The Extraterritorial Application of Antitrust Laws: A Postscript on Hartford Fire Insurance Co. v. California

Authors

Roger P. Alford, Notre Dame Law SchoolFollow

Document Type

Article

Publication Date

1993

Publication Information

34 Va. J. Int'l L. 213 (1993)

Abstract

Last year in the pages of this journal I published an article comparing the United States and the European Union (E.U.) approaches to the extraterritorial application of antitrust laws. In discussing the U.S. approach, I predicted that "while the jurisdictional rule of reason has its weaknesses, it will remain a lasting fixture on the legal landscape precisely because it represents the only genuine, though inexact, attempt by courts to fashion a jurisdictional test which incorporates the legitimate sovereignty interests of foreign nations." Thus, it was with disappointment that I, along with other proponents of a jurisdictional rule of reason, received the Supreme Court's decision in Hartford Fire Insurance Co. v. California, a case which narrowly construes international comity and eschews the balancing of foreign sovereignty interests save perhaps in instances of conflicting state commands.

Confident that there will be numerous articles sedulously analyzing this decision, I intend here simply to offer a brief critique and comparison of the United States and European Union approaches to the extraterritorial application of antitrust laws now that Hartford Fire is the law of the land in the United States. Stated positively, the thesis of this Postscript is that there is now a convergence of views between the United States and European Union as to whether international comity may be invoked to restrain the unfettered extraterritorial application of antitrust laws. Stated negatively, this Postscript argues that the United States has followed the European Union in adopting an approach that fails to accord due respect to legitimate foreign sovereignty interests except in the (unusual) instance of a "true conflict" between foreign and domestic laws.

Recommended Citation

Roger P. Alford, The Extraterritorial Application of Antitrust Laws: A Postscript on Hartford Fire Insurance Co. v. California, 34 Va. J. Int'l L. 213 (1993).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/408