International law, Sixth edition
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International Law MALCOLM N. SHAW
Operations, 1988, pp. 31–2. But see now the Supreme Court’s decision in Hartford Fire
Insurance Co. v. California 113 S. Ct. 2891 (1993), discussed below. 231 See e.g. H. Maier, ‘Interest Balancing and Extraterritorial Jurisdiction’, 31 American Journal of Comparative Law, 1983, p. 579, and Maier, ‘Resolving Extraterritorial Conflicts or There and Back Again’, 25 Va. JIL, 1984, p. 7; W. Fugate, ‘Antitrust Aspect of the Revised Restatement of Foreign Relations Law’, ibid., p. 49, and Bowett, ‘Jurisdiction’, pp. 21–2. See also Lowe, Extraterritorial Jurisdiction, pp. 58–62. 232 731 F.2d 909 (1984). However, cf. the continuation of the Timberlane litigation, 749 F.2d 1378 (1984), which reaffirms the approach of the first Timberlane case. 233 See e.g. Bowett, ‘Jurisdiction’, pp. 24–6 and Meessen, ‘Antitrust Jurisdiction’, pp. 808–10. See also Lowe, Extraterritorial Jurisdiction, part 3. 234 113 S. Ct. 2891 (1993). See e.g. A. F. Lowenfeld, ‘Conflict, Balancing of Interest, and the Exercise of Jurisdiction to Prescribe: Reflections of the Insurance Antitrust Case’, 89 AJIL, 1995, p. 42; P. R. Trimble, ‘The Supreme Court and International Law: The Demise of Restatement Section 403’, ibid., p. 53, and L. Kramer, ‘Extraterritorial Application of American Law after the Insurance Antitrust Case: A Reply to Professors Lowenfeld and Trimble’, ibid., p. 750. j u r i s d i c t i o n 691 was well established that the relevant US legislation (the Sherman Act) ‘applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States’. 235 It was felt that a person subject to regulation by two states (here the UK with regard to the London reinsurance market and the US) could comply with the laws of both and there was no need in this case to address other considera- tions concerning international comity. 236 The Dissenting Opinion in this case took the view that such exercise of extraterritorial jurisdiction was subject to the test of reasonableness, 237 a view that the majority did not embrace. Foreign states had started reacting to the effects doctrine by the end of the 1970s and early 1980s by enacting blocking legislation. Under the UK Protection of Trading Interests Act 1980, for example, the Secretary of State in dealing with extraterritorial actions by a foreign state may prohibit the production of documents or information to the latter’s courts or authorities. In addition, a UK national or resident may sue in an English court for recovery of multiple damages paid under the judgment of a foreign court. 238 The Protection of Trading Interests Act was used in connection with the action by the liquidator of Laker Airways to sue various major airlines, the Midland Bank and McDonnell Douglas in the US for conspiracy to violate the antitrust laws of the United States. Two of the airlines, British Airways and British Caledonian, sought to prevent this suit in the US by bringing an action to restrain the liquidator in the UK. Thus, the ef- fects doctrine was not actually in issue in the case, which centred upon the application of the US antitrust law in connection with alleged con- spiratorial activities in the US. The UK government, holding the view that the Bermuda II agreement regulating transatlantic airline activity 239 prohibited antitrust actions against UK airlines, issued instructions un- der the 1980 Act forbidding compliance with any requirement imposed 235 113 S. Ct. 2891, at 2909. 236 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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