Public International Law and the Conflict of Laws: The European Response to the United States Export Administration Regulations

Abstract

IN the summer of 1982 the European Communities, and their Member States, reacted vigorously to attempts by the United States to impose an embargo on the supply by certain European companies of goods destined for use in the construction of the Soviet gas pipeline. The European States objected to the claimed extraterritorial ambit of the American legislation and to its retroactive effect in prohibiting the performance of contractual obligations lawfully entered into before the embargo was imposed. The objections were spelled out in unusual detail in the European Communities' on the Amendments of 22 June 1982 to the Export Administration Regulations, communicated to the US Department of State on 12 August 1982.1 They were followed by an aide-memoire on the same matter on 14 March 1983.2 Those documents-particularly the first-are of great significance both politically, because of the importance of the EEC as a trading partner and ally of the United States, and legally, because of the detail in which the question of extraterritorial jurisdiction is addressed. This article does not attempt to discuss the whole issue of extraterritorial jurisdiction. It concentrates upon some of the novel issues raised by the EC Comments, and particularly upon the question of the legal effect of included in contracts between the American sellers and European buyers (in both cases, private companies) of American technology, in which the buyers agreed to comply with the US export regulations in their use of the technology. Those clauses give rise to fundamental questions concerning the relationship between public and private international law. In order to set the Comments in context, they and their background are described in the first part of this article. The second, and main, part discusses the issues arising from the use of submission clauses; and the