Print Archives

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act (“FTAIA”) has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. The FTAIA vests federal district courts with subject matter jurisdiction over conduct that “has a direct, substantial and reasonably foreseeable effect” on U.S. commerce that “gives rise to a claim” under the Sherman Act. The FTAIA’s unique statutory language offers little guidance for district courts when an international cartel raises the price of a good or service in both domestic and foreign markets. In that case, does the FTAIA permit foreign plaintiffs injured in foreign markets access to U.S. federal district courts? Recently, the U.S. Supreme Court ruled in F. Hoffmann-La Roche, Ltd. v. Empagran S.A. (“Empagran”) that the doctrine of “comity among nations” limited the reach of U.S. antitrust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This decision left unresolved the split between the Courts of Appeals for the Fifth Circuit and the Second Circuit over the FTAIA’s language and history. Moreover, the Supreme Court’s resort to the existence of foreign regulatory schemes to limit Sherman Act jurisdiction ignored Congress’s intent to deter international cartels and protect American markets.

This Recent Development argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by American businesses in anticompetitive conduct overseas. Part III narrates the factual and procedural history of Empagran. Part IV contrasts the Fifth and Second Circuits’ interpretations of the FTAIA. In Part V, the Recent Development analyzes the Supreme Court’s ruling in Empagran, and Part VI outlines the procedurally questionable application of the “comity among nations” doctrine. Finally, the Recent Development concludes that, by invoking comity, the Supreme Court added to the difficulties of interpreting the FTAIA.

The normative frameworks under which International Humanitarian Law (“IHL”) and human rights law each operate are in conflict with one another. The goal of this Article is to develop a new law of war that is based on human rights and is entirely consistent with the requirements of human rights law. The principle of discrimination, which provides that people may be attacked and killed simply because of the uniform they wear, is an ideal entry point into the conflict between IHL and human rights law. IHL ideally protects civilians from the horrors of war, but the principle of discrimination, one of the most important rules of modern warfare, is fundamentally inconsistent with the basic tenets of human rights law.

International investment law has undergone a remarkable transformation in a relatively short time. The fundamental tool for effecting that transformation has been the bilateral investment treaty (“BIT”), an international legal instrument through which two countries set down rules that will govern investments by their respective nationals in the other’s territory. From 1959 to 2002, nearly 2200 individual BITs were formed, making the BIT one of the most widely used types of international agreement for protecting and influencing foreign investment.

As the twenty-first century begins, the time has come to evaluate whether BITs have achieved their objectives. To answer this question, Part II examines the historical movement to form BITs. Part III explores the goals motivating BITs, namely foreign investment protection, market liberalization, and foreign investment promotion. The three succeeding Parts assess the success of BITs in achieving each of these goals. Finally, Part VII concludes by considering the implications of the BIT movement for the further development of international investment law.

In recent decades, statutory interpretation has sparked a number of spirited disagreements in the United States. These disagreements, however, have been waged almost exclusively on a domestic battleground–over questions about the reliability of legislative history, the use of statutory purpose, and the application of other interpretive tools, all of domestic origin. The relevance of foreign authorities to the interpretation or application of a domestic statute has rarely been considered. Even today, the leading casebook on legislation in the United States makes only passing mention of the possible use of foreign authorities to decide issues involving domestic statutes, while a leading casebook on comparative law appears to cast doubt on, if not reject, that possibility. For many, this absence of discussion may seem to be not an oversight, but a manifestation of the basic principle that interpreting or applying a domestic statute is a question of domestic, not foreign, law.