26 July 2021
Rahman Ravelli had an article published in The Banker that detailed the powers that the authorities in the UK and US have to subpoena materials held by companies overseas.
In their piece, they detail the ability that the US’ Department of Justice (DOJ) and Treasury Department have to subpoena foreign bank records under the National Defense Authorisation Act (NDAA). Under the NDAA, the DOJ and the Treasury Department can subpoena bank records held overseas by a foreign bank as long as the foreign bank has a correspondent account in the US, regardless of whether this account was used as part of a potential violation of US law.
They compare the provisions of the NDAA with the UK Supreme Court’s recent decision in KBR, which found that the Serious Fraud Office’s ability to secure such records is much more limited.
Rahman Ravelli argues that British courts remain reluctant to extend the SFO’s enforcement powers abroad, whereas the NDAA indicates the willingness of the US government to investigate financial crime wherever it may originate.
While foreign banks can shield foreign banking records from the SFO, the same is not true with DOJ investigations. This is an important distinction that foreign banks must consider as the powers conferred by the NDAA begin to be employed by US authorities more regularly.
The article was published by The Banker. (Subscription required)
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