8 - The unilateral option: extraterritorial assertion of jurisdiction

Summary

In this and the following two chapters of the book, the ‘options’ of internationalisation of competition law will be explored. The chapter will focus on the doctrine of extraterritoriality. It will provide a full and comprehensive account of the doctrine including an examination of the legal basis of the doctrine, the issue of sovereignty and the various case law developments that have occurred in different regimes, most notably the EU and USA.

When discussing competition law in an international context, the doctrine of extraterritoriality merits special treatment, not least because of the difficult issues it has triggered over the years and the difficult questions its application often gives rise to in real cases in practice. Reference has already been made more than once during the course of the discussion in this book as to the fact that enforcement by several competition authorities around the world has become ‘extraterritorial’ over the years. In light of this, it should not be difficult to see that an examination of such an activity is of crucial importance in the context of the present book.

The chapter is structured as follows. The first part considers the question of jurisdiction under public international law. The second part evaluates some fundamental issues underlying extraterritoriality. It advocates the view that the difficulties with extraterritoriality reside not only in the conflicts it has caused between countries, but also in the search for a compelling definition of it.