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Published online by Cambridge University Press: 04 April 2017
[Translated for International Legal Materials by Bruno A. Ristau from the German text which appeared in Recht der Internationalen Wirtschaft, March 1983/lssue 3, pp. 206-07.
[The Opinion of the U.S. District Court for the Western District of Michigan (Northern Division) of June 10, 1982, appears at I.L.M. page 742. The District Court's Order of the same date, incorrectly referred to in the German Judgment as having been issued on June 9, appears at I.L.M. page 751.]
1/ The issue of the bank's exposure to civil and criminal liability under German law has been thoroughly presented to the court. Deutsche Bank's German counsel, Dr. Ulrich Bosch, informs the court by affidavits that his client cannot comply with the grand jury subpoenas without risking substantial civil and criminal reprisals. On the other hand, a highlyreputed expert and practitioner of German law, Dr. Otto Walter, states that he kiiows of no provision of German law, other than possibly the bank's contract with its customers, which 'could form the basis of liability for the bank because of its- compliance with the subpoenas. I am satisifed that Dr. Walter's independent interpretations of German law are authoritative and accurate, and that an order by this court directing the bank to comply with the subpoenas would not impose upon the bank the risks of liability it seems to fear.
2/ Section 40 reads as follows:
“S 40. Limitations on Exercise of Enforcement Jurisdiction
Where two states have jurisdiction to prescribe and enforce rules of law and the rules thev may prescribe require inconsistent conduct upon the part of a person, each state is required by international law to consider, in good faith, moderating the exercise of its enforcement jurisdiction, in the light of such factors as
(a) vital national interests of each of the states,
(b) the extent and the nature of the hardship that inconsistent enforcement actions would impose upon the person,
(c) the extent to which the required conduct is to take place in the territory of the other state,
(d) the nationality of the person, and
(e) the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state.”