1. Agreement Between the Government of the United States of America and the Commission of the European Communities Regarding the Application of Their Competition Laws, Sept. 23,1991, hereinafter referred to as the Agreement (not yet published: on file at the offices of the T.M.C. Asser Instituut). The Agreement was signed by the Federal Trade Commission and the Department of Justice, which are the two federal antitrust enforcement agencies of the United States government. The Commission of the European Community is responsible for competition law enforcement in the Community. However, as an institution, rather than an agency of a national government, it was apparently decided that the agreement should be entered into by the Commission alone rather than the European Community.

2. Department of Justice Press Release, U.S. and Commission of European Communities Sign Antitrust Cooperation Agreement, Sept. 23,1991, at 2. hereinafter referred to as Press Release (not yet published: on file at the offices of the T.M.C. Asser Instituut).

3. See Joint Statement Concerning Cooperation in Antitrust Matters. Nov. 3. 1969. reprinted in 81.L.M. 1305 (1969); see also Whiteman, M., 6 Digest of International Law 159 (1968) (quoting 1965 memorandum which describes informal arrangement that had its origin in 1959 discussions between Canada and the United States, hereinafter referred to as the Canada Agreement).Google Scholar

4. Agreement Relating to Mutual Cooperation regarding Restrictive business Practices. June 23. 1976. reprinted in 15 I.L.M. 1282 (1976), hereinafter referred to as the Germany Agreement.

5. Agreement between the Government of the United States of America and the Government of Australia Relating toCooperation on Antitrust Matters, June 29,1982, reprinted in 21 I.L.M. 702 (1982), hereinafter referred to as the Australia Agreement.

6. Agreement, supra note 1. Article IX.

7. Id., Art. V(4).

8. Id., Art.VIII(l.b).

9. Id., Art. IV(2).

10. Id., Art. IV(4).

11. Id., Art. 11(5); cf. Australia Agreement, supra note 5, Art. 6 (allowing the government of Australia to request the United States to participate in private antitrust suits).

12. Agreement, supra note 1, Art. XI.

13. Mann, F., Further Studies in International Law 82 (1990).Google Scholar

14. Agreement, supra note 1, Art. 1(1). Article I also defines the terms competition law(s). competition authorities, enforcement activities, and anticompetitive activities.

15. Id.. Art. 1(1). The required content of the notice is defined rather vaguely: “Sufficient information to permit an initial evaluation by the recipient Party of any effects on its interests”. Id., Art. 1(6).

16. Id.. Art. 1(3), (4), and (5). One additional point is worth noting: because Article I(2.d) requires that notification is ordinarily appropriate when enforcement activities involve “conduct believed to have been required, encouraged or approved by the other Party”, the Commission is now required to notify the United States before it issues a statement of objections, or adopts a decision, against registered US export cartels, which are exempted from US antitrust liability under the Webb Pomerene Act of 1918,15 U.S.C. ss 61 (1982), and the Export Trading Act of 1982.15 U.S.C. ss 4001–4003, 4011–4021 (1982). In contrast, because there is no equivalent encouragement or approval of EC-based export cartels by the Commission, the United States is not faced with a reciprocal obligation, except in those cases in which other circumstances would trigger the notification provisions of the Agreement.

17. Press Release, supra note 2, at 2.

18. The Department of Justice uses the test of “direct, substantial, and reasonably foreseeable effect upon U.S. commerce” for determining whether it has jurisdiction. See U.S. Department of Justice Antitrust Enforcement Guidelines for International Operations (November 10.1988). 55 Antitrust and Trade Reg. Rep.(FNA)No. 1391. S–3 (November 17.1988) (Special supp.). The 1988 Guidelines also appear at 53 Fed. Reg. 21594. The Commission also relies upon the effects doctrine, see, e.g., Fourteenth Report on Competition Policy 59 (1984). but has failed to provide consistent guidance as to how great or direct the requisite effects must be. See Edward, D., The Practice of the Community Institutions in Relation to the Extraterritorial Application of the EEC Competition Law. in Feiber, Hess (eds.). Die Dynamik des Europaisen Gemeinschaftsrechtz/The Dynamics of EEC Law 355, 361 (1987). The Court of Justice's decision in Wood Pulp. Joined Cases 89, 104, 114. 116. 117 and 125–129/85. ECR 1988, 5193. 4 C.M.L.R. 901 (1988). with its jurisdictional test based upon the implementation of an agreement, has not provided any further explicit guidance in this regard.Google Scholar

19. Id..

20. Supra note 16.

21. Agreement, supra note I. Article VI(3). The six factors are as follows: a. the relative significance to the anticompetitive activities involved of conduct within the enforcing Party's territory as compared to conduct within the other Party's territory: b.the presence or absence of a purpose on the part of those engaged in the anticompetitive activities to affect consumers, suppliers or competitors within the enforcing Party's territory: c. the relative significance of the effects of the anticompetitive activities on the enforcing Party's interest as compared to the effects on the other Party's interests: d. the existence or absence of reasonable expectations that would be furthered or defeated by the enforcement activities; e. the degree of conflict or consistency between the enforcement activities and the other Party's laws or articulated economic policies: and f. the extent to which enforcement activities of the other Party with prespect to the same persons, including judgments or undertakings resulting from such activities, may be affected.

22. Timberlane Lumber Co. v. ank of America. 549 F. 2d 597(9 Cir. 1976 ). on remand. 574 F. Supp. 1453 (N.D. 1983), aff d 749 F. 2d 1378(9 Cir. 1984), cert.denied, 472 U.S. 1032(1985). In Timberlane, the Ninth Circuit Court of Appeals held that extraterritorial application of federal antitrust law should be tempered by ‘comity’, which could be based upon a weighing and balancing of relative United States and foreign interests.

23. Restatement of the Foreign Relations Law of the United States (Third), Sect. 402.

24. For a discussion of this legislation. see Fox, E., Extraterritoriality. Antitrust.and The New Restatement: Is ‘Reasonableness’ the Answer?, 1987 N.Y.J. of Int'l Law and Politics 565. 594–599. The one major change from Senate ill 397 is that the six-factor test in the Agreement drops consideration of the nationality of the parties in favor of consideration of the extent to which enforcement activities of the other party with respect to the same persons may be affected. See Agreement, supra note 1. Art. VI(3.f).Google Scholar

25. See. e.g., Mann, F.A., supra note 13, at 70–75, 80.Google Scholar

26. Agreement, supra note I, Art. VI(1).

27. The United States courts recognize a foreign sovereign compulsion defense for defendants that are compelled by a foreign state to engage in anticompetitive conduct. See aker. Antitrust Remedies Against Government-Inspired Boycotts, Shortages, and Squeezes: Wandering on the Road to Mecca, 61 Cornell L. Rev. 911,916 (1976). The Department of Justice has recognized this defense, but has stated that it is limited to cases of actual compulsion by a foreign government, and does not include conduct that takes place wholly or partially in the United States.See 1988 Guidelines, supra note 18. at S–23.

28. See Canada Agreement, supra note 3.

29. See Australia Agreement, supra note 5.

30. Germany Agreement, supra note 4. Arts. 2.4.

31. Id., Arts. 3.9.