The Financial Services Authority (FSA) went to the Court of Appeal to seek clarification regarding its obligation to co-operate with the Securities and Exchange Commission (SEC), as previously reported here.
In 2006 the SEC instigated proceedings in the US against a number of corporations in relation to fraudulent and manipulative trading. As a result of these proceedings, in 2009 the SEC made a request to the FSA for the production of certain documents and information held within the UK. The FSA appointed investigators under s.169 of the Financial Services and Market Act 2000 (FSMA). The investigators then issued notices to the relevant parties in order to obtain the requested documentation. Judicial Review proceedings were brought against the FSA in August 2009 claiming that the FSA had acted unlawfully in appointing the investigators and the notices from the investigators were "too wide and unspecific" in relation to the US proceedings. The Court held the FSA was within its powers to appoint investigators under FSMA, however the Court said the FSA should have decided that "it was not necessary or indeed proportionate for the wide scope of the discovery".
On 24 February 2010 the Court of Appeal clarified the earlier decision and ruled there had been no error of law or principle in the FSA's decision to co-operate with the SEC's requests for information. The Court held the FSA was not required to second guess a foreign regulator as to the validity of its requests. This decision has provided much needed clarity on the level of co-operation that can be provided between regulators in different jurisdictions.