International Cooperation in
Competition Cases
The Role of the Courts
Diane P. Wood
The American Example
• Federal Supremacy: U.S. Constitution, Art. VI,
clause 2
• National Court of Last Resort: Article II...
International System Compared
• No binding and enforceable rules
• No court of last resort
• Different conceptions of cont...
Informal Cooperation Tools
• Charming Betsy presumption: legislative act is
never construed to violate international law i...
Parallel Litigation
• Forum non conveniens: discretionary;
alternative forum must exist
– Questionable for competition cas...
Parallel Litigation, cont’d
• Anti-suit injunctions
– Normally run against a party, not the other court
– Restricted in U....
Formal Cooperation
• Letters rogatory
– Court of Country A, to Foreign Ministry of A, to
Foreign Ministry of B, to Court o...
Formal Cooperation, cont’d
– Competition law and the limit to “civil and
commercial” matters
– Relevance of congruence of ...
Enforcement of Foreign Judgments
• No general multilateral treaty (though many
efforts)
• Choice of Court Agreements
• Int...
The Bankruptcy Example
• ALI Global Principles for Cooperation in
International Insolvency Cases
• Principle 1.1: goal is ...
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International Cooperation in Competition Cases – Judge Diane WOOD - June 2014 meeting of the Working Party 3 of the OECD Competition Committee

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This presentation by judge Diane P. Wood was made during a hearing on Enhanced Enforcement Cooperation held at the 119th meeting of the Working Party 3 of the Competition Committee on 17 June 2014. Find out more at http://www.oecd.org/daf/competition/enhanced-enforcement-cooperation.htm

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Transcript of "International Cooperation in Competition Cases – Judge Diane WOOD - June 2014 meeting of the Working Party 3 of the OECD Competition Committee "

  1. 1. International Cooperation in Competition Cases The Role of the Courts Diane P. Wood
  2. 2. The American Example • Federal Supremacy: U.S. Constitution, Art. VI, clause 2 • National Court of Last Resort: Article III, sec. 1 • Full Faith and Credit Obligation of States: Article IV, sec. 1 • Federal Enforcement Authority: Article II, sec. 2
  3. 3. International System Compared • No binding and enforceable rules • No court of last resort • Different conceptions of content of rules • Role of international law in domestic systems varies • Importance of diplomacy to enforcement
  4. 4. Informal Cooperation Tools • Charming Betsy presumption: legislative act is never construed to violate international law if any other possible interpretation exists • Territorial presumption: legislation assumed to operate only within territory unless contrary intent is clear • Personal jurisdiction: minimum contacts, fair play & substantial justice must exist
  5. 5. Parallel Litigation • Forum non conveniens: discretionary; alternative forum must exist – Questionable for competition cases • Lis pendens: court will stay proceedings if similar dispute between same parties is pending in another court – Compare Art. 27 of EU Convention on Jurisdiction and Enforcement in Civil & Commercial Matters
  6. 6. Parallel Litigation, cont’d • Anti-suit injunctions – Normally run against a party, not the other court – Restricted in U.S. for domestic matters • Anti-Injunction Act governs federal court injunctions against state court proceedings – Comity limits use in international setting – Issue: difficulty of court-to-court communication to resolve conflicting jurisdictional claims
  7. 7. Formal Cooperation • Letters rogatory – Court of Country A, to Foreign Ministry of A, to Foreign Ministry of B, to Court of B (and back again) • Hague Convention on Service of Process in Civil and Commercial Matters – Mandatory vs. permissive – Significance of agents within territory
  8. 8. Formal Cooperation, cont’d – Competition law and the limit to “civil and commercial” matters – Relevance of congruence of substantive law • Special rules for service on foreign States, agencies, or instrumentalities • Hague Convention on Taking of Evidence – Pre-trial discovery of documents – Adjusting for difference of procedure
  9. 9. Enforcement of Foreign Judgments • No general multilateral treaty (though many efforts) • Choice of Court Agreements • Intra-EU money judgments • U.S. courts and foreign money judgments – Governed at state-law level – Reciprocity issue • Specific relief (injunctions, etc.)
  10. 10. The Bankruptcy Example • ALI Global Principles for Cooperation in International Insolvency Cases • Principle 1.1: goal is to enable courts of different countries to work together • Principle 4.1: describes how court should work to cooperate with foreign counterparts • Can competition law learn from this?
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