Confidentiality in Offshore Financial Law

by Antoine, Rose-Marie Belle

• ISBN13: 9780199250127
• ISBN10: 019925012X
• Format: Hardcover
• Copyright: 2002-12-26
• Publisher: Oxford University Press

Summary

Confidentiality in Offshore Finance Law is a comprehensive legal analysis of an essential, but virtually unexplored and often controversial topic. It is a holistic and complex subject which brings together several orthodox areas of law in innovative and constantly evolving ways. It embraces the law on trusts, taxation and tax planning, banking, international crime, mutual funds and company law. Offshore confidentiality impacts on all of these and is uniquely different from onshore models. In this book its intricate parameters and limits are assessed by reviewing case law, legislation, treaties and public policy. Dr Antoine also highlights the tensions between onshore and offshore legal philosophies. Not only will the book be an essential point of reference to legal practitioners, it should also be of interest to financial regulators, human rights activists, academics, students, and law enforcers.

Author Biography

Rose-Marie Antoine was born in Trinidad and Tobago and graduated from the University of the West Indies in 1986. She later studied at Balliol College, Oxford as a Commonwealth Scholar having obtained her professional qualifications at Cambridge in 1988. She has worked as a legal consultant to several governments and regional and international organizations, including the ILO and the World Bank. Dr Antoine is Senior Lecturer in Law at the University of the West Indies in Barbados.

Table of Contents

Acknowledgements	xv
Tables of Cases	xvii
Table of Statutes	xxix
Table of Treaties and Agreements	xliii
List of Abbreviations	xlvii
I LOCATING CONFIDENTIALITY IN OFFSHORE FINANCE
The Nature of the Offshore Financial Centre
Introduction	1	(7)
The Development of the Offshore Financial Centre	8	(5)
The Origins of the Offshore Financial Centre	13	(21)
Anatomy of an Offshore Legal System	34	(12)
Main Themes in Offshore Law	46	(15)
The Problem Posed---The Abuse of Confidentiality	61
The Parameters of Offshore Confidentiality and its Justification
Defining Offshore Confidentiality	1	(35)
The Justification for Offshore Confidentiality	36	(16)
Addressing Myths about Offshore Investment and Confidentiality	52	(18)
Conclusion	70
Taxation and Confidentiality
Introduction	1	(4)
The Preservation of Confidentiality in Tax Matters	5	(30)
New Trends Undermining Confidentiality in Tax Matters	35	(54)
Information Initiatives---Extended Reporting Obligations	89	(17)
Conclusion	106
II DISCLOSURE INITIATIVES AND THE EROSION OF OFFSHORE CONFIDENTIALITY
Guiding Principles and Developments Towards Disclosure
Introduction---the Trend Towards Disclosure	1	(12)
Routes and Attitudes Towards Disclosure	13	(19)
Principles of Disclosure---Preliminary Matters	32	(48)
Reasonable Grounds and Fishing Expenditions	33	(17)
Incompatible Procedures and the Need for Dual Criminality Requirements	50	(15)
Standing---and Appropriate Proceedings and Bodies for Requests	65	(15)
Other Aspects of Disclosure
Human Rights Limitations---Privacy and Self-Incrimination	80	(12)
Safeguarding the Future Confidentiality of Information Obtained	92	(19)
Third-Party Restraints and Norwich Pharmacal Orders	111	(6)
Civil or Criminal Matters	117	(5)
Effect of the Hague Convention and the Requirement Against Oppression	122	(5)
Judicial Review of Disclosure Orders	127	(6)
Legal Professional Privilege	133	(3)
Search Warrants	136	(4)
Exemptions for Appropriate Disclosures	140	(2)
Mareva Injunctions and Other Equitable Remedies toward Disclosure	142
Legislative and Treaty Approaches to International Legal Assistance
Introduction	1	(13)
The Value of Mutual Legal Assistance Treaties	14	(4)
Scope of Mutual Legal Assistance	18	(18)
Limits and Potential Pitfalls of Mutual Legal Assistance Initiatives	36	(23)
Checklist for Mutual Legal Assistance---Best Practices	59	(3)
International Legal Assistance Under General Statutes	62	(28)
International Judicial Assistance and the Hague Convention	90
Money Laundering and Serious Crime
Introduction	1	(23)
The FATF Challenge---Meeting the Standards	24	(13)
The Elements of Money Laundering
Statutory Concepts and Application	37	(7)
Tipping Off	44	(11)
Restraint, Forfeiture Orders and Third-Party Interests	55	(14)
Terrorism as a Feature of Money Laundering	69	(8)
Reporting Requirements	77	(30)
Limitations to Money Laundering Initiatives	107	(3)
Conclusion	110
Impact of Restraint Orders on Confidentiality
Introduction---Creating a New Jurisprudence	1	(7)
The Environment Inhibiting Restraint Orders	8	(14)
Moves Towards Assistance	22	(58)
Conclusion	80
III CONSTITUTIONAL CONCERNS AND QUESTIONS OF SOVEREIGNTY
Constitutional Protection of Privacy in Offshore Regimes---Challenges and Dilemmas
Introduction---Finding First Principles	1	(9)
The Right to Financial Privacy in Offshore Law	10	(5)
The Scope and Meaning of Privacy	15	(38)
Privacy Precedents in Offshore Courts	53	(14)
Privacy and Conflict of Laws	67	(4)
Unfavourable Interpretations of Offshore Privacy	71	(25)
Thresholds for Limiting Rights of Offshore Privacy	96	(38)
Conclusion	134
The Privilege Against Self-Incrimination in Offshore Jurisprudence
Introduction	1	(9)
The Interpretation of the Privilege in Offshore Law	10	(10)
The Exclusivity of the Privilege to Criminal Proceedings	20	(25)
Companies as Legal Persons and the Privilege	45	(10)
Prosecution Under Foreign Law	55	(21)
Compelled Consents and the Privilege	76	(29)
Mutual Legal Assistance and the Privilege	105	(2)
Conclusion	107
The Comity Principle and Confidentiality
Introduction	1	(19)
Territorial Initiatives and the Proper Law	20	(12)
The US Threat to Comity and Confidentiality	32	(35)
The UK and Canadian Approaches to Comity	67	(22)
The Response of Offshore Courts to Comity	89	(14)
Judicial Distortions of Offshore Law by Onshore Courts	103	(10)
Relevant Factors to Assess the Comity Question	113	(11)
Non-Legal Elements of Decision Making in Onshore Law	124	(9)
Conclusions and Trends for the Future	133
The OECD's Challenge to Offshore Confidentiality
The Background to the Challenge	1	(3)
The OECD's Complaints	4	(6)
Comparing the OECD's Charges to Established Principles	10	(15)
The Response of Offshore Financial Centres to the OECD Report	25	(10)
Conclusion	35
Conclusion---Challenges and Prospects
Main Themes Discussed	1	(21)
The Way Forward	22	(311)
Index	333