Antitrust and the Draft Hague Judgments Convention
28 Pages Posted: 8 Jan 2016
Date Written: 2001
Other countries have long resisted the extraterritorial application of U.S. antitrust law. At first glance, then, it seems odd to find that the draft Hague Judgments Convention applies to antitrust cases. The explanation lies in the fact that the Draft Convention sets forth rules not just for the recognition and enforcement of judgments, but also for the exercise of personal jurisdiction. It takes no great insight to see that the reason Australia, Canada, most members of the European Union, and other parties to the Hague negotiations sought to bring antitrust within the Convention was not primarily to provide for the enforcement of those judgments, but to limit the jurisdiction of U.S. courts in antitrust cases. A better long-term strategy for the countries that have so long resisted the extraterritorial application of U.S. antitrust law would be to require the reciprocal enforcement of antitrust judgments without stringent limitations on personal jurisdiction. Currently, the United States has a much greater ability than other countries to project its antitrust law extraterritorially simply because of its size, which not only makes it easier for the United States to obtain jurisdiction over an antitrust defendant, but also makes it more likely that the defendant will have assets within the United States against which a judgment may be enforced. Providing for the reciprocal enforcement of antitrust judgments would give smaller countries an equal ability to apply their antitrust laws extraterritorially, thus helping to level the playing field for negotiations on substantive antitrust policy.
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