[Hague-jur-commercial-law] What is different in Article 1 (substantive scope) after First Diplomatic Conference?

[Michael Sondow]

You wrote:

> There are substantial questions whether civil law countries would consider
> antitrust actions to be included within scope of the convention anyway,
> since they are either brought by the government or arise from statutory
> claims.

All of the admittedly few antitrust laws that I have read contain
specific provisions for private-sector individuals (injured companies,
principally) to seize the respective government agency having
jurisdiction in antitrust. Such provisions, while not making antitrust
civil law, do draw it near that realm. After all, antitrust is a basic
guarantee of free trade and competition. And there is an ongoing effort
to harmonize antitrust law between countries, I believe. Wouldn't the
inclusion into this treaty of at least some mechanism for relating
antitrust, in its international dimension, to the jurisdictional matter
of the treaty be a step in the right direction?

> Many countries will simply hand the convention over to their
> courts without implementing legislation

That in itself is a question that ought to be dealt with, isn't it? The
EU requires all member states to implement national legislation in
conformity with EU law. Shouldn't a Hague treaty, which is likewise
international law, be required to be implemented by national law of
member states?

> and the judges are likely to look
> at it without the benefit of interpretative guidance.

The best argument for requiring the implementation of national
legislation. And, since this Hague treaty is about procedural law
(jurisdiction), it seems to me even more necessary here that national
courts be given guidelines via national legislation. Don't you agree?

> Furthermore, treble
> damages are unlikely to be enforceable in most countries under the
> convention.

Undoubtedly not. But are treble damages the real coercion in antitrust
judgements? Governments have other means for obliging a violating
business combination to desist from price-fixing or otherwise illegally
restraining free trade, for example licensing, as well as sanctions
against individuals for contempt of injunctions. In reality, treble
damages are just a way for the government agencies with jurisdiction
over antitrust law to fill their coffers; they provide no benefit to the
companies injured by the illegal trust. European countries, while they
don't apply treble damages, do occasionally stop illegal trusts from
monopolizing commerce. Actually, treble damages don't function very will
as coercion to desist from violating antitrust laws; usually the
violating entities can well afford to pay them out of their excessive
ill-gotten profits.

> In addition, Justice and FTC are concerned that some countries
> might deny enforcement on public policy grounds.

That would be very interesting if it were to occur. It would be the
equivalent of saying: "Our country believes in monopolistic practices
and the restraint of free trade". What could their public policy be that
would allow them to say that? Rather than upsetting the apple cart of
the Hague convention, such a situation might just serve to get questions
of international price-fixing and other anti-free-trade practices out
into the open. Or are Justice and FTC actually afraid that they,
tehmselves, could be put on the spot?

> Thus, Justice and FTC believe that there will be little benefit to including
> antitrust (i.e., few judgments will be enforced), unless the inclusion could
> be made much clearer in Article 1 and Article 10, which other countries are
> not inclined to agree to.

Has the subject been brought up in a serious way? Have the member states
been presented with good arguments for inclusion and polled?

> On the other hand, Justice and FTC are sure that
> if we assume that antitrust is included, defendants will litigate
> ferociously the prohibited list to try to get cases against them thrown out
> on jurisdictional grounds.

Can you explain what you mean here? I'm not sure I understand this.

M. Sondow