Washington Law Review


Steven J. Hawes


Large numbers of export cartels and increasing governmental involvement in commerce present the potential for greater conflicts between United States antitrust law and the decrees of foreign governments. Sovereign compulsion as a defense to antitrust complaints is one method for dealing with the contradictory obligations imposed on private parties where such conflicts exist. Sovereign compulsion has been discussed by courts and commentators many times in recent years, yet the limits of the defense and the requirements for its application remain unclear. To demonstrate a sovereign compulsion defense, defendants must show that their actions, although possibly in violation of United States antitrust law, were done in compliance with the directives of a foreign government and, therefore, should not be subject to liability under United States law. A special problem arises in this context when a foreign government submits a statement on behalf of a party that is asserting a sovereign compulsion defense. The response of United States courts to such statements has ranged from deference to disregard.

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