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8

The First Chicago case revolved around the question whether an order by the district

court of subpoena duces tecum which would have the effect of causing violation of Greek

Bank Secrecy laws, which incurred criminal sanctions, was a valid order.

The Court of Appeal held that there was no question that the Internal Revenue Service

had shown a prima facie case.20 However, there should be other determining factors.

Specifically, the court felt “ where criminal sanctions for the production of information

could be imposed abroad, a domestic court, although not automatically barred from

compelling discovery, must weigh the competing interests of the parties before imposing

domestic enforcement sanctions.”21

Two further points highlighted by the Court of Appeal were that the employees of First

National Chicago and Greece were “neutral sources and not adverse parties in

litigation.”22 In addition, the interests of the two sovereign nations Greece and the United

States should be equally viewed.23 The application of the balancing test prescribed in the

Restatement (Second) on Foreign Relations would result in the order to compel

documents

in

this

case

as

an

abuse

of

discretion.

24

However,

the

OECD’s

report’s

recommendation now makes it abundantly clear that the threshold required before

information should be released to Tax authorities of the individual country will be

20

Id at 343

21

Id at 345

22

Id at 345-346

23

Id at 346

24

Id at 345-346

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