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 economic theory of international antitrust. This theory suggests that a country will use its domestic antitrust laws to regulate foreign conduct when that country is both a net importer and maintains the political power to compel international compliance. Thus, with one major deviation in the 1970s, the United States, since becoming a net importer, has extended jurisdiction over foreign parties for antitrust activity organized and occurring abroad whenever it has maintained sufficient international political power.
The Fifth Circuit has now entered the debate on extraterritorial application of U.S. antitrust law. In Den Norske Stats Oljeselskap As v. HeereMac v.o.f., the court, in an opinion rooted solely in statutory interpretation, declined to exercise jurisdiction over the claims of a foreign plaintiff injured by cartel activity occurring exclusively outside of the United States. While this result may seem consistent with traditional notions of the role of U.S. courts, it is inconsistent with both the economic theory of international antitrust and the antitrust laws' goal of protecting the U.S. consuming public. This Note argues that the Fifth Circuit should have exercised jurisdiction over the foreign plaintiff's claims, thereby protecting U.S. consumers from rising prices and avoiding further uncertainty regarding the extraterritorial application of U.S. antitrust law.
William J. Tuttle,
The Return of Timberlane?: The Fifth Circuit Signals a Return to Restrictive Notions of Extraterritorial Antitrust,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol36/iss1/13