Comity

3.2 Comity

• The Competition policies taken by a country as to the desirable state of enforcement and difference in the level of the penalty should be honored by other countries. In a case where a country's competition authority decides a conduct in question, as long as the competition laws of a country may be compatible with the U.S. antitrust laws in contents, regardless the result of enforcement of such competition laws of a country, the U.S. Agencies should refrain from the enforcement of its own antitrust laws to the matter.

• As to the two items added to the 6 factors of the comity analysis provided by the 1988 Guidelines; i.e.,
  • the effect on foreign enforcement;
    
  • the effectiveness of foreign enforcement,
    
  manipulation of these factors needs to be described more in detail. If this meant to say the U.S. Agencies do not give comity to a foreign country when the U.S. Agencies consider the amount of penalty imposed by a foreign country in the course of the enforcement of its own antitrust laws is not sufficient, this would present a serious problem on international affairs and domestic orders.

• The following factors which the U.S. Court of Appeals has employed should be considered in performing a comity analysis.
  • "If relief is granted, whether a party will be placed in the position of being forced to perform an act illegal in either country or be under conflicting requirements by both countries;"

  • "Whether an order for relief would be acceptable in this country if made by the foreign nation under similar circumstances;"

  • "Whether a treaty with the affected nations has addressed the issue."

• We are afraid that it is just the denial of international comity consideration by the U.S. Agencies, relying on Hartford Fire, to determine no conflicts exist for purposes of an international comity analysis in the courts if the person subject to regulation by two states can comply with the laws of both.

• Hartford Fire is the only case in which the U.S. Supreme Court has expressed its opinion on comity in relation with the extraterritorial enforcement of the U.S. antitrust laws, reversing the decision rendered by the U.S. Court of Appeals. Furthermore, this decision was narrowly delivered by the divided court with a strong dissenting opinion. Judging from these circumstances, case may not be considered as a persuasive leading case. Given the fact that there are many critical opinions by foreign jurists and commentators, especially from England, we do not think Hartford Fire does provide a sound basis to establish a theory for the extraterritorial enforcement of the U.S. antitrust laws. The Agencies need to analyze other foreign countries' opinion with an objective eye and reconsider giving international comity to another country when the person subjects to both countries' law at the same time.

Although the 1994 Guidelines state that the Agencies would consider, in EXAMPLE I,

• "working cooperatively with the foreign authority" or
• "staying their own remedy pending enforcement efforts by the foreign country"