Unilateral Application of Competition Laws to Transnational Business Transactions: The Development of the “Effects” Doctrine in the US and the EU

This contribution deals with the extraterritorial reach of rules against restraints of competition. On the basis of public international law principles regarding State’s jurisdiction to prescribe, to adjudicate and to enforce, the early development of the “effects doctrine” in the jurisprudence of the US is briefly explained. It follows a detailed analysis of the jurisprudential development in the EU where the ECJ and the GC have for a long time incrementally refined the territoriality principle by following the “single economic entity” concept and the “implementation test” until it became only recently unavoidable to also squarely accept the “qualified effects doctrine”. The EU is now as equally well equipped as the US to protect its market against restrictive practices from abroad. In order to soften international jurisdictional conflicts, the EU has entered into bilateral co-operation agreements, in particular with the US, which provide for “positive comity”.