Some aspects of the extraterritorial reach of the American antitrust laws
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1 Some aspects of the extraterritorial reach of the American antitrust laws by Hendrik Zwarensteyn, J.D., Ph.D. Professor of Business Law Michigan State University Springer Science+Business Media, B.V. 1970
2 ISBN DOI / ISBN (ebook) International Standard Book Number Library of Congress Catalog Card Number Springer Science+Business Media Dordrecht Originally published by Uitgeversmaatschappij AE. E. Kluwer, Deventer in 1970
3 TABLE OF CONTENTS INTRODUCTION 1. General: The various aspects of foreign commerce 2. The substantive provisions (a) Sherman Act (b) Clayton Act (c) Robinson-Patman Act 3. The extraterritorial reach (a) legislative reach (b) judicial reach 4. Possible approaches 5. Identification of the problems 6. Methodology (a) historical and philosophical bases (b) remedial and procedural aspects (c) special character of antitrust law (d) jurisdictional aspects ( e) extraterritorial reach (f) limitations 7. Summary Page CHAPTER I HISTORICAL AND PHILOSOPHICAL SOURCES OF THE AMERICAN ANTITRUST LAWS 1. Historical sources 14 (a) The early period 14 (1) The Schoohnaster case 15 (2) Dyer's case 16 (3) Case of Monopolies 16 (4) Statute of Monopolies 17 (5) Mitchell v Reynolds 18 (6) Nordenfelt v Maxim Nordenfelt Guns & Ammunition 21 (b) The period from (1) The Sherman Act 22 (2) U.S. v Trans-Missouri Freight Association 23 (3) Standard Oil Co of New Jersey v U.s. 24 (4) The gaps in the existing law 25 (5) The Clayton Act and subsequent acts 25 (6) The need to study the existing laws 26
4 (c) The Report of the Attorney General's National Committee 26 (1) General aspects 26 (2) The need for coordination with other agencies 28 (3) A new ceiling for violations 29 (4) A summary evaluation 29 (d) The development since (1) The 'Supplement' to the Report of the Attorney General's National Committee 31 (2) Personal jurisdiction 31 (3) Subject matter jurisdiction 34 (4) Subpoenas duces tecum Philosophical sources 36 (a) General 36 (b) Activities covered by the reach of the law 42 (c) The positive and the negative aspects of the antitrust laws 42 CHAPTER II REMEDIAL AND OTHER PROCEDURAL ASPECTS OF THE AMERICAN ANTITRUST LAWS 1. General 44 (a) The doctrinal approach 44 (b) The functional approach 44 (1) the institutional approach 45 (2) the litigation approach 45 (3) the remedial approach The remedial aspects of antitrust enforcement 46 (a) The importance of the remedial approach 46 (b) The arbitrariness of the classification of the remedies 47 (1) classification of civil remedies, the criterion 47 (2) classification of criminal remedies, the criterion 47 (3) classification of regulatory remedies, the criterion Civil remedies 48 (a) Which courts have jurisdiction 49 (b) Who are entitled to instigate legal proceedings 49 (c) Which actions or remedies are available 49 (1) treble and actual damages 50 (2) injunction 50
5 4. Criminal remedies 51 (a) Which actions or remedies are available 51 (1) fmes 51 (2) forfeit of money 53 (3) imprisonment 53 (4) forfeiture of property Regulatory remedies 54 (a) Which actions or remedies are available 54 (1) dissolution, divestiture and divorcement 55 (2) the Department of Justice consent judgment and decree 56 (3) the Federal Trade Commission stipulation 57 (4) the Federal Trade Commission 'administrative treatment' 58 (5) the Federal Trade Commission consent order 59 (6) the cease and desist order 59 (7) advance clearance by the Federal Trade Commission (8) the Federal Trade Commission trade practice conference 61 Some other procedural aspects of antitrust enforcement 63 (a) The plea of nolo contendere 63 (b) The impact of recently passed legislation 64 (1) the revised Rules of Practice 64 (2) the Antitrust Civil Process Act 64 (c) The cost 65 (d) The time element 65 (e) The discovery procedure 65 CHAPTER III THE SPECIAL CHARACTER OF THE AMERICAN ANTITRUST LAWS l. General Concepts and semantics The purpose, nature and functions of the antitrust laws 69 (a) General 69 (b) The purpose of the American antitrust laws 70 (c) The nature of the antitrust laws 72 (d) The function of the antitrust laws 73 (e) Conclusions The consequences 75 (a) The necessity of a coordinated body of law 75 (1) the national level 76 (2) the supra-national level 76 (b) Some illustrations of antitrust enforcement 78 (c) Conclusions 80
6 5. The implementation (a) Unification of legislation (1) at the national level (2) at the supra-national level (b) Establishment of a special antitrust judiciary (1) at the national level (2) at the supra-national level CHAPTER IV THE EXTRATERRITORIAL REACH OF THE AMERICAN ANTITRUST LAWS JURISDICTIONAL ASPECTS 1. General The right to determine what shall constitute reprehensible conduct 94 (a) The right to legislate 94 (b) The right to adjudicate 99 (1) general 99 (2) the need for treaties 102 (3) the right to adjudicate The subject of the law enforcement 104 (a) Jurisdiction in personam over natural persons 104 (b) Jurisdiction in personam over legal entities 104 (c) Jurisdiction in personam over foundations 108 (d) Jurisdiction in personam over Government owned or controlled corporations 109 CHAPTER V THE EXTRATERRITORIAL REACH OF THE AMERICAN ANTITRUST LAWS REMEDIAL ASPECTS 1. General: the scope of the problem 2. The present form and extent of the extraterritorial reach (a) Jurisdiction in personam (1) natural persons (2) legal entities (b) Jurisdiction over the subject matter (1) civil remedies (2) criminal remedies (3) regulatory remedies
7 3. The legal bases of the extraterritorial reach 121 (a) General: the guidelines followed by the courts 121 (b) The remedies as determinative factors 123 (1) civil remedies 123 (2) criminal remedies 126 (3) regulatory remedies The implications of a new categorization of the antitrust laws Conclusions 131 (a) The equal application of the law 131 (1) legislatively 131 (2) judicially 131 (b) The requirement of modification with regard to transnational commercial activities 131 (1) legislatively 131 (2) judicially 132 (a) jurisdiction in personam 132 (b) jurisdiction over the subject matter 132 (c) The jurisdictional competency on the basis of r ~ m e not d i e s tenable 132 (d) The need to recognize the antitrust laws as a separate area of the law 133 CHAPTER VI THE EXTRATERRITORIAL REACH OF THE AMERICAN ANTITRUST LAWS INTERNATIONAL LAW ASPECTS 1. General The concept of locus delicti 134 (a) General 134 (b) The locus delicti in civil actions 137 (c) The locus delicti in regulatory actions 139 (d) The locus delicti in criminal actions The concept of territoriality The application of the concepts of locus delicti and territory to jurisdiction 146 (a) Civil jurisdictional aspects 146 (b) Regulatory jurisdictional aspects 147 (c) Criminal jurisdictional aspects The extent of the concept of territoriality in criminal prosecutions The principles underlying criminal jurisdiction 155 (a) General 155 (b) The Harvard Research in international law 155 (c) A proposed amendment to the Draft Convention 158
8 7. The concept of international law (a) General (b) Proposed definition 8. The international law aspects of the extraterritorial reach CHAPTER VII CONCLUSIONS 1. General: the dangers of a collision course The importance of the historical approach The functional aspects of the antitrust laws The need to recognize the antitrust laws as a special area of the law The implementation 165 (a) Codification 165 (b) A special antitrust judiciary 165 SELECTED REFERENCES 167 TABLE OF CASES 173 SAMENV A TTING 175
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