Aplicación Extraterritorial De Leyes Antimonopolio En Los Estados Unidos (Inglés)

Extraterritorial Application
of
U.S. Antitrust Laws
An Overview

Molly S. Boast
Hannah M. Pennington
Debevoise & Plimpton LLP
New York, New York

Overview: Extraterritorial Application of U.S. Antitrust Laws
I.

1909 -- American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) - Supreme
Court first considers extraterritorial application of the Sherman Act and
determines thatstrict territoriality applies.
•

•

The Court found that it was a “startling proposition” that the Sherman Act
would apply to injurious acts that were done outside the United States.

•

The Court reiterated that “the general and almost universal rule is that the
character of an act as lawful or unlawful must be determined wholly by
the law of the country where the act is done.”

•II.

Both defendant and plaintiff banana companies were U.S. corporations
doing business in a Panamanian territory ruled by Costa Rica. Defendant
company was subsidized by the Costa Rican military and had a monopoly
on the banana trade before the plaintiff initiated its business in the same
area. Pursuant to the defendant’s request, the Costa Rican government
disrupted the plaintiff’sbusiness by seizing part of the plaintiff’s
plantation and supplies. The conduct occurred entirely in Central America
and had no effect on imports to the U.S.

The Court concluded that “a conspiracy in this country to do acts in
another jurisdiction does not draw to itself those acts and make them
unlawful, if they are permitted by the local law.”

1945 -- United States v. Aluminum Co. ofAmerica (Alcoa), 148 F.2d 416 (2d
Cir. 1945) – Second Circuit, acting as the court of last resort, rejects the strict
territorial approach in American Banana .
•

U.S. Government brought a civil action against the defendant U.S.
aluminum manufacturer. Defendant manufacturer had a Canadian
subsidiary that had entered into a cartel agreement with several European
companies to limit the supply ofaluminum into the U.S. Conduct at issue
occurred entirely outside of the U.S.

•

The court recognized the need to take into account “limitations
customarily observed by nations upon the exercise of their powers;
limitations which generally correspond to those fixed by the ‘Conflict of
Laws.’” However, the court also stated that “any state may impose
liabilities, even upon persons notwithin its allegiance, for conduct outside
its borders that has consequences within its borders which the state
reprehends.”

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III.

The court limited this “effects test” by requiring a showing of a direct and
intended effect in the U.S.
The court concluded that the agreement at issue, although made abroad,
was unlawful because it was intended to affect imports and did affectimports.

1982 -- Foreign Trade Antitrust Improvement Act (FTAIA), 15 U.S.C. §6a –
Congress enacts FTAIA to clarify the extraterritorial application of the Sherman
Act.
•

FTAIA is designed to place limitations on the application of the Sherman
Act in situations where U.S. commerce is not affected.

•

Legislative history indicates that Congress’ effo rt to exclude certain export
tradefrom the Sherman Act was intended to relieve “exporters from
competitive disadvantage in foreign trade.” Carpet Group Int’l v. Oriental
Rug Importers Ass’n, Inc., 241 F.3d 420 (3d Cir. 2000).

•

FTAIA states that Sections 1 through 7 of the Sherman Act will not apply
to trade or commerce (other than import trade or import commerce) with
foreign nations unless:
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(1) such conduct has adirect, substantial, and reasonably
foreseeable effect (A) on trade or commerce which is not trade or
commerce with foreign nations, or on import trade or import
commerce with foreign nations; or (B) on export trade or export
commerce with foreign nations, of a person engaged in such trade or
commerce in the United States; and

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(2) such effect gives rise to a claim under the provisions...