The US Government the existence of clear criteria could assist fraudsters

The current case is exemplary. The case concerns the request to the Supreme Court by three Australian investors and an American citizen, Robert Morrison, to allow a class action lawsuit against the major Australian Bank, National Australia Bank (NAB). This Bank has a significant subsidiary in Florida, HomeSide Lending, which, according to three individual shareholders, provided in 2001 of the erroneous information to the parent, causing financial harm to the complainants. After having been rejected by the Federal Court of appeal, they turned to the Supreme Court. His sentence is expected current June.

It is in this context that not less than fifteen "amici curiae" ("friends of the Court", in latin)-subjects which was not a party to a cause, volunteer to help the Court to decide a matter determined - were allowed to speak on the matter. Among them are four States, including the France, six large companies French (EADS, Lagardère, Alstom, Technip, Vivendi and Thales, "Les Echos" 24 and March 29), the Medef and Nyse Euronext. The case was argued on March 29. Together with those of the United Kingdom and Australia, the French Government put all its weight in the balance to avoid that the US Supreme Court rules for collective legal actions conducted in the United States against foreign companies. A very different position from that of the United States, will keep all their powers to non-U.S. companies.

The issue is size, as explained in Emmanuel Gaillard, Professor of law at the University of Paris-XII and "managing partner" of the Paris Office of the law firm of Shearman & Sterling, which represents the France in this folder. "The most likely is that the Supreme Court rejected the argument of the Australian plaintiffs against the Australian bank listed in Australia." "Demand for Morrison, an American not having suffered any prejudice, has already set aside by the Federal Court of appeal of the 2nd circuit," argues the lawyer. On the other hand, "the interest of the decision to intervene will reside in its motivation." "If the test is very broad or very vague, even a decision could be bad news for European companies," he says.

A particular case

The position of the Obama administration, illustrated in the Supreme Court, however, is to handle this case as a special case, and not as a case by case law. "A more restrictive application of the standards the right to take collective action against foreign companies, Editor's note would allow the United States become a basis for collaborative financial fraud which could then be exported." "This type of approach would erode the ethical canons in the financial industry and undermine the confidence of investors, which can lead to less protection for the citizens of the United States victims of foreign fraudsters", reads in the brief to the Supreme Court by the Federal Government.

Comments pertaining to new fundamental differences between Europe and the United States in the area of financial regulation. "The US Government, the existence of clear criteria could assist fraudsters." "Here is measured the chasm that exists between our legal cultures", says Emmanuel Gaillard.