I wanted to call attention to an interesting new paper by Marek Martyniszyn, a Senior Research Fellow in the Institute for Consumer Antitrust Studies at Loyola University Chicago School of Law and a friend of Letters Blogatory, titled Discovery and Evidence in Transnational Antitrust Cases: Current Framework and the Way Forward, available on SSRN. Here is the abstract:
This paper identifies and analyses the means of accessing and collecting foreign-based evidence in transnational antitrust cases. It makes an original contribution to the existing scholarship by critically addressing the available mechanisms of judicial cooperation, the possibility of reliance on domestic discovery in transnational context, as well as the existing instruments allowing for cooperation between antitrust agencies. It identifies the shortcomings of the current regulatory framework and points out to the existing good practices in those jurisdictions which provide their antitrust agencies with more leeway in sharing confidential information with foreign counterparts.
I don’t know much about antitrust in particular, and so I don’t have much to say about the thesis of the paper, namely that states should adopt mechanisms to allow their antitrust enforcement agencies to share information more easily. But the paper provides a really good overview of the culture war between American lawyers and lawyers in—well, just about everywhere. There are a lot of issues in play: (1) the prescriptive jurisdiction of the United States as seen by the US courts, which the development of antitrust law fueled but which has been the subject of recent fits of judicial modesty (e.g., Morrison, the grant of cert in Kiobel); (2) the personal jurisdiction of the US courts, also the subject of recent judicial hand-wringing; and (3) foreign states’ conception of their own territorial sovereignty. But I think that to some extent the culture war looks worse than it is. For one thing, while the US seems to be limiting its assertions of extraterritorial jurisdiction, other states may be increasing theirs. As noted in the International Bar Association’s 2009 report on extraterritorial jurisdiction with reference to antitrust in particular (at p. 63):
The most significant extraterritoriality effects have long emanated from the United States. However, virtually all jurisdictions apply some form of an ‘effects’ test …. Of particular note is that, while the US courts have cut back on their historically aggressive extraterritorial reach, the courts in the United Kingdom have recently expanded their jurisdiction, at present providing some measure of EU-wide private damage remedies.
For another thing, as I have pointed out on numerous occasions, while European or other foreign firms are almost always displeased to find themselves as defendants in US civil litigation subject to the rigors of discovery under the Federal Rules of Civil Procedure, they are sometimes all too happy to make use of the FRCP and 28 U.S.C. § 1782 when it suits their discovery needs in aid of foreign litigation, and US companies are all to happy to argue the foreign tribunal’s non-receptivity to such evidence as a reason for denying foreign companies the discovery they seek. This makes the situation seem less a matter of principle and legal culture and more a matter of what’s expedient, at least from the perspective of the businessman if not from the perspective of the lawyer or the academic.
Read Marek’s paper—you won’t be disappointed!