INTERNATIONAL: ANTITRUST LAW - EXTRATERRITORIAL REACH – CAUSATION STANDARD - THE SCISSOR-LIKE EFFECTS - BURDEN OF PROOF

US: Towards a lenient exterritorial enforcement of antitrust law

The Foreign Trade Antitrust Improvements (FTAIA) requirements which delineates the antitrust law’s exterritorial reach, have been strictly interpreted under the Supreme Court Landmark decision Hoffmann-La Roche Ltd. v. Empagran SA rendered in 2004. The plaintiffs have to satisfy a proximate causation standard establishing a concrete link between their damages into US market and a foreign anticompetitive conduct (cf. Empagran SA v. Hoffmann-La Roche, Ltd.). At the same time, the Supreme Court decision in Atlantic corp. v. Twombly of 2007, heightened standard of pleading requirement to sustain an antitrust claim. The “scissor-like effects” arising from these restrictions had considerably restricted the possibilities to claim against global cartel’s conspiracies. During the first months of 2011 this strict position has been softened after the federal appellate decision of the Third Circuit in Animal Science Products, Inc. v. China Minmetals Corp, which has concurrently relaxed the FTAIA requirements and the burden of the proof under le Federal Rule of Civil Procedure for the plaintiffs injured in transaction occurring outside the United states.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. INTRODUCTION The linchpin of the dismantling of domestic monopolies in the United States, the famous Sherman Antitrust Act of 2 July 1890 is also known for its extraterritorial applicability, long seen as a manifestation of the unilateralism of US trade policy. As amended by the Antitrust Criminal Penalty Enhancement and Reform Act, Article 15 USC §1 provides that "Any contract, association in the form of a trust or other arrangement or understanding to restrict trade or commerce among the States of the Union or with foreign nations is illegal. "Since the Alcoa judgment of 1945 [1], this extraterritorial application has been implemented through the

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  • French Polynesian Competition Authority (Papeete)

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Antonino Troianiello, US: Towards a lenient exterritorial enforcement of antitrust law, February 2012, Concurrences N° 1-2012, Art. N° 41509, www.concurrences.com

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