The Twilight of Comity

Abstract:     
This article analyzes one of the most contentious issues over the past fifty years in international economic law - the extent to which a nation may apply its law on an extraterritorial basis and the limits, if any, posed by the doctrine of international comity. This article examines the reasons why the doctrine of international comity once represented the primary battleground for conflict over the extent of permissible extraterritoriality in U.S. antitrust law, but no longer represents the forefront of current thought on this important issue.

The article argues that the retrenchment of U.S. enforcement policy in foreign commerce antitrust cases, the diminution of comity in private antitrust cases, the failure of U.S. courts to apply comity during its heyday in a coherent and principled manner, the spread of anti-cartel norms and extraterritoriality to other antitrust jurisdictions, the rise of more practical concerns in foreign commerce antitrust cases, and the emergence of new issues relating to competition law in transition economies and in international organizations all contributed to the demise of comity as a controversial issue. This article concludes that the proponents of a broad role for international comity achieved a partial, but important, victory that laid the groundwork for the future agenda of international competition law.

Keywords: international economic law, antitrust, foreign commerce, effects doctrine,extraterritoriality, comity, cooperation agremeents, cartels, ICPAC, OECD

JEL Classifications: K21, K41, K42, L40, L41, L42

Accepted Paper Series