Antitrust and Trade Regulation Commons^™

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 …

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 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 …

The Extraterritorial Application Of Antitrust Laws: A Postscript On Hartford Fire Insurance Co. V. California, Roger P. Alford

Journal Articles

Last year in the pages of this journal I published an article comparing the United States and the European Union (E.U.) approaches to the extraterritorial application of antitrust laws. In discussing the U.S. approach, I predicted that "while the jurisdictional rule of reason has its weaknesses, it will remain a lasting fixture on the legal landscape precisely because it represents the only genuine, though inexact, attempt by courts to fashion a jurisdictional test which incorporates the legitimate sovereignty interests of foreign nations." Thus, it was with disappointment that I, along with other proponents of a jurisdictional rule of reason, received …

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 …

Book Review, Joel Davidow

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, …

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 …

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 …

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 …

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.

The Need For A Thoughtful Assessment Of The Application Of U.S. Antitrust Law To International Transactions, Mark R. Joelson

Northwestern Journal of International Law & Business

It is commonly said that the United States antitrust laws are a cor- nerstone of our free enterprise system and our economic philosophy. It is another truism--one of more recent origin-that the most significant markets and arenas of competition today are the international ones. The daily business news bears out this conclusion. Yet one must also conclude that the relationship between these two indispensable features of our economic life-antitrust laws and international trade-is a troubled one which provides ample material for confusion, dispute and law review comment. Moreover, the debate over the application of United States antitrust law to international …

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 …

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 …

What Should Be The Agenda Of A Presidential Commission To Study The International Application Of U.S. Antitrust Law, Douglas E. Rosenthal

Northwestern Journal of International Law & Business

If the proposed Presidential Commission to study the Interna- tional Application of the U.S. Antitrust Law (Commission)' is to com- plete its work within the one year period contemplated and is to achieve more than a superficial gloss of a large and complex area, I believe it will be necessary for the Commission to concentrate its atten- tion on the conflicts between the four important goals of foreign eco- nomic policy.

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

Chile: The Balanced View

Edited by Francisco Orrego Vicuna

Santiago: The University of Chile, 1975. Pp. 298.

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Codification in the Communist World--Symposium in Memory of Zsolt Szirmai Organized by Donald Barry, F.J.M. Feldbrugge & Dominick Lasok

Leiden: A.W. Sijthoff, 1975. Pp. xv, 353. $42.50.

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Crimes against Internationally Protected Persons: Prevention and Punishment

By Louis M. Bloomfield & Gerald F. Fitzgerald.

New York: Praeger Publishers, 1975. Pp. xviii, 272. $16.50.

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Criminal Justice in Eighteenth Century Mexico

By Colin M. MacLachlan

Berkeley: University of California Press, 1974. Pp.viii, 141. $9.00.

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EEC Anti-Trust Law--Principles and Practice

By D. Barounos, …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. Admiralty

State Port Authority Acting Incident to Maritime Carriage Subject to Admiralty Jurisdiction in Damage Suit

MARINE INSURANCE PROVIDING COVERAGE OF LOSSES "ARISING FROM OR OCCURRING FROM" SPECIFIED CONDITIONS DOES NOT COVER LOSSES OCCURRING AFTER PERIOD OF COVERAGE DUE TO CONDITIONS WHICH INITIALLY AROSE DURING THE PERIOD OF COVERAGE

FEDERAL COURT LACKS POWER UNDER SUITS IN ADMIRALTY ACT TO IMPOSE GOVERNMENTAL LIABILITY FOR HARM CAUSED BY FAILURE TO EXERCISE DISCRETIONARY FUNCTION

2. Alien's Rights

FAMILY RELATIONSHIP CAN BE SHOWN AS A MATTER OF FACT FOR IMMIGRATION PURPOSES WHERE APPLICABLE FOREIGN DOMESTIC LAW HOLDS MEANINGLESS THE CONCEPT OF LEGITIMACY

3. …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

ABSTRACTION AND USE OF WATER: A COMPARISON OF LEGAL REGIMES By Ludwik A. Teclaff

New York, United Nations Publications,1972. Pp. iv, 254. $5.50.

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CONSULATE OF THE SEA AND RELATED DOCUMENTS

By Stanley S. Jados

University, Alabama: The University of Alabama Press,1975. Pp. xvi, 326. $12.00

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FOOTSTEPS INTO THE FUTURE

by Rajni Kothari

New York: The Free Press, 1974. Pp. xxiii, 173. $8.95.

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THE FUTURE OF INTERNATIONAL FISHERIES MANAGEMENT

Edited by H. Gary Knight

St. Paul, Minnesota: West Publishing Co., 1975.Pp. xiii, 253. $14.00.

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THE ILLEGAL DIVERSION OF AIRCRAFT AND INTERNATIONAL LAW

By Edward McWhinney

Leiden: A.W. …

Recent Decisions, Arthur R. Louv, Mark R. Von Sternberg, Jesse W. Hill, Glen T. Oxton

Vanderbilt Journal of Transnational Law

ADMIRALTY--DAMAGES--AWARD ALLOWED FOR EMOTIONAL DISTRESS OF SURVIVING SPOUSES AND CHILDREN, OR PARENTS, UNDER GENERAL MARITIME LAW

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ANTITRUST--EXTRATERRITORIAL JURISDICTION--EFFORTS TO SECURE ACTION BY A FOREIGN STATE CONDUCIVE TO MONOPOLIZATION NOT PRIVILEGED; ACT OF STATE DOCTRINE BARS ANTITRUST CLAIM ARISING FROM ACTS OF A FOREIGN SOVEREIGN ALLEGEDLY INDUCED BY DEFENDANT

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CONSTITUTIONAL LAW--CITIZENSHIP--FIVE YEAR STATUTORY RESIDENCE REQUIREMENT AS A CONDITION SUBSEQUENT TO RETENTION OF CITIZENSHIP BY PERSONS BORN ABROAD NOT VIOLATIVE OF FIFTH AMENDMENT DUE PROCESS

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PRIVATE INTERNATIONAL LAW--SOVEREIGN IMMUNITY--EXECUTIVE SUGGESTION BINDING ON COURTS DESPITE CONTRACTUAL WAIVER OF IMMUNITY

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Unincorporated Divisions of a Corporation May Be Separate Entities for Purposes of Antitrust Laws

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Constitutional Law--One-Year Residence Requirement as Condition of Eligibility for State Welfare Aid Held Unconstitutional

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International Law--Sovereign Immunity and Act of State--Hickenlooper Amendment Precludes Assertion of Act of State Where Act Is Violative of International Law

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Products Liability--Lender Held Liable for Gross Defects in Housing Development It Had Financed

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Taxation--Constructive Ownership Rules Automatically Applied to Section 302(b) (1)Dividend Equivalency Test

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Taxation--IRS Rules Organization Which Discriminates on Basis of Race Not Charitable

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antitrust, constitutional law, international law, products liability, taxation

Antitrust Laws And The Territorial Principle, G. H. Haight

Vanderbilt Law Review

During the past few years there has been extensive discussion regarding the extraterritorial application of antitrust laws and some attempts have been made to consider the matter in the context of public international law principles.' Notwithstanding objections raised by foreign governments to court orders and subpoenas directed to foreign corporations in relation to their activities abroad, some commentators still appear to consider that there are few, if any, limitations imposed by law upon such assertions of penal power. This position requires reexamination, and in undertaking a review it will be relevant to consider the nature and effect of new antitrust …