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Divined Comity: Assessing The Vitamin C Antitrust Litigation And Updating The Second Circuit’S Prescriptive Comity Framework, William Weingarten

Fordham Journal of Corporate & Financial Law

In re Vitamin C Antitrust Litigation, recently decided by the Second Circuit, sets a grave precedent for American plaintiffs seeking redress for antitrust injuries wrought by foreign defendants. The case involved a group of Chinese manufacturers and exporters of vitamin C, who conspired to fix prices and restrict output in the export market, injuring American consumers in import commerce. The foreign manufacturers conceded that they had colluded in fixing prices and restricting output, in flagrant violation of U.S. antitrust law. And yet, with the assistance of the Chinese government—intervening as amicus curiae—the defendants were successfully able to argue, on appeal …

Trademarks, Gis, And Commercial Aspects Of Wine Distrubtion Agreements, Sarah A. Hinchliffe

Journal of Food Law & Policy

The marketing of goods under geographical names has always been common. In addition to introducing commercial facets of wine distribution agreements, this article discusses the justifications, principles and, policies that lie behind the protection of geographical indications (GIs) for wine on an international level as well as in the Old World and, to a lesser degree, in the New World. The scope and shape of the GI system will then be scrutinized in light of its own justifications and in the light of its impact on international trade, intellectual property, and agricultural policy.

Finding A Forest Through The Trees: Georgia-Pacific As Guidance For Arbitration Of International Compulsory Licensing Disputes, Karen Mckenzie

Marquette Intellectual Property Law Review

This paper will examine the challenges of international compulsory licensing by examining the issue historically and legally as well as offer possible solutions. Thus, this paper will explore the challenge of balancing corporate interests against the affordability and availability of pharmaceuticals by focusing on discrete situations in developing countries, the history of compulsory licensing, and how the World Health Organization (the “WHO”) and the WTO have attempted to tackle these challenges through compulsory licensing, and it will suggest a possible framework for use in arbitration, which balances equities through a Georgia-Pacific analysis.

Choosing The Partnership: English Business Organization Law During The Industrial Revolution, Ryan Bubb

Seattle University Law Review

For most of the period associated with the Industrial Revolution in Britain, English law restricted access to incorporation and the Bubble Act explicitly outlawed the formation of unincorporated joint stock companies with transferable shares. Furthermore, firms in the manufacturing industries most closely associated with the Industrial Revolution were overwhelmingly partnerships. These two facts have led some scholars to posit that the antiquated business organization law was a constraint on the structural transformation and growth that characterized the British economy during the period. Importantly, however, the vast majority of manufacturing firms in the modern sector were partnerships. An easy explanation for …

Understanding The Limits Of The Foreign Trade Antitrust Improvement Act Using Tort Law Principles As A Guide, Rene H. Dubois

NYLS Law Review

No abstract provided.

The Dragon In The Room: China's Anti-Monopoly Law And International Merger Review, Christopher Hamp-Lyons

Vanderbilt Law Review

In a world where mergers affect every corner of the planet, any government seeking competitive markets has an interest in ensuring that these mergers are not harmful to competition. As China, the world's most populous country, has committed to a market economy, it has now taken the momentous step of enacting its own Anti- Monopoly Law ("AML"). This effects a dramatic change in the antitrust regulation of multinational mergers. In international antitrust, even subtle legal differences between jurisdictions create significant potential for conflict. For this reason, the advent of antitrust merger review by a country with such massive international economic …

Korea's Competition Law And Policies In Perspective Symposium On Competition Law And Policy In Developing Countries , Youngjin Jung, Seung Wha Chang

Northwestern Journal of International Law & Business

The aim of this article is to provide an overview of competition law and competition policy in Korea and to analyze their relationship with other important national economic policies. Section II provides a historical survey of the country's competition law and policy. Section III examines the major components of the law and evaluates how the antitrust authority has actually enforced its provisions in practice. It also highlights elements of the law that have been tailored to Korea's unique economic circumstances. Section IV focuses on the relationship between competition policy and related economic policies-in particular, industrial policy and trade and investment …

Challenges To The Effective Implementation Of Competition Policy In Regulated Sectors: The Case Of Telecommunications In Mexico Symposium On Competition Law And Policy In Developing Countries , Oliver Solano, Rafael Del Villar, Rodrigo Garcia-Verdu

Northwestern Journal of International Law & Business

This article reviews Mexico's competition law and policy, with particular emphasis on the challenges that the Federal Competition Commission ("CFC") has faced in implementing an effective competition policy. Some of the difficulties analyzed are the loopholes in the current laws, the lack of cooperation between the CFC and other sectoral regulators, and the regulatory arbitrage by market participants. These challenges are then illustrated by the developments in the telecommunications sector. This sector is particularly interesting in the case of Mexico given the overwhelming power of the dominant firm and the overlapping and even conflicting mandates of the different government authorities …

Competition Policy In Developing Economies: The Case Of Brazil Symposium On Competition Law And Policy In Developing Countries , Gesner Oliveira, Thomas Fujiwara

Northwestern Journal of International Law & Business

The objective of this article is to discuss the implementation of competition policy in Brazil through a historical perspective. In contrast with the experience of various OECD countries, including the United States in particular, competition policy in Brazil has only recently become relevant. However, its increasing prevalence has not been preceded by the development of a competition culture and institutions. This fact has several implications for policy making. Best practices in the OECD countries cannot be automatically imported without due attention to the peculiarities of a developing economy. This paper is divided into five sections. Section II describes the different …

At The Crossroads: Making Competition Law Effective In Pakistan Symposium On Competition Law And Policy In Developing Countries , Joseph Wilson

Northwestern Journal of International Law & Business

Just as the first merger wave of the late 1880's in the United States resulted in the birth of Sherman Act, the recent global merger wave of the early 2000's, coupled with the growing liberalization of trade, prompted a large number of developing and transitional economies to adopt competition laws. Pakistan is one of the few developing countries with a competition law in place for more than three decades: the Monopolies and Restrictive Trade Practices Ordinance of 1970 ("MRTPO" or the "Ordinance"). While the Ordinance contained fairly strong provisions, the agency entrusted to implement it, the Monopolies Control Authority ("MCA"), …

Harold Maier, Comity, And The Foreign Relations Restatement, Andreas F. Lowenfeld

Vanderbilt Journal of Transnational Law

Hal Maier's career and mine have interacted in several respects. We have both served in the Legal Adviser's Office of the State Department; we have both taught Conflict of Laws as well as International Law; and we have both tried to show--I believe successfully--that there is no sharp divide between "Public International Law" and "Private International Law." In particular, we have both been interested in the reach and limits of economic regulation across international frontiers, initially in connection with antitrust and securities regulation, but also in connection with economic sanctions, pollution controls, and other interactions of governmental and private activity. …

Competition Advocacy: Time For A Rethink Symposium On Competition Law And Policy In Developing Countries , Simon J. Evenett

Northwestern Journal of International Law & Business

This paper examines the conventional wisdom concerning competition advocacy, paying particular attention to the applicability of such wisdom to developing countries. The definition of competition advocacy, its evaluation, and the likelihood of its successful implementation are discussed in some detail. The paper concludes with a call for considerably more thought about what, hitherto, has been one of the relatively uncontroversial aspects of many competition authorities' activities.

Same Plant, Different Soil: Japan's New Merger Guidelines Symposium On Competition Law And Policy In Developing Countries, Salil K. Mehra

Northwestern Journal of International Law & Business

Japan's New Merger Guidelines ("New Merger Guidelines"), issued by the Japan Fair Trade Commission ("JFTC") in May 2004, mark a turning point for antitrust in Japan. It is likely that Japan's New Merger Guidelines will be seen as a model for legal transplants in the future. Despite the similarities between Japan's New Merger Guidelines and the U.S. Horizontal Merger Guidelines ("U.S. Merger Guidelines"), Japan's New Merger Guidelines are unlikely to be a "success" in the same way that the U.S. Merger Guidelines have been a success since their adoption by the American competition agencies. Although Japan is far from a …

Development Of Competition Law In Vietnam In The Face Of Economic Reforms And Global Integration, The Symposium On Competition Law And Policy In Developing Countries, Alice Pham

Northwestern Journal of International Law & Business

This article examines the development of a competition regime in Vietnam, with all of the existing difficulties and problems. In the context of this socialist country, we examine the economic reform and integration process and the challenges of liberalization and globalization. Finally, we provide some thoughts for the future. Specifically, Section II addresses the emergence of Vietnam's competition law since the 1980's. Section III describes some of the key legal provisions of the Competition Law of Vietnam. Section IV evaluates the current challenges in the implementation of the Vietnam competition regime, while Section V proposes some recommendations.

Political Economy Of Competition Law: The Case Of Thailand, The Symposium On Competition Law And Policy In Developing Countries, Deunden Nikomborirak

Northwestern Journal of International Law & Business

This paper will address the political economy of competition law in Thailand. Section II will provide a historical perspective of Thai Competition Law. Section III will show what went wrong with the law's implementation since its promulgation in 1999. Section IV will assess the implications of the lack of competition law enforcement on business conduct and the establishment of a competition regime in Thailand. Section V will summarize major lessons learned in the Thai case that may be relevant to other developing countries considering adopting such a law or facing difficulties in its implementation. Finally, Section VI will draw conclusions …

Competition Policy And Practice In South Africa: Promoting Competition For Development Symposium On Competition Law And Policy In Developing Countries , Trudi Hartzenberg

Northwestern Journal of International Law & Business

South Africa's new competition policy and law were drafted during the early years of South Africa's new democracy, a period characterized by important domestic policy and regulatory reform. These reforms were not only part of the comprehensive program for the country's economic, social, and political transformation, but also its integration into the global economy after decades of isolation under the apartheid regime. In the case of competition policy, however, concerns about specific development challenges entrenched by the previous era of political and economic control, had to be explicitly reflected in the new South Africa's law and policy. It was clear …

The Natural Law Basis Of Legal Obligation: International Antitrust And Opec In Context, Joel B. Moore

Vanderbilt Journal of Transnational Law

The Organization of the Petroleum Exporting Countries (OPEC) stabilizes petroleum prices to promote the economic prosperity of its member nations for which oil is a substantial export. Price stabilization influences the price of petroleum around the world, impacting the economies of developed and developing countries. Under U.S. antitrust jurisprudence, the OPEC quota agreements that stabilize prices would likely be declared illegal, and other countries might also declare price fixing to be illegal under their respective competition laws.

Several U.S. Senators have recently proposed that price fixing should be illegal under international law as well. This Note avoids a superficial analysis …

The Return Of Timberlane?: The Fifth Circuit Signals A Return To Restrictive Notions Of Extraterritorial Antitrust, William J. Tuttle

Vanderbilt Journal of Transnational Law

Over the past 100 years, the United States has remained ambivalent regarding the potential extraterritorial application of its antitrust laws. The executive, legislative, and judicial branches began with a doctrine of strict territoriality but promptly shifted toward an examination of the effects of the antitrust activity on U.S. commerce. Since the 1970s, the branches of government have refrained the question as one of statutory interpretation, embraced considerations of international comity, modified those considerations, and eventually rejected many of those same considerations.

Throughout this chaos, however, the results reached by the various branches of government have typically been consistent with the …

Nafta's Investment Chapter: Initial Thoughts About Second-Generation Rights, Charles H. Brower Ii

Vanderbilt Journal of Transnational Law

In this Article Professor Brower argues that most observers of NAFTA's investment chapter have missed an important and surprising development: Although the treaty's text shares a philosophical affinity with civil and political rights, its application has revealed an astonishing level of support for economic and social rights (ESCRs) in North America. Professor Brower examines the practical implications of this development both for the presentation of claims in investor-state arbitration and for the better integration of ESCRs into the mainstream of international law.

The Justice Department's Recent Antitrust Enforcement Policy, Robert D. Shank

Vanderbilt Journal of Transnational Law

Obstacles to free competition are abundant in the international economy. Before 1992, the United States Department of Justice only attacked such obstacles if they impeded the import commerce of the United States. But as more and more businesses enter the international markets, the ability of U.S. businesses to compete in foreign markets free of export cartels and other obstacles to free competition is of greater concern. In 1992, the U.S. Justice Department addressed this concern by reversing prior policy and announcing that the U.S. government would also attack obstacles that impede the ability of U.S. businesses to export their products …

The Nafta Investment Chapter And Foreign Direct Investment In Mexico: A Third World Perspective, Gloria L. Sandrino

Vanderbilt Journal of Transnational Law

The investment provisions of NAFTA, which establish a liberal investment regime and a hospitable atmosphere for foreign investment amongst its signatories, the United States, Canada, and Mexico, represents a new chapter in Mexico's approach to foreign investment. This Article examines the significance of Mexico's shift to welcoming foreign investment and its concomitant acquiescence to traditional notions of expropriation and compensation espoused by more developed states. The author explores Mexico's historical love-hate relationship with foreign investment and its role over the years as leading voice for Third World concerns regarding the potentially exploitive nature of such investment. In this article, a …

Bringing Meaning To Interest Balancing In Transnational Litigation, Spencer W. Waller

Vanderbilt Journal of Transnational Law

This Article contends that the current state of the debate over the balancing of interests in the extraterritorial application of United States law is outmoded and in need of serious reexamination. Most commentators and scholars continue to focus on the area of jurisdiction to prescribe, the acceptability of the effects test, and the development of lists of United States and foreign interests to be balanced by a United States court before exercising jurisdiction.

Professor Waller contends that this debate is no longer productive. Extraterritoriality, with some limitations for the interests of other states, is an accepted feature of United States …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MEDICAL MALPRACTICE ABROAD BY UNITED STATES PHYSICIAN IN CONNECTION WITH DEPARTMENT OF STATE REGULATIONS GOVERNING TORT CLAIMS PROVIDED FOR AN INVESTIGATIVE PROCEDURE FOLLOWED BY AGENCY DECISION--AGENCY FOR INTERNATIONAL DEVELOPMENT HOLDS NO CONSTITUTIONAL OBLIGATIONS TO EVALUATE MEDICAL MALPRACTICE CLAIM ON THE MERITS AND IN ACCORD WITH MINIMAL DUE PROCESS. Tarpeh-Doe v. United States, 904 F.2d719 (D.C. Cir. 1990).

THE FOREIGN CORRUPT PRACTICES ACT DOES NOT CREATE AN IMPLIED PRIVATE RIGHT OF ACTION THAT KENTUCKY TOBACCO GROWERS COULD USE TO RECOVER DAMAGES FROM COMPANIES THAT ALLEGEDLY ENGAGED IN CORRUPT PRACTICES TO THE DETRIMENT OF GROWERS. THE ACT OF STATE DOCTRINE, HOWEVER, DOES …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

International Regulation of Internal Resources By Mahnoush H. Arsanjani Charlottesville: University Press of Virginia,1981. Pp. 558. $37.50.

ANTITRUST AND AMERICAN BUSINESS ABROAD By James R. Atwood and Kingman Brewster, 2nd ed. Colorado Springs: Shepard's/Mc-Graw-Hill, 1981. Pp. 359 and 355.

FAMILY VIOLENCE: AN INTERNATIONAL AND INTERDISCIPLINARY STUDY By John M. Eekelar and Sanford N. Katz Toronto: Butterworth's, 1978. Pp. 572.

THE ARAB STATES AND THE PALESTINE CONFLICT By Barry Rubin Syracuse: Syracuse University Press, 1981. Pp. 298. $22.00.

THE KURDISH QUESTION IN IRAQ By Edmund Ghareeb Syracuse: Syracuse University Press, 1981. Pp. 223. $22.00.

THE CAMBRIDGE LECTURES Edited by Derek Mendes …

Book Review, Joel Davidow (Reviewer)

Vanderbilt Journal of Transnational Law

Book Review

Antitrust and American Business Abroad James Atwood and Kingman Brewster 2d ed. New York: McGraw-Hill Publishing Co., 1981. Two-volume text. Pp. 359 and 355.

Reviewed by Joel Davidow

International antitrust is one of the gourmet specialties on the menu of United States law. The combination of competition law, international law, and patent law, spiced with complex diplomatic and trade issues as well as a dash of foreign flavor, is irresistible to the connoisseur. The proof: even though few law schools offer a separate course in international antitrust law and few lawyers deal with the subject regularly, articles, hornbooks, …

Recent Decisions, David R. Simon, David D. Dowd

Vanderbilt Journal of Transnational Law

Antitrust--Act of State Doctrine Precludes Judicial Review of Cases in which Private Defendant Induces Foreign Sovereign to Boycott Plaintiff's Services and Products

David R. Simon

Plaintiff, a designer and manufacturer of short takeoff and landing (STOL) aircraft, sought damages from defendants for violation of sections 1 and 2 of the Sherman Act. Specifically, plaintiff alleged that defendant's employees falsely disparaged General Aircraft Corporation's (GAC) STOL aircraft products and services by circulating false and misleading performance reports and engaged in a "vendetta" designed to drive GAC out of business because of GAC's refusal to conduct Southeast Asian Helio sales under the …

Mannington Mills, Inc. V. Congoleum Corp.: A Further Step Toward A Complete Subject Matter Jurisdiction Test, Walter S. Weinberg

Northwestern Journal of International Law & Business

Jurisdiction of the American courts under the Sherman Act' has been extended to certain activities which take place outside of the United States. Such an extension is required by the inclusion of a for- eign commerce provision in the antitrust laws that states that restraints of trade or attempts to monopolize "among the several states, or with foreign nations" are violations of U.S. law. The exact reach of the Sherman Act to activities that take place within foreign nations or that involve foreign law is not clear. United States courts, however, generally have taken jurisdiction over foreign activities only when …

International Application Of American Antitrust Laws: Issues And Proposals, James A. Rahl

Northwestern Journal of International Law & Business

American antitrust policy in foreign commerce is once again under the pressure of complaints from at home and abroad.' It may seem anomalous that laws intended to protect competition are charged with impairing American "competitiveness," but that is the contention heard in Congress and in business quarters.2 Meanwhile, some foreign nations, including a few who have recently enacted new antitrust laws of their own, complain that our antitrust laws are too aggressive.3 Given the large amount of current discussion and the number of different proposals in Congress, careful study of the issues and of possi- ble solutions is certainly indicated.

Gatt Dispute Settlements: A New Beginning In International And U.S. Trade Law, Donald E. Dekieffer

Northwestern Journal of International Law & Business

Although the General Agreement on Tariffs and Trade (GATT)' has been in existence for over two decades, a workable system has only recently developed for resolving disputes between contracting parties. Since its inception, the GATT has been designed to promote the grad- ual dissolution of trade barriers between the major mercantile countries of the world.2 In its early years, the GATT approached this ambitious goal solely through irregular negotiating "rounds" at which the Con- tracting Parties (the nations signatory to the GATT) mutually agreed to reduce their tariff barriers. There was little attempt to develop an effec- tive enforcement mechanism …

Symposium: Transnational Issues In American Antitrust Law

Northwestern Journal of International Law & Business

On September 30, 1980, the United States Senate passed a bill that would establish a commission to study the international application of American antitrust laws.' The creation of this commission was prompted in part by the popular belief that the current application of U.S. antitrust laws impedes vigorous American export activity to the detriment of our competitive standing in world markets.2 On the other hand, several foreign nations, angered by extraterritorial application of U.S. laws, have recently enacted statutes that inhibit the ability of anti- trust plaintiffs in the United States to obtain discovery and to collect judgments. In this …