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10@12 Webinar : (Un)lawful Excuses? When compliance with domestic law entails a breach of foreign law

Cross-border litigation can lead to cross-border clashes of procedure and law. Litigants are increasingly faced with the dilemma of complying with an obligation in one jurisdiction only at the expense of breaching laws in another. With data protection becoming an issue of national interest, if not national security, these clashes will become more frequent and more pronounced. Appeals to “comity” may fall flat when administrative, rather than judicial authorities are charged with releasing data for foreign litigation.

The webinar will address how and why this dilemma arises, the general approach of the courts, and offer practical guidance. It will also discuss the introduction of the Chinese Data Security Law (DSL) and the decision of the Grand Court of the Cayman Islands in Sina Corporation, in which both presenters were involved.

10 points that will be covered :

1. How and why do ‘compliance clashes’ arise?
2. What is the court’s likely starting position?
3. What are the elements of the Bank Mellat test?
4. In practice, what needs to be demonstrated for the Bank Mellat test to be met?
5. How should expert evidence be approached and deployed in ‘compliance clashes’?
6. What happened in Sina Corporation?
7. The US element.
8. Comity, judicial assistance and letters rogatory
9. Is the DSL an anomaly or bellwether?
10. Key practical takeaways

David Chivers KC
Samuel Parsons