Journal Article

Neither Rock Nor Hard Place? The Foreign Sovereign Compulsion Defence in Antitrust Litigation

Qingxiu Bu

in Journal of International Dispute Settlement

Volume 6, issue 2, pages 427-453
Published in print July 2015 | ISSN: 2040-3585
Published online May 2015 | e-ISSN: 2040-3593 | DOI: https://dx.doi.org/10.1093/jnlids/idv013
Neither Rock Nor Hard Place? The Foreign Sovereign Compulsion Defence in Antitrust Litigation

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  • Arbitration
  • Private International Law and Conflict of Laws
  • Public International Law
  • Settlement of Disputes

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The increased contravention of host state’s antitrust laws poses enormous challenges for the global anti-competition framework, which lacks legally binding agreements at a multilateral level. As a valid sui generis defence in cross-border antitrust cases, the doctrine of foreign sovereign compulsion shields a firm from liability in transnational antitrust regimes. However, it largely depends upon whether the defendant has been genuinely subjected to a rock or hard place scenario while complying with laws and regulations in both host and home jurisdictions. This issue is scrutinized through analysis of a recent antitrust class action in the USA against Chinese Vitamin C manufacturers, and the subsequent contentious issue whether a court should give dispositive weight to the Chinese government’s amicus brief that it has compelled the conduct of defendants. In such a legally challenging scenario, it is argued that the controversy terra incognita be addressed through coherent coordination between states apart from the ex-post litigation.

Journal Article.  13672 words. 

Subjects: Arbitration ; Private International Law and Conflict of Laws ; Public International Law ; Settlement of Disputes

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