The globalization of markets has led to an increasing number of international disputes over the applicability of domestic laws to individuals and corporations located abroad. In two previous columns, we examined issues relating to extradition of individuals and the various laws and policies affecting extradition determinations.1 In this column, we examine less provocative but no less complex issues relating to what essentially amounts to the extradition of documents: the ability of the Securities and Exchange Commission (SEC) to compel U.S. corporations to produce corporate documents located abroad.
Many aspects of the SEC’s jurisdiction are currently being tested in a number of forums. In Morrison v. National Australia Bank, the U.S. Supreme Court issued a landscape-shifting opinion that set limits on the reach of Section 10(b) claims over foreign securities transactions.2 In the Southern District of New York, two recent opinions reached divergent results in addressing the limits of the SEC’s personal jurisdiction over foreign individuals.3 In the case of SEC v. Deloitte Touche Tohmatsu CPA, (Deloitte Tohmatsu) in the District of Columbia, another issue is coming to a head.4 The decision pending on a motion by the SEC in Deloitte Tohmatsu will for the first time address certain aspects of the SEC’s authority to compel production of foreign documents. Depending on the outcome, the opinion will be cited either by the SEC or by international corporate defendants in federal courts throughout the country.
