The Private Attorney General in a Global Age: Public Interests in Private International Antitrust Litigation

Abstract:     
Even in a climate of increased cooperation among regulatory authorities, jurisdictional conflict remains a prominent aspect of cross-border antitrust regulation. Much of this conflict is generated by private litigation - that is, lawsuits initiated under U.S. antitrust law by private attorneys general rather than by the government. This article examines two strands of jurisprudence relevant to the role of the private attorney general in cases with international aspects. First, it analyzes the cases, involving actions based on statutory violations of the antitrust laws, in which the extraterritorial reach of U.S. antitrust law has been delimited. It then turns to decisions on choice of forum and choice of law in international contracts, noting that those cases increasingly support party autonomy even when regulatory law issues are involved. The article notes that the former cases contemplate an expansive role for, and the latter cases marginalize, the private attorney general. It then argues that the disparate treatment accorded the private attorney general in these two settings illustrates a more general inconsistency in the value assigned to public regulatory interests of the United States in international cases - while the statutory cases suggest that U.S. antitrust interests cannot be weighed against other interests, the contract cases indicate otherwise. The article thus concludes that arguments against interest balancing in the statutory context have been undermined by developments in the international contract arena.

Keywords: International antitrust, private attorney general, comity, extraterritoriality, jurisdiction to prescribe

Accepted Paper Series