Avoidance Techniques: State Related Defences in International Antitrust Cases

95 Pages Posted: 14 Mar 2011 Last revised: 21 Feb 2012

See all articles by Marek Martyniszyn

Marek Martyniszyn

Queen's University Belfast - School of Law

Date Written: March 10, 2011


Despite its economic significance, competition law still remains fragmented, lacking an international framework allowing for dispute settlement. This, together with the growing importance of non-free-market economies in world trade require us to re-consider and re-evaluate the possibilities of bringing an antitrust suit against a foreign state. If the level playing field on the global marketplace is to be achieved, the possibility of hiding behind the bulwark of state sovereignty should be minimised. States should not be free to act in an anti-competitive way, but at present the legal framework seems ill-equipped to handle such challenges.

This paper deals with the defences available in litigation concerning transnational anti-competitive agreements involving or implicating foreign states. Four important legal doctrines are analysed: non-justiciability (political question doctrine), state immunity, act of state doctrine and foreign state compulsion. The paper addresses also the general problem of applicability of competition laws to a foreign state as such. This is a tale about repetitive unsuccessful efforts to sue OPEC and recent attempts in the US to deal with export cartels of Chinese state-owned enterprises.

Keywords: antitrust, competition law, cartels, export cartels, avoidance techniques, non-justiciability, political question, state immunity, act of state, state action, sovereign compulsion, state compulsion, extraterritorial jurisdiction, extraterritoriality

JEL Classification: K21, K33, L40

Suggested Citation

Martyniszyn, Marek, Avoidance Techniques: State Related Defences in International Antitrust Cases (March 10, 2011). UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 46/2011, CCP Working Paper No. 11-2, Available at SSRN: https://ssrn.com/abstract=1782888 or http://dx.doi.org/10.2139/ssrn.1782888

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