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The FTAIA did not amend the acts as to imports into the United States; thus, the impact of the FTAIA on jurisdictional disputes with other nations was limited. Interestingly, Congress took a neutral stance towards the Ninth Circuit’s “jurisdictional rule of reason” analysis, indicating that the Act simply stated the requirements for jurisdiction and was not intended to prevent or encourage balancing tests that might limit exercise of that jurisdiction: “the bill is intended neither to prevent nor to encourage additional judicial recognition of the special international characteristics of transactions. If a court determines that the requirements for the subject matter jurisdiction are met, this bill would have no effect on the courts’ ability to employ notions of comity … or otherwise to take account of the international character of the transaction.” (id, at 10) In 1987, however, the Restatement (Third) of the Foreign Relations law of the United States adopted a Timberlane-like balancing test, thus adding further weight to such an approach (see sections 403, 415).
See Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) (stating that “it is well established that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States”); United States v. Nippon Paper Indus. Co., 109 F. 3d 1 (1st Cir. 1997) (stating that activities committed abroad having substantial and intended effects within the United States could form the basis for criminal prosecution under Section 1 of the Sherman Act).
Aniline Dyes Cartel, 1969 O. J. (L 195) 11. See also EUROPEAN COMM’N, FOURTEENTH REPORT ON COMPETITION POLICY P60 (1984) (stating that commission’s recent decisions “reflect the policy, which is essential in view of the realities of modern world trade, that all undertakings doing business within the EEC must respect the rules of the competition in the same way, regardless of their place of establishment (‘effects doctrine’)”).
Allison J. Himelfarb, The International Language of Convergence: Reviving Antitrust Dialogue Between the United States and the European Union with a Uniform Understanding of “Extraterritoriality”, 17 U. Pa. J. Int’l Econ. L. 909, 932 (1996) (hereinafter Himelfarb, Convergence)
Joseph P. Griffin, EC and U.S. Extraterritoriality: Activism and Cooperation, 17 Fordham Int’l L. J. 353, 378-79 (1994).
Case 48/69 Imperial Chem. Indus. v. Commission, 11 C. M. L. R. 557 (1972).
A. Ahlstrom Osakeyhtio and Others v. Commission, Joined Cases 89, 104, 114, 116, 117 and 125-129/85, 1988 ECJ Celex Lexis 5294, 1 (hereinafter Wood Pulp).
Id. at 14 (emphasis added).
Id. at 15-16
Id. at 19.
Id. at 20.
Joseph P. Griffin, Extraterritoriality in U.S. and EU Antitrust Enforcement, 67 Antitrust L. J. 159, 198 (1999) (hereinafter Griffin, Extraterritoriality).
SIR LEON BRITTAN, COMPETITION POLITY AND MERGER CONTROL IN THE SINGLE EUROPEAN MARKET 7-9 (1991).
Thomas P. O’Toole, “The Long Arm of the Law”-European Merger Regulation and Its Application to the Merger of Boeing & McDonnell Douglas, 11 Transnat’l Law 203, 13 (1998) (hereinafter O’Toole, Long Arm of the Law).
Merger Regulation, supra note 1, art.16.
See supra Part I. A.
BRITTAN, supra note 40, at 56.
Aerospatiale-Alenia/de Havilland, 1991 O. J. (L 334) 42. See also Gencor/Lonrho, 1997 O.J. (L 11) 130 (blocking merger of platinum interests located in South Africa).
Boeing, supra note 6, at 16.
Id. at 17.
They had a combined aggregate worldwide turnover in excess of ECU 5 billion (Boeing ECU 17 billion, MDC 11 billion), and each had a Community-wide turnover in excess of ECU 250 million (numbers omitted in the decision). See id.
Id. at 16. See also Merger Regulation, supra note 1, art. 6(1)(c).
Id. at 18.
Before the merger, the market shares of Boeing, MDC and Airbus were 64%, 6% and 27%, respectively. The merger would increase Boeing’s overall market share from 64% to 70%, and its customer base from 60% to 84%. See id, at 22, 29.
Id. at 24
Id. at 29.
Agreement Between the Government of the United States of America and the Commission of the European Communities Regarding the Application of Their Competition Laws, Sept.23, 1991, U.S.-E.C., 30 I. L. M. 1491 (hereinafter 1991 Agreement). For a discussion of this agreement, see infra Part III. B.
Boeing, supra note 6, at 17, 33.
Id. See also 1991Agreement, supra note 54, art. IV (allowing a party to cancel coordinated efforts with notice, and enforce its laws independently).
Boeing, supra note 6, at 44.
Sondra Roberto, The Boeing/McDonnell Douglas Merger Review: A Serious Stretch of European Competition Powers, 24 Brooklyn J. Int’l L. 593, 600 (1998) (hereinafter Roberto, Merger Review).
Id, at 615.
O’Toole, Long Arm of the Law, supra note 41, at 223.
Id.
AOL Time Warner, supra note 6, at 31.
Id. at 30.
Id. at 31-35, 42, 44.
In 1995 AOL and Bertelsmann established the 50/50 joint venture AOL Europe, which has permitted AOL’s expansion in Europe. In addition, AOL and Bertelsmann, together with Vivendi, have a joint venture in France, AOL CompuServe France (“AOL France”). See id. at 35.
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