International law, Sixth edition
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International Law MALCOLM N. SHAW
Bank of America
225 and Mannington Mills v. Congoleum Corporation 226 cases. It was stated that in addition to the effects test, of the earlier cases, the courts had to take into account a balancing test, ‘a jurisdictional rule of reason’, involving a consideration of other nations’ interests and the full nature of the relationship between the actors concerned and the US. 227 A series of factors that needed to be considered in the process of balancing was put forward in the latter case. 228 The view taken by the States Foreign Policy Export Controls’, 4 Legal Studies, 1984, p. 2, and A. V. Lowe, ‘Public International Law and the Conflict of Laws’, 33 ICLQ, 1984, p. 575. 221 148 F.2d 416 (1945). 222 Ibid., p. 443. This approach was reaffirmed in a series of later cases: see e.g. US v. Timken Roller Bearing Co. 83 F.Supp. 284 (1949), affirmed 341 US 593 (1951); US v. The Watch- makers of Switzerland Information Center, Inc. cases, 133 F.Supp. 40 and 134 F.Supp. 710 (1963); 22 ILR, p. 168, and US v. General Electric Co. 82 F.Supp. 753 (1949) and 115 F.Supp. 835 (1953). See also Hazeltine Research Inc. v. Zenith Radio Corporation 239 F.Supp. 51 (1965), affirmed 395 US 100 (1969). 223 See e.g. the statement of the UK Attorney General that ‘the wide investigating procedures under the United States antitrust legislation against persons outside the United States who are not United States citizens constitute an “extraterritorial” infringement of the proper jurisdiction and sovereignty of the United Kingdom’, Rio Tinto Zinc v. Westinghouse Electric Corporation [1978] 2 WLR 81; 73 ILR, p. 296. See also Lowe, Extraterritorial Jurisdiction, pp. 159–60 and 165–71. But see Soci´et´e Internationale v. Rogers 357 US 197 (1958); 26 ILR, p. 123; US v. First National City Bank 396 F.2d 897 (1968); 38 ILR, p. 112; In re Westinghouse Electric Corporation 563 F.2d 992 (1977) and In re Uranium Antitrust Litigation 480 F.Supp. 1138 (1979). 224 See e.g. Meessen, ‘Antitrust Jurisdiction’, p. 794. 225 549 F.2d 597 (1976); 66 ILR, p. 270. 226 595 F.2d 1287 (1979); 66 ILR, p. 487. 227 See particularly K. Brewster, Antitrust and American Business Abroad, New York, 1958. 228 595 F.2d 1287, 1297 (1979); 66 ILR, pp. 487, 496. See also the Timberlane case, 549 F.2d 597, 614 (1976); 66 ILR, pp. 270, 285. The need for judicial restraint in applying the effects doctrine in the light of comity was emphasised by the State Department: see 74 AJIL, 690 i n t e r nat i o na l l aw Third Restatement of Foreign Relations Law, 229 it should be noted, is that a state may exercise jurisdiction based on effects in the state, when the effect or intended effect is substantial and the exercise of jurisdiction is reasonable. It is noted that the principle of reasonableness calls for limiting the exercise of jurisdiction so as to minimise conflict with the jurisdiction of other states, particularly the state where the act takes place. 230 However, the assumption by the courts of a basically diplomatic function, that is, weighing and considering the interests of foreign states, stimulated criticism. 231 The US courts modified their approach. In Laker Airways v. Sabena, 232 the Court held inter alia that once US antitrust law was declared applicable, it could not be qualified or ignored by virtue of comity. The judicial interest balancing under the Timberlane precedent should not be engaged in since the courts on both sides of the Atlantic were obliged to follow the directions of the executive. Accordingly, the reconciliation of conflicting interests was to be undertaken only by diplomatic negotiations. Quite how such basic and crucial differences of opinion over the effects doctrine can be resolved is open to question and international fora have been suggested as the most appropriate way forward. 233 In the Hartford Fire Insurance Co. v. California case before the US Supreme Court, 234 Judge Souter writing for the majority stated that it 1980, pp. 179–83. See also the US Foreign Trade Antitrust Improvements Act 1982, where jurisdiction was said to be dependent on ‘direct, substantial and reasonably foreseeable effect’. 229 Para. 402, p. 239 and para. 403, p. 250. 230 See also the US Department of Justice, Antitrust Enforcement Guidelines for International Download 7.77 Mb. Do'stlaringiz bilan baham: |
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