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Published online by Cambridge University Press: 24 January 2025
In an increasingly global economy, foreign anti-competitive practices pose just as much of a threat to the economic wellbeing of Australians as domestic anti-competitive practices. Multinationals which transcend national boundaries are now major players in many different markets. Furthermore, continuing globalisation means that the number of commercial activities with transnational implications will rise.
The Trade Practices Act 1974 (Cth) (‘TPA’) contains a provision that expressly gives the Act extraterritorial operation. Section 5(1) provides that the competition law prohibitions contained in Part IV extend to conduct engaged in outside Australia by bodies corporate incorporated, or carrying on a business, in Australia. With the exception of the prohibitions against cartel conduct, the extraterritorial operation of the prohibitions against the major forms of anti-competitive conduct is even broader. Since the Act’s inception, the prohibitions against price and non-price vertical restraints have extended to the engaging in conduct outside Australia by persons and bodies corporate (whether incorporated, or carrying on a business, in Australia or not) in relation to the supply of goods or services to persons within Australia.
I am grateful to Professor Michal Gal for helpful comments and discussions about ideas presented in this article. Any errors, of course, remain mine.
1 OECD, Reports: Positive Comity, (1999) <http://www.oecd.org/dataoecd/40/3/2752161.pdf> at 21 March 2010.
2 Trade Practices Act 1974 (Cth) pt IV, div 1 and s 45.
3 Trade Practices Act 1974 (Cth) s 48.
4 Trade Practices Act 1974 (Cth) s 47.
5 Trade Practices Act 1974 (Cth) s 5(2).
6 Trade Practices Act 1974 (Cth) s 46.
7 Trade Practices Act 1974 (Cth) s 5(1A).
8 Trade Practices Act 1974 (Cth) s 50; Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299.
9 The Tribunal will make a declaration if the acquisition is likely to substantially lessen competition in a market in Australia and does not generate sufficient offsetting public benefits.
10 ‘“Hard core” cartels are anti-competitive agreements by competitors to fix prices, restrict output, submit collusive tenders, or divide or share markets': OECD, Hard Core Cartels (2000) 6 <http://www.oecd.org/dataoecd/39/63/2752129.pdf> at 21 March 2010.
11 OECD, Fighting Hard Core Cartels: Report on the Nature and Impact of Hard Core Cartels and Nature of Sanctions Against Cartels Under National Competition Laws (2002) 75 <http://www.oecd.org/dataoecd/41/44/1841891.pdf> at 21 March 2010. In Verizon Communications Inc v Law Offices of Curtis V Trinko, LLP, 540 US 398, 408 (2004), the United States Supreme Court described ‘hard core’ cartels as the ‘supreme evil of antitrust'.
12 OECD, Fighting Hard Core Cartels, above n 11, 75.
13 Explanatory Memorandum, Trade Practices Bill 1974 (Cth) 19 [87].
14 See, eg, Commonwealth, Parliamentary Debates, Senate, 13 August 1974, 821 (Ivor Greenwood); Commonwealth, Parliamentary Debates, House of Representatives, 7 November 1973, 2910 (Billy Snedden).
15 On 14 March 1974 ‘Notes on Amendments to be Moved on Behalf of Government’ were tabled in the Parliamentary Debates (Senate). These notes highlighted amendments to the Trade Practices Bill 1973 (Cth). These amendments included the insertion of cl 5. The only reference to cl 5 contained in the Parliamentary Debates in the Senate and the House of Representatives is contained in these notes. Item 14 of the Notes states (referring to the introduction of cl 5 into the Bill): ‘This is to ensure that, as well as applying to conduct within Australia, the Act will apply to conduct outside Australia by persons having a specified nexus with Australia'. See Commonwealth, Parliamentary Debates, Senate, 14 March 1974, 346 (Lionel Murphy).
16 OECD, Fighting Hard Core Cartels, above n 11, 71.
17 Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2008, 12310 (Chris Bowen, Minister for Competition and Consumer Policy) (in the Second Reading Speech for the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008). Cartel conduct not only causes prices to be artificially raised but it also causes other, more subtle forms of loss, such as the loss inflicted on consumers who would have purchased cartelised products or services but for the artificially increased price.
18 OECD, Fighting Hard Core Cartels, above n 11, 74.
19 OECD, Recommendations and Best Practices — Recommendation of the Council Concerning Effective Action Against Hard Core Cartels (1998) A1Google Scholar <http://www.oecd.org/dataoecd/39/4/2350130.pdf> at 21 March 2010.
20 Prior to the passing of the Trade Practices Legislation Amendment Act (No 1) 2006 (Cth), the maximum penalty that could be imposed on a body corporate found to be in breach of the cartel prohibition was $10,000,000. Now, the maximum penalty that can be imposed is the greater of (a) $10,000,000, (b) three times the value of the benefit obtained by the breach and (c) (where the court cannot determine the value of the benefit) 10 per cent of the annual turnover of the body corporate. This increase in penalties applies to all prohibitions contained in Pt IV of the TPA.
21 The Trade Practices Amendment (Cartels Conduct and Other Measures) Bill 2008 passed on 16 June 2009. The Act received Royal Assent on 26 June 2009. The cartel provisions entered into force on 24 July 2009.
22 Brendan, Sweeney, ‘Combating Foreign Anti-Competitive Conduct: What Role for Extraterritorialism?’ (2007) 8 Melbourne Journal of International Law 35, 64Google Scholar.
23 Re Uranium Antitrust Litigation, 617 F 2d 1248 (7th Cir, 1980) ('Uranium litigation’).
24 In Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194 a Full Court of the Federal Court noted that the provisions relating to particular trade practices are expressly limited to practices that have effect upon Australian markets. See also Karl, M Meessen, ‘Antitrust Jurisdiction Under Customary International Law’ (1984) 78 The American Journal of International Law 783, 792Google Scholar.
25 This prohibition is contained in s 45(2) of the Trade Practices Act 1974 (Cth).
26 Section 45(2) prohibits the making or giving effect to contracts, arrangements or understandings that contains an exclusionary provision. Exclusionary provision is defined in s 4D(1) as a provision, included in a contract, arrangement or understanding between two or more persons who are competitive with each other, that has the purpose of preventing, restricting or limiting supply to or acquisition from particular persons or classes of persons. Section 4D(2) provides that a person will be deemed to be competitive with another person for the purposes of s 4D(1) if the first-mentioned person would, or would but for the provision, be in competition with the other person in relation to the supply or acquisition of all or any of the goods or services to which the provision relates. As there is no reference to a market in the s 4D(2) definition of competition (cf s 45(3) definition of competition), the prohibition against exclusionary provisions does not provide a territorial nexus for its operation.
27 Trade Practices Act 1974 (Cth) s 44ZZRD.
28 Trade Practices Act 1974 (Cth) ss 44ZZRJ and 44ZZRK respectively.
29 Trade Practices Act 1974 (Cth) ss 44ZZRF and 44ZZRG respectively.
30 Section 45(2) refers only to a lessening of competition in a market. However, market is defined in s 4E to mean a market in Australia. See also Trade Practices Act 1974 (Cth) s 45(3).
31 Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89, 112.
32 [2002] FCA 1608, [21].
33 The former prohibition would only be breached if, inter alia, the respondent had substantial power in a market in Australia. The latter prohibition would only be breached if the respondent's conduct had the purpose, effect or likely effect of substantially lessening competition in a market in Australia.
34 Hill J did not need to reach a final conclusion as he was considering whether or not to make an order for discovery.
35 [2002] FCA 1608, [21] (emphasis added).
36 (2008) 251 ALR 166.
37 Price fixing is now prohibited under the Civil Cartel Provision Prohibition and the Criminal Cartel Provision Prohibition (see text accompanying nn 28 and 29 above).
38 It was alleged that the respondent airlines had breached s 45 of the TPA (the Lessening of Competition Prohibition). The applicants relied on the now repealed s 45A(1). Section 45A(1) deemed a provision of a contract, arrangement or understanding that had the purpose, effect or likely effect of fixing price charged or paid for goods or services by parties who are (or would otherwise be) in competition with each other to have the purpose, effect or likely effect of substantially lessening competition. When s 45A was in force, s 45(3) provided that a reference to competition in s 45A means competition in any market. Market is defined in s 4E to mean a market in Australia.
39 (2008) 251 ALR 166, 172–3.
40 Other comments made by Tracey J suggest that it could be shown that the respondents were competitors for the purposes of s 45A if they compete in a global market and enter into transactions with customers in Australia.
41 (2008) 253 ALR 89.
42 Ibid 112.
43 See Australian Competition and Consumer Commission v British Airways PLC [2008] FCA 1977, [22]; Australian Competition and Consumer Commission v Martinair Holland NV [2009] FCA 340, [16]; Australian Competition and Consumer Commission v Société Air France [2009] FCA 341, [16]; Australian Competition and Consumer Commission v Cargolux Airlines [2009] FCA 342, [16].
44 Section 155 of the TPA is the ACCC's most widely used mandatory information-gathering power. It gives the ACCC the power to issue a notice requiring a person to provide information, documents and/or give evidence in connection with suspected breaches of the TPA.
45 (2009) 255 ALR 35.
46 The ACCC believed such information impacted on Australia because goods sent from Australia on round trips (eg warranty claims) would be charged the higher price on the inbound freight.
47 The ACCC believed such information impacted on Australia because airlines may need to use such services when transporting Australian cargo to destinations to which they did not fly. No final conclusion was reached about whether or not such conduct could be said to occur in a market in Australia because Middleton J concluded that the s 155 notices only related to inbound and outbound services. On appeal, a Full Court of the Federal Court of Australia concluded that the notice applied to inbound and outbound services and to services entirely outside Australia, provided that they have the proscribed effect on routes to and/or from Australia: Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244, 252–4.
48 The applicants accepted that services on routes from Australia in respect of outbound flights are supplied in a market in Australia.
49 This submission was based on J D Heydon, Trade Practices Law (2010) [3.258] and (2009) [3.510]. Paragraph [3.258] reads ‘[Section 4E] says that the market must be in Australia.’ Paragraph [3.510] now reads:
[i]f a market extends beyond the limits of Australia the court would apply the Act in reference to that part of it which falls within Australia. … The fact that a product market is global does not prevent there being a market in Australia for that product (Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89 [34]). But the expression in s 4E ‘market in Australia’ excludes a market that is wholly outside Australia (Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89 [35]).
50 [2009] FCA 312, [22].
51 Ibid [58].
52 In Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177, 195–6 Deane J acknowledged that a market may exist if there is the potential for competition notwithstanding that there is no supplier of, nor trade in, those goods at a given time: see also 200 (Dawson J) and 211–12 (Toohey J).
53 [2009] FCA 312, [61].
54 Ibid [71].
55 Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244.
56 See text accompanying n 41 above.
57 The competition condition contained in s 44ZZRD(4) does not require that the parties be competing in a market (which, as a result of s 4E means a market in Australia). It is therefore sufficient to show that they were likely to have competed, or would have been likely to compete but for the contract, arrangement or understanding in question in any market (which need not be in Australia).
58 See Trade Practices Act 1974 (Cth) s 44ZZRD.
59 Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305, 319.
60 The scope of s 5 has recently been widened (effective 24 July 2009). All provisions of the TPA now, to the extent that they relate to any of the provisions that have extraterritorial effect, extend to engaging in conduct outside Australia by bodies incorporated, or carrying on business in Australia. This will overcome the limitations on the extent to which overseas conduct can be led as evidence to establish that a person was knowingly concerned in a contravention (as defined in s 75B, to which s 5(1) did not used to apply) of the competition prohibitions (see Trade Practices Commission v Australia Meat Holdings (1988) 83 ALR 299, 355). In Bray (trial) (2002) 118 FCR 1, 17 Merkel J suggested that legislative oversight may explain why s 5 did not extend to such conduct.
61 The requirements of s 5(1) must be satisfied in order to challenge conduct occurring outside Australia. However, those requirements are not preconditions to the invocation of the court's jurisdiction: Bray (trial) (2002) 118 FCR 1, 54, 57 (upheld in Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317, 328 ('Bray (FFC)’)). See also John, A Trenor, ‘Jurisdiction and the Extraterritorial Application of Antitrust Laws after Hartford Fire’ (1995) 62 University of Chicago Law Review 1583Google Scholar.
62 R v Jameson [1896] 2 QB 425, 430. See also s 21(1)(b) Acts Interpretation Act 1901 (Cth). This presumption was first articulated in the trade practices context in Australia in Meyer Heine Pty Ltd v China Navigation Co Ltd (1965) 115 CLR 10 ('Meyer Heine’). See also Bray (trial) (2002) 130 FCR 1, 15; Bray (FFC) (2003) 130 FCR 317, 352 (Branson J), 370 (Finkelstein J); Stuart, Dutson, ‘The Conflict of Laws and Statutes: The International Operation of Legislation Dealing with Matters of Civil Law in the United Kingdom and Australia’ (1997) 60 Modern Law Review 668, 674–6Google Scholar. For reasons as to why the presumption is made see: William, S Dodge, ‘Understanding the Presumption Against Extraterritoriality’ (1998) 16 Berkeley Journal of International Law 85, 112–25Google Scholar.
63 The cartel prohibitions are in Part IV.
64 Trade Practices Commission v Australian Iron & Steel Pty Ltd that (1990) 22 FCR 305, 319 ('Iron & Steel’); Bray (trial) (2002) 130 FCR 1, 15. This accords with para 87 of the Explanatory Memorandum to the Trade Practices Bill 1974 (Cth) which stated ‘[t]he extent to which the legislation will operate extra-territorially is indicated in clause 5'.
65 See text accompanying n 96 below.
66 See, eg, Meyer Heine (1966) 115 CLR 10, 43 (Windeyer); Bray (trial) (2002) 130 FCR 1, 15.
67 Wilcox J made this point in Meat Holdings (1988) 83 ALR 299, 356; see also Bray (trial) (2002) 118 FCR 1, 17.
68 (1988) 83 ALR 299, 356. Brendan Sweeney has also noted that extraterritoriality refers to ‘those occasions where domestic law is sought to be applied and enforced against conduct that occurs outside the territorial boundaries of the state': Sweeney, above n 22, 41.
69 Justin, Gleeson, ‘Extraterritorial Application of Australian Statutes Proscribing Misleading Conduct’ (2005) 75 Australian Law Journal 296, 306Google Scholar.
70 (1988) 83 ALR 299, 356.
71 (2002) 118 FCR 1. The applicants alleged various breaches of the cartel prohibitions by the foreign companies that formed the cartel and their Australian subsidiaries who implemented it in Australia. In 2006 the representative proceeding against participants in the vitamin cartel was settled for the sum of $30.5 million (plus costs of $10.5 million): Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (2006) 236 ALR 322. See also Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485, 493.
72 Bray (trial) (2002) 118 FCR 1, 45–6.
73 Ibid 46. Merkel J stated that rather than view the Australian subsidiaries as making the cartel agreement (which they admitted to doing), it may be more accurate to describe their conduct as implementing the agreement reached by their parent companies on behalf of those parents. Ultimately Merkel J concluded (at 48) that the combination of the communications by the foreign parents and the implementation of the agreement by officers of the Australian subsidiaries meant that the foreign parents had engaged in conduct in Australia.
74 See text accompanying n 56 above.
75 (1980) 144 CLR 1, 8–9. In this case the court had to consider whether an individual was using land to carry on the business or industry of grazing.
76 Bray (trial) (2002) 118 FCR 1, 18 citing Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338, 350. See also David, Meltz, ‘The Extraterritorial Operation for the Trade Practices Act - A Time for Reappraisal?’ (1996) 4 Trade Practices Law Journal 185, 188Google Scholar.
77 Luckins v Highway Motel (Carnarvon) Pty Ltd (1975) 133 CLR 164, 178.
78 Bray (trial) (2002) 118 FCR 1, 18.
79 Ibid 19.
80 [2006] QDC 249.
81 Bray (trial) (2002) 118 FCR 1, 18.
82 Meltz, above n 76, 188.
83 Bray (trial) (2002) 118 FCR 1, 23.
84 These factors were considered by Atkinson J in Smith, Stone & Knight Ltd v Lord Mayor Alderman and Citizens of Birmingham [1939] 4 All ER 116.
85 Amalgamated Wireless (Australasia) Ltd v McDonnell Douglas Corporation (1987) 16 FCR 238, 240–1.
86 Bray (trial) (2002) 118 FCR 1, 22.
87 Ibid.
88 See text accompanying n 73 above.
89 It is important to remember that where the subsidiary is involved in the formation of the cartel, it is caught even if this conduct occurs overseas (see text accompanying n 76 above). Where the parent can be viewed as carrying on a business through the subsidiary it will be possible to prosecute the parent directly (see text accompanying n 82 above).
90 Trade Practices Act 1974 (Cth) s 5(1).
91 Therefore it will not be liable under s 44ZZRG or s 44ZZRK of the TPA.
92 Acts Interpretation Act 1901 (Cth) s 15AB.
93 Explanatory Memorandum, Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Cth) 1.49.
94 Sweeney, above n 22, 64; Graham, R Taylor, ‘The Extraterritoriality of the Australian Antitrust Law’ (1979) 13 Journal of International Law and Economics 273Google Scholar, 289.
95 See text accompanying n 56 above.
96 In American Banana Co v United Fruit Co, 213 US 347 (1909) the United States Supreme Court held that ‘the general and almost universal rule is that the character of an act as lawful or unlawful must be determined by the law of the country where the act is done’ (at 356).
97 148 F 2d 416 (2nd Cir, 1945).
98 Dodge has noted that antitrust law is one prominent exception to the Supreme Court's devotion to the presumption against the extraterritorial application of US statutes. Dodge also argues that the courts have not convincingly explained why the presumption does not apply in the antitrust context. Dodge suggests that the presumption is ignored in the antitrust context: Dodge, above n 62, 87, 99.
99 Edward, A Rosic Jr, ‘The Use of Interest Analysis in the Extraterritorial application of United States Antitrust Law’ (1983) 16 Cornell International Law Journal 147, 147Google Scholar; Stephen, D Ramsey, ‘The United States-Australian Antitrust Cooperation Agreement: A Step in the Right Direction’ (1983) 24 Virginia Journal of International Law 127, 137Google Scholar.
100 See text accompanying n 209 below.
101 This idea was originally conceived by Kingman, Brewster, Antitrust and American Business Abroad (1958) 446Google Scholar.
102 Timberlane Lumber Co v Bank of America, 549 F 2d 597, 613 (9th Cir, 1976).
103 509 US 764, 796 (1993).
104 Justice Scalia handed down the dissenting judgment. His Honour noted that comity is exercised by legislatures when they enact laws and courts should assume it has been exercised when they come to interpret the scope of legislative prohibitions. As the conduct in question was engaged in by British subjects primarily in the United Kingdom and because Great Britain had established a comprehensive regulatory scheme governing the reinsurance market, Scalia J held that the Sherman Act was not intended to apply to the conduct in question: see 509 US 764, 813–19 (1993).
105 Ibid 820.
106 542 US 155 (2004).
107 The Supreme Court made it clear that its conclusion was premised on the assumption that the alleged anti-competitive conduct independently caused foreign injury (at 158 and 164). The Supreme Court left open the possibility that a plaintiff may be able to sue in United States courts where harm suffered in foreign markets is linked to harmful effects in markets in the United States. When the matter was remitted to the District of Columbia Circuit the plaintiff argued that because vitamins were fungible and readily transportable, the respondents simply could not have effectively maintained their international price-fixing agreement without the adverse effects in the United States. Thus, it was argued, the court had jurisdiction to hear the claim. Justice Henderson (who delivered the opinion for the court) acknowledged that the maintenance of supra-competitive prices in the United States might well have been a ‘but-for’ cause of the appellants injury. However, her Honour held that a stronger causative link needed to be established (proximate causation), a conclusion she believed to accord with principles of comity. The plaintiff failed to satisfy this burden and therefore was not able to bring its claim in the United States courts: see Empagran SA v F Hoffman-La Roche Ltd, 417 F 3d 1267 (2005). See also Re Monosodium Glutamate Antitrust Litigation, 477 F 3d 535 (2007).
108 542 US 155, 165 (2004).
109 Ibid 166–9.
110 Ibid 168–9.
111 Chad, Damro, ‘Building an international identity: the EU and extraterritorial competition policy’ (2001) 8 Journal of European Public Policy 208, 210Google Scholar; Yasuf, Akbar, ‘The Extraterritorial Dimension of US and EU Competition Law: A Threat to the Multilateral System?’ (1999) 53 Australian Journal of International Affairs 113, 119Google Scholar.
112 Joseph, P Griffin, ‘Extraterritoriality in US and EU Antitrust Enforcement’ (1999) 67 Antitrust Law Journal 159, 173Google Scholar.
113 A Ahlström Osakeyhtiö and others v Commission (Case C-89/85), [1988] ECR 5193.
114 Griffin, above n 112, 180.
115 In the merger context, the ECJ appears to have accepted the effects test: Gencor Ltd v Commission (Case T-102/96) [1999] 4 CMLR 971, para 90.
116 Europemballage Corporation and Continental Can Company Inc v Commission of the European Communities (C-6/72) [1973] 1 ECR 215; Istituto Chemioterapico Italiano SpA and Commercial Solvents Corporation v Commission of the European Communities (C-6-7/73) [1974] ECR 223. See also P M, Roth, ‘Reasonable Extraterritoriality: Correcting the ‘Balance of Interests“’ (1992) 41 International and Comparative Law Quarterly 245, 262Google Scholar.
117 Warren, Pengilley, ‘United States Trade and Antitrust Laws: A Study of International Legal Imperialism From Sherman to Helms Burton’ (1998) 6 Competition and Consumer Law Journal 187, 189–90Google Scholar.
118 (2002) 118 FCR 1, 45–6.
119 Merkel J's reluctance to lift the corporate veil between the Australian subsidiaries and foreign parents in Bray (see text accompanying n 84 above) suggests that in order to see the ‘economic entity’ doctrine employed more liberally by the courts, it would be necessary to amend s 5.
120 See text accompanying n 56 above.
121 Meessen, above n 24, 799.
122 ACCC, ‘Federal Court dismisses airlines’ challenge to ACCC enforcement powers’ (News Release, 3 April 2009).
123 (1990) 22 FCR 305, 319.
124 (2002) 118 FCR 1, 15. See also Emirates v Australian Competition and Consumer Comission (2009) 255 ALR 35, 37.
125 It is proposed that this amendment be limited to the cartel offences because, for reasons to be explored in this paper, doing so will maximise the likelihood that foreign nations will cooperate with Australia when it comes to evidence gathering and enforcement.
126 Pengilley, above n 117, n 8.
127 The Commonwealth Parliament has the legislative power to amend s 5 in this manner. As Merkel J noted in Bray (trial), ‘[i]t was open to the legislature, as a matter of power and comity, to impose a lesser nexus requirement (for example, intended and actual anti-competitive consequences in Australia) but it chose not to do so’ (at (2002) 118 FCR 1, 18).
128 Sweeney, above n 22, 66.
129 In response to the commencement of the action in Meat Holdings, the United Kingdom Minister for Trade made an order under s 5(4) of the Protection of Trading Interests Act 1980 (UK) which ensured that an order for divestiture made pursuant to s 81(1A) of the TPA would not be enforceable in the United Kingdom.
130 Australia is a relative late-comer when it comes to the extraterritorial enforcement of its competition laws. The first two attempts to invoke the extraterritorial application of the TPA involved challenges to merger activity with an international dimension. In 1988, the Trade Practices Commission challenged the acquisition by an Australian company of a company incorporated in the United Kingdom (Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299). However, the extraterritorial reach of the TPA was not tested as Wilcox J concluded that the company incorporated in the United Kingdom had engaged in relevant conduct (including attending meetings at the offices of the Trade Practices Commission to discuss the merger) in Australia. Two years later, the Trade Practices Commission brought proceedings to restrain a New Zealand company from acquiring another New Zealand company (Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305). The statement of claim was struck out on the basis that s 5 of the TPA provides ‘a clear indication that the legislature intended that s 50 … was to have extraterritorial application to the extent therein mentioned and no further’ (at 319). As the acquiring company was not incorporated in Australia and did not carry on business in Australia, the acquisition was beyond the reach of the TPA.
131 See Michal, Gal, ‘Antitrust in a Globalized Economy - The Unique Enforcement Challenges Faced by a Small Economy (Israel)’ in Andrew, Guzman (ed), Cooperation, Comity, and Competition Policy (2009) 17Google Scholar.
132 Gal notes that free-riding on the enforcement actions of large jurisdictions generates sub-optimal outcomes: ibid 19.
133 Aditya, Bhattacharjea, ‘The Case for a Multilateral Agreement on Competition Policy: A Developing Country Perspective’ (2006) 9 Journal of International Economic Law 293, 295Google Scholar. Gal has noted that this occurs in the merger context in that most jurisdictions’ evaluation of a merger is limited to the welfare effects of the merger on domestic consumers and/or producers and disregards the effects on foreign consumers and producers: Michal, Gal, Competition Policy for Small Market Economies (2003) 243Google Scholar.
134 Michael, Trebilcock and Edward, Iacobucci, ‘National Treatment and Extraterritoriality: Defining the Domains of Trade and Antitrust Policy’ in Richard, Epstein and Michael, Greve (eds), Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) 152, 154Google Scholar.
135 Gal, ‘Antitrust in a Globalized Economy', above n 131, 19.
136 Roth, above n 116, 267.
137 Section 51(2)(g) provides that Part IV of the TPA does not apply to contracts, arrangements or understandings that relate solely to the export of goods or supply of services outside Australia provided the parties to the contract, arrangement or understanding provide particulars of the agreement within 14 days of the agreement being reached. See also Sherman Act, 15 USC § 6a (1890).
138 Trebilcock and Iacobucci, above n 134, 152.
139 Gal, ‘Antitrust in a Globalized Economy', above n 131, 18; see also Michal Gal, ‘Free Movement of Judgments: Increasing Deterrence of International Cartels through Judicial Reliance (Law and Economics Research Paper No 08–44, NYU, October 2008) 5, available at <http://ssrn.com/abstract=1291844> at 21 March 2010.
140 Empirical evidence confirms this: see Gal, ‘Antitrust in a Globalized Economy', above n 131, 18.
141 Sweeney, above n 22, 37.
142 OECD, Reports: Positive Comity, above n 1, 5.
143 Ibid 5; OECD, Recommendations and Best Practices: Revised Recommendation of the Council Concerning Co-operation between Member Countries on Anticompetitive Practices Affecting International Trade (1995)Google Scholar.
144 Sweeney, above n 22, 37.
145 The United States also has positive comity agreements with Canada, Brazil and Japan: see Sweeney, above n 22, 38. See also OECD, Reports: Positive Comity, above n 1, 7.
146 Positive comity has the potential to challenge anti-competitive conduct that the requesting country is unable to challenge because of its limited jurisdiction. However, as positive comity is being considered as an alternative to broadening the extraterritorial scope of the cartel prohibition, this issue will not be considered any further.
147 Sweeney, above n 22, 39; OECD, Reports: Positive Comity, above n 1, 22.
148 Griffin, above n 112, 183. See also Claus, Dieter Ehlermann, ‘The Role of Competition Policy in a Global Economy’ in OECD, New Dimensions of Market Access in a Globalising World Economy (1995) 119Google Scholar.
149 OECD, Reports: Positive Comity, above n 1, 9.
150 Ibid 13.
151 Ibid 14.
152 Sweeney, above n 22, 41.
153 Even those positive comity requests contained in competition agreements between nations impose no binding obligations: Sweeney, above n 22, 38.
154 Gal, Competition Policy for Small Market Economies, above n 133, 244.
155 Allan Fels, ‘Trade and Competition in the Asia Pacific Region’ (Speech delivered at the Economic Society of Australia 24th Conference of Economists, Adelaide, 28 September 1995). Australian courts have made similar observations. In Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89, 113 Lindgren J stated ‘Section 2 of the Act states that the object of that Act is to enhance the welfare of Australians through the promotion of competition. Achievement of that objective is not inconsistent with preventing contraventions by Australian entities that injure non-Australians, but it is appropriate to focus primarily upon the effects of a contravention in Australia'.
156 James, R Atwood, ‘Positive Comity — Is It a Positive Step?’ in Barry, Hawk (ed), 1992 Annual Proceedings of the Fordham Corporate Law Institute: International Antitrust Law and Policy (1993) 79, 87Google Scholar.
157 Sweeney, above n 22, 40; OECD, Reports: Positive Comity, above n 1, 12.
158 The OECD has noted that there do not appear to be any risks involved in placing new emphasis on this form of voluntary cooperation: OECD, Reports: Positive Comity, above n 1, 16.
159 Sweeney, above n 22, 41 (citations omitted).
160 OECD, Reports: Positive Comity, above n 1, 24.
161 Akbar, above n 111, 115; A Douglas Melamed, ‘Promoting Sound Antitrust Enforcement in the Global Economy’ (Speech delivered at the Fordham Corporate Law Institute 27th Annual Conference on International Antitrust Law and Policy, New York, 19 October 2000, 5) <http://www.justice.gov/atr/public/speeches/6785.htm> at 21 March 2010; OECD, Recommendations Concerning Co-operation between Member Countries, above n 143, 2.
162 Margaret, Levenstein and Valerie, Suslow, ‘Contemporary International Cartels and Developing Countries: Economic Effects and Implications for Competition Policy’ (2004) 71 Antitrust Law Journal 801, 843Google Scholar. Levenstein and Suslow note that in recent years, several of the larger developing countries have started to enforce their laws extraterritorially.
163 R Falvey and Peter J Lloyd, ‘An Economic Analysis of Extraterritoriality’ (Working Paper No 675, University of Melbourne Department of Economics, 1999) 7; Rosic Jr, above n 99, 153.
164 US Attorney General Griffin Bell, Address to the Law Council of Australia, 17 July 1978; Falvey and Lloyd, above n 163, 7.
165 United States v Nippon Paper Industry Co, 109 F 3d 1, 8 (1997).
166 In Gal, Competition Policy for Small Market Economies, above n 133, Professor Gal classifies Australia as a small economy. Even though Australia does not have a low population, the dispersion of its population over a large geographic area regionalises markets and means that Australian markets exhibit characteristics typical in countries with much lower populations (see part 2).
167 Gal, Competition Policy for Small Market Economies, above n 133, 15–17. Regarding the concentrated nature of Australian markets see Richard, E Caves, ‘Scale, Openness, and Productivity in Manufacturing Industries’ in Richard, E Caves and Lawrence, B Krause (eds), The Australian Economy: A View from the North (1984) 313, 321Google Scholar (referred to in Gal, Competition Policy for Small Market Economies, above n 133, 19).
168 This is particularly the case where firms in the market face similar cost and demand factors.
169 This is acknowledged in the TPA, albeit in a different context. Section 50(3)(a) of the TPA directs the court to consider the level of import competition in the market when assessing the competitive effects of a merger.
170 Bhattacharjea, above n 133, 312.
171 Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322. Pecuniary penalties totalling A$26 million were imposed on the Australian subsidiaries (Pecuniary penalties of: A$15 million were imposed on Roche Vitamins Australia Pty Ltd , A$7.5 million were imposed on BASF Australia Limited and A$3.5 million were imposed on Aventis Animal Nutrition Pty Limited (formerly Rhone-Poulenc Animal Nutrition Pty Limited): ACCC v Roche Vitamins Australia Pty Ltd [2001] FCA 150).
172 The following pecuniary penalties were imposed: A$20 million against Qantas (Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89); A$5 million against British Airways (Australian Competition and Consumer Commission v British Airways PLC [2008] FCA 1977); A$5 million against Martinair Holland NV (Australian Competition and Consumer Commission v Martinair Holland NV [2009] FCA 340); A$6 million against Société Air France and KLM (Australian Competition and Consumer Commission v Société Air France [2009] FCA 341); and A$5 million against Cargolux Airlines (Australian Competition and Consumer Commission v Cargolux Airlines International SA [2009] FCA 342). The ACCC has also instituted proceedings against Singapore Airlines, Emirates, Cathy Pacific, Thai Airways and Garuda Indonesia (see ACCC, ‘ACCC Institutes Proceedings against Thai Airways for Alleged Price Fixing of Air Freight’ (News Release, 28 October 2009)).
173 See Auskay (2008) 251 ALR 166.
174 This is because the court found that the foreign parents had engaged in conduct in Australia, see Bray (trial) (2002) 118 FCR 1 (see text accompanying n 72 above). It is important to note that it will not always be possible to find that international cartelists who have inflicted harm on Australian businesses or consumers have engaged in conduct in Australia.
175 This is because the participants were carrying on business in Australia.
176 See text accompanying n 56 above.
177 ACCC, ‘ACCC Files Proceedings Against Global Vitamin C Cartel’ (News Release, 7 February 2003).
178 ACCC, ‘ACCC Discontinues Proceedings Against Global Vitamin C Cartel’ (News Release, 18 July 2006).
179 OECD, Fighting Hard Core Cartels, above n 11, 34.
180 Sweeney, above n 22, 49–51; Pengilley, above n 117, 223; Gal, Competition Policy for Small Market Economies, above n 133, 241.
181 See text accompanying n 103 above.
182 Edmund Hosker is quoted in Griffin, above n 112, 195.
183 Sweeney, above n 22, 71.
184 Levenstein and Suslow, above n 162, 844.
185 Sweeney, above n 22, 73.
186 Opened for signature 18 March 1970, 847 UNTS 231 (entered into force 7 October 1972).
187 See arts 1–14; Sweeney, above n 22, 75.
188 See arts 15–16; Sweeney, above n 22, 75.
189 See art 18; Sweeney, above n 22, 75.
190 Sweeney, above n 22, 75.
191 Such legislation can inhibit discovery and/or prevent the enforcement of foreign judgments by domestic courts: Rosic Jr, above n 99, 163; Roth, above n 116, 251.
192 See art 12(b).
193 See art 15.
194 See art 17(a).
195 Meltz, above n 76, 203.
196 Article IV(A)(4) of the Agreement between the Government of Australia and the Government of the United States of America on Mutual Antitrust Enforcement Assistance, 27 April 1999, 2117 UNTS 203 (entered into force 5 November 1999) expressly provides that this is the case.
197 Sweeney, above n 22, 84.
198 Meat Holdings (1988) 83 ALR 299, 359–64.
199 (2003) 132 FCR 309, 322.
200 See Wilcox J's comments in Meat Holdings (1988) 83 ALR 299, 360–1.
201 Sweeney, above n 22, 84.
202 Gal, Competition Policy for Small Market Economies, above n 133, 10; Gal, ‘Antitrust in a Globalized Economy', above n 131, 1.
203 Gal, ‘Antitrust in a Globalized Economy', above n 131, 1.
204 Ibid 8.
205 As Gal notes, the size of the jurisdiction does not decrease the fixed costs of conducting an antitrust enquiry: Gal, ‘Antitrust in a Globalized Economy', above n 131, 13.
206 Gal, ‘Free Movement of Judgments', above n 139, 7.
207 In the empirical research referred to earlier, Australia is not included as one of the small jurisdictions. Unfortunately, it is also not included as a large jurisdiction so we cannot be certain that the authors would not have classified Australia as a small jurisdiction.
208 Gal, Competition Policy for Small Market Economies, above n 133, 2. As a result, Australia shares with other small economies the problem that many of its markets are not large enough to permit the operation of many efficiently-sized competitors.
209 Sweeney, above n 22, 65.
210 World Trade Organization, Annual Report 1997 (Volume 1): Trade and Competition Policy Annual Report (1997) 76.
211 See, eg, Pengilley, above n 117, 189; Sweeney, above n 22, 55.
212 Ramsey, above n 99, 133.
213 Roth, above n 116, 254.
214 Falvey and Lloyd, above n 163, 2; Elizabeth, Jardine, ‘Extraterritorial Enforcement of Australian Antitrust Legislation: Australian Meat Holdings Pty Limited & Ors v Trade Practices Commission’ (1990) 12 Sydney Law Review 652, 659Google Scholar.
215 Currently, extraterritorial application of the TPA is confined to those areas which international law definitely permits a sovereign to affect externally on the basis of the territoriality principle: see Meltz, above n 76, 186.
216 Ibid 186.
217 Roth, above n 116, 286; Ramsey, above n 99, 131.
218 Ramsay, above n 99, 132. In the Lotus Case (France v Turkey) [1927] PCIJ (ser A) No 10, the Permanent Court of International Justice upheld Turkey's jurisdiction to prosecute a French naval officer who had negligently caused a collision between a French vessel and a Turkish vessel which resulted in the deaths of a number of Turkish sailors.
219 R Y, Jennings, ‘Extraterritorial Jurisdiction and the United States Antitrust Laws’ (1957) 33 British Yearbook of International Law 146, 159Google Scholar.
220 Sweeney, above n 22, 66.
221 Meessen, above n 24, 799.
222 Falvey and Lloyd, above n 163, 4.
223 Griffin, above n 112, 160; Ramsey, above n 99, 127; Meessen, above n 24, 791.
224 617 F 2d 1248 (7th Cir, 1980).
225 Pengilley, above n 117, 196.
226 Westinghouse argued that although it could not purchase uranium from the cartel members (because of the Atomic Energy Commission's order), the price charged by the US producers from whom they could purchase rose because those producers could also sell on the world market.
227 Sweeney, above n 22, 55.
228 As Atwood and Brewster have noted, ‘when a country's allies begin competing with each other in enacting legislation directed at frustrating, and indeed retaliating against, actions of the first country, conflict and resentment is clear': James, Atwood and Kingman, Brewster, Antitrust and American Business Abroad (2nd ed, 1981) 105Google Scholar.
229 The Australian defendants were advised by counsel not to appear in the US courts. This is because under Australian law, even an appearance to protest the court's jurisdiction might be sufficient to enable a later judgment to be enforced against the Australian corporation in Australian courts: Ramsey, above n 99, 147.
230 Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 ('Re Westinghouse Uranium Contract’); Gulf Oil Corporation v Gulf Canada Ltd [1980] 2 SCR 39.
231 The Uranium litigation also prompted Canada and South Africa to enact legislation prohibiting the giving of evidence or the production of documents in connection with the litigation: see Pengilley, above n 117, 196. In the United Kingdom the defeat of United States letters rogatory was by judicial, not legislative activity (see Re Westinghouse Uranium Contract [1978] AC 547). Over 20 nations have adopted similar legislation to prevent United States discovery efforts in their territory. These nations include Belgium, Canada, France, Germany, Italy, South Africa, The Netherlands, New Zealand and the United Kingdom): see Ramsey, above n 99, 128.
232 This Act was said to be an ‘assertion of the sovereignty of the Australian Parliament as against attempts of encroachment and assertions of extra-territorial powers by other countries': Commonwealth, Parliamentary Debates, Senate, 18 November 1976, 2197 (James McClelland).
233 The British Parliament passed similar legislation (see Protection of Trading Interests Act 1980 (UK)).
234 Australia has since replaced the two aforementioned Acts with the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth). This Act demonstrates Australia's extreme negative reaction to the Uranium litigation. It gives the Attorney-General the power to prohibit the production of documents in foreign courts (s 7) and to declare that foreign antitrust judgments are not to be recognised by Australian courts (s 9). The Act also makes provision for the recovery by an Australian defendant of damages awarded against the defendant in foreign antitrust judgments (s 10) as well as reasonable costs incurred in defending such a case (s 11) by action in Australia against the foreign plaintiff.
235 Ramsey, above n 99, 143.
236 Pengilley, above n 117, 196.
237 The governments of Australia, Canada, South Africa and the United Kingdom requested that the United States Department of State submit an amicus brief to support their decision. This request was denied. It is important to remember that at the time of this litigation, the United States courts applied the juristic rule of reason. As a result, it was important that the interests of the foreign nations affected were adequately explained to the courts.
238 The following comment made by the court added fuel to the fire:
the defaulters have contumaciously refused to come into court and present evidence as to why the District Court should not exercise its jurisdiction. They have chosen instead to present their entire case through surrogates. Wholly owned subsidiaries of several defaulters have challenged the appropriateness of the injunctions, and shockingly to us, the governments of the defaulters have subserviently presented for them their case against the exercise of jurisdiction. (Uranium litigation, 617 F 2d 1248, 1255–6 (7th Cir, 1980))
239 Peter Durack, Australian Attorney-General (Press Release, 5 October 1980).
240 Ramsey, above n 99, 146–7.
241 Sweeney, above n 22, 71–2.
242 Ibid. It has been argued that foreign opposition to American discovery would be reduced if the scope of requests made were more limited: Roth, above n 116, 283.
243 Re Westinghouse Uranium Contract [1978] AC 547, 623 (Viscount Dilhorne).
244 Pengilley, above n 117, 208.
245 Ibid.
246 Federal Court Rules 1979 (Cth) O 8 r 3(2)(c).
247 See text accompanying n 293 below.
248 Levenstein and Suslow, above n 162, 848.
249 Melamed,above n 161, 6.
250 OECD, Fighting Hard Core Cartels, above n 11, 7.
251 Pengilley, above n 117, 193.
252 Sweeney, above n 22, 86.
253 Ibid. See also Gal, Competition Policy for Small Market Economies, above n 133, 3.
254 Sweeney, above n 22, 86.
255 American Bar Association, Sections of Antitrust and International Law, Comments and Recommendations on the Competition Elements of the Doha Declaration (2003) 10Google Scholar.
256 Sweeney, above n 22, 86.
257 Roth, above n 116, 266.
258 Gal, Competition Policy for Small Market Economies, above n 133, 3.
259 Ibid 240.
260 OECD, Reports: Positive Comity, above n 1, 4.
261 OECD, Hard Core Cartels, above n 10, 5. The OECD Report notes that in the first part of the 1900s cartels were encouraged in some countries because of the stabilising effects they had on markets. In the 1980s, a prominent school of economics took the view that cartels were so inherently unstable (because of the temptation to cheat on the agreement) that they should not be viewed as a serious problem. In 2000, the OECD noted that cases prosecuted in 1998, 1999 and 2000 provide evidence that the incidence and harmfulness of hard core cartels are significantly higher than was appreciated even two years ago.
262 The OECD's Competition Committee is the world's premier source of policy analysis and advice to governments on competition law issues and has played a crucial role in building consensus among Members on a wide range of competition policy matters, including cartels. Member States take its recommendations and statements of best practice very seriously.
263 OECD, Hard Core Cartels, above n 10, 20.
264 The large and sophisticated firms engaged in this cartel spent millions of dollars and thousands of employee hours to implement and hide their cartel to fix prices and allocate markets shares for the sale of certain vitamins. The fines in the US case against this cartel have exceeded US$1 billion and could have been higher except for the fact that Rhone-Poulenc was not fined because of its cooperation with the US authorities. In the US alone the cartel is estimated to have produced US$5 million in overcharges. In Canada fines exceeded C$ 85 million.
265 OECD, Hard Core Cartels, above n 10, 21.
266 John, M Connor and Robert, H Lande, ‘How High Do Cartels Raise Prices? Implications for Optimal Cartel Fines’ (2005) 80 Tulane Law Review 513Google Scholar cited in Gal, ‘Free Movement of Judgments', above n 139, 5.
267 OECD, Hard Core Cartels, above n 10, 12.
268 In OECD, Recommendations Concerning Effective Action Against Hard Core Cartels, above n 19, [A2] the OECD defined a ‘hard core cartel’ as ‘an anticompetitive agreement, anticompetitive concerted practice, or anticompetitive arrangement by competitors to fix prices, make rigged bids (collusive tenders), establish output restrictions or quotas, or share or divide markets by allocating customers, suppliers, territories or lines of commerce'. See also OECD, Hard Core Cartels, above n 10, 6.
269 OECD, Recommendations Concerning Effective Action Against Hard Core Cartels, above n 19, B1. See also Melamed, above n 161, 6.
270 OECD, Hard Core Cartels, above n 10, 5–6.
271 OECD, Recommendations Concerning Effective Action Against Hard Core Cartels, above n 19, A1.
272 Ibid B3.
273 Gal, ‘Free Movement of Judgments', above n 139, 17; Sweeney, above n 22, 44.
274 Gary, S Becker, ‘Crime and Punishment: An Economic Approach’ (1968) 76 Journal of Political Economy 169Google Scholar.
275 For example, the participants in the vitamins cartel went to incredible lengths to keep the existence of the cartel a secret. Internal audits designed to ensure incriminating documents had been destroyed were conducted on a regular basis. Those documents that could not be destroyed were copied onto computer disks and hidden in the eaves of one employee's grandmother's house: see OECD, Fighting Hard Core Cartels, above n 11, 72.
276 OECD, Hard Core Cartels, above n 10, 12; Gal, ‘Free Movement of Judgments', above n 139, 4.
277 See studies referred to in Gal, ‘Free Movement of Judgments', above n 139, 5.
278 OECD, Hard Core Cartels: Third Report on the Implementation of the 1998 Council Recommendation (2005) 39Google Scholar. See also Gal, ‘Free Movement of Judgments', above n 139, 5.
279 Gal, ‘Free Movement of Judgments', above n 139, 5.
280 OECD, Fighting Hard Core Cartels, above n 11, 74; Gal, ‘Free Movement of Judgments', above n 139, 1.
281 Gal, ‘Free Movement of Judgments', above n 139, 4.
282 Ibid 6. Those jurisdictions were the United States, the European Union, Canada, Brazil, Australia and Korea.
283 OECD, Fighting Hard Core Cartels, above n 11; Gal, ‘Free Movement of Judgments', above n 139, 21. Although courts in the European Union and United States are in principle empowered to impose fines based on global turnover, a recent study shows that in practice fines are based only on domestic sales in affected lines of business (see John, M Connor, ‘Global Antitrust Prosecution of Modern International Cartels’ (2004) 4 Journal of Industry, Competition and Trade 239, 246–9Google Scholar).
284 Bhattacharjea, above n 133, 307.
285 OECD, Fighting Hard Core Cartels, above n 11, 86. See also Gal, ‘Free Movement of Judgments', above n 139, 5.
286 This example is based on Justice Stewart's example in Pfizer Inc v Government of India, 434 US 308, 315 (8th Cir, 1978).
287 Gal, ‘Free Movement of Judgments', above n 139, 32.
288 Hopefully, the hostility that has been directed towards extraterritorial actions brought by private litigants will also lessen. Claims for monetary compensation by victims of the cartel will also raise the sanctions imposed on cartelists: OECD, Fighting Hard Core Cartels, above n 11, 73.
289 Sweeney, above n 22, 67.
290 The airlines had entered into global collusive agreements relating to the imposition of a fuel surcharge between early 2000 and early 2006. It is alleged that the airlines calculated their respective fuel charges by reference to agreed methodologies. It was also alleged that they would consult with each other to give and receive assurances as to the timing of price changes to ensure that the implementation of uniform prices was coordinated (see Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89, 100). This conduct ceased in February 2006 when raids were undertaken by competition authorities in the European Union and the United States.
291 The participants were caught by s 5 in its current form because they carried on business in Australia.
292 See above n 172.
293 Griffin, above n 112, 194; Roth, above n 116, 272.
294 Meltz, above n 76, 189.
295 It is of significantly less concern that the ACCC is not required to obtain the Minister's consent before commencing an extraterritorial action. It is in the ACCC's best interests to respect the comity of nations as doing so is essential to the continued cooperation between foreign enforcement agencies.
296 Federal Court Rules 1979 (Cth) O 8 rr 3(2)(c), 4(2).
297 Rosic Jr, above n 99, 164.
298 H, Maier, ‘Interest Balancing and Extraterritorial Jurisdiction’ (1983) 31 American Journal of Comparative Law 579, 590–3Google Scholar.
299 Rosic Jr, above n 99, 191; Roth, above n 116, 278. As Judge Wilkey noted in Laker Airways v Sabena, Belgian World Airlines, 731 F 2d 909, 955 (DC Cir, 1984): ‘this court has neither the authority nor the institutional resources to weigh the policy and political factors that must be evaluated when resolving competing claims of jurisdiction. In contrast, diplomatic and executive channels are, by definition, designed to exchange, negotiate, and reconcile the problems which accompany the realization of national interests within the sphere of international association.'
300 Meessen, above n 24, 789.
301 Ibid 797.
302 Rosic Jr, above n 99, 176.
303 Ibid 176.
304 Ibid 170.
305 549 F 2d 597, 614 (9th Cir, 1976).
306 595 F 2d 1287, 1297–8 (1979).
307 Auskay (2008) 251 ALR 166. See also Tycoon Holdings Pty Ltd v Trencor Jetco Inc (1995) ATPR 41–413; Natureland Parks Pty Ltd v My-Life Corporation Pty Ltd (1996) 138 ALR 47.
308 Paragraph 23 of Explanatory Memorandum, Trade Practices Revision Bill 1986 (Cth) states:
New sub-s 5(5) requires the Minister to give the consent required under new sub-ss 5(3) or 5(4) unless is his opinion either the law of the other country required or specifically authorized the conduct concerned or that it is not in the national interest to give his consent (emphasis added).
309 Jardine, above n 214, 668.
310 See text accompanying nn 231 and 233 above.
311 See above n 234.
312 In its Recommendation concerning Effective Action against Hard Core Cartels, the OECD encourages countries to enter into agreements to facilitate cooperation in dealing with hard core cartels: OECD, Recommendations Concerning Effective Action Against Hard Core Cartels, above n 19, B2.
313 Trebilcock and Iacobucci, above n 134, 172.
314 Chad Damro, above n 111, 218.
315 Agreement between the Government of Australia and the Government of the United States of America on Mutual Antitrust Enforcement Assistance, opened for signature 27 April 1999, [1999] ATS 22 (entered into force 5 November 1999).
316 Art IIA.
317 Art IIE.
318 Art II.I provides that nothing in the Agreement compels the disclosure of evidence in violation of any legally applicable right or privilege.
319 Sweeney, above n 22, 82.
320 Agreement between the Government of the United States of America and the Commission of the European Communities Regarding the Application of their Competition Laws, opened for signature 23 September 1991, [1995] OJ L 95, 47 (entered into force 23 September 1991).
321 The agreement also provides that each party will notify the other when its enforcement activities affect the interests of the other party. Parties also agree to cooperate in enforcement activities and attempt to avoid conflicts over enforcement activities.
322 Commission of the European Communities, Report from the Commission to the Council and the European Parliament on the Application of the Agreements between the European Communities and the United States of America and Canada Regarding the Application of Their Competition Laws (2002) 3.
323 Jardine, above n 214, 668.
324 Foreign Judgments Act 1991 (Cth) s 6(7).
325 The Foreign Judgments Regulations 1992 (Cth) lists the courts that have been declared and whose judgments can be registered and enforced under the legislation.
326 Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, opened for signature 23 August 1990, [1994] ATS 27 (entered into force 1 September 1994).
327 Art 2.
328 In Australian Competition and Consumer Commission v Singapore Airlines Cargo Pte Ltd (2009) 256 ALR 458, 470, Jacobson J drew a distinction between adverse price effects on consumers in Australia and adverse effects on competition in an Australian market.