Friday, November 11, 2011
In Part I, this Comment provides the background to the UBS tax investigation litigation. Part II examines how early courts treated the issue of government requests that required a party to break foreign law. Part III discusses the various Restatements’ sections that have been published to address this issue, particularly the creation of balancing tests. Part IV analyzes how courts have applied the Restatements over time in deciding whether to compel a defendant to turn over information to satisfy U.S. demands. Part V introduces the concept of executive exhaustion and the alternative mechanisms that government agencies can utilize to resolve conflict situations similar the one faced by UBS. Part VI addresses the possible solutions advocated by executive exhaustion to the UBS case to demonstrate executive exhaustion’s utility. Part VII concludes the Comment by recommending an implementation of executive exhaustion and explaining how to better strengthen the doctrine.