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other assistance for the mutual benefit of both parties is encompassed in the broad statutory authority of the Attorney General to conduct litigation to enforce Federal criminal law, and to attend to the legal interests of the United States.

Dept. of State File No. P76 0055-0002.

Other Agreements on Lockheed Matter

Essentially similar agreements were concluded with other requesting countries on the Lockheed matter, as follows:

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The agreement between the United States and Turkey (TIAS 8371) set forth procedures for mutual assistance in the administration of justice in connection with both the Lockheed Aircraft Corporation and the McDonnell Douglas Corporation matters.


The United States and Mexico concluded an agreement on June 23, 1976 (TIAS 8533; 28 UST; entered into force June 23, 1976), establishing procedures for exchange of information between the U.S. Department of Justice and law enforcement agencies of Mexico concerning alleged illegal acts pertaining to the sales activities in Mexico of the General Tire & Rubber Company and the Firestone Tire & Rubber Company and their subsidiaries or affiliates. The agreement, which was signed by representatives of the Department of Justice and the Procurador General of the Republic of Mexico, is similar to those reached with other countries concerning exchanges of information for law enforcement purposes in the Lockheed matter, supra.

Essentially the agreement provides that the law enforcement authorities of each country will use their best efforts to make available to each other material information they have compiled

relating to sales activities in Mexico of the two companies. The agreement further provides that information made available will be used solely for law enforcement purposes and will not be disclosed to third parties or to government agencies having no law enforcement responsibilities. However, information may be used freely in legal proceedings.

Recognition of Foreign Judgments and Decrees

Foreign creditors appealed from a judgment of the U.S. District Court for the District of Colorado upholding the legality of the election of a trustee in bankruptcy in Matter of Colorado Corp., 531 F.2d 463 (1976). The U.S. Court of Appeals for the Tenth Circuit held, inter alia, on February 20, 1976, that the bankruptcy court abused its discretion in denying comity to decrees of Luxembourg and the Netherlands Antilles. The appellee had argued that comity should not be given to those decrees because Canadian and United Kingdom courts had not given comity to orders of the bankruptcy court in Colorado. The Appeals Court opinion quoted from Hilton v. Guyot, 159 U.S. 113 (1895):

"Comity," in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.

The opinion continued:

Reciprocity has been a consideration in the granting or withholding of comity, Hilton, supra, although it has been abandoned by some courts . .

Here we are asked to take reciprocity one step further and deny comity to the Netherlands Antilles decree because of actions by citizens of a country which was not giving comity to American court orders. Denying comity to the Netherlands Antilles order because of lack of reciprocity in Canada is such a misdirected use of the reciprocity consideration as to constitute an abuse of discretion. No equitable considerations support that result. Comity is withheld when the granting of recognition of foreign laws would prejudice the rights of the forum's own citizens. 16 Am. Jur. 2d Conflict of Laws § 6 (1964). We cannot see how allowing foreign creditors to vote for a trustee subject to duties imposed by American law, see, e.g., 11 U.S.C. 75, can prejudice American citizens.

In Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624 (1976), suit was brought by a Canadian trustee in bankruptcy to obtain records

located in the New York offices of the trustee's two Canadian bankrupt corporations and in the possession of their officials. The U.S. District Court for the Southern District of New York granted a preliminary injunction requiring that the records be turned over and restraining the disbursement or secretion of any corporate property in, or coming into, the hands of such officials. The officials appealed. The U.S. Court of Appeals for the Second Circuit affirmed on November 1, 1976. It held that the District Court did not abuse its discretion in declining to stay proceedings until determination of pending state court proceedings. Turning to the central issue in the case, whether the Canadian bankruptcy proceeding might be collaterally attacked in that Court, it stated:

The doctrine of comity, Hilton v. Guyot, 159 U.S. 113, 163-64 . . . (1895), applies in the State of New York. . . . Under it, New York courts recognize the statutory title of an alien trustee in bankruptcy, as long as the foreign court had jurisdiction over the bankrupt and the foreign proceeding has not resulted in injustice to New York citizens, prejudice to creditors' New York statutory remedies, or violation of the laws or public policy of the State.... These exceptions are construed especially narrowly when the alien jurisdiction is, like Canada, a sister common law jurisdiction with procedures akin to our own. Canadian trustees in bankruptcy with appropriate authority have been held entitled to recognition, . . . and Canadian judgments have been held entitled to credit New York courts have given foreign trustees injunctive or related relief to obtain possession of property, . . . and Canadian courts have also given this form of relief to a trustee appointed in the United States

Appellants do not argue that the Newfoundland court lacked jurisdiction over the bankrupts or that there is any conflict between the alien trustee and domestic creditors. They assert, however, that comity should not be given the Newfoundland court's designation of appellee as trustee both because it was "tainted with fraud" and therefore was not cognizable as a foreign judgment in New York, and because the public policies of New York in favor of forum selection clauses and against assignments for the purpose of litigation have been violated. We find no merit in either of these contentions.

A foreign judgment may not be collaterally attacked "upon the mere assertion of the party that the judgment was erroneous in law or in fact," Hilton v. Guyot, supra, 159 U.S. at 203, . . . much less upon a mere assertion of fraud. Clear and convincing evidence of fraud is required in order successfully to attack a foreign judgment, just as such proof is necessary before a court will set aside its own judgment. . . . While appellants are free to introduce additional proof at a trial on the merits of this action, they have not shown enough at this stage to cast doubt on the Canadian judgment.

There is no greater force to appellants' next suggestion, that New York public policy has been violated because the Canadian court did not give sufficient weight to New York Judiciary Law § 489 (the champerty statute) and to a forum selection clause in the "agency agreement" between the bankrupts and Ataka America, Inc. (a sister corporation of Atlantic Trading (Delaware). Inc., which was the petitioning creditor in the Newfoundland proceeding as a result of being assignee of certain bills of exchange issued pursuant to the agency agreement). . . . Both of these arguments were duly presented to the bankruptcy court, with conflicting expert testimony as to the relevant New York [T]here is no indication that the Newfoundland court gave appellants less than a full opportunity to present these questions, or less than full consideration to those aspects of New York law and public policy which were presented. We think that it would contravene the public policy of New York and the doctrine of comity not to recognize the Canadian judgment in these circumstances, and we therefore recognize it for present purposes.

Letters Rogatory

Request by Japan in Lockheed Matter

Following signature of the U.S.-Japan agreement on mutual judicial assistance in the Lockheed matter, supra, the Tokyo District Court, on May 28, 1976, requested immediate assistance in the taking of in camera depositions of three former officials of the Lockheed Corporation. The depositions were to be used in criminal investigations and possible future criminal trials in Japan. The Japanese letters rogatory were presented ex parte to the District Court for the Central District of California, at Los Angeles. The Court appointed three commissioners (one to preside over the depositions and two to conduct the questioning) and issued subpoenas duces tecum directed to the witnesses.

On June 4, 1976, the witnesses moved to quash the subpoenas on numerous grounds. They challenged the authenticity of the letters rogatory, their ex parte presentation to the Court as violating due process, and the authority of Federal courts to render assistance to foreign criminal tribunals. They also raised doubts about the witnesses' immunity from prosecution in Japan.

The District Court denied the motion to quash the subpoenas and directed the examination of witnesses to proceed. On appeal from the order, the U.S. Court of Appeals for the Ninth Circuit held on June 23, 1976, that the District Court properly exercised its discretion in issuing subpoenas. In re Letters Rogatory from Tokyo District, Tokyo, Japan, 539 F.2d 1216 (1976). The following day Mr. Justice Rehnquist of the Supreme Court denied an application for stay of the Circuit Court's order.

The Ninth Circuit's opinion, in upholding the District Court's discretion in determining whether letters rogatory from foreign or international tribunals should be honored under 28 U.S.C. 1782, pointed out that the purpose of the 1964 amendment to that statute was to broaden prior law and permit extension of international assistance to bodies of a quasi-judicial or administrative nature, including foreign investigating magistrates. The opinion added:

We do not find any of the other objections raised by the witnesses to be persuasive. Letters rogatory are customarily received and appropriate action taken with respect thereto ex parte. The witnesses can and have raised objections and exercised their due process rights by motions to quash the subpoenas . The issuance of letters rogatory by the Tokyo District Court and the reference to their possible issuance in the mutual assistance agreement rebuts the unsupported objection of the witnesses that letters rogatory are not authorized under Japanese law. It is premature to examine whether the witnesses have been granted immunity from prosecution in Japan and the effect of any such grants. Similarly, it is not now appropriate to consider the possibility that they may claim their Fifth Amendment privileges against testifying, as no witness has yet made any claim of privilege. The use to which the depositions are put in Japan does not appear presently to deserve this court's concern since the witnesses are neither defendants nor subjects of investigation in Japan. Nor can the witnesses object to the District Court's action on the ground that the testimony to be taken may not be admissible in a Japanese trial. Such evidence may still be acceptable for preliminary stages in the Japanese procedure just as American grand juries can consider evidence not admissible in a trial. That the Securities and Exchange Commission is conducting a similar investigation does not bar the Japanese proceedings, and no rights of the witnesses in regards to the SEC activities are limited by this action. The subpoenas do not appear overly broad, and specific objections may be raised at the time of the testimony.

On July 6, 1976, the District Court proceeded to examine the witnesses but directed that the testimony be sealed and not transmitted to the Japanese Tribunal pending receipt of assurances from the Japanese authorities that the witnesses would not be subject to criminal prosecution in Japan based on their testimony in the United States. The District Court order specified that the assurances from Japan must be "either an order or a rule of the Supreme Court of Japan which states, without any equivocation, that the witnesses will not be subject to prosecution in the Territory of Japan by reason of any information declared by them in their depositions or any information which may be obtained as the result of their giving testimony under the letters rogatory."

On July 24, 1976, the Supreme Court of Japan issued a declaration

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