Mutual Legal Assistance and International Regulatory Co-operation

Mutual Legal Assistance (MLA) is the formal way in which countries request and provide assistance in obtaining evidence located in one country to assist in criminal investigations or other proceedings in another country.  Treaties and executive agreements are entered into by states for the purpose of gathering and exchanging information in an effort to enforce laws. Assistance may take the form of requiring the production of documentary or other evidence, examining and identifying persons in courts nominated to receive evidence and seizing property.  Treaties and executive agreements commonly provide for situations in which a state may refuse assistance to another state. The traditional method for making requests for international assistance was by letters rogatory in both civil proceedings and mutual criminal assistance (including extradition) matters. Although these methods continue, there has been a recent growth in the number and type of areas in which regulators provide assistance to one other.  Especially significant has been the growth of municipal regulation in all aspects of financial services and tax.  This growth has been coupled with the related expansion of international co-operation between national regulatory agencies.  As a result, International Regulatory Co-operation now comprehensively covers administrative law, insolvency, banking, securities and tax matters. Until recently, there had been little appreciation in UK law of the human rights implications of the use of the compulsory and coercive processes involved in International Regulatory Co-operation.  A series of cases in which members of Monckton Chambers have acted has led the courts to recognise and protect the privacy rights of those about whom confidential information is sought by foreign states, regulators and other bodies entitled to request foreign courts’ assistance. Although the details of the cases in which Members have been involved in this litigation are usually confidential, they have involved requests from Australia, Austria, The Bahamas, Cyprus, the Czech Republic, Gibraltar, Guernsey, Jersey, the Isle of Man, Israel, the Russian Federation, Scotland, Spain, Switzerland, the Netherlands, Liechtenstein, New Zealand, the United Arab Emirates and the United States of America.  Members’ experience in the application of human rights principles to this expanding area of law is unrivalled.