Emory International Law Review


Anand Sithian


Currently the Third Restatement of Foreign Relations Law ('Third Restatement') advocates a five-part balancing test for courts to apply when contemplating ordering discovery on a party that would require violation of another nation's laws. This Comment uses the recent tax investigation into UBS and its account holders as a case study to argue that the alternative means factor from the Third Restatement should be a mandatory step for Executive Branch agencies to exhaust before they can petition a court to compel disclosure of foreign discovery that would require the defending party to violate foreign law. The application of executive exhaustion will prevent courts from having to engage in the Third Restatement's balancing test. By avoiding the Third Restatement's balancing test, a court can avoid placing parties in a catch-22'following one state's laws at the expense of violating those of another state.