Foreign Discovery and U.S. Antitrust Policy--The Conflict Resolving Mechanisms

A look back at the last thirty years of United States antitrust\u27s foreign voyages of discovery among friendly nations reveals a picture too often resembling not so much an era of good feeling as a thirty years war. Following hard upon Judge Hand\u27s famous formulation of the effects doctrine in Alcoa in 1946 the Antitrust Division conducted a series of investigations in which compulsory process was used to seek documents located in foreign nations. Prodded by what they viewed as U.S. antitrust authorities\u27 impermissible overreaching, the affected countries began to enact defensive blocking statutes. The passage by Canada\u27s Ontario Province of the Business Records Protection Act started this trend in 1947. The reaction continued with the Province of Quebec quickly enacting its own statute. In later years, Great Britain enacted its Shipping Contracts and Commercial Documents Act; the Netherlands installed Article 39 of their Economic Competition Act, and so it has gone almost to the present. The most recent examples are the Amendments to Canada\u27s Atomic Energy Act and Australia\u27s Foreign Proceeding (Prohibition of Certain Evidence) Act. Both were passed in 1976 to prevent documents relative to the worldwide uranium marketing arrangements from falling within the grasp of our grand jury. Interestingly, the refusal to accede to U.S. compulsory process in foreign territories does not indicate implacable opposition to underlying antitrust principles. While United States antitrust had a head start, a significant number of nations have caught up with us and today we come together frequently to discuss problems of restrictive business practice control with our trading partners in multilateral and bilateral contexts. There is strong international consensus that restrictive business practices cutting across national boundaries must be governmentally controlled