Anti-Antitrust Law: The Clawback and Other Features of the United Kingdom Protection of Trading Interests Act, 1980
![handle is hein.journals/geojintl12 and id is 957 raw text is: ANTI-ANTITRUST LAW: THE
CLAWBACK AND OTHER FEATURES OF
THE UNITED KINGDOM PROTECTION
OF TRADING INTERESTS ACT, 1980
MICHAEL J. DANAHER*
In response to what it has long considered the unjustified extraterritorial
application of U.S. antitrust laws, the United Kingdom enacted the Pro-
tection of Trading Interests Act, 1980. This Act attempts to prevent
enforcement of U.S. antitrust judgments in the United Kingdom, while
providing certain losing U.S. defendants a forum to seek recovery of any
treble damages paid to a U.S. plaintiff.
This article explains the Trading Interests Act's provisions and examines
the rationale for its passage. The article explores the Act's key provisions in
depth, including the unique clawback that effectively precludes any
treble damage recovery against a multinational defendant. In addition, the
article discusses the Act's broad grant of jurisdiction, which creates theoret-
ical inconsistencies and problems of enforcement for the U.K. judiciary.
The article then attempts to predict the Act's potential effect on U.S.
antitrust enforcement abroad and on U.S. plaintiffs' litigation strategies.
Finally, the article assesses the effect the Trading Interests Act will have on
the already turbulent transatlantic disagreement over the extraterritorial
application of U.S. antitrust laws.
INTRODUCTION
Extraterritorial enforcement of U.S. antitrust laws has long of-
fended the United Kingdom's sense of territoriality.'. The cele-
brated British Nylon Spinners cases of the 1950s,2 a 1964 blocking
* Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State; B.A., Yale
College; J.D., Stanford Law School. The views expressed in this article are those of the
author and do not necessarily represent the views of the State Department.
See generally K. BREWSTER & J. ATWOOD, ANTITRUST AND AMERICAN BUSINESS ABROAD
ch. 4 (2d ed. 1981).
2 British Nylon Spinners, Ltd. v. Imperial Chem. Indus., Ltd., [1954] 3 All E.R. 88 (Ch.)
(English contract to be performed notwithstanding U.S. order voiding contract); British
Nylon Spinners, Ltd. v. Imperial Chem. Indus., Ltd., [1952] 2 All E.R. 780 (C.A.) (U.K.
court not required to recognize U.S. order voiding licensing contract through extraterritorial
jurisdiction); United States v. Imperial Chem. Indus., Ltd., 105 F. Supp. 215 (S.D.N.Y. 1952)
(antitrust violation affected by patents remedied by compulsory licensing); United States v.](ViewImageLocal?handle=hein.journals/geojintl12&div=40&collection=&method=preview&ext=.png&size=3)
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Anti-Antitrust Law: The Clawback and Other Features of the United Kingdom Protection of Trading Interests Act, 1980
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