中美维生素C反垄断案中的国家强制理论.doc

50 Va. J. Intl L. 757 Virginia Journal of International LawSpring 2010Note*757 VITAMIN “C” IS FOR COMPULSION: DELIMITING THE FOREIGN SOVEREIGN COMPULSION DEFENSEJane Lee [FNa1]Copyright (c) 2010 Virginia Journal of International Law Association; Jane Lee Introduction 758 I. The Chinese Vitamin C Antitrust Litigation 760 II. The Foreign Sovereign Compulsion Defense and Related Doctrines... 763 A. Foreign Sovereign Compulsion 763 B. Act of State 765 C. International Comity 765 III. Judicial Treatment of Foreign Sovereign Compulsion 765 A. Requirement of a Foreign Law 766 1. Chinese Regulatory Environment 773 2. Japanese Regulatory Process 775 B. Validity of Order Under Foreign Law 776 C. Treatment of Foreign Government Statements 778 D. Absolute Bar or Separate Factor in Comity Analysis 780 IV. Additional Sources of Guidance on Foreign Sovereign Compulsion... 783 A. Department of Justice and Federal Trade Commission 783 B. Restatement (Third) of the Foreign Relations Law of the United States and Comments 785 V. Proposal on the Treatment of Foreign Sovereign Statements 786 A. Fairness to Defendant: Evidentiary Obstacles 787 B. International Comity: Reconciling Compulsion with U.S. Webb-Pomerene Associations 788 Conclusion 790 *758 Introduction A case presently unfolding in the United States District Court for the Eastern District of New York highlights an issue that the courts have wrestled with in the past: the attempt to define the limits of the foreign sovereign compulsion defense. [FN1] In In re Vitamin C Antitrust Litigation, U.S. purchasers of Chinese Vitamin C alleged that the Chinese manufacturers had formed an illegal cartel to fix prices and limit the supply of Vitamin C exports. [FN2] The Chinese manufacturers did not deny their anticompetitive behavior but moved to dismiss the suit, invoking, among other defenses, the foreign sovereign compulsion doctrine to shield them from liability under U.S. antitrust laws.