Portfolio 53-2nd: U.S. International Antitrust Enforcement: A Practical Guide to the Agencies' 1995 Guidelines
I. Introduction A. Overview B. Scope of the Guidelines II. Threshold International Enforcement Issues A. Jurisdiction over Import and Non-Import Commerce 1. Import commerce 2. Commerce other than imports a. The ‘import' parenthetical b. Two prongs of FTAIA test i. The ‘direct, substantial, and reasonably foreseeable effect' requirement ii. The ‘gives rise to' requirement c. Jurisdiction over foreign market foreclosure d. Jurisdictional vs. elemental element 3. Conduct outside the United States financed by the U.S. government 4. Jurisdiction in merger cases B. The Development of ‘Positive Comity' C. International Comity III. Foreign Governmental Involvement A. Foreign Sovereign Immunity B. Foreign Sovereign Compulsion 1. Limitations on defense a. Imposition of severe sanctions b. Conduct within territory of foreign government c. Government acting in governmental capacity 2. State action doctrine distinguished C. Act of State Doctrine D. Petitioning Foreign Sovereigns E. Cooperation with Foreign Governments 1. Investigations by the agencies 2. Extraterritorial remedies 3. Antitrust cooperation agreements 4. International Antitrust Enforcement Assistance Act IV. International Trade Issues A. Antitrust as a Weapon of U.S. Trade Policy B. Settlement of Unfair Trade Cases V. Personal Jurisdiction A. Introduction B. Constitutional Requirements C. Service of Process D. Venue E. Forum non conveniens VI. Discovery of Evidence A. Introduction B. Overview 1. The Restatement approach 2. The Hague Convention 3. ‘Blocking' and secrecy statutes 4. Letters Rogatory C. The Aerospatiale Decision 1. Litigants vs. nonparties 2. Blocking statutes 3. Statements by foreign governments 4. Special problems of foreign litigants a. Nationality b. Location of operations c. Speedy and inexpensive resolution of litigation d. Degree of ‘intrusion’ on foreign sovereignty e. Fear of insulting foreign tribunal 5. Determining whether evidence is subject to convention procedures D. Foreign Discovery Requests in the U.S. Under 28 U.S.C. §1782(a) VII. Mergers . A. Relevant Market 1. Product market 2. Geographic market B. Market Shares and Concentration C. Barriers to Entry D. Classification of Mergers 1. Horizontal mergers 2. Vertical mergers 3. Conglomerate mergers E. Defenses 1. Failing company or division 2. Efficiencies F. International Competition Offset VIII. Joint Ventures . Introductory Material A. The Formation of a Joint Venture May Be a ‘Merger' B. Joint Ventures Under Section 1 of the Sherman Act C. Antitrust Safety Zones Under the Collaborations Guidelines IX. Licensing of Intellectual Property X. Vertical Restraints XI. Monopolization . A. Cartels and Criminal Conduct XII. Topics Omitted from the Guidelines A. Department Participation in Private Cases B. International Transportation 1. International aviation 2. International ocean shipping C. Miscellaneous Antitrust Exemptions XIII. The Changing View from Abroad A. Introduction B. In Search of International Antitrust Standards C. A Sea Change in the View from Abroad 1. Preliminary efforts at multilateral agreement 2. International Competition Policy Advisory Committee (ICPAC) 3. International Competition Network 4. UNCTAD competition law and policy initiatives D. The Future XIV. International Approaches to Subject-Matter Jurisdiction A. Jurisdiction Based on Territory B. Jurisdiction Based on Nationality C. Differences in Legal Systems
Wks. 1 Department of Justice and Federal Trade Commission Antitrust Enforcement Guidelines for International Operations (Apr. 5, 1995) Wks. 2 The 1995 Antitrust Enforcement Guidelines for International Operations: An Introduction Wks. 2A Department of Justice and Federal Trade Commission, Antitrust Guidelines for Collaborations Among Competitors (2000) Wks. 3 Department of Justice and Federal Trade Commission Antitrust Guidelines for the Licensing of Intellectual Property (1995) Wks. 4 U.S. Department of Justice and the Federal Trade Commission Horizontal Merger Guidelines Issued: August 19, 2010 Wks. 4A Revision to Section 4 of Horizontal Merger Guidelines Revision to the Horizontal Merger Guidelines Issued by the U.S. Department of Justice and the Federal Trade Commission April 8, 1997 Wks. 5 Department of Justice Merger Guidelines and Accompanying Policy Statement (1984) Wks. 6 Department of Justice and the Federal Trade Commission Statements of Antitrust Enforcement Policy in Health Care (1996) TABLE OF CONTENTS Wks. 7 Department of Commerce International Trade Administration Guidelines for the Issuance of Export Trade Certificates of Review (1985) Wks. 8 Department of Justice Antitrust Division Business Review Procedure Wks. 9 Department of Justice Statement on Pilot Business Review Program (1992) Wks. 10 Federal Trade Commission Advisory Opinion Procedure Wks. 10A United States of America v. Nippon Paper Industries, 109 F.3d 1 (1st Cir. 1997) Wks. 10B Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993) Wks. 11 International Antitrust Enforcement Assistance Act of 1994 Wks. 12 Agreement Between the Government of the United States of America and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices Wks. 13 Agreement Between the Government of the United States of America and the Government of Australia on Mutual Antitrust Enforcement Assistance (1999) * Wks. 14 Agreement Between the European Communities and the Government of the United States of America Regarding the Application of Their Competition Laws Wks. 14A U.S./European Union Antitrust Cooperation Agreement Wks. 15 Agreement Between the Government of the United States of America and the Government of Canada Regarding the Application of Their Competition and Deceptive Marketing Practices Laws Wks. 16 Revised Recommendation of the Organisation for Economic Co-Operation and Development Council Concerning Co-Operation Between Member Countries on Anticompetitive Practices Affecting International Trade (July 27, 1995) Wks. 16A OECD Recommendation Concerning Hard Core Cartels Wks. 16B An Inside Look at a Cartel at Work: Common Characteristics of International Cartels * Wks. 17 Discussion Draft Recommendations of the Special Committee on International Antitrust (ABA Section of Antitrust Law)* (Sept. 1991) Wks. 17A International Competition Policy Advisory Committee, Final Report, Executive Summary (2000) * Wks. 18 Treaty of Amsterdam, Articles 81 and 82 * Wks. 19 Court of Justice of the European Communities Judgment in the Wood Pulp Case Wks. 20 Speech by Mr. Mario Monti, European Commissioner for Competition Policy, Effective Private Enforcement of EC Antitrust Law (June 1, 2001) * Wks. 21 Speech by Georgios Kiriazis, DG COMP-A-4, to the ABA Advanced International Cartel Workshop, Jurisdiction and Cooperation Issues in the Investigation of International Cartels (Feb. 2001) * Wks. 22 United Kingdom: Protection of Trading Interests Act 1980, Chapter 11 Wks. 23 France: Law Pertaining to the Disclosure of Documents and Information of an Economic, Commercial, Industrial, Financial, or Technical Nature to Foreign Natural or Juristic Persons (1980) Wks. 24 Australia: Foreign Proceedings (Excess of Jurisdiction) Act 1984 Wks. 25 Canada: Foreign Extraterritorial Measures Act (1985), Chapter F-29