Enforcing Antitrust Against Foreign Enterprises: Procedural Problems in the Extraterritorial Application of Antitrust laws

136 Pages·1981·3.36 MB·English

by  Cornelis Canenbley (auth.)

ENFORCING ANTITRUST AGAINST FOREIGN ENTERPRISES
ENFORCING ANTITRUST AGAINST
FOREION ENTERPRISES
Procedural Problems in the Extraterritorial Application
of Antitrust laws
Report submitted to Committee C - Antitrust Law and Monapolies during the
IBA Berlin Conference, August 1980
General Rapporteur, Cornelis Canenbley, Düsseldorf, with the assistance of
Amanda Dalton, London.
This General Report has been prepared on the basis of, and in cooperation
with, national reports from:
Australia Kerry M. Wright, Sydney
EEC Mario Siragusa, Brussels
France Dominique Voillemot, Paris
Germany Jochen Burrichter, Düsseldorf
Italy Giuseppe Bisconti, Rome
Switzerland - Michel Haymann, Zürich
U.K. Neville March Hunnings, London
USA Mark R. Joelson, Washington D.C.
Joseph P. Griffin, Washington D.C.
1981
SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.
Libruy of Coß8l'ess Catllogiq in Public:ation Data
Canenbley, Comelis, 1942-
Enforcing antitrust against foreign enterprises.
'Report submitted to Committee C - Antitrust Law
and Monopoües during the IBA Berün Conference,
August 1980.'
1. Confüct of laws-Antitrust law. I. Dalton,
Amanda. II. International Bar Association.
Committee C - Antitrust Law and Monopoües.
III. Title.
K7582.M6C36 3431.072 81-12327
342.372 AACR2
ISBN 978-94-017-4379-2 ISBN 978-94-017-4377-8 (eBook)
DOI 10.1007/978-94-017-4377-8
© 1981 Springer Science+Business Media Dordrecht
Originally published by Kluwer - Deventer - The Netherlands in 1981
Softcover reprint of the bardeover 1st edition 1981
All rights reseiVed. No part of this book may be reproduced, stored in a retrieval system, or
transmitted in any form by any means, electronic, mechanical, photocopying, recording
or otherwise, without the written permission of the pubüsher.
Foreward
One of the basic problems of any legal system in history has been and still is
the question how far any nationallaw may be applied to and enforced against
conduct committed outside its territory. Although of relevance in any field of
law this problern has become a major issue in the field of antitrust law during
this century and especially since 1945. For as many different economic
systems and concepts about the role of competition in economy exist world
wide conflicts between the different systems have become unavoidable the
more integration of the various economies by world trade increased.
The Committee on Antitrust Law and Monopolies of the International Bar
Association's Section on Business Law therefore has during the last years on
various occasions discussed the famous subject of 'extra territorial application
of antitrust laws'. A special part of this subject is the question how far one
country's antitrust laws even if applicable in substance may be in fact enforced
against foreign citizens. Therefore 'procedural problems with regard to the
extraterritorial application of antitrust laws' was one topic of the Committee's
meetings during the IBA Conference in Berlin 1980.
As chairman of the Committee I want to express my sincere thanks to Dr.
Comelis Canenbley, Düsseldorf, the general rapporteur for the excellent
report which was the basis of our discussion in Berlin. May I extend my
thanks to all national rapporteurs who have provided valuable contributions
under their respective national laws. I am convinced that the publication of
this general report and as far as possible parts of national reports too will
provide a useful guide for all intemationallawyers who have to deal with such
cases. In order to increase this usefulness a number of legal texts have been
added which might be of special interest in this connection.
Professor Arved Deringer
Chairman Committee on Antitrust Law
and Monapolies
Cologne, February 1981
V
lntroduction
Many people - some lawyers amongst them - are not particularly interested
in the subject of 'procedure'. They prefer to leave this somewhat dry area of
law to specialists.
In practice, however, the substantive scope of national or supranational
legal provisions may be less important than the attendant procedural ones.
The practical problems and political implications arise when - in an individual
case - authorities, courts or even private persons of one state try to enforce
their law in situations in which conflicts with the interests or possibly even
with the law of a foreign state exist. Perhaps the best illustration of this and
one which demonstrates the practical importance of this Report is the weil
known Westinghouse Uranium Litigation, a factual summary of which is
attached as Appendix 8, and the SNPE case on which an article by Dr. A.H.
Hermann was published in the Financial Times on January 8, 1981. The
article is attached as Appendix 9.
To have an interest in a practical topic is one thing, to research it and to
write about it is another. Without the excellent group of national rapporteurs
this Report would not have been realised. I am particularly happy that such
concise and thorough reports have been submitted for those countries which
have extensive and strongly enforced antitrust laws. It was the intention to
add the national reports for the USA, EEC and Germany to the General
Report, but for technical reasons it has only been possible to add the EEC
report.
For those countries for which contributions have been made, developments
up to December 1980 have been taken into account.
My time in private practice would have been far too limited to write the
General Report alone. In Amanda Dalton I found a colleague who helped me
with great knowledge and creativity.
Although no national reports were received on the Canadian and Dutch
situations, a Canadian bill proposing blocking legislation is attached as Appen
dix 5 and a short description of the blocking legislation in the Netherlands is
included in the General Report (under Point 10 .3.9).
I regret that the legal situation in one major Western nation of growing
importance, Japan, should not be included in this Report. As the topic of the
enforcement of antitrust law outside national boundaries is here to stay and is
a subject which will become even more important in the future, I hope that it
will be possible to up-date this Report in a couple of years' time and that a
chapter on the Japaneselegal situation may then be included.
It is my hope that this Report may provide some guidance and assurance to
all those confronted with antitrust problems with international implications.
Comelis Canenbley
Düsseldorf, March 9, 1981
VII
Index
Foreword V
Introduction VII
I. Brief outline of substantive law provisions I
1.0 Introduction I
1.1 USA I
1.2 Germany 2
1.3 EEC 2
1.4 France 3
1.5 U.K. 4
1.6 Switzerland 5
1.7 Italy 5
1.8 Australia 5
2. Is there substantive provision under national law for the extrater-
ritorial application of that law? 7
2.0 Introduction 7
2.1 USA 7
2.2 Germany 8
2.3 EEC 9
2.4 France 9
2.5 U.K. 10
2.6 Switzerland 11
2.7 Italy 11
2.8 Australia 11
3. Relevant principles of intemationa11aw 12
3.1 The princip1e of State Sovereignty 12
3.2 The intemational1aw princip1e of Comity 13
3.3 The right to be heard in your own defence 13
3.4 Jurisdiction based upon nationality; Personal Jurisdiction 14
3.4.1 USA 14
3.4.2 Germany 15
3.4.3 EEC 15
3.4.4 France 15
3.4.5 U.K. 16
3.4.6 Switzer1and 16
3.4.7 Ita1y 16
3.4.8 Australia 16
IX
3.5 State hospitality to commerce 16
3.5.1 USA 17
3.5.2 EEC 17
3.5.3 Germany 18
3.5.4 Switzerland 18
4. National procedural ru1es 19
4.0 Introduction 19
4.1 USA 20
4.1.1 Written requests for information (discovery orders) 20
4.1.2 Production and disclosure of documents 1ocated
abroad 21
4.1.3 Search and investigation of persans or companies
abroad 22
4.1.4 Hearing of defendants or witnesses abroad 22
4.1.5 Service of process abroad 22
4.1.6 Reactions of foreign governments 23
4.2 Germany 23
4.2.1 Written requests for information (discovery orders) 25
4.2.2 Production and disclosure of documents 1ocated
abroad 25
4.2.3 Search and investigation of persans or companies
abroad 26
4.2.4 Hearing of defendants or witnesses abroad 27
4.2.5 Service of process abroad 27
4.3 EEC 28
4.3.1 Written requests for information (discovery orders) 29
4.3.2 Production and disclosure of documents located
abroad 31
4.3.3 Search and investigation of persans or companies
abroad 32
4.3.4 Hearing of defendants or witnesses abroad 32
4.3.5 Service of process abroad 33
4.4 France 36
4.4.1 Written requests for information (discovery orders) 36
4.4.2 Production and disclosure of documents 1ocated
abroad 36
4.4.3 Search and investigation of persans or companies
abroad 36
4.4.4 Hearing of defendants or witnesses abroad 36
4.4.5 Service of process abroad 3 7
4.5 U.K.
4.5.1 Written requests for information (discovery orders) 37
4.5.2 Production and disc1osure of documents located
abroad 37
X
4.5.3 Search and investigation of persons or companies
abroad 38
4.5 .4 Hearing of defendants or witnesses abroad 38
4.5.5 Service of process abroad 38
4.6 Switzerland 38
4.7 Italy 39
4.8 Australia 39
4.8.1 Written requests for information (discovery orders) 39
4.8.2 Production and disclosure of documents located
abroad 39
4.8.3 Search and investigation of persons or companies
abroad 40
4.8.4 Hearing of defendants or witnesses abroad 40
4.8.5 Service of process abroad 40
5. Channels used in procedural matters 41
5.0 Introduction 41
5.1 Written requests for information (discovery orders) 41
5.2 Production and <1isclosure of documents 43
5.3 Search and investigation of persons or companies 44
5.4 Hearing of defendants or witnesses 45
5.5 Service of process 46
6. National provisions for remedies in the event of a failure to comply
with requests for information 50
6.0 Introduction 50
6.1 USA 51
6.2 Germany 52
6.3 EEC 54
6.4 France 55
6.5 U.K. 55
6.6 Switzerland 56
6.7 Italy 56
6.8 Australia 57
7. Procedures whereby a foreign enterprise may be attacked through
purely domestic channels 58
7.0 Introduction 58
7.1 Appointment of a domicile within the jurisdiction 58
7.2 Public Service of Process 59
7.3 The Enterprise entity doctrine 59
7.3.1 The domestic 'arm' as the vehicle for service of process 60
7.3.1.1 USA 60
7.3.1.2 Germany 61
7.3.1.3 EEC 61
XI
7.3.1.4 France 62
7.3.1.5 U.K. 63
7 .3.1.6 Switzerland 63
7.3.1.7 Italy 63
7.3.1.8 Australia 64
8. Contesting the jurisdiction of national courts or antitrust authorities 65
8.0 Introduction 65
8.1 Australia 65
8.2 U.K. 65
8.3 USA 66
9. Enforcement of national judgments, acts or decisions of national
antitrust authorities abroad 67
9.0 Introduction 67
9.1 USA 67
9.2 Germany 67
9.3 EEC 68
9.4 France 68
9.5 U.K. 68
9.6 Switzerland 68
9.7 Italy 69
9.8 Australia 69
9.9 The ICI-case 69
9.1 0 General Remarks 70
9.11 Enforcement by institution of a new action in the court with
jurisdiction over the defendant 71
10. Defence of State Sovereignty in Antitrust Matters 72
10.1 By State Protest 72
10.2 By the national courts 72
10.3 By the enactment of 1egis1ation 72
10.3.1 USA 72
10.3.2 Germany 72
10.3.3 EEC 73
10.3.4 France 73
10.3.5 U.K. 74
10.3.6 Switzerland 76
10.3.7 Ita1y 77
10.3.8 Australia 78
10.3.9 Netherlands 79
10.3.10 Canada 79
XII