End OPEC Antitrust Immunity under the Foreign Sovereign Immunities Act? — Yes, Absolutely.

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Antitrust immunity for OPEC and its members has been upheld under old case law for decades. This is very unfortunate.

There is no reason that such immunity ought to be extended to OPEC members in this century. Especially, when those actions imperil U.S. foreign policy, U.S national security interests, the U.S. domestic economy and the global economy.

The Foreign Sovereign Immunities Act (FSIA), enacted in 1976, and amended numerous times, allow actions against a foreign state on various grounds. Those include a state-supporter-of terrorism and more generally for international terrorism or tortious acts.  I would argue that the raising or oil prices by Saudi Arabia falls within these categories. In the sense that they support Russia’s unlawful and terroristic war crimes in Ukraine. (This State Dept. should consider declaring Saudi Arabia a state-supporter-of-terrorism).

It is also very clear to me that OPEC nations actions fall within the more traditional category of price-fixing. We have held foreign corporations in criminal and civil actions responsible and liable for such extraterritorial, predatory actions as long as they have an impact in the United States. Of course, we also hold foreign states liable under the Foreign Sovereign Immunities Act for participating in commercial transactions and their tortious actions. 

It is about time the Biden administration should consider submitting executive suggestions to federal courts when necessary, indicating that they should not find immunity to foreign states for their predatory actions.

Global commerce and geopolitics have come a long way from when the United States initially moved away from the notion of absolute sovereign immunity in the 1950s. When it adopted the restrictive approach to sovereign immunity in the Tate Letter of 1954, in the FSIA of 1976, and various amendments to the FSIA since then.

The newer and broader view of antitrust by the Biden administration, favored now by the FTC and the U.S. Dept. of  Justice under President Biden, should embrace a more updated and aggressive view of U.S. international antitrust law and greater restrictions on sovereign immunity generally in order to support the U.S. national interest, including the welfare of U.S. consumers and workers.  

There is no foreign policy reason why private actions or those by the Dept. of Justice should be barred by an atavistic view of governments participating in the global marketplace. A more robust implementation of or economic legislation can help implement our foreign policy. A more updated view would also help protect U.S. consumers and the U.S. economy in this tricky decade.

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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