Marek Martyniszyn

Foreign States’ Amicus Curiae Participation in U.S. Antitrust Cases

Foreign states’ amicus curiae briefs submitted before the U.S. courts are a special type of pleading. This article analyzes such submissions made in U.S. antitrust cases during the period 1978 to 2015, identifying which foreign nations used amicus briefs to present their views and what sort of issues attracted their attention. This piece examines also the issue of deference due to such filings, arguing that while foreign states’ submissions should be treated respectfully, they do not warrant a dispositive effect. Furthermore, this article outlines the practice of filing, explaining the shift from diplomatic correspondence towards amicus curiae submissions and the creation of a niche market of authoring them. It also indicates general trends in relation to stages of filings and the degree of their prevalence. Some broader comments are offered on the functions of foreign nations’ amicus filings and their contribution to the ongoing development of competition law and policy internationally.

Inter-Agency Evidence Sharing in Competition Law Enforcement

While transnational antitrust enforcement is becoming only more common, the access to foreign-based evidence remains a considerable practical challenge. This article appraises considerations and concerns surrounding confidentiality, and looks into ways of their possible accommodation. It further identifies and critically evaluates the existing mechanisms allowing for inter-agency confidential information/evidence sharing in competition law enforcement. The article outlines the shortcomings of the current framework and points to novel unilateral approaches. In the latter regard the focus is devoted to Australia, where the competition agency is empowered to share confidential information with foreign counterparts, also without any underlying bilateral agreement and on a non-reciprocal basis. This solution shows that a pragmatic and workable approach to inter-agency evidence sharing can be achieved.

Japanese Approaches to Extraterritoriality in Competition Law

Extraterritorial application of domestic competition law is an important feature of the current regulatory framework governing anticompetitive conduct. Japan was initially hesitant to apply its Antimonopoly Act in such a manner. However, over the last two decades there has been a significant shift in its approach. Japan has gradually embraced extraterritoriality and the Japan Fair Trade Commission has actively enforced competition law in a purely offshore context. This article investigates this evolution and considered the most recent and controversial cases in which Japan has applied its laws in a distinctive fashion.

Discovery and Evidence in Transnational Antitrust Cases: Current Framework and the Way Forward

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.

Book Review: David Held, Cosmopolitanism: Ideals and Realities

of Machiavelli’s republicanism represents a somewhat ad hoc addition to the soft power concept. At other times, Gallarotti appears content to focus on the power of the nation as a whole (p. 46), rather than the power of the state vis-a-vis social groups (which is the republican concern). This issue aside, Gallarotti ultimately succeeds in demonstrating the understanding of cosmopolitan power unwittingly championed by the classical realists, and the analysis is all the better for it, particularly given the reliance of contemporary neorealist scholars on this canon of political thought. In the final chapters Gallarotti presents cases of ‘hard disempowerment’ and ‘soft empowerment’. The chapter on hard disempowerment presents a lucid account of the Bush administration’s political follies. Gallarotti demonstrates how the sole reliance on military capabilities convinced the US to forego legal, normative and alliance commitments, decisions which ultimately served to undermine almost all of its foreign policy goals. The chapter addresses each policy failure systematically, while offering evidence to buttress the claim that soft power strategies could have mitigated the resulting decline in US influence (pp. 199–207). The first examples of soft empowerment in Chapter 4 consist of three historical cases which emulated British and US economic policies. These cases, however, provide somewhat unconvincing examples, and it is unclear whether the term emulation adequately captures those processes Gallarotti is attempting to showcase. The global spread of free trade policies, for example, lends itself better to interest-based accounts centred on the attraction of capital, rather than the sociological accounts of inter-state respect or admiration presumably offered here. The final chapter on American culture and its ability to act as a normative transmission belt provides far more explanatory power in this respect, primarily because it shifts the emphasis away from economic issues. These latter chapters demonstrate well the principal contribution of Gallarotti’s work: his ability to unpack the complex interrelationships between hard and soft power and to distil these linkages into a parsimonious, yet powerful, account of international politics. The analysis is both insightful and timely, and those engaging with his central claim – the dangers which inhere in the reckless pursuit of hard power – will find it difficult to disagree with either the diagnosis or the prescription Gallarotti offers.

Cosmopolitanism: Ideals and Realities

of Machiavelli’s republicanism represents a somewhat ad hoc addition to the soft power concept. At other times, Gallarotti appears content to focus on the power of the nation as a whole (p. 46), rather than the power of the state vis-a-vis social groups (which is the republican concern). This issue aside, Gallarotti ultimately succeeds in demonstrating the understanding of cosmopolitan power unwittingly championed by the classical realists, and the analysis is all the better for it, particularly given the reliance of contemporary neorealist scholars on this canon of political thought. In the final chapters Gallarotti presents cases of ‘hard disempowerment’ and ‘soft empowerment’. The chapter on hard disempowerment presents a lucid account of the Bush administration’s political follies. Gallarotti demonstrates how the sole reliance on military capabilities convinced the US to forego legal, normative and alliance commitments, decisions which ultimately served to undermine almost all of its foreign policy goals. The chapter addresses each policy failure systematically, while offering evidence to buttress the claim that soft power strategies could have mitigated the resulting decline in US influence (pp. 199–207). The first examples of soft empowerment in Chapter 4 consist of three historical cases which emulated British and US economic policies. These cases, however, provide somewhat unconvincing examples, and it is unclear whether the term emulation adequately captures those processes Gallarotti is attempting to showcase. The global spread of free trade policies, for example, lends itself better to interest-based accounts centred on the attraction of capital, rather than the sociological accounts of inter-state respect or admiration presumably offered here. The final chapter on American culture and its ability to act as a normative transmission belt provides far more explanatory power in this respect, primarily because it shifts the emphasis away from economic issues. These latter chapters demonstrate well the principal contribution of Gallarotti’s work: his ability to unpack the complex interrelationships between hard and soft power and to distil these linkages into a parsimonious, yet powerful, account of international politics. The analysis is both insightful and timely, and those engaging with his central claim – the dangers which inhere in the reckless pursuit of hard power – will find it difficult to disagree with either the diagnosis or the prescription Gallarotti offers.

Avoidance Techniques: State Related Defences in International Antitrust Cases

Despite its economic significance, competition law still remains fragmented, lacking an international framework allowing for dispute settlement. This, together with the growing importance of non-free-market economies in world trade require us to re-consider and re-evaluate the possibilities of bringing an antitrust suit against a foreign state. If the level playing field on the global marketplace is to be achieved, the possibility of hiding behind the bulwark of state sovereignty should be minimised. States should not be free to act in an anti-competitive way, but at present the legal framework seems ill-equipped to handle such challenges. This paper deals with the defences available in litigation concerning transnational anti-competitive agreements involving or implicating foreign states. Four important legal doctrines are analysed: non-justiciability (political question doctrine), state immunity, act of state doctrine and foreign state compulsion. The paper addresses also the general problem of applicability of competition laws to a foreign state as such. This is a tale about repetitive unsuccessful efforts to sue OPEC and recent attempts in the US to deal with export cartels of Chinese state-owned enterprises.