By Charles Thomson (Partner), Kate Geale (Senior Associate), Moshka Mehta (Trainee), Thomas Wells (Trainee), Baker McKenzie London – Dispute Resolution
On 4 June 2026, Baker McKenzie and Twenty Essex hosted the panel, “When Laws Collide: Managing Multi-Jurisdictional Fraud, Compliance, and Cooperation” as part of the London International Disputes Week 2026. Mr Justice Picken, Charles Thomson (of Baker McKenzie), Kate Geale (of Baker McKenzie), Philip Edey KC (of Twenty Essex), and Courtney Grafton (of Twenty Essex), provided their insights on the principles and practical implications of comity.
Comity, disclosure and the limits of cross‑border cooperation
A central theme arising from the discussion was the role of comity in cross‑border fraud disputes. Comity operates as a guiding principle of mutual respect between courts and legal systems. However, it is not a rigid rule. Its application is inherently fact‑specific and depends on the circumstances of each case, including the nature of the competing legal obligations and the consequences of compliance or non‑compliance.
Increasing tension around disclosure obligations
The tensions around comity can be acute in the context of disclosure. Parties to English proceedings are increasingly faced with conflicting obligations: on the one hand, the wide‑ranging disclosure requirements imposed by English procedural law; and on the other, foreign legal regimes that may impose criminal, regulatory or confidentiality restrictions on the production of documents.
The English courts have consistently affirmed that they retain jurisdiction to order disclosure even where compliance may breach foreign law. In Bank Mellat v HM Treasury [2019] EWCA Civ 449, the Court of Appeal confirmed that such orders are governed by the lex fori and are ultimately discretionary. The court must carry out a balancing exercise, weighing the importance of the documents to the fair disposal of the proceedings against the “real” risk of prosecution or penalty in the foreign jurisdiction.
In practice, this often leads to tailored procedural solutions designed to mitigate risk, including confidentiality rings, redactions, restricted inspection, or limits on the use of disclosed material.
Public policy considerations and international cooperation frameworks
In addition to the risk of prosecution or enforcement action, disclosure disputes are increasingly engaging broader public‑policy considerations. Courts are being asked to consider the potential impact of disclosure on established mechanisms of cross‑border cooperation, including information‑sharing frameworks between Financial Intelligence Units (such as those operating under the Egmont Group).
Where information has been shared on a restricted basis between state authorities, their deployment in civil proceedings may raise concerns that go beyond the immediate dispute. These include the risk of undermining future cooperation between regulators or law enforcement bodies, as well as potential diplomatic sensitivities between states. While such considerations are not determinative, they are becoming an increasingly important part of the court’s discretionary analysis.
State actors and the complexity of disclosure
The involvement of state parties adds a further layer of complexity. Where a sovereign state is engaged in parallel civil and criminal processes, disclosure obligations in English proceedings may conflict with domestic constraints or decisions taken by foreign courts or prosecutors.
The approach taken in The Republic of Mozambique v Credit Suisse International & Ors [2024] EWHC 1957 (Comm) (the “Tuna Bonds” litigation) illustrates this tension. In that case, substantial deficiencies in disclosure by a state claimant, including limitations on access to material from criminal proceedings, did not result in the claim being struck out. Instead, the court adopted a calibrated approach, permitting the proceedings to continue while drawing adverse inferences from the state’s failure to comply fully with its disclosure obligations.
This reflects the English courts’ attempt to balance fairness with respect for foreign legal constraints. However, it also raises important questions for commercial parties as to whether a truly level playing field can be achieved where states bring claims in England and Wales while relying on their own domestic legal frameworks to resist disclosure.
Comity in the context of foreign witness evidence
Courts must also consider the risk of foreign prosecution for witnesses where testifying abroad may expose them to criminal liability. The Privy Council’s judgment in Brannigan v Davison [1997] AC 238 (PC) rules that self-incrimination under a foreign law is not an absolute bar to compulsion but instead should be treated as a discretionary factor. To make an informed decision, courts should be presented with expert or foreign-law evidence. The Commercial Court specifically has shown an increasing receptiveness to witnesses giving evidence remotely from abroad, among other safeguards it can apply with discretion.
In Karam Salah Al Din Awni Al Sadeq v Dechert LLP [2024] EWCA Civ 28, the claimants had been detained by a foreign government and there were serious allegations about their mistreatment and imprisonment. For the proceedings, there was a practical question of how evidence may be taken in the UAE without breaching the local law. The claimants pursued letters of request and sought to explore the possibility of a judge sitting overseas as a special examiner, with CPR 34.13 providing a possible mechanism and with treaty-based judicial cooperation also potentially relevant. The request, however, remained stuck in the UAE system for years. This raises the question of a gap between comity in theory, and cooperation in practice. Even where treaty routes or cooperative mechanisms exist, they may prove slow or ineffective when local authorities are unwilling or unenthusiastic about assisting.
Protecting the interests of English companies abroad
Questions of comity may arise where court-appointed receivers seek to act beyond the jurisdiction of the appointing court. This is an area in which deference to foreign courts may yield to the protection of English private international law principles and the interests of English companies faced with expansive foreign jurisdictional claims.
In Cape Intermediate Holdings Ltd v Peter D Protopapas [2024] EWHC 2999 (Ch), an English company obtained declaratory and injunctive relief against a receiver appointed by a South Carolina court who purported to act on its behalf worldwide. The court held that, from the perspective of English private international law, the company had not submitted to the jurisdiction, referring to a previous ruling in Adams v Cape Industries plc [1990] Ch 433 that a company cannot be treated as present in a foreign jurisdiction based merely on the presence of its subsidiary. Further, the court found that it did not recognise the receiver’s authority due to the breadth of their claims, lack of board consent and a failure to engage with English authorities.
A significant issue was whether relief should extend beyond England and Wales, given that it effectively restrained the exercise of powers granted by a foreign court. By analogy with anti-suit injunction principles, the court carefully considered comity but concluded that this was an exceptional case, and that the protection of the English company and the integrity of English private international law was justified.
A contrasting approach is illustrated by Joujou v Masri [2011] EWCA Civ 746, in which the English court sought to enforce a judgment against a Lebanese company by appointing a receiver of the company to bring in its foreign assets for the benefit of the claimant. While the Court of Appeal accepted that a receiver could be appointed over a foreign company’s rights in order to assist in enforcement, complications arose when the Lebanese court appointed judicial administrators in place of the company’s directors to run the company and directed them not to allow the receivers to access the company’s assets without the Lebanese court’s approval.. A penal order was subsequently issued by the English court which named the judicial administrators and made it a contempt for the company and therefore the judicial administrators not to comply with the receivership. The Court of Appeal held that although the order against the judgment debtor company could stand, comity prevented the English court from restraining or penalising judicial administrators appointed by the Lebanese court for acting in accordance with that court’s orders. The administrators were therefore entitled to comply with their own court’s directions without exposure to contempt proceedings in England. This decision emphasises the bilateral and reciprocal nature of comity. It does not produce a single fixed outcome but requires a fact-sensitive assessment of the legitimacy of each court’s exercise of jurisdiction.
In summary
Comity should be treated as “elastic” and legal practitioners should consider the relevant facts of a scenario when considering its application. While comity is an important organising principle, it cannot obstruct justice where the facts call for firm intervention. Equally, there are cases where the English court will show considerable restraint, especially where a foreign court, foreign judicial officeholder or foreign sovereign process is directly engaged. Multi-jurisdictional fraud disputes rarely involve a neat hierarchy of obligations. Instead, they require a series of calibrated judgments about risk, reciprocity, enforceability, fairness and institutional respect. The law does not eliminate those tensions; rather, it provides a framework within which courts try to manage them.
