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

Published date01 December 2016
Date01 December 2016
Subject MatterArticles
ABX677782 611..642 Article
The Antitrust Bulletin
2016, Vol. 61(4) 611-642
Foreign States’ Amicus
ª The Author(s) 2016
Reprints and permission:
Curiae Participation in
DOI: 10.1177/0003603X16677782
U.S. Antitrust Cases
Marek Martyniszyn*
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, iden-
tifying 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 corre-
spondence 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.
antitrust, competition law, amicus curiae, deference, extraterritorial jurisdiction, foreign commerce
I. Introduction
Antitrust cases involving foreign defendants are not new to the U.S. courts. Some of them relate to
transnational or purely foreign conduct affecting U.S. markets. Until relatively recently, outside the
U.S. there has been little appetite for and few actual cases of similar transnational enforcement of
domestic competition laws.1 In effect, the international competition law jurisprudence for a long time
was shaped in actions before the U.S. courts.
1. The terms ‘‘competition law,’’ ‘‘antitrust law,’’ and ‘‘antitrust’’ are used interchangeably. In many countries, competition
laws were introduced only in the last two decades. Papadopoulos shows that sixty-three countries adopted competition laws
between 1991 and 2000, and eighteen states between 2001 and 2008 (by 2008, 111 countries had competition laws). ANESTIS
that while before 1990 only ten developing countries had competition laws, by 2007 that number had risen to seventy-seven.
* Lecturer in Law, Queen’s University Belfast, United Kingdom of Great Britain and Northern Ireland
Corresponding Author:
Marek Martyniszyn, Queen’s University Belfast, Belfast, BT7 1NN, United Kingdom of Great Britain and Northern Ireland.

The Antitrust Bulletin 61(4)
Some of such cases involved active participation of foreign nations by means of amicus curiae
briefs. An amicus brief is a submission of ‘‘a person who is not a party to a lawsuit but who petitions
the court or is requested by the court to file a brief in action because that person has a strong interest in
the subject matter.’’2 Foreign states filed amicus briefs in some of the most controversial transnational
antitrust cases of the last few decades, such as Matsushita,3 Hartford Fire,4 and Empagran.5 In the
contexts of these suits, the amicus submissions received ample attention (of courts, the U.S. govern-
ment, and commentators), but no attempt was made beforehand to identify and look at these filings in
general as a tool.6 It was unclear what informed such interventions, why the amicus form was used
rather than diplomatic channels, and at what stage of the litigation the submissions were filed. The
related questions concern the way amicus briefs are treated by the courts (including the issue of any
deference due to such representations) and whether they matter.
This article makes an original contribution by supplementing the existing gap and casting light on
foreign nations’ amicus curiae submissions in U.S. antitrust cases. In the period 1978 to 2015, sixty-
seven foreign nations’ participations by means of amicus briefs in twenty-eight cases have been
identified and analyzed. The European Commission emerges as the most frequent filer, followed by
Canada and Japan. Analysis of the briefs indicates a few strands of cases that attracted the attention of
foreign nations. These were cases dealing with the question of jurisdiction, discoverability of foreign
leniency-related documents, foreign states’ implication in anticompetitive conduct, and regulation of
natural resources. While foreign nations submit amicus briefs to protect various features of their
sovereignty and related prerogatives, it cannot be precluded that some submissions are primarily
motivated by a willingness to shield home businesses from treble damages, which remain an inter-
nationally contentious and rather unique aspect of U.S. antitrust.
Foreign nations began communicating directly with U.S. courts due to a change in the Supreme
Court’s rules relating to such submissions, embraced also by the lower courts. Moreover, a few
practitioners successfully developed a specific niche market of authoring and facilitating amicus filing,
arguing that presentation of views by means of amicus submissions may be more effective than
reliance on diplomatic correspondence. This development might have fueled an increasing interest
in amicus briefs. Although foreign nations intervene at all stages of litigation, filings at the district
court level are much more frequent than at higher levels. While typically governments file the briefs,
submissions made by individual foreign ministries or competition agencies point to a new trend.
Although the extent to which courts actually defer to foreign states’ submissions remains unknown,
amicus briefs are an important type of pleadings. They can facilitate adjudication, especially in cases
ENFORCEMENT IN DEVELOPING COUNTRIES 3 (2011),¼2044047. That said, regulation of anticompetitive
conduct is a very old enterprise, going back to antiquity. See further ROMAN PIOTROWSKI, CARTELS AND TRUSTS: THEIR ORIGIN
3. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
4. Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993).
5. F. Hoffmann- La Roche Ltd v. Empagran SA, 542 U.S. 155 (2004).
6. The literature review reveals that—in the period of the most serious jurisdictional clashes between the U.S. and its allies—
one author wrote about foreign states’ participation in U.S. antitrust cases. See Judith Gelber, Foreign Government
Participation in United States Antitrust Litigation, 15 J. INT’L L. & ECON. 605 (1981). For general literature on amicus
filings before the U.S. courts, see, for example, Kristen Eichensehr, Foreign Sovereigns as Friends of the Court, 102 VA. L.
REV 289 (2016); Paul M. Collins, Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S.
Supreme Court Litigation, 38 L. & SOC’Y REV. 807 (2004); Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus
Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743 (2000); Ernest Angell, The Amicus Curiae: American
Development of English Institutions, 16 INT’L. & COMPARATIVE L. Q. 1017 (1967); Samuel Krislov, The Amicus Curiae
Brief: From Friendship to Advocacy, 72 YALE L. J. 694 (1962).

requiring consideration of foreign laws, procedures, and policies. They constitute unilateral acts of
states; and when pertaining to issues of international law, they have the capacity to influence its
development. Whether submitted out of a genuine sovereignty-related concern or being successfully
solicited by defense counsel, foreign nations’ amicus submissions should not be too easily discounted.
Foreign states are no ordinary friends of the court. Courts are well-advised to deal with foreign states’
amicus filings in an accommodating and respectful manner, even if only to secure similar treatment of
the representations made by the U.S. executive in foreign fora.
Part II of this article outlines the scope of the project undertaken. Part III deals with the practice of
amicus curiae filings. It explains the move towards their judicialization and the professionalization of their
authoring, and it offers some further comments on stages of filing and such briefs’ general prevalence. Part
IV lists the identified cases and foreign states’ filings, offering analysis in relation to which nations became
the friends of the court and what sort of issues attracted their attention. This part examines also the question
of whether any level of deference is due to foreign states’ submissions, and what role the U.S. government
plays in such cases. Part V explores the legal and political functions of foreign states’ amicus submissions.
The conclusions underline the versatile nature of amicus briefs as an instrument and their input into the on-
going discourse on and development of international and competition law.
II. The Scope of the Project
This article investigates amicus briefs submitted by foreign nations in U.S. antitrust litigation, relying
on a broad notion of a state encompassing not only governments in the strict sense, but also antitrust
agencies (regardless of the level of autonomy...

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