Cayman court refused to consider the United States interest is because of the established
private international law rule that states do not enforce the revenue laws of other states.38
In United States v Davis 39 which came after the decision in the ABC Ltd. case, the
Second Circuit affirmed the district court order which had required Davis to request the
Cayman bank to release the account information and thereby waive his bank secrecy
rights.40 The court in Davis, which concerned money laundering, was able to bypass the
decision in ABC Ltd. because the case also involved breach of Cayman Law.
Having regard to the above, it is clear that there are international ramifications when the
use of the compelled waiver procedure is made by the Untied States. Moreover, this area
of international law has as the case law authorities suggest too often been victimized by
self-interests alone. In addition, as my analysis will show, leaving this important area of
of choice regarding contract entered into by fraud does not negate consent in law (Lord Wilberforce and Lord Simon dissenting) Cumming v Ince 11Q.B. 112, 116 Eng. Rep. 418 K.B. 1847 (plaintiff’s incompetency precluded her acting from free will and hence contract was voidable for duress.) The issue in these cases was not whether the consent was produced under compulsion but whether that compulsion is lawful under the circumstances. 9 FORDHAM INTERNATIONAL LAW JOURNAL 680 at page 27 note 97. See also Biffin v Bignell 7H. &N. 877, 879-880, 158 Eng. Rep. 418 K.B. 725,726 (Ex. 1862) Smith v Moneith, 13 M & W 427, 437, 153 Eng. Rep. 178, 182 (Ex. 1844) Under the United States common law of contracts, a party’s consent to a contract is vitiated if the party consented to the agreement while under duress. J.CALAMARI & J. PERILLO, THE LAW OF CONTRACTS 9-2 AT 262. RESTATMENT (SECOND) OF CONTRACTS has defined duress as any wrongful act or threat which overcomes the free will of a party.
38 See generally ABC Case Judgment supra note 32 “The Term Private International Law is the term used to describe the branch of law that addresses the questions of when and why the courts of one jurisdiction consider the prior determination of another state or of a foreign nation in a case pending before it” E. SCOLES & P. HAY, CONFLICT OF LAWS 1.1 AT 1(1982) The RESTATEMENT (SECOND) OF CONFLICT OF LAWS SAYS “ that a true conflict exists when each country has a strong interest in having its own law or lack of a law applied to the transaction, and application of each law would produce a contrary result. “
39 40 767 F. 2d. 1025 (2d. Cir. 1985) Professor Maier advocates diplomatic resolution of conflicting claims of authority to forbid or require conduct within a nations borders, rather than judicial decisions in which a forum court balances its own interest against the competing interests of other states. FORDHAM INT’L L. J. 680 at page 29 note 105
41 “ In the diplomatic forum, the label balancing of interests merely characterizes the ordinary international law formation process of demand, response and eventual accommodation in the light of reciprocal national needs and tolerances. The rues of international law describe community expectations that result from this process” Maier, supra note 36