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

1. International Cooperation in
Competition Cases
The Role of the Courts
Diane P. Wood

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. 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. 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. 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. 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. 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. 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. 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. 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?