2. APROXIMACIÓN AL FENÓMENO DE LA FRANQUICIA 1 Definiciones.
2.4. Comunicación y franquicia.
2.4.1. La comunicación empresarial en el siglo XXI.
This thesis proposes a transborder standard. This proposal requires analysis that
clearly shows how the transborder standard affects private litigation in the
future. The introduction of a transborder standard is merely the first step in the
development of private antitrust law enforcement within the international
188 See Chapter 5, subsection 2.5.
189 Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909,926 (D.C.Cir.1984). 190 Ibid.
191 Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909,929 (D.C.Cir.1984). 192 Ibid.
193 Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C.Cir.1984), p.929
cases, but it is important to point at the explanation of p.932,n.73, where the same adjudicating court stated that slight advantages in substantive or procedural law in the foreign court do not signify an actionable evasion of domestic public policy.
194 Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909,930 (D.C.Cir.1984). 195 Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909,932,n.73 (D.C.Cir.1984).
context.
196This means that the present thesis cannot predict and provide
solutions to every potential issue that may arise during the course of private
antitrust litigation in the future.
197One of these issues that would require additional analysis is the nature, purpose
and extent of private antitrust remedy within the international context.
Nevertheless, it is worth mentioning the position of the U.S. courts in relation to
factors that should be taken into consideration in formulating the antitrust
remedy. The statements in pre-Empagran cases that can serve this purpose are
the following: antitrust remedy is formed in existence of competitive conditions
that would be in accordance with the law;
198antitrust remedy should be an
assurance that there would be no antitrust violation in the future;
199in
formulating antitrust remedy, the adjudicating court needs to establish how
market conditions may change in the future;
200non-U.S. courts cannot supersede
the right and obligation of the U.S. courts to decide whether the U.S. Congress
has created a remedy for those injured by trade practices adversely affecting
the U.S.;
201any victimized person is entitled to a remedy, so the non-U.S.
nationality of the plaintiff or sovereignty do not play a role in deciding who is
entitled to a remedy;
202it is not relevant that the litigants are of U.S.
nationality,
203otherwise the fundamental goals of antitrust laws could be
seriously frustrated;
204U.S. jurisdiction is not supported by every conceivable
repercussion of the action objected to in the U.S.,
205but only under the
condition that the U.S. market is affected, whether it is interstate commerce
(i.e. within the U.S.) or commerce between the U.S. and a non-U.S. country;
206only those injuries to U.S. commerce which reflect the anticompetitive effect
196 See Chapter 5.
197 Some of the issue that this thesis will not consider are mentioned in Chapter 6. 198 N.135.
199 See U.S. v. Aluminum Co. of America, 91 F.Supp. 333,346 (S.D.N.Y.1950). 200 Ibid.
201 Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909,935 (D.C.Cir.1984). 202 Pfizer, Inc. v. Government of India, 434 U.S. 308,320, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978). 203 N.148.
204 N.80.
205 National Bank of Canada v. Interbank Card Ass'n., 666 F.2d 6,8 (2d Cir.1981).
206 Liamuiga Tours, Div. of Caribbean Tourism Consultants, Ltd. v. Travel Impressions, Ltd., 617
either: a.) of the violation or b.) of anticompetitive acts made possible by the
violation, constitute effects sufficient to confer jurisdiction
207(e.g. acts outside
the U.S. may be essential steps in the course of business consummated outside
the U.S.);
208the perpetrators’ conduct that gives rise to a claim by a private
party has to be an integral part of commercial activity that has substantial
contact with the U.S.;
209if U.S. commerce is affected by the conspiracy, subject
matter jurisdiction exists,
210and if this conspiracy causes antitrust injury to a
private party, this private party has jurisdiction irrespective of whether the
harm felt in the U.S. is the source of the injury to the plaintiff, because treble
damages suits serve a single function, i.e. the protection of U.S. commerce;
211not all persons or entities injured abroad are precluded from recovering under
U.S. antitrust laws;
212in a situation where the defendants (of U.S. and non-U.S.
nationality) are found jointly liable, the plaintiff could look to any one
defendant for full satisfaction of the damage award.
213The statements just listed show that in general, the U.S. courts are not against
adjudicating antitrust remedies to (i.e. compensating) private parties of U.S.
and non-U.S. nationality who suffer antitrust injury outside the U.S. The reasons
why the U.S. courts are willing to adjudicate compensation to private parties
who suffer foreign antitrust injury are the following: a.) the U.S. courts first
have to establish that they have subject matter jurisdiction as anticompetitive
effects are present within the U.S.; b.) adjudicating antitrust remedies is a
consequence of enforcing (applying) U.S. antitrust law to factual situations; c.)
adjudicating antitrust remedies means protecting the goals of U.S. antitrust law.
207 N.205.
208 American Rice, Inc. v. Arkansas Rice Growers Co-op. Ass'n, 701 F.2d 408,414 (5th Cir.1983). 209 Filetech S.A. v. France Telecom, S.A., 212 F.Supp.2d 183,191 (S.D.N.Y. 2001).
210 Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420,439 (5th Cir.2001) (dissenting
opinion).
211 Ibid.
212 Papst Motoren GMbH & Co. KG v. Kanematsu-Goshu (U.S.A.) Inc., 629 F.Supp. 864,868
(S.D.N.Y.1986).