅限于一种有限意义，并不减损该银行在伦敦维持其自身客户关系经理这一事实。\n\n其英国业务往来的开展方式，以及其自身与该银行同纽约的密切联系。随后他称：\n\n“与伦敦英国银行的英国国内客户不同，原告（[Z公司]可能除外）据我所信，必定预期其与[该银行]的业务往来将受到与同纽约有密切联系的总体国际关系有关的必要附带事项的约束。”\n\n我对该陈述存有一些困难。首先，我认为，提及业务往来受总体国际关系的必要附带事项约束，预设了哪些附带事项应被视为必要这一问题；其次，我不确定自己理解“业务往来……将受到……总体国际关系的……附带事项约束”这一措辞的含义。\n\n该宣誓人宣誓书的这一部分最后称，在该银行与原告业务往来的更广泛背景下——\n\n“尽管该银行努力并负有义务向极受重视的客户提供全面服务，但其必须顾及并遵守其注册成立所在国、总行所在地以及其与原告关系中心所在国的法律义务。”\n\n关于该银行与原告之间的关系，我已作出评论；但值得注意的是，该段中并未提及该银行须顾及或遵守其分行所在地国家的法律义务。事实上，其中也未提及可能对该银行客户福祉给予任何顾及，尽管公平地说，而且我现在要说的是，如果\n\n在代表该银行宣誓作出的宣誓书中，可能会显得缺乏提及该银行对其客户福祉的关切；考虑到据称可能在纽约具有重要意义的原则，即银行必须能够证明其已作出所谓“善意努力”以遵守向其送达的传票的要求，而对客户福祉的过度关切可能被误解为银行为履行传票要求所作努力缺乏善意。\n\n这些传票显然源于美国各机构约于1977年开始对原油行业进行的一项调查。起初，X company（X公司）及其关联公司似乎并未以任何方式涉入。可以肯定的是，多年来开展的任何调查均从未导致对任何原告提出指控。1981年底，尤其是Department of Justice（司法部）开始调查Y company（Y公司）在美国从事的原油交易，其中一家原告公司——我认为是Y公司——被送达传票；根据该传票，约75,000份文件已提交给司法部。然而，尽管已提交这些文件，1982年4月15日仍向X公司送达了一份传票，随后由其董事会审议。1982年6月1日，董事会根据瑞士及美国律师的意见，决定不遵从该传票。X公司认为其过去及现在均不受美国管辖，且理由极为充分：其并未在美国开展任何业务。因此，提起程序以撤销该传票。8月25日，United States District Court for the Southern District of New York（美国纽约南区联邦地区法院）拒绝撤销该传票；9月13日，同一法院因X公司未予遵从传票而裁定其藐视法庭。10月15日，审理了X公司对地区法院裁定提出的上诉，但该上诉的裁决仍在等待之中。与此同时，10月8日向该银行送达了一份传票，我尤其关注的正是该传票。其后，代表该银行行事者与原告的律师之间进行了若干通信；由于该银行声明其打算遵从传票，遂申请禁令。11月12日，Staughton J（斯托顿法官）向X公司作出单方面禁令，限制被告就X公司采取行动；11月26日，Lloyd J（劳埃德法官）延续该禁令，并以类似条款就Y公司及Z company（Z公司）作出禁令；12月20日，Mustill J（马斯蒂尔法官）延续了全部三项禁令。看来在同一天，亦向Z公司本身送达了一份传票，Z公司由此首次直接卷入该调查。1月11日，该银行的传票或其效力由美国纽约南区联邦地区法院于当日作出的命令予以背书确认。\n\n有必要稍为详细审视该传票的条款。该传票致送该银行，注明由“任何高级职员或获授权的记录保管人”收悉，并命令受送达人到所谓美国纽约南区全体人民大陪审团前，“就涉嫌违反”传票所列明的两部United States Code（美国法典）作证并提供证据。据告知，该两部法典分别涉及共谋实施犯罪或欺诈美国，以及企图逃避或规避税款。传票要求受送达人提交随后在一份内容广泛的附页中列明的文件。该附页载明：\n\n“自January 1st 1979至December 31st 1981期间[换言之，为期三年]，有关下列公司所有账户（包括下列已知账户）及交易的任何及所有账簿、记录及其他文件，包括但不限于所有银行对账单（附借方及贷方通知书）、贷款文件、信用证（包括提单、发票、合同及其他附属文件）、通信函件、内部备忘录、签字及／或授权文件”\n\n随后具体列明X公司在伦敦的账户、Z公司在伦敦的账户及Y公司在伦敦的账户；每一账户推定均为该公司在该银行伦敦分行开立的账户。传票在其印刷格式中最后写明：“如未出席并提交上述文件，您将被视为犯有藐视法庭罪，并应承担法律规定的处罚。”\n\n美国纽约南区联邦地区法院于1月11日作出的命令，表明该命令系就向该银行发出的大陪审团传票事项作出，此处无疑指我刚才复述的传票。该命令称，该银行已被传唤至联邦大陪审团前提交各类文件，而该银行因High Court of Justice, Queen's Bench Division（高等法院王座法庭）作出的限制令（如其所称）未能提交其伦敦分行保存的各类记录——\n\n“并基于如下陈述：为更有效执行所述大陪审团传票，有此必要；且本院确信，传票所要求文件的提交对于司法公正及大陪审团调查的最佳利益属必要，现命令并裁定，[该银行]应提交……与其位于英国伦敦的分行所维持的任何[属于X公司、Y公司及Z公司的]账户有关的全部文件。”\n\n据告知，该命令系经单方面及不公开程序取得，而对于作出该命令时地区法官可获得何种材料（如有），并无证据。\n\n该银行因而陷入的困境显而易见。该传票对其具有约束力。美国法律要求该银行遵从该传票。该传票要求向法院提交有关文件（我所说“有关”，是指传票中确认的那些文件），而作为传票背书，还附有一项同样对该银行具有约束力的法院明示命令。另一方面，目前本国有效的禁令禁止该银行遵从该传票；该传票获得美国有管辖权法院命令的支持。\n\n毫无争议，该银行负有保密义务。显然，该义务在纽约的性质与其在伦敦被认为所负义务并无不同。为方便起见，我会将该义务描述为源自规管银行与客户关系的合同中的默示条款；该义务是指，在可能有必要考虑的若干限制条件规限下，银行不得未经客户同意，向任何其他人披露银行在该关系过程中取得的任何文件或其他信息。\n\n毫无争议，向大陪审团披露文件将构成或造成违反该义务。根据证据，情况不仅是在技术意义上，即大陪审团本身构成第三人，向其披露保密文件即构成违反该保密义务；而且更广泛且更具实质意义的是，看来实际上对于提交给大陪审团处理的事项并无保密性。我依据的是现正于纽约为原告提供意见的Marvin Frankel（马文·弗兰克尔）先生的权威意见；他本人曾任当地地区法官，并著有《The Grand Jury: An Institution on Trial》（1977）一书。除该著作明确提及提交大陪审团材料常见的泄露外，弗兰克尔先生在其宣誓书中还提及本案中出现的令人不安事项，因为他说United States attorney（美国检察官）——\n\n“寻求并获得地区法院接受一份秘密宣誓书及文件证物，该等材料被描述为对[X公司的]撤销[向其送达的传票，但未向X公司律师出示]动议具有决定性作用；理由是，若如此做将会暴露政府对本案的理论以及合作证人的身份，从而可能损害政府的调查。”\n\n但是，弗兰克尔先生说——\n\n“几乎在该案上诉辩论后立即……美国多地的报纸即刊载了据称属于本案的秘密信息，并将该等披露归因于身份已确认的‘秘密’证人，以及更重要的，归因于‘政府消息来源’。”\n\n他并附上一份文章副本，该文章以耸人听闻的措辞载有或声称载有此类披露。\n\n另一项没有争议的事项是，若本案发生此类违反保密义务的情形，原告将遭受损害的性质及程度。对X公司将造成的损害被描述为即时、不可弥补且无法估量；对于其他原告在类似情形下将遭受的损害，亦有类似描述。\n\n为作出说明，就X公司而言，宣誓人以信用证为例。他说，就X公司——\n\n“作为商品买方且由[银行伦敦分行]为[X公司]供应商开立信用证的交易，以及[X公司]作为卖方且由[银行伦敦分行]确认由[X公司]客户开立的信用证，或就[X公司]为受益人的信用证进行托收的交易，[银行伦敦分行]收到所有运输及所有权文件，包括提单及发票。可从这些文件中取得下列信息：(a) [X公司]供应商或客户的名称；(b) 买入或卖出的商品种类；(c) 买入或卖出的商品数量；(d) 买入或卖出商品的价格；以及(e)相关运输信息。在许多情况下，可根据该等信息确定[X公司]在某一特定交易中的利润率；而在[X公司]作为中介人时，可识别交易双方的贸易方。”\n\n如X公司一样从事各种贸易，这将产生非常严重的后果。例如，据称X公司在世界政治敏感地区的国家经营及与其进行贸易，因此，这些国家的政府或其机构往往倾向于通过中介人进行贸易，以免披露特定商品的买卖策略，或在某些情况下，披露该等政府或其机构可能已进行此类交易，而此类交易违反\n\n据称，代表 X 公司而言，许多交易是与下列国家的政府或政府机构达成的：在这些国家中，相关商品是外汇收入的主要来源之一，仅因该原因，此类交易的细节即属高度机密。同样，如果得知 X 公司的交易模式，例如揭示其任何西方客户正在囤积特定战略物资，也极可能造成损害。此举还可能揭示，对某些中东、拉丁美洲或铁幕国家就某些物资与其他特定国家进行交易所施加的某项限制已被违反。最后，或许也是最明显的是，披露伦敦分行所持有的该类信息，将使 X 公司在与其竞争对手的关系中处于严重不利地位，因为这将如宣誓人所称，为人提供“窥探 X 公司商业秘密的窗口”。X 公司的供应商和客户、其定价决定、利润率及交付日期，都可能成为公众所知；对该等信息的分析显然将使竞争对手能够了解许多——并且可能是其所需了解的全部——有关 X 公司经营方法、资源和战略的情况。此类后果可能发生这一点，并无争议。\n\n对本案证据的审查，尤其必须提及双方所宣誓提交的专家证据。\n\n该银行依赖于纽约一家律师事务所成员 Connick 先生的宣誓书。在主张联邦大陪审团传票要求提供该银行控制下的所有银行记录、无论其所在地为何处，并援引支持该命题的权威依据后，宣誓人陈述：\n\n“［若该银行］未遵从传票，其将依据《联邦刑事诉讼规则》第 17(g) 条受到程序处理，该条规定：‘任何人无充分理由而不遵从向其送达的传票，可被视为藐视发出该传票的法院……’”\n\n随后，他提及领先判例 US v First National City Bank（1968）396 F 2d 897，其中 United States Court of Appeals for the Second Circuit（美国第二巡回上诉法院）处理了一家纽约银行遵从大陪审团传票的义务问题。他指出，在权衡若干因素后，该法院命令遵从该传票，“尽管记录保存地西德的法律表面上存在冲突”；并称，United States District Court for the Southern District of New York（美国纽约南区联邦地区法院）近期的一项判决，已就美国政府调查人员发出的程序确认了该案的有效性。作出该确认的案件中，法院命令一家瑞士银行遵从 Securities and Exchange Commission（证券交易委员会）的信息要求，尽管如此遵从可能导致在瑞士受到刑事起诉。宣誓人谨慎地指出，该两案与本案之间存在一些事实差异；因此，加之权衡测试结果的不确定性，若 High Court（高等法院）在本案中继续维持针对该银行的未决禁令，无法确定预测美国检察官或联邦法院将采取何种行动。然而，他表示，“完全可能”发生以下情况：纽约的一名银行高级职员被传唤至美国地区法院出庭，并被命令提交文件；地区法院依据权衡测试，不会承认高等法院的禁令构成未能提交该等文件的充分理由；而如果此后该银行拒绝提交文件，地区法院将监禁该银行高级职员，并对该银行处以每日罚款，直至文件提交为止。不过，他在宣誓书末尾确实表示：\n\n“若高等法院继续维持未决禁令，［该银行］将别无选择，只能在纽约坚决反对任何藐视法庭程序，并为此承担额外的大额法律费用。”\n\nOBD\n\nX AG（X股份公司）v A bank（A银行）（Leggatt 法官）\n\n我不得不说，若事情止于此处，我将对该银行是否在纽约面临任何真实风险抱有极大怀疑。尽管只要该传票仍未撤销且尚未被遵从，该银行或许会有可以理解的忧虑，但我的看法将十分简单地源于以下事实：没有人提出任何理由说明，本院禁止提交相关文件的命令为何不会构成传票受送达人未能提交该等文件的充分理由。\n\n但事情并未止于此，因为原告方已提交 Lowenfeld 教授的实质性宣誓书。其为 New York University Law School（纽约大学法学院）的法学教授。他是一位学术地位极高的人士，也是本案所涉特定法律领域的主要权威之一。事实上，他是 American Law Institute（美国法律学会）目前修订《美国对外关系法重述》的副报告人。他以该身份承担的主要职责，是负责该《重述》第 IV 部分，即有关管辖权和判决的部分，尤其包括有关解决相互冲突的管辖权行使的条款，而这正是当前争议的主题。\n\n该教授表示，他认为，在所述情形下，美国银行或其高级职员极不可能因遵从英国法院的命令而被认定藐视法庭；该情形即为，一项禁令限制转移或披露该银行伦敦分行就一家非美国公司在该分行维持的银行账户所保存的记录。他明确表示确信，“美国法院从未在此类情形下认定银行或其他当事人藐视法庭”，其前提是，如他所假定的，并无任何指称该银行有不当行为，包括将通常保存在纽约的记录转移至海外，或者以任何方式协助存款人实施隐匿或不披露计划。\n\n在陈述不同司法辖区法院命令发生冲突时的基本规则后——该规则显然是，任何人均不应处于无论其作为或不作为都害怕受到惩罚的境地——该教授援引权威依据支持该命题。\n\n这些权威依据包括一项我应当提及的判例，即 British Nylon Spinners Ltd v Imperial Chemical Industries Ltd [1952] 2 All ER 780, [1953] Ch 19。该案在本案中具有普遍重要性，因为 Evershed MR 的评述如下（[1952] 2 All ER 780，第 783-784 页；[1953] Ch 19，第 27 页）：\n\n“……本国法院自然会对美利坚合众国的上级法院给予高度尊重和重视；但我认为，当英国法院被请求行使管辖权时，如其认为为保护特别属于其保护范围内的权利而行使该管辖权是其职责所在，则不应因此避免行使该管辖权。在如此表述时，我并不认为自己以任何方式违反了国际礼让原则……”\n\n审视该案时，也宜提及 Denning LJ 的评论（[1952] 2 All ER 780，第 784 页；[1953] Ch 19，第 28 页）：“美国的令状在本国不具效力；如果充分顾及国家间礼让，它也不会试图在此具有效力。”\n\n如该教授的宣誓书所示，在美国，或至少在纽约，存在一项称为外国政府强制原则的学说；如他所解释，该学说取决于一州的禁止规定与另一州的命令之间的冲突。该教授考察了 Connick 先生宣誓书中提及的案件，即 US v First National City Bank（1968）396 F 2d 897。他说明，该案地区法院认为，基于德国法的抗辩属推测性质，至多基于可能承担民事责任或在金融界失去信誉；在上诉中，地区法官的裁定得到维持，上诉法院详细指出，瑞士银行保密法与德国法之间存在区别：前者是有刑事制裁支持的强制性法律，而违反后者至多承担民事责任。\n\nAll England Law Reports（《全英格兰法律报告》）\n\n[1983] 2 All ER\n\n该教授随后考察有关文件开示的特别规则。他表示，尽管并非所有案件均遵循此做法，但美国法院面对要求提交位于国外文件的开示请求或传票时，通常会作出提交命令；如有人主张存在禁止提交的外国禁令，则会命令出庭当事人真诚努力争取获得解除该禁令或豁免；但如未能获得解除禁令，则驳回藐视法庭申请。\n\n该命题所依据的若干权威判例得到考察，其中包括 Connick 先生所提及的美国地区法院另一宗近期案件。对于该案，该教授评论称，涉案银行被认定未能真诚努力遵从提交要求。此外，记录保存地所在州的政府并未采取行动阻止该银行遵从传票；换言之，在该案中，该银行并未如本案银行一样受到禁令约束。该教授对该案是否得到适当裁决表示某些怀疑，并通过援引其正在起草的《对外关系法重述》第 420 段来概括此问题；该段具体处理披露请求与外国政府强制。该段第（2）款在相关范围内规定：\n\n“（a）法院可要求命令所指向的人真诚努力，向外国主管机关争取许可，以使该信息得以提供；（b）法院通常不得对未遵从提交命令的当事人施加藐视法庭、驳回或缺席判决的制裁，除非存在故意隐匿或转移信息，或未依照第（a）款作出真诚努力的情形。”\n\n已作出说明，该《重述》旨在宣示美国现行法律。\n\n在该等情况下，该教授概括其结论称，外国法院对文件所在地分行具有管辖权而作出的禁令：\n\n“我认为，将构成外国强制抗辩，条件是：（a）该银行始终按照所界定的含义真诚行事；以及（b）违反该禁令将使该分行及其高级职员受到严重制裁。”\n\n我接受该结论。依我判断，该结论准确概括了适用于本案的纽约法律；由此可见，该银行在适当作出真诚努力以免受本国禁令后果的约束后，不应在纽约为实现该目的而提起的任何程序中，被认定承担藐视法庭责任。\n\n按照银行代理律师的论证结构，援引这些事项来审议向我提出的代理律师论点，较为便利。他在提出其关于英国法的主张时，满足于一开始即假定英国法为准据法。作为一名辩护律师，他将任何关于准据法应被视为英国法以外法律的主张留待最后才提出。及至提出该主张时，他辩称，纽约州法应适用于整个交易，因为他勇敢地断言，在每一种情形下，该法律均为合同与之具有最密切和最真实联系的法律。\n\n我毫不犹豫地驳回该项主张。在我看来，基于代表第一及第二原告的代理律师所提出、并获代表第三原告的代理律师赞同的理由，英国法为准据法；这不仅是因为最初订立合同的伦敦分行位于伦敦，而且是因为双方关系始于伦敦，合同亦在伦敦订立，而该合同必须被视为自成立之时起即具有准据法。有关账户的指示在伦敦接收并执行。依我看来，尽管可代表银行提出相反意见，事情的实质在于，银行与客户之间的关系实际上以伦敦为中心。所有原告均称，并且我接受其陈述属实，他们预期其与银行的交易将受英国法管辖。基于所有这些理由，且不论将该合同更概括地描述为与英国法具有最密切和最真实联系的合同，我裁定英国法确为该合同的准据法。\n\n银行代理律师的第一项主张是，依英国法，若履行合同要求实施违反履行地法律的行为，英国法院不会强制履行或执行该合同，至少在实施该行为者居住于履行地或受履行地法律管辖时如此；英国法院也不会阻止合同一方在合同履行地实施其依该地法律有义务实施的行为。为推进该论点，银行代理律师主张，合同在要求于美国尊重保密性这一范围内不能被执行。由此，他提出了一个已不复存在的保密性这一奇特概念。在我看来，这似乎是真正的、如果人们准备设想它的话，所谓“牧师的鸡蛋”的例子，即部分尚可。事情的实质是，一旦保密性如同空气从被扎破的轮胎中逸出，保密性便不复存在。为支持该论点，银行代理律师援引 Ralli Bros v Compañia Naviera Sota y Aznar（拉利兄弟公司诉索塔—阿斯纳尔航运公司）[1920] 2 KB 287 esp at 290, 299, [1920] All ER Rep 427 esp at 431, 435 per Lord Sterndale MR and Scrutton LJ。该案涉及一项须部分在西班牙履行的合同，并裁定在西班牙履行属违法时，该合同在相应范围内无效。该论点是，本合同至少须部分在美国履行，并且如银行代理律师所表述，其要求违反美国法，即维持保密性，结果是，不应禁止银行实施披露行为，因为该行为是其在合同履行地被要求实施的行为。为支持此项主张，他还援引 Re Lord Cable, Garratt v Waters（卡布尔勋爵遗产案，加勒特诉沃特斯）[1976] 3 All ER 417, [1977] 1 WLR 7，其中裁定，如遵守禁令会使有关受托人面临严重的刑事后果风险，则不会作出该禁令。\n\n作为对该论点的反驳，第一及第二原告的代理律师尤其援引 Kleinwort Sons & Co v Ungarische Baumwolle Industrie AG and Hungarian General Creditbank（克莱因沃特父子公司诉匈牙利棉业股份公司及匈牙利总信贷银行）[1939] 3 All ER 38, [1939] 2 KB 678。该案中，一家英国银行为一家匈牙利公司开立了承兑信用证。信用证到期后，该匈牙利公司以匈牙利立法规定其向国外汇款属违法为由，拒绝在伦敦付款。但裁定此事不能构成对银行请求的抗辩。英国法是合同的准据法，款项应在伦敦支付，而匈牙利法不能影响一项事实上受匈牙利法管辖、但不应在匈牙利履行的合同承诺的合法性。\n\n依我之判决，不能仅因根据传票命令提供文件，即称保密已变为违法，尤其是在无疑会主张——即使这或许只是一种虚构——大陪审团程序的保密性仍获维护的情形下。事实是，要求披露的传票并不会使保密性变为非法；这不同于为此目的制定的某种立法。我尤其想到，根据相关程序规则的条款，如不提供文件的理由充分，则可免于提供文件。\n\n第一及第二原告的代理律师指出，既然外国判决在该判决有利于被告且就实体问题作出最终及确定性裁断时，可能构成英国诉讼的有效抗辩，他可以设想有人可能提出论点，试图将传票等同于判决；而事实也确实如此，因为银行代理律师适时主张，如有必要，他将论证传票构成一项抗辩，因为在无人提出异议时，该传票具有最终及确定性效力。\n\n在我看来，就目前目的而言，判决与传票之间不存在类比；尤其是，完全没有任何主张称取得该传票或其后批注该传票的命令涉及任何形式的实体审理。当然，迄今为止其尚未涉及任何形式的双方当事人之间的审理。\n\n接着，银行代理律师主张，作为英国法政策问题，英国法院应拒绝任何阻碍其他司法管辖区中合法程序及在该等程序过程中作出的传票等命令的请求，尤其是在该等命令针对处于外国法院管辖范围内的人时。\n\n对此，他承认难以找到精确的权威依据。他称这是由国际礼让所决定的常识问题，并试图以英国法中确立已久的规则为基础，即英国法不会执行要求在另一国家实施非法行为的合同。他援引 Regazzoni v K C Sethia (1944) Ltd（雷加佐尼诉K C 塞蒂亚（1944）有限公司）[1957] 3 All ER 286, [1958] AC 301，该案支持如下命题：该公共政策至少会使某些违反外国法律的合同无效。他称，正确看待时，将该传票视为具有域外效力是错误的。在该阶段，他应对第一及第二原告代理律师高度依赖的 Rio Tinto Zinc Corp v Westinghouse Electric Corp（力拓锌业公司诉西屋电气公司）[1978] 1 All ER 434, [1978] AC 547。银行代理律师认为，该案仅就《Evidence (Proceedings in Other Jurisdictions) Act 1975（1975年〈证据（其他司法管辖区程序）法〉）》的解释提供指引；鉴于其中具体意见的表述方式狭窄，应将其视为仅适用于通过具有域外效力的手段，试图使英国公司受外国法院调查管辖的情形。该案确实涉及在本国可如何使用请求书，以及可能将请求书转化为为大陪审团调查目的而提出的取证请求。银行代理律师称，美国命令在本案中的主要效力发生在纽约，仅附带地发生在伦敦，因此其并不构成对英国主权的任何侵犯，所涉全部事项均属私法问题。\n\n第一及第二原告的代理律师主张，该案如其所称“至关重要”。他说，该案显示此处应如何看待传票，尤其是参照总检察长在该案中所作的陈述，显示英国政府将采取何种立场。在该案中，总检察长曾陈述，政府认为，根据美国反垄断立法对美国境外且并非美国公民的人实施的广泛调查程序，构成对英国适当主权管辖权的侵犯。\n\n双方代理律师均极为强调地向我宣读了 Wilberforce 勋爵（Lord Wilberforce）的发言中的一段，其中他说（[1978] 1 All ER 434 at 448, [1978] AC 547 at 617）：\n\n“女王陛下总检察长的介入表明，除本案外，在若干年间和若干案件中，女王陛下政府的政策一直反对承认美国针对英国公司的域外调查管辖权。法院在此类事项中应与行政机关发出同一声音……正如我已说明的那样，它们在这样做时毫无困难。”\n\n银行代理律师依赖该段落，因为其具体适用于英国公司，而他称本案不存在此项因素；第一及第二原告的代理律师则依赖该段落，认为其表明可预期女王陛下政府对美国在本国行使相关性质调查管辖权的态度。银行代理律师就此总结其论点时主张，若英国法发出传票，其会期待其所谓的“信从”被给予该命令，而是否给予该信从必定属于酌情决定事项。\n\nQBD\n\nX AG（X股份公司）v A bank（某银行）（Leggatt J（莱格特法官））\n\n在我看来，我对 Westinghouse 案应作的适当运用是，在此情形下不将其视为对任一方向具有决定性作用，而是将其视为提出了一项重要因素；在决定本案是否应继续维持禁令时，我应考虑该因素。本案中美国法院行使管辖权所涉及的因素是，其命令将在伦敦发生效力，要求提供文件，从而违反可能被称为私益的利益，因为直接涉及的是银行与客户之间的合同。但这无疑也是公共利益问题，因为其引发的关切范围超出在我面前的各当事人所特有的问题。\n\n银行代理律师的第三项主张是，银行与客户之间关于银行应对客户账户及交易保密的私法规则，并不排除公共政策。他称，为了更高利益而排除保密性并不罕见。银行必须进行权衡，以判断保密性还是外国法院的命令应优先。\n\n这是他作了大量阐述的论点，他首先援引 British Steel Corp v Granada Television Ltd（英国钢铁公司诉格拉纳达电视有限公司）[1981] 1 All ER 417 at 455, [1981] AC 1096 at 1168-1169，尤其依赖 Wilberforce 勋爵发言中的一段，其中他说：\n\n……就保密取得的信息以及可能产生的向司法法院披露该等信息的法律义务而言，立场是明确的。法院本有意愿尊重此种保密，无论该保密产生于医生与病人、神父与忏悔者、银行与客户之间，产生于为雇员提供推荐意见的人之间，还是产生于其他关系之中。记者与其消息来源之间的保密关系并无不同；本案中没有任何事项涉及或将涉及任何认为此种保密不应受到尊重的原则。然而，在所有此类案件中，法院可能必须在特定情形下裁定，维护该保密的利益被法律所重视的其他利益所超越。本次上诉中唯一的问题是，本案是否属于此类案件。”\n\n银行的律师援引该段文字，认为这表明需要进行权衡。另一方面，第一及第二原告的律师指出，该段文字明确涉及保密取得的信息，以及可能产生的向司法法院披露该等信息的法律义务，因此直接属于通常认为保密义务受其约束的限定条件之一。\n\n该义务的范围已在 Tournier（图尔尼耶） v National Provincial and Union Bank of England（英格兰国民省级联合银行） [1924] 1 KB 461, [1923] All ER Rep 550 一案中审查。为理解本案中的论点，有必要阅读各位上诉法院法官判决中的若干简短段落。首先，Bankes LJ（班克斯上诉法院法官）在一段经典论述中考察了银行与客户关系中默示的合同保密义务所受的限定条件，并指出似乎没有关于该问题的先例。他说（[1924] 1 KB 461 at 473, [1923] All ER Rep 550 at 554）：\n\n“原则上，我认为这些限定条件可归入四类： (a) 依法被强制披露；(b) 为公众利益而负有披露义务；(c) 银行自身利益要求披露；(d) 经客户明示或默示同意而披露。”\n\n在特别提及第三类的例子时，他提到银行发出传票，要求偿还透支款项，并在传票正面载明透支金额。在一段可相比照的论述中，Scrutton LJ（斯克拉顿上诉法院法官）给出了类似例子（见 [1924] 1 KB 461 at 481, [1923] All ER Rep 550 at 558-559）；而 Atkin LJ（阿特金上诉法院法官）的表述则稍为宽泛，他说（[1924] 1 KB 461 at 486, [1923] All ER Rep 550 at 561）：\n\n“很难找到一个公式，界定必须默示的义务的最大范围。\n\n《全英格兰法律报告》\n\n[1983] 2 All ER\n\n但我认为可以稳妥地说，不披露我所提及类型信息的义务，受以下限定条件约束：当且仅在为保护银行自身利益而合理必要的范围内，银行有权披露该等信息；该等保护可以是针对其客户，或针对第三方就银行为其客户或与其客户进行的交易提出的主张，或为保护银行、有关人士或公众免遭欺诈或犯罪。”\n\n银行的律师指出，该义务并非绝对义务。他将 Bankes LJ 所述前三项限定条件或例外仅视为公共政策的例子。他说，该案并不构成成文法，亦不应按成文法加以解释；上诉法院法官所给出的，不过是在何种场合保密应被排除的指示。其主张是，英国法院将尊重外国法院的命令。如认定该命令与保密的私法规则相冲突，英国法院将会——如其所称——谨慎行事，以维持外国法院的命令，除非存在不应如此行事的有力理由。\n\n我认为，即使将此处最终必须进行的工作视为一项权衡工作是正确的，它也必然涉及对外国法院相关命令的评估。尤其是，本院必须考虑外国命令的性质、范围、质量和效力，并对其作出一定程度的审慎分析，因为事实上，允许该命令对在伦敦金融城经营的银行发生效力，看来将等于让一只相当大的杜鹃进入国内的巢穴。但我说“必须”，是因为我在这一临时事项中直接关切的衡量，是便利衡量，而不是银行律师所设想的那种权衡行为。\n\n他通过三项论点支持其要求我进行的权衡。第一项是，在适当案件中，对跨国公司的事务进行跨境调查符合公共利益。这一点必然如此，尽管我会补充：应适当顾及维护银行保密的公共利益。\n\n第二，他说，原告援引英国国内方面的考量——即他对该论点基础的定性——并不能构成答复，例如我已经提及的 Westinghouse（西屋）案 [1978] 1 All ER 434, [1978] AC 547。他说，该案及同类案件仅适用于英国国内政策，而英国国内政策可能必须让位于外国法院管理其自身程序的某些方式。他承认，英国法院可能具有管辖权，但应酌情不对银行行使该管辖权。通过这种方式，他得以处理诸如 Dr Mann（曼恩博士）的一篇文章所提出的困难（(1964) 111 Hague Recueil 146），该文称：\n\n“在执行国主张一项特权性权利并要求在国外服从该权利的案件中，还有一点具有相当重要性。执行国……不能通过在外国提起程序，使其特权性权利在外国获得尊重。更遑论，它不能通过在其本国领土内作出的命令间接实现其目的，而该等命令将在国外生效，从而赋予其自身一种相当于外国本可作出但拒绝作出的命令的权力。问题的关键在于，执行国要求在其令状不适用、且不能通过将其包装成法院判决——无论是其本国法院还是外国法院的判决——而使其适用的外国，遵从其主权命令。”\n\n我认为，从正确的角度看，外国命令的效力至少是我在行使是否授予或继续维持所请求禁令的裁量权时有权考虑的一个因素。\n\n第三，银行的律师在主张应通过衡量公共政策的效力来进行权衡时说，银行希望遵守美国法律是很自然的，尤其是鉴于美国判例，银行很可能在美国承担藐视法庭责任；他还就美国判例提出了一些有限陈述，仅旨在表明银行的担忧并非臆想。然而，就此而言，我已审议美国律师的证据，在我看来，银行担忧是否真实，就目前目的而言，是由我裁定的问题。\n\n银行的律师称，传票是为协助外国刑事或税收事项而作出这一点无关紧要，因为该项考量不能成为英国法院对美国法院合法程序设置任何障碍的正当理由。尽管英国法院不会执行外国税收法或刑罚法，他说，本案并非要求英国法院承担执行责任，而仅是不要阻碍；而银行律师许多陈述的核心，是所主张的执行与不阻碍之间的区别。他例如援引 Regazzoni（雷加佐尼） v K C Sethia (1944) Ltd（K C Sethia（1944）有限公司） [1956] 2 All ER 487, [1956] 2 QB 490，该案确立的命题是，如两人约定违反一个友好外国的法律，法院不会执行该协议；其适用在于，他主张，本案当事人默示同意对履行地法律已规定为非法的信息予以保密。\n\n我认为，该项陈述带有某种不现实性。事实是，邀请猎场看守人在偷猎者带走一对雉鸡，或三名农民时视而不见。在此语境下，在我看来，不予阻碍涉及一定程度的协助，实际上也涉及认可，因为尤其是，这将使本院容忍违反该保密义务；正如我已指出，该义务在通常情况下必须为公共利益而维持。\n\n银行的律师所依赖的第四项论点是，如果我所提及的 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, [1923] All ER Rep 550 确实已完整包含关于该主题的全部法律，无须进一步阐释，且公共政策无关紧要，则传票仍应优先于保密义务，因为银行本身具有真实且合法的利益去遵守传票，该传票是依据银行所受其约束国家的法律签发的，而其担心被认定藐视法庭是真实且并非不合理的。只须说，银行所寻求的保护，在我看来，其性质不同于 Tournier 案中所设想的保护，因为该案呈于法院的情形完全不同。\n\n银行的律师并不满足于接受 American Cyanamid Co（美国氰胺公司） v Ethicon Ltd（爱惜康有限公司） [1975] 1 All ER 504 esp at 510, [1975] AC 396 esp at 407-408 per Lord Diplock（迪普洛克勋爵）必然在本案中发生效力。或者，如其确实发生效力，他主张，该案应与一项重要的例外相结合，该例外他试图从 NWL Ltd（NWL有限公司） v Woods（伍兹） [1979] 3 All ER 614 at 625, [1979] 1 WLR 1294 at 1306 一案中推导出来；迪普洛克勋爵在该案中说：\n\n“……存在这样的风险：如授予临时禁令，但原告在审判中败诉，被告在此期间可能已遭受同样无法弥补的损害和不便。在这两种情形下，被告和原告因授予或拒绝授予禁令而可能分别承受的损害和不便的性质与程度，通常足以显著不成比例，从而仅凭其本身便使便利衡量倒向一方或另一方……”\n\n着眼于自本日期至由这些申请所引起的诉讼审判期间可能发生的情况，我必须着手考虑 American Cyanamid 案使之具有重要性的事项，并铭记我刚刚读到的迪普洛克勋爵在 NWL 案后来的判词中的意见。\n\n由于这些均属临时申请，我拟严格依照 American Cyanamid 案所阐明的原则处理，同时考虑到——正如我所说的话中所隐含的——如有藐视法庭程序，其可能须在本案诉讼审判之前处理，以及以下事实：\n\n大陪审团可能有权取得且可能对其有用的任何文件之提交，将因我继续维持所请求的禁令而被延迟；尽管没有证据表明，对这项已经进行了一段时间的调查之该特定方面进行审查所涉及期间的延误会具有重大意义。\n\n我可以用一句话概述我所认为的便利衡量。一方面，继续维持禁令将妨碍伦敦的美国法院行使按英国标准将被视为过度的权力，而不会因此给银行造成损害；另一方面，拒绝签发禁令，或不继续维持该等禁令，将允许银行为其自身目的行事，违反其承认对客户负有的保密义务，从而可能给原告造成极其重大的商业损害，这一点无可争议。\n\n这就是便利衡量，而其背景是显然存在一个有待审理的严重争议。损害赔偿并不能构成对原告的充分救济。我不认为银行会遭受任何损害，即使考虑到可能提起的任何藐视法庭程序很可能会在本案审理之前得到处理。在此情形下，我认为便利衡量显然有利于原告。\n\n如果并在必要限度内，我在此阶段必须考虑案件的是非曲直，我坚定地站在原告一方。我已分别考虑各原告的立场，但我并不认为针对Y公司的案件强度明显高于针对其他原告的案件，以致我有理由将该公司与其他原告区别对待。与该公司或其他原告有关的情形可能发生变化，进一步证据也可能使本案呈现不同面貌。\n\n我不会在不指出以下一点的情况下处理完这些申请：我不认为这是一个司法管辖权冲突的问题。我完全能够理解，美国地区法院会希望了解本国法院在实践中将界限划在何处；但是，既然界限已经划定在目前的位置，我很难相信银行会面临被认定为藐视法庭的任何危险，因为其就未提交所要求文件所提出理由的充分性现在确实已显而易见。现在对银行施加的任何制裁，看起来都像是对本院施加压力；而在我看来，应由纽约法院通过在提起藐视法庭程序时不认定其藐视法庭，来解除其本国国民所陷入的困境，而事实证明，该困境正是该法院所造成的。\n\n基于上述理由，我将继续维持现正针对被告有效的禁令。\n\n临时禁令继续有效，直至审判或作出进一步命令。\n\n律师事务所：Allen & Overy（艾伦·奥弗里）（代表银行）；Simmons & Simmons（西蒙斯与西蒙斯）（代表第一及第二原告）；Norton Rose Botterell & Roche（诺顿·罗斯·博特雷尔与罗奇）（代表第三原告方）。\n\nK Mydeen Esq（K·Mydeen），大律师。","key_entities":["Je","CIPA"],"ecf_references":[],"word_count":12644,"status":"published","published_at":null,"created_at":null,"updated_at":"2026-08-23 21:19:26"}