Law Commons^™

Sovereignty 2.0, Anupam Chander, Haochen Sun

Vanderbilt Journal of Transnational Law

Digital sovereignty-the exercise of control over the internet-is the ambition of the world's leaders, from Australia to Zimbabwe, seen as a bulwark against both foreign states and foreign corporations. Governments have resoundingly answered first-generation internet law questions of who, if anyone, should regulate the internet. The answer: they all will. Governments now confront second-generation questions--not whether, but how to regulate the internet. This Article argues that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy's dreaded antagonist. As international law scholar Louis Henkin taught, sovereignty can insulate a government's worst ills from foreign intrusion. Assertions of digital …

The Perks Of Being A Whistleblower: Designing Efficient Leniency Programs In New Antitrust Jurisdictions, Sandra M. Colino

Vanderbilt Journal of Transnational Law

This Article develops a framework for effective leniency policy design in jurisdictions that have limited or no mileage enforcing antitrust laws. Through an extensive review of legal and economic studies of leniency and comparative analysis, the Article identifies hurdles common to young systems that may be tackled with analogous solutions. Some issues simply require a methodological enforcement strategy and time. Others, however, call for a readjustment of either the leniency programs or the antitrust systems they help to enforce. While the latter approach is preferable, it is more difficult to implement. This Article focuses on leniency and recommends three general …

Did Trinko Really Kill Antitrust Price Squeeze Claims?, Caroline C. Rudaz

Vanderbilt Journal of Transnational Law

This Article presents a critical analysis of the Linkline case that refuses to recognize price squeeze claims as antitrust claims under § 2 of the Sherman Act. It argues that Linkline gives a distorted reading of Trinko without giving proper attention to the application of § 2 of the Sherman Act. The Linkline decision takes a dogmatic position and thus, while refuting the Alcoa decision, appears to be a missed opportunity to more precisely define price squeezing.

This Article offers a comparison between the U.S. Supreme Court's decision and the recent European decisions delivered in broadband access cases that are …

The Demise Of Regulation In Ocean Shipping, Chris Sagers

Vanderbilt Journal of Transnational Law

Over its 140 year history, ocean liner shipping has almost always enjoyed an antitrust exemption permitting price-fixing cartels of ocean carriers. The exemption was premised on the belief that problems of cost and capacity inherent in the trade can be resolved only by horizontal collusion. Now that that exemption has been whittled away by deregulatory efforts, the pre- and post-deregulation evidence presents one of the world's rare opportunities for natural experiment on the behavior and effectiveness of collusive cartel pricing.

Moreover, because normal and effective competition never really existed prior to 1998, the normative foundation of the antitrust exemption was …

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. …

Old Man And The Sky: The Brazilian Antitrust Implications For Rupert Murdoch's Expansion Of The Sky Global Satellite Network, Geoffrey Drake

Vanderbilt Journal of Transnational Law

To expand its global satellite network to the United States, Rupert Murdoch's News Corporation purchased DirecTV in 2003. Brazil's antitrust regulatory body, CADE, has expressed concern about a potential monopoly in the Brazilian satellite market controlled by Murdoch because News' Sky Latin America competes directly with DirecTV. If News opts to combine the two Brazilian satellite services, it will consolidate control of ninety-five percent of Brazil's satellite market, leaving satellite and cable competitors at a disadvantage. The Author argues that CADE should conditionally approve the acquisition because of the combination's ability to benefit Brazilian consumers, the government, and News Corporation …

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 …

Global Antitrust And The Evolution Of An International Standard, William Sugden

Vanderbilt Journal of Transnational Law

This Note explores recommendations for developing a global antitrust regime and ultimately rejects those suggestions in favor of more traditional nationally-based applications of antitrust rules. Part II introduces an economic model of global antitrust to show the systemic difficulties inherent in creating a global regime. Part III contrasts the difficulties in creating a global regime with the greater historical success of developing regional antitrust authorities. Part IV tracks the history of the extraterritorial application of antitrust laws by the United States and the European Union. Part V argues that the path to effective global antitrust lies not in the creation …

Trade, Competition, And Intellectual Property--Trips And Its Antitrust Counterparts, Eleanor M. Fox

Vanderbilt Journal of Transnational Law

This Article examines the interface between TRIPS' protection of intellectual property rights and antitrust law, and the extent to which TRIPS invites a counterpart agreement that would internationalize intellectual property antitrust rules.

Professor Fox argues that TRIPS does not call for internationalizing antitrust law, and that even developing countries, which might find a greater need for antitrust protection against abuse of dominance after TRIPS, might be better served by developing and enforcing a national antitrust law of their own.

She argues that TRIPS does, however, contemplate some limits to antitrust, lest antitrust enforcement impair protections guaranteed by TRIPS. Professor Fox …

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 …

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 …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

This Case Digest provides brief analyses of cases that represent current aspects of transnational law. The Digest includes cases that establish legal principles and cases that apply established legal principles to new factual situations. The cases are grouped in topical categories, and references are given for further research:

Constitutionality of the Immigration Marriage Fraud Amendments Upheld over Challenge by Deportable Alien and United States Spouse

Anetekhai v. Immigration and Naturalization Service

876 F.2d 1218 (5th Cir. 1989)

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Standing Granted to Challenge Hostile Takeover between Foreign Firms under United States Antitrust and Securities Laws

Consolidated Gold Fields PLC v. Minorco, …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Agency for International Development's Adoption of Policy Placing Abortion-Related Restrictions on Grants to Nongovernmental Organizations Upheld DKT Memorial Fund Ltd. v. Agency for International Development 887 F.2d 275 (D.C. Cir.1989)

Federal Long-Arm Statute Authorizes Assertion of Personal Jurisdiction over Foreign Holder of United States Patent in Patent Ownership Suit National Patent Development Corporation v. T.J. Smith & Nephew Ltd. 877 F.2d 1003 (D.C. Cir.1989) (en banc)

Venue over Alien Defendants in Antitrust Suit Proper in any United States Federal District Court under Alien Venue AcT-Go-Video, Inc. v. Akai Electric Co., Ltd. 885 F.2d 1406(9th Cir. 1989)

INS Oral Notice to …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Picketing Outside Foreign Embassies is Protected Speech Under the First Amendment and Restrictions on this Speech Must Serve a Compelling Government Interest and be Narrowly Tailored to the Specific Situation--Boos v. Barry, 108S.Ct. 1157 (1988).

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Notions of Comity and the Act of State Doctrine Preclude U.S. Federal Courts from Exercising Jurisdiction over the Actions of Foreign Corporations when Those Actions Constitute a Violation of U.S. Antitrust Laws but are Protected by Legislation in a Foreign Country--O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449 (2d Cir.1987).

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Case Digest

Materiality Standard for Concealment or Misrepresentation under Immigration and Nationality Act § 1451(a) is Sufficient to Influence an Immigration and Naturalization Service Decision; The Test of Good Moral Character under § 1101(f)(6) Does Not Require a Finding of Materiality for any False Testimony --Kungys v. United States, 108 S. Ct. 1537 (1988)

The Broad Subpoena Power of the Immigration and Naturalization Service does not Authorize Issuance of a Blanket John Doe Subpoena to Gather Information Regarding Unidentified Aliens--Peters v. United States, 853 F.2d 692 (9th Cir.1988)

Routine Strip Searches of Detained Juvenile Aliens Violate Juveniles' Fourth Amendment Rights--Flores …

The Exuberant Pathway To Quixotic Internationalism: Assessing The Folly Of Mitsubishi, Thomas E. Carbonneau

Vanderbilt Journal of Transnational Law

By holding that antitrust claims are arbitrable, the United States Supreme Court may have wanted to minimize, if not eliminate, the possibility that dilatory practices could thwart the international arbitral process. Faced with a potentially ruinous contractual relationship and the prospect of arbitration, a disgruntled party (like Soler) might find that it has no other remedy than postponing the day of reckoning. Raising the possibility that the entire transaction is illicit because of antitrust violations at least generates delay and might undermine the arbitration, staving off the possibility of resolution.

Recent Decisions, Lucy C. Gratz, Laurel C. Williams

Vanderbilt Journal of Transnational Law

Arbitration--Transnational Antitrust Claims are Nonarbitrable under the Federal Arbitration Act and Article II (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards--Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155 (1st Cir.1983), cert. granted, 105 S. Ct. 291 (1984).

Comment

The instant decision marks the first time a court has considered whether to apply the United States domestic policy of preserving antitrust issues for judicial determination to an international contract containing a mandatory arbitration clause. The First Circuit's decision to apply domestic policy undermines the preeminent goal of the Convention, which is to encourage arbitration …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

A Preliminary Injunction to Prevent a Party from Taking Action in a Foreign Jurisdiction that would Destroy United States Jurisdiction does not Violate Principles of Prescriptive Jurisdiction or International Comity--Laker Airways,Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir.1984).

International Carriers are Subject to the Private Laws of a Foreign State when Carriers are Party to Trade Agreements with that Foreign State and are Doing Business within its Territorial Jurisdiction--British Airways Boardv. Laker Airways, Ltd., [1984] 3 W.L.R. 413; 23 I.L.M. 727.

Court of International Trade has Jurisdiction over Claims Challenging Regulations Governing the Importation of Goods Bearing …

Recent Decisions, Lucy C. Gratz, Laurel C. Williams

Vanderbilt Journal of Transnational Law

Arbitration Transnational Antitrust Claims are Nonarbitrable under the Federal Arbitration Act and Article II (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards--Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155 (1st Cir.1983), cert. granted, 105 S. Ct. 291 (1984).

Lucy C. Gratz

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International Banking--The International Banking Act of 1978 Limits the States' Ability to Regulate Foreign Bank Entry, "Conference of State Bank Supervisors v. Conover," 715 F.2d 604 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 1708 (1984).

Laurel Comstock Williams

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

THE UNITED STATES MAY EXERCISE JURISDICTION OVER PERSONSON A "STATELESS" VESSEL WITHOUT SHOWING A NEXUS BETWEEN THE VESSEL AND THE UNITED STATES--United States v. Pinto-Mejia, 720 F.2d 248 (2d Cir. 1983).

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ALIEN RETAINS RIGHT TO DEPORTATION PROCEEDING AFTER RETURNING FROM AUTHORIZED DEPARTURE NOTWITHSTANDING THAT IMMIGRATION AND NATURALIZATION SERVICE PERMISSION TO DEPART WAS STYLED AS AN "ADVANCE PAROLE"--Joshi v. District Director, Immigration and Naturalization Serv., 720 F.2d 799 (1983).

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NO VIOLATION OF INTERNATIONAL LAW WHEN EQUIPMENT LOCATED IN UNITED STATES RECORDS TRANSNATIONAL TELECOMMUNICATIONS--United States v. Romano, 706 F.2d 370 (2d Cir. 1983).

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UNITED STATES MANUFACTURERS HAVE A CAUSE …

Recent Decisions, Timothy J. Peaden, Charles S. Baugh, Marc W. Joseph, Melissa Q. Windham

Vanderbilt Journal of Transnational Law

Antitrust--Noerr-Pennington Extends Immunity from Sherman Act to Foreign Litigation and Foreign Acts that result in Alleged Antitrust Violations, Coastal States Marketing, Inc. v. Hunt, 694 F.2d 1358 (5th Cir. 1983).

Antitrust--Foreign Import Cartels are Liable under the Sherman Act although domestic export competitors are shielded with a Webb-Pomerene exemption. Daishowa International v. North Coast Export Co., 1982-2 Trade Cas.64,774 (N.D. Cal.).

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Emerging Financial Centers: Legal and Institutional Framework

Edited by Robert C. Effros

Washington, D.C.: International Monetary Fund, 1982. Pp. xvi, 1150. $35.00.

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The Foreign Corrupt Practices Act

By George C. Greanias and Duane Windsor

Lexington, Massachusetts: Heath and Co.,1982. Pp. ix, 187. $23.95.

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Foreign Commerce and the Antitrust Laws Vols. I-II.

By Wilbur L. Fugate

Boston and Toronto: Little, Brown and Company, 1982. Vol. I, pp. xxiv, 427; vol. II, pp. xxiv, 460. $100.00.

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The Fund Agreement in the Courts: Volume II.

By Joseph Gold

Washington, D.C.: International Monetary Fund, 1982. Pp.xii, 499. $17.50.

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International Capital …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

A Cargo Container Used to Ship Packaged Units is not a "Package" for Purposes of Limiting the Carrier's Liability for Loss under COSGA

Exemption from Compulsory Military Service will not Act as a Bar to Citizenship for an Alien if the Classification was later Changed to Make Him Eligible to Serve

Indeterminate Detension of an Excludable Alien in a Maximum Security Prison, Pending Unforeseeable Deportation, violates International Law

Patentholders do not Violate Antitrust Laws by Licensing only Foreign Patents even though the Patent Dependency created Limits Domestic Competition

Arbitral Tribunal lacks Jurisdiction to Hear the Claims of a Corporation Qualifying …

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 …

Symposium Introduction, Terry Calvani

Vanderbilt Journal of Transnational Law

This Symposium issue of the Vanderbilt Journal of Transnational Law presents a collection of excellent articles on current antitrust law and United States international trade practices by some of the most knowledgeable scholars in the field, all of whom possess not only superb academic credentials but also a wealth of experience in international antitrust practice. Wilbur Fugate, former chief of the Foreign Commerce Section of the Antitrust Division and a distinguished author on antitrust and foreign commerce, opens the Symposium by examining the Webb-Pomerene Act" in light of the very recently enacted Export Trading Company Act of 1982...

The Symposium …

The Export Trade Exception To The Antitrust Laws: The Old Webb-Pomerene Act And The New Export Trading Company Act, Wilbur L. Fugate

Vanderbilt Journal of Transnational Law

This Article discusses the history of the Webb Act as a prelude to a discussion of the new legislation. Because the standards in the new Export Act are similar to those in the Webb Act, the precedents under the Webb Act will remain important for interpreting the new legislation. Furthermore, a review of the Webb Act and of the alternatives proposed over the years gives an insight into the reasoning behind having an export exception to the antitrust laws... This Article will examine the Webb Act and its operation; the courts' treatment of the Webb Act; the manifold suggestions and …

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, …

Updating The Antitrust Guide On International Operations, Eleanor M. Fox

Vanderbilt Journal of Transnational Law

Since the enactment of the antitrust laws, policy makers, scholars, and business executives have debated whether the United States antitrust laws chill export and investment abroad. The terms of the debate have not changed significantly for more than a decade. The law and the government's enforcement policies, however, have changed. Since the United States Department of Justice issued its Guide on Antitrust and International Operations (Guide) on January 26, 1977, law and enforcement policy have become more hospitable to private business decisions that would increase exports and foreign investment.

This Article attempts to update the Guide. It is confined largely …