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14 Int'l L. News 1 (1985)

handle is hein.journals/inrnlwnw14 and id is 1 raw text is: INTERNATIONAL Vol. 14, No. 1 s Winter 1985 Section ~ ~ ~ of Inentoa La an rcie4reica a soitc Chairman's Columno In Release No. 21186 of July 30, 1984, the United States Securities and Ex- change Commission solicited comments upon the proposed codification of the waiver by conduct doctrine as a method for the S.E.C. to ob- tain documents and informa- tion concerning securities transactions on U.S. markets through foreign banks pro- Mont P. Hoyt tected by bank secrecy laws. Chairman Under the waiver by conduct doctrine, an individual waives his right to the protection of bank secrecy laws when he orders the purchase or sale of securities on a U.S. market through the agency of a bank. The S.E.C. hopes to make the waiver by conduct doctrine a prin- ciple of U.S. law. The primary concern of the S.E.C. in making the proposal is the enforcement of the anti- fraud provisions of the U.S. securities law against indi- viduals who preserve anonymity by engaging in securities activities in the U.S. through the agency of foreign banks. The primary benefit to be derived from the adoption of the waiver by conduct doctrine, the S.E.C. sug- gests, is that it would be recognized by foreign banks and foreign governments (e.g., Switzerland) as an ex- ception to their bank secrecy laws. The recognition of this doctrine abroad, the S.E.C. reasons, would eliminate conflicts when the S.E.C. seeks to discover evidence abroad from foreign banks subject to secrecy laws. The voluntary cooperation which would result, the S.E.C. concludes, would lead to prosecution of securities fraud originating abroad which would be more effective than the approaches currently available to the S.E.C.: com- pulsory discovery powers of U.S. courts and treaties for cooperation in the prosecution of criminal matters. A more comprehensive review of the waiver by con- duct doctrine, however, indicates that it would in general be rejected abroad as an impermissible extra- territorial application of U.S. law. Based upon a text issued by the Legal Staff of the Commission of the European Economic Community in the wake of the attempt to apply U.S. export controls to oil equipment manufactured in Europe for use on the Siberian pipe- line, it would seem that the current S.E.C. proposal is indistinguishable, under generally accepted principles of law in Europe, from other recently failed attempts to apply U.S. law abroad. Continued on p. 6 * The views expressed in this column are those of Mr. Hoyt and are not official positions of the ABA or the Section of International Law and Practice. Section Holds Wint r Meeting fif'rSain Antonio The' Stiie of Texas and various Latin American countries were the jurisdictions receiving the most at- :ffntion, t-the Section's Winter Meeting, held in San Antoio from November 30 through December 2. In addition, the Section's Council addressed various sub- stantive and administrative matters. The meeting began with a joint open meeting of the Council and the Texas State Bar International Law Section. The program, chaired by John M. Stephenson, Jr. (who, with Jay M. Vogelson, co-chaired the Winter Meeting in its entirety), considered a program proposal for the 1985 Texas State Bar Annual Meeting and a proposal for the practice of foreign lawyers in Texas as counselors in foreign law, among other subjects. The meeting next featured a full day program on trade with and investment in Mexico, described in the previous issue of the International Law News. In addi- tion to numerous speakers from Mexico, there were in at- tendance an array of Bar leaders from Central America and the Dominican Republic. These guests were later honored at a Lone Star Buffet Dinner, and then addressed at a breakfast meeting by William W. Fals- graf, President-Elect of the ABA. In its deliberations on substantive matters, the Council declined to further advance a resolution, originally adopted at the Annual Meeting in August but later de- ferred, pertaining to the case brought by Nicaragua against the United States at the International Court of Justice; adopted a resolution condemning a September attack by two Iranian arbitrators of the Iran-United States Claims Tribunal on a third nation arbitrator and reaffirming support of the Tribunal; supported a resolu- tion of the Standing Committee on World Order Under Law, the Section of Individual Rights and Responsi- bilities and the Washington State Bar Association with respect to proliferation of nuclear weapons; supported in part a resolution of the same groups concerning establishment of a nuclear free zone in Latin America; voted to request the same groups to defer their resolu- tion on the subject of a nuclear test ban treaty, and to oppose the resolution if it is not so deferred; con- sidered a resolution proposed by the Section of Individual Rights and Responsibilities concerning free movement of information and people across international borders, and directed its Ad Hoe Committee on this subject to work with that Section to develop final language for re- consideration; and authorized the Section's Ad Hoc Continued pn p. 5 Copyright@ 1984 American Bar Association

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