The Scope of Antitrust Jurisdiction Abroad: A Classic Conflicts-of-Law Problem

Abstract

This term, the Supreme Court is set to address an issue of profound importance to the regulation of the global economy that has sharply divided the lower courts over the past few years about the extent to which U.S. antitrust law applies outside the U.S. While it has been settled for many years that U.S. antitrust law reaches foreign conduct that has a sufficient effect within the U.S., what is less clear is the scope of that reach. What happens if foreign anticompetitive conduct affects not only the U.S., but also foreign economies? Are people injured abroad protected by the Sherman Act's criminal and civil provisions? Courts examining this important issue have so far looked to the Foreign Trade Antitrust Improvement Act of 1982 for answers. This Article, however, argues that the current focus on the FTAIA is a mistake, and that the correct place to look for answers is in traditional conflicts of law doctrine, with which the FTAIA is consistent and from which the case law preceding the FTAIA was drawn. Under that doctrine, the answer to the question now before the Supreme Court is that U.S. antitrust law should be deemed exclusively to protect persons injured in U.S. commerce, and it should not extend to protect persons injured abroad under any circumstances.