No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
This article examines the Foreign Antitrust Judgments (Restriction of Enforcement) Act 1979 (Cth) (“the 1979 Act“). It was the second legislative response of the Australian Government to steps taken by the Westinghouse Electric Corporation (“Westinghouse“) in its international uranium cartel antitrust suit in the United States District Court in Chicago. That suit and other legislation attributable to the uranium cartel which operated between 1972 and 1975 proceeded for more than four years and, until a recent spate of settlements mentioned later in the article, had been expected to continue well into the 1980s. At the outset it is necessary to say something of the events which provoked the District Court suit and related litigation.
In September 1975 Westinghouse announced in the United States that it was unable to fulfil its contractual obligations for the supply of uranium oxide (U3O2). Westinghouse's primary involvement in the nuclear energy industry is as a manufacturer of nuclear power plants (“reactors“) and not as a uranium miner. In the late 1960s reactor sales soared and Westinghouse offered electric utilities low price reactor fuel over long terms as an inducement to capture reactor sales.
The author benefited greatly in the preparation of this article from assistance given by H B Merlin, Steven B Strauss, William G Langston, Ronald J Field, R K Gardiner, Charles Maechling Jr, Thomas D Walker, Craven Crowell, the South African Embassy (Canberra), the British High Commission (Canberra), and RTZ Services Ltd. The author alone is responsible for the views expressed and any errors which the article may contain.
1 See generally Wood, J Carrera, V, “The International Uranium Cartel: Litigation and Legal Implications” (1979) 14 Texas International Law Journal 59Google Scholar; Taylor, J Yokell, M, Yellowcake: The International Uranium Cartel and its Aftermath (London, 1980)Google Scholar; Rothwell, G, “Market Coordination in the Uranium Oxide Industry” (1980) 25 The Antitrust Bulletin 233CrossRefGoogle Scholar.
2 All seventeen suits by US utilities have now been settled: the New York Times,19 April 1981.
3 S 2-615.
4 See generally Joskow, P, “Commercial Impossibility, the Uranium Market and the Westinghouse Case” (1977) 6 Journal of Legal Studies 119CrossRefGoogle Scholar; Eagan, W, “The Westinghouse Uranium Contracts: Commercial Impracticabilities and Related Matters” (1980) 18 American Business Law Journal 281CrossRefGoogle Scholar.
5 The defence failed: the New York Times, 30 October 1978; Eagan, W, op cit 287Google Scholar. See Matter of Westinghouse Electric Corporation Uranium Contracts Litigation 517 F Supp 440 (ED Va, 1981).
6 See the material reproduced in: US Congress, House of Representatives, Committee on Interstate and Foreign Commerce, Sub-Committee on Oversight and Investigations, International Uranium Supply and Demand 94th Congress, 1976, Serial 94-150 and International Uranium Cartel 95th Congress, 1977, Serial 95-99.
7 The Westinghouse and TVA antitrust suits were later consolidated. At the time of writing Westinghouse had settled its claims against all 29 defendants in the Chicago suit. The TVA action had been settled with the London-based RTZ group defendants (who did not include either of the Australian subsidiaries of RTZ in the Westinghouse suit) but was otherwise apparently continuing. An indication of the magnitude of the Chicago case is given by the fact that it had generated 7 million pages of documents in e discovery stage, and in 1976 alone, Westinghouse spent $US25 million in outside lawyers' fees: Eagan, W, op cit 282Google Scholar. The TVA-Westinghouse suit was settled in May 1979 with Westinghouse paying TVA $US130 million.
8 It has been suggested that Westinghouse's 1972 agreement licensing the French Government to build reactors may have influenced its decision not to sue the French cartel participant Uranex. In early 1981 the French Government announced that it had developed its own technology for building pressurized water reactors, that it inten_ded to e1;1ter the world market, and that the licence agreement was being termmated amicably: the New York Times, 24 January 1981.
9 Westinghouse Electric Corporation v Rio Algom Ltd United States District Court for the Northern District of Illinois, Eastern Division, No 76-C38330: Complaint, Preamble: copy in author's possession. Westinghouse was specifically mentioned in the cartel documents. It appeared that some concerted actions of the cartel participants were deliberately aimed at prejudicing Westinghouse and its role as a “middleman” or broker in the international uranium trade.
10 Ibid Count one, para A2(b).
11 Conzinc Riotinto Australia Ltd (“CRA”), Mary Kathleen Uranium Ltd (“MKU”), Pancontinental Mining Ltd (“Pancontinental”) and Queensland Mines Ltd. These were not the only Australian or Australian-based companies. which were involved in the cartel.
12 See Maher, L, “Time, Uranium and the Legislative Process” (1978) 9 FL Rev 399Google Scholar; Note (1978) 52 ALJ 480.
13 The views of the Governments of the United Kingdom, Canada, South Africa and Australia are set out in the amicus curiae briefs filed by them at various stages in the Chicago suit and in interlocutory appeals in that suit: eg Memorandum of Government of Canada as Amicus Curiae on Motions for Summary Judgment on Jurisdictional Grounds, 1 July 1980 (US District Court); Memorandum of Government of the Republic of South Africa as Amicus Curiae, 19 October 1979 (United States Court of Appeals for the Seventh Circuit). The view of the Government of France is contained in Memorandum-Position of Government of France-Uranium Antitrust Litigation, 27 October 1978. Copies of each in author's possession.
14 Details of Orders made under the 1976 Act are referred to in Maher, L, op cit 404Google Scholar. The challenge was instituted by Getty Oil Development Company. It was not pursued after the parent corporation, Getty Oil Company, settled the Westinghouse claim against it.
15 See Attorney-General Durack's Press Release 73/80, 5 October 1980 and annexures.
16 Getty Oil Company, Los Angeles, Press Release, 12 January 1981.
17 In Re Uranium Antitrust Litigation 473 F Supp 382 (ND Ill, 1979). Several of the defendants filed counterclaims alleging antitrust and related violations by Westing–house. A motion to dismiss the counterclaims was denied on 30 April 1979: 473 F Supp 393 (ND Ill, 1979). Details of the injunctive relief obtained by Westinghouse can be found in the Court of Appeals decision of 15 February 1980:In Re Uranium Antitrust Litigation 617 F 2d 1248 (7th Cir, 1980).
18 This purports to be no more than a background summary of the law. See generally Read, H, Recognition and Enforcement of Foreign Judgments (Cambridge, Mass, 1938)Google Scholar; Nygh, P, Conflict of Laws in Australia (3rd ed, 1976) Ch 6Google Scholar; Halsbury's Laws of England (4th ed) viii, paras 715-742; Dicey, A Morris, J, The Conflict of Laws (9th ed, 1973)Google Scholar; Sykes, E Pryles, M, International and Interstate Conflict of Laws (2nd ed, 1981)Google Scholar; Ehrenzweig, A, A Treatise on the Conflict of Laws (St Paul, Minn, 1962) Ch 2Google Scholar.
19 Halsbury, op cit para 715.
20 [1908] 1 KB 302.
21 Nygh, P, op cit 79Google Scholar.
22 Nygh, P, op cit 79Google Scholar; Vogel v Kohnstamm Ltd [1973] 1 QB 133.
23 Nygh, P, op cit 80Google Scholar; Littauer Glove Corporation v FW Millington (1920), Ltd (1928) 44 TLR 746; Okura & Co Ltd v Forsbacka Jermverks Aktiebolag [1914] 1 KB 715.
24 Nygh, P, op cit 80Google Scholar.
25 Ibid 83.
26 Ibid 80.
27 [1951] Ch 842.
28 [1968] 2 Lloyd's Rep 259. This decision was overruled in Henry v Geopresco International Ltd (1975] 2 All ER 702.
29 [1915] 2 KB 580.
30 [1922] SASR 385.
31 [1975] 2 All ER 702.
32 Nygh, P, op cit 85Google Scholar.
33 Halsbury, op cit para 732.
34 Nygh, P, op cit 93, 94Google Scholar.
35 Halsbury, op cit para 729.
36 Ibid para 728.
37 Ibid para 733; Huntington v Attrill [1893] AC 150; Banco de Vizcaya v Don Alfonso de Borbon Austria [1935] 1 KB 140; Re Ayres; ex parte Evans (1981) 34 ALR582.
38 Foreign Judgments (Reciprocal Enforcement) Act 1973 (NSW); Reciprocal Enforcement of Judgments Act 1959 (Qld); Foreign Judgments Act 1971 (SA); Foreign Judgments (Reciprocal Enforcement) Act 1962 (Tas); Foreign Judgments (Reciprocal Enforcement) Act 1962-1973 (WA); Foreign Judgments (Reciprocal Enforcement) Ordinance 1954 (ACT); Foreign Judgments (Reciprocal Enforcement) Ordinance 1955 (NT). For a list of countries with whom reciprocal arrangements have been made see H Reps Deb 1978, Vol 109, 2359-2360.
39 Eg Foreign Judgments Act 1962 (Vic) s 4. In BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496, an unsuccessful attempt was made to invalidate the Foreign Judgments (Reciprocal Enforcement) Act 1973 (NSW) on the basis that the obligation imposed by the Act on a judgment debtor to pay the amount of the registered foreign judgment was inconsistent with the prohibition on such a payment in regs 8(1)(a) and 8(3A) of the Banking (Foreign Exchange) Regulations (Cth). See also Re Hunt; ex parte BP Exploration Co (Libya) Ltd [19791 2 NSWLR 406; Hunt v BP Exploration Co (Libya) Ltd (1980) 54 ALJR 205.
40 Sen Deb 1979, Vol 80, 128.
41 Sen Deb 1979, Vol 80, 127-129.
42 Maher, L, op cit n 12, 406-414Google Scholar.
43 Sen Deb 1979, Vol 80, 418-419; H Reps Deb 1979, Vol 113, 567-569 and 730-741.
44 Sen Deb 1979, Vol 80, 424.
44a But see now the Postscript to this article.
45 Sen Deb 1979, Vol 80, 425.
46 S 3(2). For notes on the Act see (1979) 53 AU 168; C Nakamura, “Antitrust: Australian Restrictions on Enforcement of Foreign Judgments” (1979) 20 Harvard International Law Journal 663.
47 S 3(2)(d).
48 Foreign Antitrust Judgments (Restriction of Enforcement) Bill 1979, Explanatory Memorandum.
49 S 3(1).
50 Ibid.
51 Ibid.
52 S 3(2)(b).
53 S 3(3)(a).
54 S 3(3)(b).
55 Above n 15.
56 Ibid.
57 Commonwealth of Australia Gazette, No S105, 8 June 1979; Sen Deb 1979, Vol 81, 2930; Note, (1979) 53 AU 685. As a result of the settlement in those proceedings the Attorney-General, on 22 June 1981, revoked the general order he had made on 6 June 1979: Commonwealth of Australia Gazette, No G28, 14 July 1981. See Sen Deb 1981, Vol 91, 1071.
58 Sen Deb 1979, Vol 81, 2931.
59 [1975] 2 All ER 702.
60 The Fagernes [1927] P 311; Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, 616 per Lord Wilberforce, 630 per Viscount Dilhorne, 651 per Lord Fraser of Tullybelton; Gulf Oil Corp v Gulf Canada Ltd (1980) 111 DLR (3d) 74, 92.
61 There is an enormous literature on this subject. A sampling is contained in Maher, L, op cit n 12, 419Google Scholar (n 63). Reference should also be made to Triggs, G, “Extraterritorial Reach of United States Antitrust Legislation: The International Law Implications of the Westinghouse Allegations of a Uranium Producers' Cartel” (1979) 12 Melb U L Rev 250Google Scholar; Ryan, K, “The International Application of United States Antitrust Legislation”, Paper presented to AULSA Conference, Perth, August 1978Google Scholar; Ryan, K, “The Impact of Overseas Antitrust Laws Upon the Marketing of Mineral Exports” (1979) 2 Australian Mining and Petroleum Law Journal 121Google Scholar; Bell, G, “International Comity and the Extraterritorial Application of Antitrust Laws” (1977) 51 ALJ 801Google Scholar; Hawk, B (ed), International Antitrust (Law and Business, Inc, New York, 1979), Part 5Google Scholar; Rowe, F, Jacobs, F Joelson, M (eds), Enterprise Law in the 80's (American Bar Association, Chicago, 1980)Google Scholar; Joelson, M, “Challenges to United States Foreign Trade and Investment: Antitrust Law Perspectives” (1980) 14 The International Lawyer 103Google Scholar; P, O'Keefe Tedeschi, M, Law of International Businessin Australia (1980) Ch 8Google Scholar.
62 Re Westinghouse Electric Corp and Duquesne Light Co (1977) 78 DLR (3d) 3; Gulf Oil Corp v Gulf Canada Ltd (1980) 111 DLR (3d) 74.
63 Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547; see note by Sutherland, P (1978) 5 Mon U L Rev 76Google Scholar; Note, (1978) 49 British Yearbook of International Law 282; Isaacs, S, “The Westinghouse Case” (1978) 75 The Law Society's Gazette (London) 101Google Scholar. One commentator has argued as follows: “… I suggest that there may be considerable merit in an argument that the enforcement of any overseas anti-trust judgment based on conduct by Australian companies which is expressly countenanced by our trade practices laws would in fact be contrary to our public policy.” Browne, A, “Comment on the Impact of Overseas Antitrust Laws Upon the Marketing of Mineral Exports” (1979) 2 Australian Mining and Petroleum Law Journal 130, 133Google Scholar. This is a reference to s 51(2) (g) of the Trade Practices Act 1974 (Cth) which excludes certain conduct in the export trade from the prohibitions of that Act.
64 Above n 37.
65 In his Press Release 73/80 of 5 October 1980 Attorney-General Durack made this point in the following terms: “The 'treble damages' remedy is penal in its purpose and effect. Private antitrust suits serve to supply an ancillary force of private investigators to supplement the Department of Justice's law enforcement. In the literature of United States antitrust law, plaintiffs in such suits are referred to as 'private Attorneys-General'.”
66 In Re Uranium Antitrust Litigation 473 F Supp 382, 385 (ND Ill, 1979).
67 82 552 (1872).
68 Above n 17.
69 Ibid.
70 Large amounts of money were transferred out of the United States: In Re Uranium Antitrust Litigation 617 F 2d 1248 (7th Cir, 1980).
71 473 F Supp 382 (ND Ill, 1979). On 7 November 1979 Judge Marshall made an order compelling several of the parties to produce foreign-based documents: 480 F Supp 1138. In a footnote to this decision Judge Marshall stated (at 1142): “We have delayed this ruling in the hope that the question here decided might be amicably resolved among the parties to these actions and the foreign governments involved (particularly Canada and Australia) .… But our hope has turned to despair. This litigation must proceed”.
72 In Re Uranium Antitrust Litigation 617 F 2d 1248 (7th Cir, 1980).
73 Eg Memorandum of Gulf Oil Corporation and Gulf Mineral Canada Limited in Support of their Motion for Summary Judgments … 11 April 1980. Copy in author's possession.
74 In Re Uranium Antitrust Litigation and In Re Tennessee Valley Authority Uranium Antitrust Litigation Joint Pretrial Order No 5, 27 February 1979, para 7. Copy in author's possession.
75 The letter was among a number of documents released by the Australian AttorneyGeneral on 5 October 1980 in conjunction with his Press Release 73/80.
76 Note No 13/78 from the Australian Embassy Washington to the State Department, 6.
77 Amicus Curiae Brief of the Government of the United Kingdom of Great Britain and Northern Ireland, August 3, 1979. Copy in the author's possession. The Australian and United Kingdom Governments were represented by the same attorneys.
78 Press Release by Attorney-General 78/79, 21 October 1979.
79 Timberlane Lumber Co v Bank of America 549 F 2d 597 (9th Cir, 1976); Mannington Mills Inc v Congoleum Corp 595 F 2d 1287 (3rd Cir, 1979); Dominicus Americana Bolus v Gulf & Western Industries Inc 473 F Supp 680 (SDNY, 1979). In Timberlane and Mannington the parties were all United States corporations.
80 Customs (Prohibited Exports) Regulations, reg 11 and Item 23 of the Ninth Schedule. See Statutory Rules No 117 (1961). In 1978 the Commonwealth Government announced a new scheme for the orderly development of the uranium export trade following a review which had fully examined the implications of foreign antitrust laws: see Statement of Minister for Trade and Resources, H Reps Deb 1978, Vol 109, 2907.
81 The embargo was imposed in 1964 pursuant to s 16 of the Private Ownership of Special Nuclear Materials Act 1964 (US).
82 Two of the four defendants, CRA and MKU, were and are foreign-owned. As to the ownership profile of CRA see H Reps Deb 1981, Vol 121, 1156. It is believed that Pancontinental is substantially foreign-owned.
83 The Australian Government (through the Australian Atomic Energy Commission) owns 41.6% of MKU. The High Court sustained the legality of that shareholding in Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117. For details of Commonwealth Government loans to MKU see Sen Deb 1980, Vol 84, 153. Elsewhere the writer has criticised the over-simplified description by the Australian Government of the four Australian-based defaulting defendants as “Australian companies”: L Maher, op cit n 12, 419. The uranium cartel was very much an enterprise of transnational corporations. The difficulties which are created by trying to apply traditional domestic legal techniques in dealing with transnational corporations are illustrated, for example, by the decision of the High Court of Australia in Commonwealth Aluminium Company v Commissioner of Taxation (1980) 143 CLR 646 and the decision of the House of Lords in Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1WLR 627.
83a Production had been ordered on 7 November 1979. Above n 71.
84 Sen Deb 1981, Vol 89, 1524.
85 The full texts of the brief and letter were attached to the Attorney-General's Press Release 31/80, 8 June 1980. It appears that the proceedings were settled before a decision had been given on these motions.
86 The person concerned, who was willing to testify, was an officer of the Getty Oil Company. His testimony was sought in relation to documents located in the United States: United States Aides Memoire of 6 and 7 February 1978 annexed to Attorney–General's Press Release 73/80, 5 October 1980.
87 Burnham, D, “Data Show US Rejected Effort to Prosecute a Uranium Cartel” the New York Times, 4 December, 1979Google Scholar. See also Confirmation Hearings on John H Shenefield, Associate Attorney-General: Senate Committee on the Judiciary, 96th Cong, 1st and 2nd Sess (1979-1980), 28; “Performance of Antitrust Official Sharply Questioned by Senators” New York Times, 8 December 1979.
88 Attorney-General Durack's Press Release 41/80, 6 July 1980.
89 The paper is referred to in the Attorney-General's Press Release 25/80, 1 May 1980.
90 S 1(2). See note by Marston, G (1980) 14 Journal of World Trade Law 461Google Scholar; McFarlane, G, “Fair Trading at Home and Away” (1980) 124 Sol J 419Google Scholar; Gordon, E, “Extraterritorial Application of United States Economic Laws: Britain Draws the Line” (1980) 14 The International Lawyer 151Google Scholar; Lowe, A, “Blocking Extraterritorial Jurisdiction: The British Protection of Trading Interests Act, 1980” (1981) 75 The American Journal of International Law 257CrossRefGoogle Scholar and the reply to Lowe by Lowenfeld, A, ibid 629Google Scholar.
91 S 2.
92 S 5.
93 S 6.
94 Foreign Antitrust Judgments (Restrictions of Enforcement) Amendment Bill 1981, Explanatory Memorandum, para 1.
95 Cl 5 (proposed s 4(1) ) .
96 Ibid (proposed s4(2)).
97 Ibid (proposed s4(8)-(11)).
98 Ibid. (proposed s 5).
99 Sen Deb 1981, Vol 90, 3067.
1 Dunfee, T, “Uranium Shows the Need for a Trade Law Treaty” Sydney Morning Herald, 27 March 1981Google Scholar.
2 Wall Street Journal, 24 December 1980; San Francisco Chronicle, 24 December 1980; Nuclear Fuel, 5 January 1981, 1.
3 Above n 12; Business Week, 26 January 1981, 28.
4 The New York Times, 30 January 1981; Wall Street Journal, 30 January 1981; the New York Times, 12 March 1981. Gulf also faced difficulties like those confronting Getty.
5 Joint Press Release by CRA Limited and Mary Kathleen Uranium Ltd, 18 March 1981. See also Statement by A J Grey, Chairman of Pancontinental Mining Limited, 18 March 1981. The announcements did not come as a complete surprise. It was known that settlement negotiations had recently taken place: National Times, January 25-31 1981; the Australian Financial Review, 2 February 1981, 12 February 1981. There were suggestions in 1979 that Westinghouse had approached the Australian Government with a settlement proposal: see the Australian Financial Review, 23 October 1979. The Government denied that any such approach had been made: Sen Deb 1980, Vol 84, 148. At the CRA annual meeting on 5 May 1981 it was announced that CRA would contribute $6.8 million and that its subsidiary MKU would contribute $870,000. Pancontinental agreed to pay $US3 million. See also The Rio Tinto-Zinc Corporation Limited Annual Report and Accounts 1980 13-14. The settlement also disposed of actions which an RTZ subsidiary had brought in the Supreme Court of Ontario in September 1979. Less than a fortnight later a Westinghouse subsidiary announced that it had sold its interest in a uranium project in Western Australia: the Australian Financial Review, 27 March 1981; the Age, 27 March 1981.
6 Press Release by Attorney-General 18/81 of 18 March 1981. For some very critical editorial comment on the settlement see the Australian Financial Review, 23 March 1981 and the Age, 24 March 1981. For some amplification of the Government's attitude to the settlement see H Reps Deb 1981, Vol 123, 3531, 3542; Sen Deb 1981, Vol 90, 3305 and Sen Deb 1981, Vol 91, 810.
7 The Age, 14 May 1981.
8 Certain CRA executives were apparently reluctant to visit the United States for fear of being subjected to court process: the Age, 1 May 1980. CRA has significant commercial interests in the United States: the Australian Financial Review, 19 March 1981; 6 May 1981. The United States embargo was lifted in 1979. The United States has the world's largest market and the Chairman of CRA readily acknowledged that settlement of the Westinghouse case would enable CRA to get into that market. See Maher, L, “Uncle Sam Exports His Laws” (1982) 54 The Australian Quarterly 4CrossRefGoogle Scholar.
9 H Reps Deb 1976, Vol 102, 3704.
10 617 F 2d 1248, 1256 (7th Cir, 1980).
11 Ibid 1255.
12 Judge Marshall's orders came too late to prevent some large-scale repatriation of funds. See n 70 above.
13 To the extent that the settlement was to be effected by transfer of funds out of Australia the necessary approval required by the Banking (Foreign Exchange) Regulations could have been withheld.
14 The Conservation Council of Western Australia, Inc v Aluminium Company of America (ALCOA) and Reyno[Jj Metals Co 518 F Supp 270 (WO Pa, 1981).
15 H Reps Deb 1981, Vol 123, 3306.
16 549 F 2d 597 (9th Cir, 1976).
17 595 F 2d 1287 (3rd Cir, 1979).
18 Ibid 1297-1298.
19 Sen Deb 1981, Vol 90, 3073.
20 The Age, 2 July 1981.
21 Press Release by Attorney-General 51/81 of 13 August 1981.
22 Ibid.
23 Press Release by Attorney-General 52/81 of 17 August 1981.
24 Canada and the United States have had a consultation procedure for more than two decades but it appears not to have been ver successful; Campbell, B, “The Canada-United States Antitrust Notification and Consultation Procedure–A Study in Bilateral Conflict Resolution” (1978) 56 The Canadian Bar Review 459Google Scholar.
25 On 2 July 1981 The Supreme Court of the United States in Dames & More v United States 69 L Ed 2d 918 unanimously upheld the validity of the agreement with Iran that brought the hostage crisis to an end. The agreement authorised the President of the United States to nullify court orders and to suspend private claims in order to honour the agreement. The Supreme Court was careful, however, to stress that its decision was a narrow one.
26 The Australian Financial Review, 25 June 1981; 9 July 1981; 31 July 1981; the Age, 9 July 1981.
27 CCH Australian Trade Practices Reporter, 20,741; Business Week, 19 July 1982. See also Note, (1981) 55 ALJ 773. Also reproduced in (1982) 21 Int Legal Mat 702.