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OPEC as a Cartel: Can U.S. Antitrust Laws Be Applied Extraterritorially? by Emma Ukpanah ABSTRACT: U.S.

Antitrust Laws have been successfully applied to anti-competitive behaviour which takes place abroad but have an effect within the United States. Under Antitrust Laws, cartels are regarded as illegal and there has been a clamour for the OPEC Cartel to be prosecuted for antitrust violations. However, OPEC is an intergovernmental organisation that views its activities as essential to the stability of the oil industry. This paper assesses OPEC activities in the light of the Sherman Act and identifies the legal and jurisprudential barriers, which limit the exercise of the extraterritorial jurisdiction by the U.S. The issues involved are controversial and should be resolved through diplomatic means and not through the Judiciary. However, the lack of international consensus on competition law and enforcement reduces the possibility of such enforcement. TABLE OF ABBREVIATIONS CFI EC ECJ ECMR EU FSIA FTC MOC NOPEC OPEC OECD UN UNCTAD US WHO WTO 1. Court of First Instance European Community European Court of Justice European Community Merger Regulation European Union Foreign Sovereign Immunities Act Federal Trade Commission Multinational Oil Companies No Oil Producing and Exporting Cartels Act Organisation of Petroleum Exporting Countries Organisation of Economic Co-operation and Development United Nations United Nations Conference on Trade and Development United States World Health Organisation World Trade Organisation INTRODUCTION


OPEC was formed on 14 September 1960 at a meeting in Baghdad, Iraq mainly as a reaction to unilateral actions by the Multinational Oil Companies (MOCs) who at the time controlled all oil operations within the host countries. Another motivating factor was their desire for direct participation in the industry with a view to taking control of the rate at which their natural resources were being exploited and also getting an equitable share of the revenue derived therefrom. The creation of the Organisation thus signified the first collective act of sovereignty on the part of the oil exporters.1 The OPEC Cartel, as it is commonly referred to, is an intergovernmental organisation and aims to influence and maintain the price of oil through the control of production levels to generate revenue, which goes towards meeting the development needs of its members.2 Although OPEC does not regard its activities as being either illegal or anticompetitive, there has been clamour in the US3 for the cartel to be prosecuted for US antitrust violations. Even if the enforcement of US antitrust laws against cartels operating within its territory has never been in doubt, its extraterritorial application to actions carried out abroad but which have an effect within America remains a controversial issue. It is interesting to note that case law appears to suggest that its extraterritorial effect is settled law and recent decisions within the EU lend support to this notion albeit from a different perspective. This paper will assess the activities of OPEC in the light of the Sherman Act and identify what makes the cartel so unique. A consideration of the extraterritorial jurisdiction of US antitrust laws is central to this paper especially in light of the growing condemnation of cartels and the general consensus on their negative effect on competition. According to the OECD, cartels are an increasingly international phenomenon and they thwart the gains that should follow from global market liberalisation.4 However, a successful enforcement of US antitrust laws against OPEC remains doubtful based on the principles of international law and especially as there is yet no internationally recognised competition law regime binding on all Nations. The author recognises that this topic is a very broad one and that many of the issues are quite comprehensive. Due to the limited scope of this paper, many issues cannot

be addressed in detail but there is no attempt to sacrifice substance on the altar of being concise. Reference will be made to judicial decisions taken in both America and in the EU on cartel behaviour, control of mergers and extraterritoriality of competition law, with emphasis on US antitrust laws. 2. COMPETITION LAW AND ANTI COMPETITIVE BEHAVIOUR

Competition laws - which in the past tended to be focused on either natural monopolies or the preserve of the State - are now being applied to almost every facet of life, including the energy sector.5 Underlying them, however, is a growing consensus that, on the whole, markets deliver better outcomes than state planning; and central to the idea of a market is the process of competition.6 The gains of competition range from innovation, wider range of choices and better prices for goods and services. Competition law aims to prevent cartel behaviour and control mergers, in order to avoid emergence of monopolies. Such anti-competitive practices will be the primary focus of this paper. 2.1 U.S. Antitrust Laws

Although there are a number of Federal Antitrust laws in America, the Sherman Act of 1890 is undoubtedly at the centre of US antitrust law.7 The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress8 Section 1 of the Sherman Act 1890 prohibits contracts, combinations and conspiracies in restraint of trade on the one hand while Section 2 prohibits attempts at monopolisation of a product or service.9 Thus, the Sherman Act has as its aim the

preservation of competition, in the interest of consumers for higher efficiency and better prices for goods and services. In 1909, Standard Oil, which was largely a monopoly, was found guilty by the Federal Court of restraining trade through the granting of rebates and predatory pricing, in violation of the Sherman Act.10 Introducing the Rule of Reason principle, Justice White held that acts in restraint of trade, which were prohibited, were those which were unreasonable or contrary to public policy. Though competition policies in general condemn horizontal price fixing, under US Law, they are treated as per se infringements of the Sherman Act. They may also attract prison sentences because they are deemed criminal offences.11 Historically, courts have considered price-fixing activities under either the per se illegal or the rule of reason approaches. The per se rule is used when a court characterises an activity as one that would always or almost always tend to restrict competition.12 Therefore, it is understandable why the activities of OPEC are strongly condemned by the U.S. The Organisations activities of limiting output and influencing the price of oil are considered to be infringements of Section 1 of the Sherman Act. However, being Sovereign nations, OPEC members do not quite fall into the category anticipated by the provisions of the Sherman Act due to a number of legal issues which will be discussed in later chapters. 3. 3.1 OPEC AS A CARTEL History of the OPEC Cartel

Events that led to the formation of OPEC are closely linked to the practise of profit sharing, which obtained in Venezuela in the mid-1940s and substantially reduced the profits of the MOCs. Thus, exploration for oil in Venezuela became less attractive to the MOCs and this led to a shift in operations to countries without the practice.13 However by 1950, based on the advice of Venezuelan experts, other countries that

were oil producers in the Persian Gulf pushed for a change in the contractual arrangement with the MOCs to include the equal profit split.14 In 1959, the oil companies unilaterally reduced the posted price for Venezuelan crude by about 10%, and also that of the Middle East. This led to the First Arab Petroleum Congress in Cairo, where the nations affected resolved that they wanted to be consulted by the oil companies subsequently on all decisions taken on the price of oil.15 The posted price of crude oil in the Middle East was again reduced in August 1960 and the Government of Iraq called on the Governments of Iran, Kuwait, Saudi Arabia and Venezuela to discuss this action.16 The Conference held in Baghdad between 10 and 14 September 1960 led to the establishment of OPEC as a permanent Intergovernmental Organisation. All the countries involved had decided to stand as a united front against any unilateral action taken by MOCs. The countries present at the meeting in Baghdad were the founding members of OPEC but the Organisation now consists of 11 member countries on the whole including Indonesia, Algeria, Nigeria, Qatar, United Arab Emirates and Libya. Although OPECs influence in the oil markets has significantly diminished when compared to the 1970s, the Organisation still supplies about 40% of world oil output and about 70% of world petroleum reserves are located within OPEC nations.17 3.2 Cartelisation of the oil markets

Prior to the formation of OPEC, the world petroleum market had been characterised by co-operative arrangements among producers, starting with the cartel of major international oil companies, to oil producers in the United States.18 The 1914 RedLine Agreement establishing the international corporate cartel specified that all middle eastern reserves would be controlled by the Turkish Petroleum Company which was wholly owned by BP, Royal Dutch Shell and the French Compagnie Franaise des Ptroles. The As-Is Agreement divided the sale of oil in world markets between what is now BP, Shell and Exxon.19 Also, other oil companies were worked

into the agreement through the 1930s and the major MOCs dominated the industry for a period that can be said to span from 1914 to about 1955. The second cartel type arrangement was created and maintained from 1935 to 1970 by several state governments in the US which adopted the market demand pro rationing system with the object of limiting production.20 Finally, as previously mentioned, OPEC was established in 1960 by five leading exporters after a series of disagreements with the MOCs over the issue of the price of oil and revenue accruing to the owners of the resources. From the foregoing, it may be deduced that cartels have featured quite strongly throughout the history of the oil industry and the practise of limiting output is in no way peculiar to OPEC. 3.3 Cartel Problem and OPEC

A distinguishing factor of cartels is that they tend to substitute co-operation for competition and this may be done through the use of measures ranging from mergers to price fixing.21 By entering into agreements to act in concert to either fix prices or limit output, cartels prevent consumers from benefiting from the gains of competition, which include lower prices. OPEC member countries have co-operated in a number of instances to cut back on production in a bid to maintain prices especially in instances where the prices were considered to be low. In recent years, the oil industry has witnessed high levels of concentration as seen in mergers like those of Exxon/Mobil and BP/Amoco.22 It remains debatable whether or not competition should be given free reign in the industry as the history of petroleum markets have shown how such competition can be destructive rather than constructive.23

Member states of OPEC view its activities as being essential towards the stabilisation of oil prices and extremely important for the economic development of their respective Nations. Oil prices that are either too high or too low, it is reasoned, do not benefit either the producer or consumers. OPECs imposition of quotas on its members is usually effective in maintaining a balance between supply and demand in the industry. However, the Organisation like every other cartel faces the challenge of cheating within its ranks. This factor in addition to supply of oil by non-OPEC producers has occasionally led to oversupply of the market, which in turn drives the price of oil downwards. It is in a bid to check this downward trend that OPEC calls on its members and non-OPEC members alike to cut back on production. OPEC tries to ensure that the market is neither under-supplied with oil, forcing prices to go excessively high, nor over-supplied so that prices go too low. However, it is important to point out that placing limits on production is at a cost to OPEC members. This has led to the loss of not only market share to non-OPEC producers who may refuse to co-operate with the Cartel but also potential revenue. 4. EXTRATERRITORIAL APPLICATION OF U.S. ANTITRUST LAWS

A States right to exercise jurisdiction over conducts which take place within its territory and the behaviour of its nationals abroad, including companies incorporated under its law is generally accepted under international law.24 However, what has remained controversial especially in the field of economic regulation is whether antitrust authorities may exercise jurisdiction over conduct or agreements, which were entered into abroad but have an effect in a different State.25 The US position on the above appears to be in the affirmative and as will be gathered later in the paper, the European Union seems to be leaning towards the same position. The effects doctrine can be traced to the decision in United States v. Aluminium Co of America case (Alcoa)26. In this case, an aluminium cartel sought to limit production through quotas it imposed on its members. These measures though taken abroad, had

an adverse effect on the production of aluminium imported into the US. The question was whether the Sherman Act could be applied to this cartel, and Judge Learned Hand held that the extraterritorial application of US antitrust was settled law. 27 Previously, this notion of its extraterritorial jurisdiction had been rejected in the American Banana v. United fruits28 case, but after the Alcoa judgement, that position was reiterated in the Timberlane29 case. It is worth mentioning here that it was on the notion of international comity principles that the Court in Timberlane refrained from applying the effects doctrine. However, the more recent Supreme Court judgement on extraterritoriality is Hartford Fire Insurance Co v. California,30 where the court repeated that jurisdiction could be taken over foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States. In the United States v. Nippon Paper Ind. Co,31 price fixing charges were levelled against a Japanese company and the wide application of the effects doctrine was again confirmed by the US First Circuit of Appeals, signally a victory for US Antitrust Authorities.32 These assertions of extraterritorial jurisdiction by the US have drawn a lot of negative reaction from different countries. On this basis, a number of Blocking Statutes were enacted in response to counter this assertion of extraterritorial jurisdiction.33 However, from the foregoing, it may be deduced that despite the controversy surrounding its actions, the United States has gone ahead to assert extraterritorial jurisdiction in antitrust matters. It is difficult to reconcile some of the US decisions to principles of public international law, which appear incapable of addressing this issue. Perhaps, however, they may be explained on the basis that they were developed with physical rather than economic conduct in mind.34 4.1 Extraterritorial Jurisdiction of EC Competition Law

The ECJ has not expressly acknowledged the effects doctrine under EC law but based on the implementation doctrine has arrived at similar results as would the effects doctrine.35

In the Dyestuff case,36 a number of firms were accused of acting in concert to effect increase in prices on most products and this action clearly restricted competition within the common market. The Court clearly avoided making any pronouncement on the position of EC law as regards the effects doctrine. It took the view that even though there were non-EC parent companies involved, by participating through ECbased subsidiaries which they controlled, jurisdiction could be exercised.37 The extraterritorial reach of EC law on the basis of the effects doctrine is more evident in the application of the EC Merger Regulation (ECMR) in the case of Gencor v. Commission.38 The EU prevented a merger between two South African Mining Companies which would have left Gencor and Lonrho with control of 30-35 percent of world production. On appeal, the CFI asserted that the application of ECMR is justified where it is foreseeable that the proposed concentration will have an immediate and substantial effect in the community.39 Bringing this into perspective, although South Africa did not resist the jurisdiction of the EC, difficulties could arise together with issues of enforcement where the opposite was the case. Other than among the members of the European Union, there is no international law of antitrust.40 This raises a crucial issue of what would happen were OPEC to call the bluff of the West arguing that they were not under any obligation to be guided by either US or EU antitrust laws. Even among the countries with well-entrenched competition laws, conflicts are still inevitable on the issue of extraterritorial jurisdiction. The blocking of the G.EHoneywell merger and the initial objection to that of Boeing McDonnell Douglas by the EU almost led to diplomatic rift with America whose Federal Trade Commission (FTC) had previously approved both mergers. The circumstances of the Boeing merger are interesting because almost like in the Gencor case, the merger would lead to a reduction from 3 firms to 2 in that industry and they would be positioned to capture two thirds of the business, in the European market.41

The EU rejected the GE-Honeywell merger because it would have severely reduced competition in the aerospace industry and resulted ultimately in higher prices for customers, particularly airlines.42 In addition to behaviour which affects imports into America, the US also asserts extraterritorial jurisdiction where US companies are prevented by anti-competitive behaviour from gaining access to foreign markets.43 Many countries are opening up their economies to competition and the perceived gains of trade liberalisation. Therefore, it stands to reason that any country that promotes the interest of its companies to gain access to foreign markets must refrain from taking steps in turn, which would prevent or restrict foreign companies from gaining access to its market. In the words of Ralph Nader: If the United States bends the antitrust laws for Boeing, because it is an important U.S. exporter, the United States will undermine its ability to seek better antitrust enforcement abroad. U.S. efforts to develop global antitrust enforcement regulations will appear hypocritical if there is no antitrust enforcement in the United States in a merger involving the extremely high levels of market concentration in the Boeing-McDonnell Douglas case.44 4.2 Challenges for U.S. Antitrust Authorities

There are a number of legal and political constraints that prevent competition law authorities from tackling the OPEC oil cartel.45 The Act of State doctrine is a basic rule under international law and requires that one State should not enquire about the sovereign act of another within its own territory. The US Supreme Court recognised this limit placed on the exercise of jurisdiction in the case on Underhill v. Hernandez.46 Closely related to the above is the notion of comity of Nations, which was propounded by the Supreme Court in Hilton v. Guyot. Justice Gray explained its legal foundation thus:


Comity, in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other. But it is a recognition with which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.47

Lastly, the Foreign Sovereign Immunity doctrine was formulated in the Schooner Exchange v. McFaddon case,48 based on the perfect equality and absolute independence of sovereigns.49 The US Congress later codified this in the passing of the Foreign Sovereign Immunities Act (FSIA).50 It provides that the only instance where a sovereign State would be immune from the jurisdiction of US courts would be where its activities were governmental as opposed to being commercial. This raises the question of whether OPECs actions are commercial or not. The answer was clearly spelt out in 1979 in the Supreme Courts decision in International Association of Machinists and Aerospace Workers v. OPEC51 and in this authors opinion the same argument still holds true today. The antitrust action was brought against OPEC on the grounds that OPECs price fixing activities violated the Sherman Act and had led to the payment of high prices for gasoline by the plaintiffs. Central to the courts decision was the fact that the establishment by a Sovereign State of the terms and conditions for the removal of a prime natural resource to wit, crude oil from its territory is essentially a governmental function.52 Admittedly, the divide between commercial and governmental activity may not be clear-cut in many instances as recognised by the Justice Departments Anti-trust Guide for International Operations53, but it is obvious that ones position will depend on individual perspective. By parity of reasoning, it appears that the main obstacles in the way of US Antitrust Authorities and the successful prosecution of OPEC for antitrust violations are the Act of State doctrine, and FSIA and the notion of sovereignty recognised under international law. OPECs position is further strengthened by the UN General

Assembly on Permanent Sovereignty over Natural Resources and the UN Charter of Economic Rights and Duties of States Resolution, which provides that: All States have the right to associate in organisations of primary commodity producers in order to develop their national economies, to achieve stable financing for their development and, in pursuance of their aims, to assist in the promotion of sustained growth of the world economy, in particular accelerating the development of developing countries. Correspondingly, all States have the duty to respect that right by refraining from applying economic and political measures that would limit it. 54 In a bid to curb OPECs anti-competitive behaviour, an option open to antitrust authorities would be to institute actions against MOCs operating in OPEC countries as suggested in some quarters.55 However, the unfairness of such antitrust suits against MOCs carrying on business in OPEC countries and often in collaboration with State Oil companies would be raised. It does not appear to this author that the MOCs have much of a choice when instructed to limit production in compliance with OPEC quotas. Sovereign nations have the right to control, for whatever reason, the rate and manner in which their natural resources are being depleted through exploration activities. It would be unacceptable for the MOCs in this scenario to be made answerable for actions they apparently have no control over. Another issue is as regards jurisdiction over parent companies and their subsidiaries especially where the MOCs are required under the laws of host countries to be incorporated there. U.S. assertions of jurisdiction based upon the control exercised by an American parent over a subsidiary incorporated and operating abroad are not accepted as valid under international law by a number of nations () under international law, nationality is properly determined by place of incorporation.56


So, strictly speaking, it could be argued that these MOCs operating in OPEC countries were outside the reach of the Sherman Act, as the parent company and its subsidiary were different entities in this scenario. However, it is arguable whether this position is not going in the way of the principle of international comity. The Supreme Court observed in Hartford Fire, that the growth of international comity in the anti-trust sphere had been stunted by the Supreme courts decision.57 As already noted, though heavily criticised, the Supreme Court in the Dyestuffs case disregarded the separate personality principle of a parent and subsidiary company. The US courts may thus be ready to adopt the same position. 4.3 Can U.S. Antitrust Laws Be Enforced against OPEC?

Recent events seem to suggest that there is some debate about the possibility of piercing the cloud of sovereign immunity58 if the No Oil Producing and Exporting Cartels Act of 2000 (NOPEC) is passed. OPEC rejected the bill through an official statement noting that there was nothing wrong with the Organisation acting in concert as sovereign states to protect their interest.59 In principle, this may not be different from actions taken by the US Government in the past to close US market to foreign uranium producers, which later resulted in an antitrust suit against the uranium cartel.60 In reaction to this, foreign governments subsequently closed about 70% of the market by forming a cartel which placed limits on production and sales outside the US.61 Ironically, America brought an action against the cartel for taking what could be argued to be a protectionist stance like America had itself done in the first instance. It is important to point out here that the then Assistant Attorney General in charge of the Antitrust Division later described this action by the US as anti-competitive.62 In the same light, Americas recent imposition of high tariffs on steel has drawn a lot of reaction from a number of countries and some trade experts argue that the US move may undermine efforts to liberalise world trade as agreed at the WTO meeting.63


From the foregoing, OPEC, which does not consider its activities as being illegal, could take a protectionist stance and argue that OPEC countries too have a right to protect their industry - which is key to their economic growth - from oversupply. Each nation, including the United States, reserves the right to deviate from the norms of competition when it perceives that such action is in its own self interest.64 As observed by a Canadian Official, Where a transnational antitrust issue is really a manifestation of a policy conflict between national governments, it should be recognised that there may be no applicable international law to resolve the conflict. In such cases resolution should be sought through the normal methods of consultation and negotiation. For one government to seek to resolve the conflict in its favour by invoking its national law before its domestic tribunals is not the rule of law but an application, in judicial guise, of the principle that economic might is right.65 A total disregard and departure from the comity of nations would indeed be ill advised. Though not binding, it still has a role to play in todays world. This is a key principle, which has formed the basis of many co-operation agreements among nations and will still be relevant in the search for a truly International Competition Law framework which will be acceptable to all. Just as trade depends on market access, inter-governmental

understanding and co-operation depends to a great extent on the international comity of nations. This may be particularly relevant when considering what international rules should regulate the activities of governments with respect to trade and competition.66

All this notwithstanding, the U.S. lodged a complaint against OPEC for its price fixing activities at the Dispute Settlement Panel of WTO. It is interesting to observe that the EU refrained from taking any position on this issue on the grounds that the


WTO, in its opinion was not the appropriate platform on which to bring such an action.67

Prior to this action, Prewitt Enterprises won a civil antitrust case against OPEC in an Alabama court and obtained a one-year injunction banning the Organisation from price fixing.68 The injunction was condemned by the Organisation, and the Venezuelan Energy and Mines Minister Alvaro Silva Calderon affirmed that OPEC would defend itself against what he called juridical absurdity.69 On appeal, OPEC won a stay on the ruling. For now, it remains doubtful whether US antitrust laws can be successfully applied extraterritorially to OPEC and it is debatable whether at all the U.S. should sit in judgement of OPEC. Such an action by the Executive would surely lead to a diplomatic row. Without the co-operation of OPEC nations, the carrying out of investigations aimed at establishing proof and enforcement of decisions would be nearly impossible. In the absence of an International Competition Law regime binding on all, which would be neutral and impartial towards all, the case against OPEC cannot be made. The search for an international framework is on, although under what auspices it should fall under remains unknown with possibilities including the OECD, UNCTAD and the WTO. A direct reference has not been made on the issue of OPEC although there appears to be a consensus on the need to zero in on cartels. Maybe such an international regime would eventually make pronouncements that may have some effect on the future of OPEC. In the long run, international consensus on enforceable standards may resolve many of the present disagreements. However, all indications are that the achievement of such consensus is a long way off.70




US antitrust laws cannot be applied extraterritorially on OPEC, except America decides to disregard the sovereignty of the States and their right to defend their economic interest. The close link between competition law and politics is easily observed when the interest of a country appears to be threatened. This, on the other hand, has brought to the fore the need for an International Competition Law framework especially if the objective of competition law is to be achieved with the increasing complexity in global trade. This author holds the view that the US should not seek to resolve the issue of OPEC through the Judiciary. Rather the Executive arm, through consultations and negotiations, should deal with the matter. Just like war is better resolved by peaceful means, this sensitive issue should be handled on a political level through diplomacy and with due regard for the sovereignty of all the Nations concerned.

1 2

Yergin, D., The Prize:The Epic Quest for Oil, Money and Power (Pocket Books 1997) at 523. OPEC: The Oil Cartel, <> (last visited on 09/04/02). 3 Senator Specter and Biden call on President to take legal action against OPEC, <> (last visited on 25/04/02). 4 Whish, R., Competition Law (Butterworths 2001) 415. 5 Bolze, R.S., Pierce, J.C., Walsh, L.L., Antitrust Law Regulation: A new focus for competitive energy industry, 2000 Energy Law Journal vol. 21. 6 Whish, R., supra note 4 at 2. 7 Fox, E., The New American Competition Policy - From Antitrust to Pro-efficiency, (1981) ECLR 439. 8 Udin, A.C., Slaying Goliath: The Extraterritorial Application of U.S. Antitrust Law to OPEC, <> 1333 (last visited on 24/04/02). 9 Bolze, R., Peirce, J., Walsh, L., supra note 5 at 83. 10 Yergin, D., supra note 1 at 108-109. 11 Whish, supra note 4 at 416. 12 Udin, A.C., supra note 8 at 1334. 13 Danielsen, A., Evolution of OPEC (Harcourt Brace Jovanovich Publishers 1982) at 126. 14 Rueda, A., Price-fixing at the pump: Is the OPEC oil conspiracy beyond the reach of the Sherman Act? Houston Journal of International Law p. 9, Fall 2001. 15 <> p. 5 (last visited on 10/04/02). 16 Id. 17 <> (last visited on 14/04/02). 18 Danielsen, A., supra note 13 at 6.


19 20

Id. Ibid. 21 Ibid at 51. 22 Love, J., Antitrust Considerations in the petroleum industry 29 March <> (last visited on 14/03/02). 23 Yergin, D., supra note 1 at 32-33. 24 Brownlie, I., Principles of Public and International Law (5th Ed. Ch. XV). 25 Id 311. 26 148 F.2d 416 (2d Cir.1945). 27 Udin, A.C., supra note 8 at 1339. 28 213 U.S. 347 (1909). 29 549 F.2d 597 (9th Cir. 1976). 30 509 U.S. 764 (1993). 31 F.3d (1st Cir. 1997). 32 Reynolds/Sicillian/Wellman: Extraterritorial Application of the U.S. Antitrust Laws: [1998] ECLR 154. 33 Brownlie, I., supra note 24 at 311. 34 Whish, R. supra note 4 at 393-394. 35 Id. 36 [1969] CMLR D23. 37 Corah, V., Cases and Materials on EC Competition Law (2nd Ed., Hart Publishing 2001) p. 269. 38 (T-102/96) [1999] ECR II 753, [1999] 4 CMLR 971. 39 Whish, R., supra note 4 at 403. 40 Griffin, J.P., Reactions to U.S. Assertions of Extraterritorial Jurisdiction [1998] ECLR 64. 41 Case Study: The Boeing-McDonnel Merger <> (last visited on 25/03/02). 42 GE and Honeywell fail to tie the knot <> (last visited on 25/03/02). 43 Whish, R., supra note 4 at 397. 44 Nader, R., Letter on Boeing McDonnell Douglas Merger <> (last visited on 25/04/02). 45 Whish, R., supra note 4 at 391. 46 168 U.S. 250 (1897). 47 Rueda, A., supra note 14 at Ch. V. 48 11 U.S. (7 Cranch) 116 (1812). 49 Rueda, A., supra note 14. 50 Udin, A. C., supra note 8 at 1349. 51 477 F. 553, 559-60. 52 Udin, A.C., supra note 8 at 1358. 53 Id at 355. 54 Griffin, supra note 40 at 65. 55 <> (last visited on 21/04/02). 56 Griffin, supra note 40 at 69. 57 Id. 58 Barrett, T Bill will allow antitrust suits against OPEC <> (last visited on 14/03/02). 59 OPEC rejects US Bill Against Oil Price Fixing <> (last visited on 10/04/02). 60 In Re Uranium Antitrust Litigation 617 F.2d at 1256. 61 Id. 62 Griffin, supra note 40 at 70. 63 Three more countries join dispute over US steel tariff <,7369,670952,00.html> (last visited on 25/03/02). 64 Griffin, supra note 40 at 65. 65 Id at 72. 66 Marsden, P: A WTO Rule of Reason? [1998] ECLR 535. 67 EU Not to Join US in OPEC Price Dispute, <> (last visited on 09/04/02).


68 69

Id. Supra note 59. 70 Griffin, supra note 40 at 66.



Primary Sources: United States v. Aluminium Co of America 148 F.2d 416 (2d Cir.1945) American Banana v. United Fruits 213 U.S. 347 (1909) Timberlane 549 F.2d 597 (9th Cir.1976) Hartford Fire Insurance Co v. California 509 U.S.764 (1993) United States v. Nippon Paper Industry Co F.3d (1st Cir. 1997) Dyestuff (Re Cartel in Aniline Dyes) [1969] CMLR D23 Gencor v. Commission (T-102/96) [1999] ECR II 753, [1999] 4 CMLR 971 Underhill v. Hernandez 168 U.S. 250 (1897) Schooner Exchange v. Mc Faddon 11 U.S. (7 Cranch) 116 (1812) International Association of Machinists and Aerospace workers v. OPEC 477 F. Supp. at 553, 559-60 In Re Uranium Antitrust Litigation 617 F.2d at 1256 Secondary Sources: Books: Brownlie, I., Principles of Public and International Law (5th Ed. Clarendon University Press, Oxford 1998) Corah, V., Cases and Materials on EC Competition Law (2nd Ed. Hart Publishing, 2001) Danielsen, A., The Evolution of OPEC (Harcourt Brace Javanovich Publishers 1982) Whish, R., Competition Law (Butterworths, 2001) Yergin, D., The Prize:The Epic Quest for Oil,Money and Power (Pocket Books, 1997)


Articles: Bolze, R.S., Pierce, J.C., Walsh, L.L., Antitrust Law Regulation: A new focus for competitive energy industry 2000 Energy Law Journal vol. 21 Fox, E., The New American Competition Policy-From Antitrust to Pro-efficiency (1981) ECLR 439 Griffin, J.P., Reactions to U.S. Assertions of Extraterritorial Jurisdiction [1998] ECLR 62 Marsden, P: A WTO Rule of Reason? [1998] ECLR 535 Reynolds/Sicillian/Wellman: Extraterritorial Application of the U.S. Antitrust Laws: [1998] ECLR 154 Rueda, A., Price-fixing at the pump: Is the OPEC oil conspiracy beyond the reach of the Sherman Act? Houston Journal of International Law p.9, fall 2001 Internet Sources: OPEC: The Oil Cartel <> (last visited on 09/04/02) Senator Specter and Biden call on President to take legal action against OPEC (last visited on 25/04/02) Udin, A.C., Slaying Goliath: The Extraterritorial Application of U.S. Antitrust Law to OPEC <> 1333 (last visited on 24/04/02) <> (last visited on 10/04/02) <> (last visited on 14/04/02) Love, J., Antitrust Considerations in the petroleum industry March 29, <> (last visited on 14/03/02) Case Study: The Boeing-McDonnel Merger <> (last visited on 25/03/02)


GE and Honeywell fail to tie the knot <> (last visited on 25/03/02) Nader, R., Letter on Boeing McDonnell Douglas Merger <> (last visited on 25/04/02) Barrett, T Bill will allow antitrust suits against OPEC <> (last visited on 14/03/02) OPEC rejects US Bill Against Oil Price Fixing <> (last visited on 10/04/02) <> (last visited on 21/04/02) Three more countries join dispute over US steel tariff <,7369,670952,00.html> (last visited on 25/03/02) EU Not to Join US in OPEC Price Dispute <> (last visited on 09/04/02)