MONACO Law and Practice Contributed by: Donald Manasse, Donald Manasse Law Offices
6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure The new CPC provisions allowing for discovery orders have not yet produced published case law. Because they may be accompanied by a fine, or an astreinte, these can be expected to give rise to litigation. Banks served with orders to disclose “any accounts” held by a debtor have been known to refuse, citing banking secrecy, but in a recent case, where the debtor’s personal account had been shown to be nearly empty, the Court issued such an order, and the bank complied. The debtor is now suing to quash the order, although the information allowed seizure of funds. If a Monaco lawyer or a foreign prac - titioner were served with an order to disclose ( compulsoire ), the lawyer would refuse to com - ply. In criminal cases, the privilege is strongly debat - ed in France and has been raised in Monaco in a recent case in which information was obtained from the phone of a foreign lawyer practising in Monaco. Monaco was sanctioned by the Euro - pean Court of Human Rights for allowing the use of the privileged information in a criminal inves - tigation, and the criminal cases that were based on the information obtained were ultimately quashed by the Court of Appeals. The exception to this principle would be similar to the common fraud exemption known in the common law. 7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages There are no punitive or exemplary damages in Monaco.
The Monaco court may not modify the foreign judgment. Jurisdiction of the foreign court will be a factor considered by the Monaco court to determine recognition. The foreign court will be considered not to have had jurisdiction when: • the Monaco courts had exclusive jurisdiction; or • the litigation did not have a sufficient nexus with the foreign state, notably when the for - eign jurisdiction is only based on: (a) the temporary presence of the defendant in the foreign country; or (b) on the basis of assets belonging to the defendant and not having a connection with the litigation; or (c) on the exercise by the defendant of a commercial or professional activity unre - lated to the litigation. These provisions do not apply if the defendant has accepted jurisdiction. It is possible for a party to bring an action in Monaco in “non recognition” of a foreign judg - ment (Article 13, paragraph 2 of the CDIP), to prevent the enforcement, and even where the foreign plaintiff is not resident in Monaco. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination A defendant in a criminal investigation is enti - tled not to reply, but a negative inference will be drawn from the non-co-operation, during both the investigation and the trial.
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