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Sections 419(1) and 420 (2)28 as some guidance on this subject. The main benefit of the

Second Restatement test is that it maintains that the interest of both states are of equal

importance. 29 The five considerations that should be made according to the Restatement


1) Each states vital interest,

  • 2)

    The extent and nature of the hardship that enforcement might impose,

  • 3)

    The extent to which action is required in the foreign state,

4) The parties nationality, and

5) The extent enforcement will achieve compliance with the rule in each state.


The above provisions of the Restatement (Revised) would be a more productive approach

to dealing with such a delicate issue.31 The Restatement considers the effect compliance

will have on the individuals in the foreign state. Previous case law has tended to consider

only the result without the effect of the courts order.32 This authority of the Restatement

is further supplemented by the rule established by the United States Supreme Court in

Societe International pour Participations Industrielles et Comerciales, S.A. v Rogers.


28 29 Id at 346 See Paikin, Problems of Obtaining Evidence in Foreign States for Use in Federal Criminal Prosecutions 22 COLUM TRANSNAT’L L. 233 (1984)

30 Davis 767 F. 2d at 1033-35 ( balancing competing interests under the Second Restatement of Foreign Relations Law) The term balancing of interests may have originated with the governmental interest analysis proposed by Professor Brainerd Currie. See generally Currie Married Woman Contracts: A study in Conflict of Laws Method: 25 U. CHI. L. REV. 227 (1958) “Today, however, interest balancing test suggest a decision making process in which the court identifies the interest of the countries having contact with the situation to be adjudicated” 9 FORDHAM INT’L LAW JOURNAL 680, 733

See e.g. United States v Vetco Inc. 691 F. 2d 1281 1288-1289 (9th Cir) Cert. Denied, Other factors the courts have considered include the absolute necessity of the documents, the availability of alternative means of compliance 31

32 33

Supra see United States v Bank of Nova Scotia 357 U.S. 197, 205, 208-209 (1958)

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