l Reprinted in 26 Dept. of State Bull. 984-85 (1982) and in Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 711, 96 S.Ct. 1854, 1869, 48 L.Ed.2d 301 (1976) (App. 2 to opinion of White, J..

2 Arguably the default judgment was void since subject matter jurisdiction was lacking because of sovereign immunity. But we do not base our decision on this groun.

3 The district court observed that, in ruling on the default issue, it was not passing on the ultimate issue of subject matter jurisdiction, which it later reached in another order.This was an appropriate approach.The court had jurisdiction to examine its jurisdiction.As an incident of that examination it was free to in quire whether the judgment previously entered was to be vacated so that it could examine the jurisdictional issue free of any inferences that might flow from the existence of the judgment. As the court put it,after describing the soveireign immunity and FSIA questions: ‘The interests of justice require that these jurisdictional questions be determined in the context of adversarial proceedings.“.

4 It Has listed some six other cases pending in federal district courts asserting liability of foreign states for acts committed before 1952. These include suits against the USSR, Mexico, Poland and two against the PRC for bonds issued before 192.

5 The decision we reach obviates consideration of China's contention that an interpretation giving the FSIA retroactive effect before 1952 would violate due proce.

6 Plaintiffs assert that the court erred in finding that the renegotiations were not agreed upon. But this assertion is made in the context of an argument that the district court might have reached a different conclusion about jurisdic tion relating to the 1911 issuance had it realized that the bonds did not mature until 197.

7 There would be, of course, a substantial ques tion whether the post-1952 events just described, by themselves, assuming renegotiation, are within the commercial activity provisions of § 1605(a)(2) and the definition of commercial activity in §1603(d.

1 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature, March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 (entered into force between the United States and France on October 6, 1974.

2 In response to Rule 28.1, Petitioners state the following: Petitioner Société de Construction d'Avions de Tourisme is a wholly-owned subsidiary of Petitioner Socie'te’ Nationale Industrielle Aerospatiale. Petitioners have no other affiliates or subsidiaries which are not wholly-owned. In addition to the parties shown in the caption. Seed & Grain Construction Co. is a party in the district court proceedings. It did not participate in the writ proceedings before the Eighth Circuit nor has it appeared in this proceedin.

3 See S. Exec. A, 92d Cong., 2d Sess. VI (1972) (hereinafter cited as Convention Transmittal); S. Exec. Rep. No. 25, 92nd Cong., 2d Sess. 1 (1972) (hereinafter cited as Senate Foreign Relations Committee Report); Report of United States Delegation to Eleventh Session of Hague Conference on Private International Law, reprinted in 8 Int'l Legal Materials 785, 806 (1969) (hereinafter cited as 1969 U.S. Hague Delegation Report); Amram, Report on the Eleventh Session of the Hague Conference on Private International Law, 63 Am. J. Int'l L. 521 526 (1969.

4 Barbados, Cyprus, Czechoslovakia, Denmark, Finland, France, Germany, Israel, Italy, Luxenbourg, the Netherlands, Norway, Portugal, Singapore, Sweden, United Kingdom and the United States. VII Mar-tindale-Hubbell Law Directory, Part VII at 14-15 (1986) (hereinafter cited as Martindale-Hubbell) .

5 Statute of the Hague Conference on Private International Law, art. 1, opened for signature, October 31, 1951, 15 U.S.T. 2228, T.I.A.S. No. 5710, 220 U.N.T.S. 121 (entered into force for the United States October 15, 1964). Mutual judicial assistance has been a major focus of the Hague Conference since its inception. At the Second Conference, held in 1894, the first multilateral convention on civil procedure was drafted. It included detailed rules regarding the execution of requests for judicial assistance. This first convention was superseded by the 1905 Civil Procedure Convention, which ultimately was adopted by 15 European nations and remained in force for many of the parties for over 50 years. In 1954, the Conference adopted a revised and modernized version of the earlier convention. The 1954 Convention addresses three topics: service of process; taking of evidence; and legal aid. The 1954 Convention was ultimately adopted by some 28 states and continues in force between some of them. The United States was not a party to either of these earlier conventions and did not participate in their drafting. In 1963, at the urging of the Executive Branch, Congress passed and the President signed a Joint Resolution authorizing the United States to participate in the Hague Conference. The United States first participated as a full member at the Conference's Tenth Session in October 1964. The Tenth Session resulted in the adoption of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at the Hague, November 16, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163. Encouraged by its diplomatic success in achieving consensus upon a service convention, the United States urged consideration of an evidence convention at the next session of the Hague Conference. See generally B. Ristau, 1 International Judicial Assistance (Civil and Commercial) §§ 1-2 (1984); Nadelmann, The United States Joins the Hague Conference on Private International Law: A “History” with Comments, 30 Law & Contemp. Probs. 291 (1965.

6 See J. Merryman, The Civil Law Tradition 111-19 (2d ed. 1985); J. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823, 826-35(1985); 1 New Code of Civil Procedure in France xxvi- xxxv (F. de Kerstrat & W. Crawford, trans. 1978.

7 The act of taking evidence from a willing witness in a civil law nation “may constitute the performance of a public judicial act by an unautho rized foreign person. It may violate the ‘judicial sovereignty’ of the host country, unless its authorities participate or give their consent.” 1969 US. Hague Delegation Report at 80.

8 Senate Foreign Relations Committee Report at 1-.

9 Convention Relating to Civil Procedure, done at the Hague, March 1, 1954, 286 U.N.T.S. 265. .

10 Conférence de La Haye de Droit International Privé, IV Actes et Documents de la Onzieme Session, Obtention des Preuves à I'Entranger 16 (Bureau Permanent de la Conference ed. 1970) (hereinafter cited as Convention History) .

11 Convention Transmittal at VI; Amram, United Stales Ratification of the Hague Convention on the Taking of Evidence Abroad, 67 Am. J. Int'l L. 104, 105 (1973.

12 Memorandum of the United States with Respect to the Revision of Chapter II of the 1954 Convention on Civil Procedure (hereinafter cited as U.S. Memorandum), reprinted in Convention History at 1.

13 Senate Foreign Relations Committee Report at 2. The United States makes available “more favorable and less restrictive practices” to foreign litigants pursuant to 28 U.S.C. § 1782, enacted in 1964 as part of Public Law 88-61.

l4 Amram, 67 Am. J. Int'l L. at 10.

15 'Report on the Work of the Special Commission on the Operation of the Convention of 16 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. June 12-15, 1978, reprinted in 17 Int'l Legal Materials 1425, 1434-39 (1978) (hereinafter cited as /978 Report on Convention Operation); Martindale-Hubbell at 2.

l6 Amram, Explanatory Report on the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (hereinafter cited as Convention Explanatory Report), appended to Convention Transmittal at 23-24, and reprinted in Convention History at 208; 1969 U.S. Hague Delegation Report at 81.

17 .id. The Nouveau Code de Procedure Civile (“New Code of Civil Procedure”) enacted by France in 1975 contains specific provisions on international letters rogatory designed to implement the Convention procedures. Among these provisions are article 739, which permits letters of request to be executed in accordance with the instruction of a foreign court, and article 740, which permits foreign attorneys on authorization from the judge to examine witnesses. Article 739 denies French courts the right to refuse execution of letters of request on the grounds of incompatibility. 1 New Code of Civil Procedure in France 153, 214 (F. de Kerstrat and W. Crawford, trans, 1978.

18 i.e., execution may be objected to if the letter is outside the Convention's scope as defined in article 1, does not contain the information required by article 3, is not expressed in the language specified by the State of execution in accordance with article 4, or does not conform to some other bilateral agreement between the nations in question (art. 32.

19 See Letter from the Ministry of Justice to the Ministry of Foreign Affairs annexed to the Brief of the Republic of France as Amicus Curia.

20 Convention History at 155. The article was adopted by a vote of twelve to three with two abstentions (the U.S. voting in favor, Germany, France and Switzerland voting against; Greece and Luxembourg abstaining). Id. at 17.

21 1978 Report on Convention Operation at 1428; Report on the Second Meeting of the Special Commission on the Operation of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, reprinted in 24 Int'l Legal Materials 1668, 1677 (1985) (hereinafter cited as 1985 Report on Convention Operation). All Convention signatories except the United States, Barbados, Czechoslovakia, and Israel have made a declaration under article 23. Many signatories, for example Norway and the United Kingdom, have expressly qualified their reservation, making it applicable only to requests which are overbroad and not specific. See Martindale-Hubbell at 15-19.

22 See 1978 Report on Convention Operation at 1427-2.

23 The U.K. reservation states: Her Majesty's Government further declares that Her Majesty's Government understand "Letters of Request issued for the purpose of obtaining pre-trial discovery of documents" for the purpose of the foregoing Declaration as including any Letter of Request which requires a person: a.to state what documents relevant to the proceedings to which the Letter of Request relates are, or have been, in his possession, custody or power; or b.to produce any documents other than particular documents specified in the Letter of Request as being documents appearing to the requested court to be, or to be likely to be, in his possession, custody or power. [Martindale-Hubbell at 19.

24 1985 Report on Convention Operation at 167.

25 Report of the United States Delegation to the Special Commission on the Operation of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, reprinted in 17 Int'l Legal Materials 1417, 1424 (1978) (hereinafter cited as 1978 Report of U.S. Delegation on Convention Operation.

26 1978 Report on Convention Operation at 1431. Petitioners know of no case in which a French court has refused to execute a letter of request.

27 Under article 15 of the 1954 Convention Relating to Civil Procedure, letters of request are executed by a judicial authority unless bilateral conventions between the states involved allow execution by diplomatic of consular agents, or the executing state “does not object.”.

28 Convention Transmittal at VI, IX; Report of the Special Commission (hereinafter cited as Special Commission Report), reprinted in Convention History, at 68-69.

29 Borel & Boyd, Opportunities for and Obstacles to Obtaining Evidence in France for Use in Litigation in the United States, 13 Int'l Law. 35,41 (1979.

30 ld.at 42.

31 Arts. 16-17, Pet. App. 31a-32.

32 Borel & Boyd, 13 Int'l Law. at 41-4.

33 Martindale-Hubbell at 16. The Brief of the Republic of France as Amicus Curiae describes in detail how foreign litigants can make use of the Convention's voluntary procedures to conduct discovery in Franc.

34 Art. 18, Pet. App. 32a. Only the United States and Italy have made unqualified declarations of assistance under article 18. Czechoslovakia, Cyprus and the United Kingdom have declared that compulsion will be applied in the case of States offering reciprocal assistance. Martindale-Hubbell at 15-2.

35 The question of the effect of a refusal by a witness to give evidence voluntarily before a consul or commissioner was considered by the Special Commission which convened in advance of the full Conference to prepare an initial draft Convention. The Commission reached no decision on this issue. Special Commission Report at 72 During the Conference, the Danish delegation proposed that: where no order of compulsion has been issued under article 16, refusal of a person to appear or to give evidence before the consul shall not render such person liable to any penalty or prejudice in relation to the proceedings for which the evidence is required. [Convention History at 149.] The Danish proposal was rejected by a vote of thirteen to five with one abstention. Id. This vote was in essence ratification cf the views of the Convention Rapporteur (Mr. Amram of the United States) who stated: [T]he Danish proposal related to a question which was fundamentally a matter for the internal law of each Contracting State. It should be for that law to determine the effect which would be given to a failure by a witness to give evidence. The Convention should not attempt to regulate this question. The effect of the Danish proposal would be to impinge on the administration of justice within the forum where the lawsuit was pending. [Id. at 150..

36 For example, documents were produced and depositions taken utilizing a commissioner appointed under the Convention procedures in Bulkley v. Mel O'Reilly Helicopters, Ltd., et al. Civil No. C80-480T in the U.S. District Court for the District of Washingto.

37 Although this brief adopts the shorthand employed by the case law and refers to French Penal Code Law No. 80-538 as a “blocking statute”, this term is a misnomer. As explained below, the French statute does not actually block the gathering of evidence for foreign proceedings but merely channels such activities through the Hague Evidence Convention and other judicial assistance treaties to which France is a party.

38 National Assembly Report No. 1814, A Mayoud, Reporter for the Commission on Production and Exchanges, 36 (1980) (hereinafter cited as Assembly Report) (“assurer la conformity de ces investigations [de plaignants ame'ricains] sur le sol national avec les regies posees par les conventions d'entraide judiciares en vigueur”.

38 National Assembly Report No. 1814, A Mayoud, Reporter for the Commission on Production and Exchanges, 36 (1980) (hereinafter cited as Assembly Report) (“assurer la conformity de ces investigations [de plaignants ame'ricains] sur le sol national avec les regies posees par les conventions d'entraide judiciares en vigueur”.

39 Assembly Report at 33-34, 36.

40 Assembly Report at 37 (“la France devait se doter de moyens juridiques propres a mettre un terme à des pratiques portant atteinte a sa souveraineté”).

41 Id. .

42 Assembly Report at 4.

43 Earlier requests for documents were served in August 1983 and April 1984. Joint Appendix at A-19. Petitioners provided those documents available within the United States and advised respondents that documents located in France should be requested through the Convention procedures. Respondents did not pursue the matter further until their April 1985 reques.

44 In responding to the pre-Conference questionnaire, the United States repeated its earlier statement urging as a goal of the Conference a “relaxation of barriers against voluntary testimony by a party or witness.” Convention History at 28 (emphasis supplied.

45 In ascertaining the meaning of a treaty [the Court] may look beyond its written words to… [the contracting parties’] own practical construction of it.” Factor v. Laubenheimer, 290 U.S. 276, 294-95 (1933); see Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32 (1943.

46 In Volkswagenwerk, the Solicitor General explicitly rejected the rule, adopted by the Eighth Circuit here, that the Convention has no applicability where the court has jurisdiction over the foreign person against whom discovery is sought: The fact that a state court has personal jurisdiction over a private party… does not mean that treaty limits on proceedings for the taking of evidence abroad somehow do not apply to discovery orders addressed to such parties. The Evidence Convention protects the judicial sovereignty of the country in which evidence is taken, not the interests of the parties to the suit. Accordingly, its strictures apply regardless of the existence of personal jurisdiction. [Brief of United States as Amicus Curiae at 7 n..

47 The decision to assert in personam jurisdiction over a foreign defendant in a civil action does not, and should not, involve a detailed inquiry as to the reasonableness of subjecting that person's property, employees, and affiliates throughout the world to the compulsory power of the court. To assume that all the property, employees, and affiliates of a company are subject worldwide to the compulsory discovery orders of all the courts before which a company might be ordered to appear as a defendant in a civil action is, in the end, to require that the rationality of such a course of action be weighed in each case as part of the decision whether to exercise jurisdiction over the defendant at all. The eventual effect well could be to reduce the number of forums open to the plaintiff in the first instance.” Oxman, The Choice Between Direct Discovery and Other Means of Obtaining Evidence Abroad: The Impact of the Hague Evidence Convention, 37 U. Miami L. Rev. 733, 740 (198.

48 The concern of the civil law nations for the protection of their judicial sovereignty in the evidence gathering process was clearly expressed in response to a questionnaire distributed prior to the drafting session. Among the questions asked was, “Is there in your State any legal provision or any official practice, based on concepts of sovereignty or public policy, preventing the taking of voluntary testimony for use in a foreign court without passing through the courts of your State” Convention History at 10. France replied that its concept of sovereignty and public order required that no evidence be taken on French territory except by its judicial authorities. Id. at 33. The German Government stated that the hearing of a witness in a judicial proceeding constitutes an act of sovereignty which may only be performed by a judge or other legally authorized agent and that the obligation to testify established by foreign law cannot be extended onto German territory because it emanates from a foreign sovereign power. Id. at 22. Similar sentiments were expressed by Belgium (id. at 26), Italy (id. at 35), Luxembourg (id. at 37), Switzerland (id. at 44), Turkey (id. at 45), and Norway (id. at 38). See also Edwards, Taking of Evidence Abroad in Civil or Commercial Matters, 18 Int'I & Comp. L. Q. 646, 647 (1969.

49 Protection of Trading Interests Act, 1980, 29 Eliz. 2, ch. 11 (United Kingdom); Foreign Extraterritorial Measures Act, 1984, 33 Eliz. 2, ch. 49 (Canada); Economic Competition Act of June 1956, as amended by the Act of 18 February 1971, the Act of 15 December 1971 and the Act of 29 June 1977 (Netherlands); French Blocking Statute, Pet. App. 47a-51.

50 For example, a “request” for documents or information located in France “with a view to foreign judicial or administrative proceedings” violates the French Blocking Statute unless made through the Convention. Pet. App. 48a. Thus the “preparatory” acts of locating and assembling documents or information in France would fall squarely within the statute's prohibition. Similarly, the Canadian Foreign Extra-territorial Measures Act empowers the Canadian Attorney General to prohibit or restrict “[t]he doing of any act in Canada in relation to records” located in Canada that is likely to result in disclosures of such documents or the information they contain “for the purposes of a foreign tribunal.” 33 Eliz. 2, ch. 49, §.

51 Assembly Report at 36-37, see notes 38-42 and accompanying text, supra .

52 A number of countries, in a reaction against what they conceive of as abuses inherent in some forms of pre-trial discovery combined with exorbitant assertions of judicial jurisdiction, have adopted … statutes which prohibit the production of certain evidence abroad or provide for the possibility that an order may be made prohibiting such production.” 1985 Report on Convention Operation at 167.

53 Special Commission Report at 56; see 1969 US. Hague Delegation Report at 8.

54 [I]f the convention does not restrict unilateral extraterritorial discovery methods, then the civil law countries received no meaningful quid pro quo for their concessions to the United States under the convention. While there is no requirement of ‘consideration’ in international treaty law, unilateral concession is not the most probable explanation for the behavior of governments in international negotiations.” Oxman, 37 U. Miami L. Rev. at 760-6.

55 Senate Foreign Relations Committee Report at I; Convention History at 2.

56 US. Memorandum at 1.

57 In evaluating the Convention, the U.S. delegation to the drafting stated: The United States delegation considers that the Convention is a major contribution to the elimination of formal and technical obstacles to securing evidence abroad in a form that is usable in the requesting court. [1969 US. Hague Delegation Report at 820, reprinted in Convention Transmittal at .

58 Preamble, Hague Evidence Convention, Pet. App. 26a; Convention Transmittal at III (“This Convention is a significant step forward in the field of international judicial cooperation”.

59 1969 US. Hague Delegation Report at 806; Convention Explanatory Report at 11; Amram, 67 Am. J. Int'l L. at 10.

60 Chief Justice Marshall authored the classic American formulation of this principle: The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restrictions All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. [TheSchooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812).

61 Under established principles of both domestic and international law … American courts are precluded from ordering anyone to participate in discovery proceedings in the territory of a foreign state absent that state's consent, wholly independent of the Evidence Convention.” Brief for the United States as Amicus Curiae, Club Mediterranee. SA. v. Dorin, 465 U.S. 1019 (1984), reprinted in 23 Int'l Legal Materials 1332, 1338 (1984). See also Restatement of U.S. Foreign Relations Law (Revised) vol. 1 at 386 (Tent. Draft No. 6, 1985.

62 Brief of Republic of France as Amicus Curiae. See also Pet. App. 52a-57a (diplomatic note from Republic of Franc.

63 Convention History at 12.

64 Convention History at 63 (emphasis supplied). The question of the Convention's exclusivity was considered at the most recent meeting of the special commission on its operation. The report of the meeting notes that “certain States consider the taking of evidence in their territory to be a judicial act which, in the absence of permission, will violate their sovereignty, and consequently the operation of the Convention in their territory will take on an exclusive character.” 1985 Report on Convention Operation at 167.

65 Philadelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. 58, 60 (E.D. Pa. 1983.

66 Convention History at 5.

67 In proposing an evidence convention, the U.S. acknowledged that the federal rules of discovery could not authorize the use of extrajudicial techniques for the taking of evidence abroad “in countries that object to their use on the ground of judicial sovereignty.” Convention History at 28-29. It was further stated that extrajudicial discovery procedures were used abroad only “when not offensive to the law of the State in which the examination is to take place.” Id. at 3.

68 See Trimble, A Revisionist View of Customary International Law, 33 U.C.L.A. L. Rev. 665,727-30 (1986) (treaty law should be regarded as more authoritative than customary international law as source for rule of decision).

69 The Court has long recognized the paramount interest of the United States in maintaining a stable and reciprocally fair system for transnational interactions. “[International law] aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own.” Lauritzen v. Larsen, 345 U.S. 571, 582 (1953). See Scherk v. Alberto-Culver Co.. 417 U.S. 506, 516-17 (1974) (uncer-tainty arising from refusal to enforce arbitration clause “would surely damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements”); Romero v. International Terminal Operating Co.. 358 U.S. 354, 383 (1959) (“The controlling considerations are the interacting interests of the United States and of foreign countries…”.

70 This Court has frequently recognized the importance of predictability in the international business setting as a factor in determining applicable U.S. law. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 105 S.Ct. 3346 (1985); Scherk, 417 U.S. at 516-19; The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13-15 (1972.

7l See also Mitsubishi, 105 S.Ct. at 3355; Scherk, 417 U.S. at 519; Sabbatino, 376 U.S. at 43.

72 It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or international justice.” 376 U.S. at 428.

73 For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important decision where the possibilities of international discord are so evident and retaliative action so certain. We, therefore, conclude that any such appeal should be directed to Congress rather than the courts.” Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147 (1957). See also Windward Shipping v. American Radio Association, 415 U.S. 104 (1974); McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963.

74 See Scherk, 417 U.S. at 520-21 n.15 (1974) (enforcement of arbitration clause effectuated purpose of treaty.

75 Rule 28 (b) specifically contemplates that U.S. litigants will use the methods authorized by the Convention to take evidence abroad — i.e., letters of requests and commissions — and allows the admission of such evidence in U.S. proceedings even though it may not conform to all formal requirements of U.S. law. Other provisions of the rules give courts the tools necessary to structure evidence gathering in accordance with the Convention and the practices of the other signatories. Rule 16 encourages the courts to control and actively manage the progress of cases before them, including discovery matters. The second paragraph of Rule 26(b)(l) authorizes the courts to limit the scope, amount or method of discovery. It was added to the federal rules in 1983 in an effort to curb abuses of the discovery process by discouraging redundant, overbroad and unnecessarily burdensome requests. Advisory Committee Notes on 1983 Amendmen.

76 This tentative draft amends and supplements the prior tentative drafts. With these revisions, the tentative draft has now been adopted by the American Law Institute as Restatement (Revised). 54 U.S.L.W. 2593, 2595 (May 27, 1986.

77 By the Constitution, a treaty is placed on the same footing, and made of like obligation with an act of legislation. Both are declared by that instrument to be the supreme law of the land and no superior efficacy is given to either over the other.” Whitney v. Robertson, 124 U.S. 190, 194 (1888.

78 See Clifford MacEvoy Co. v. United States, 322 U.S. 102, 107 (1944); Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932); Harris v. Browning-Ferris Industries Chemical Services, Inc., 100 F.R.D. 775, 777-78 (M.D. La. 1984) (Hague Service Convention prevails over Fed. R. Civ. P. 4 because “aimed specifically at service of process made in foreign countries”.

79 Although the federal rules have been amended since the Convention took effect, these amendments make no mention of the Convention and have no effect on the operation of its procedures. They do not provide a basis for concluding that the federal rules supersede the Convention.Such an implicit repeal of a treaty is strongly disfavored. See Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984.

80 “The underlying principal of international law reflected in this subchapter is that neither service of judicial documents nor taking of evidence in connection with litigation may be conducted without that state's consent express or implied.” Restatement of U.S. Foreign Relations Law (Revised) vol. 1 at 386 (Tent. Draft No. 6, 1985.

81 § 437(1 )(c) (court should consider “the availability of alternative means of securing the information”); see § 473 Reporter's note 6 (Tent. Draft No. 6, 1985). Section 473 recognizes the general principle of international law that “a state may determine the conditions for taking evidence in its territory in aid of litigation in another state,” and describes generally the Hague Evidence Convention. Section 473 does not squarely address the precise issues presented by this case, and the comments indicate only that U.S. law in this area is unsettled. See comment b & Reporter's note .

82 In Anschuetz, the Solicitor General commended to the Court a “flexible” comity inquiry which “depends on the circumstances of each individual case.” See Brief for the United States as Amicus Curiae, Anschuetz & Co., Gmbh v. Mississippi River Bridge Authority, petition for cert, filed, 54 U.S.L.W. 3084 (U.S. Aug. 13,1985) (No. 85-98), and Messerschmitt Bolkow Blohm, Gmbh v. Walker, order granting cert, vacated, 54 U.S.L.W. 3809 (U.S. June 9, 1986) (No. 85-99), at 12. This analysis is said to depend on “intractable factors” which make it “difficult for this Court to provide additional specific guidance to the lower courts.” Id. at 20. This approach to comity may be adequate and appropriate for the Executive Branch in the conduct of U.S. foreign relations but generates no rules with which courts can reach principled decisions resolving justiciable controversies presenting conflicts between U.S. and foreign laws. What the Solicitor General has commended to the Court is a political concept of comity, concerned with maintaining amicable external relations, which as a legal principle amounts to no more than “mere courtesy and good will.”.

83 See Maier, Extraterritorial Jurisdiction at a Crossroads, 76 Am. J. Int'l L. 280, 283-84 (1982); J. Story, Commentaries on the Conflict of Laws 32-33 (Bigelow ed. 1883).

84 *4See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 105 S.Ct. at 3355-56 (comity requires enforcement of provisions in international agreements to arbitrate antitrust claims); Lauritzen v. Larsen, 345 U.S. at 577-78, 593 (Jones Act not applicable to injuries occurring on foreign flag vessel outside U.S. waters); Canadian Southern Railway Co. v. Gebhard, 109 U.S. 527, 539 (1883) (comity requires U.S. courts to recognize bankruptcy reorganization plans in foreign courts.

85 See discussion at notes 48-67 and accompanying text abov.

86 See discussion at notes 68-74 and accompanying text above.

87 See discussion at notes 92-102 and accompanying text belo.

88 See Pierburg Gmbh & Co. KG v. Superior Court, 137 Cal. App. 3d 238, 244-5, 186 Cal.Rptr. 876, 880-81 (1982). See also Restatement (Second) of Foreign Relations Law of the United States § 40, comment d (1962) and Restatement of U.S. Foreign Relations Law (Revised) § 403(2)(b) (Tent. Draft No. 7, 1986.

89 See United States v. First National Bank of Chicago, 699 F.2d 341, 345-6 (7th Cir. 1983); In re Westinghouse Litigation, 563 F.2d 992, 997 (10th Cir. 1977). See also Restatement (Second) of Foreign Relations Law of the United States § 40(b), comment c (1962) (“In determining whether to refrain from exercising jurisdiction, a state must give special weight to the nature of the penalty that may be imposed by the other state”.

90 See United States v. Vetco, 691 F.2d 1281, 1290 (9th Cir.) cert, denied. 454 U.S. 1098 (1981); Volkswagenwerk A.G. v. Superior Court, 123 Cal. App. 3d 840, 858, 176 Cal. Rptr. 874, 884-85 (1981)(“[I]f a channel more apt to elicit the cooperation of the foreign government is plainly available but is not used, then in our view insufficient account of the requirements of international comity had been taken….”). See also Restatement of U.S. Foreign Relations Law (Revised) §437(l)(c) (Tent. Draft No. 7, 1986.

91 See notes 38-42, supra and accompanying tex.

92 See arts. 15-17, Pet. App. 31a-32a; Borel & Boyd, 13 Int'l Law at 41.

93 See note 17, supra and accompanying tex.

94 Rule 28 (b) also insures this resul.

95 As several courts have noted, until a party makes proper application under the Convention for evidence located abroad, we cannot know what discovery can be obtained. See, e.g.. Gebr. Eickhoff Maschinfabrik und Eisengieberei v. Starcher, 328 S.E.2d 492, 502 (W. Va. 1985); Vincent v. Ateliers de la Motobecane, SA.. 193 N.J. Super. 716, 475 A.2d 686, 690 (1984.

96 Brief in Opposition to Petition for Certiorari at 12-1.

97 1978 Report of US. Delegation on Convention Operation at 142.

98 1978 Report on Convention Operation at 143.

99 SeePhiladelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. at 61 (E.D. Pa. 1983); Volkswagenwerk A.G. v. Superior Court, 123 Cal. App. 3d at 858, 176 Cal. Rptr. at 884-8.

l00 See Letter from the Ministry of Justice to the Ministry of Foreign Affairs annexed to the Brief of the Republic of France as Amicus Curia.

101 See, e.g., Vincent v. Ateliers de la Motobecane. SA., 193 N.J. Super. 716, 475 A.2d 686 (1984.

l02 See note 35, supra and accompanying tex.

103 Section 403(2) states: Whether the exercise of jurisdiction is reasonable or unreasonable is judged by evaluating all the relevant factors, including, where appropriate, (a)the extent to which the activity (i) takes place within the regulating state, or (ii) has substantial, direct, and foreseeable effect upon or in the regulating state; (b)the connections, such as nationality, residence, or eco nomic acitivity, between the regulating state and the persons principally responsible for the activity to be regulated, or between that state and those whom the law or regulation is designed to protect;(c)the character of the activity to be regulated, the impor tance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted; the existence of justified expectations that might be protected or hurt by the regulation in question; the importance of the regulation in question to the international political, legal or economic system; (0 the extent to which such regulation is consistent with the traditions of the international system; (g) the extent to which another state may have an interest in regulating the activity; and (h) the likelihood of conflict with regulation by other state.

l04 Given the substantial burden and expense of participating in a case as amicus curiae, foreign governments cannot be expected to undertake such participation in U.S. litigation routinely. Moreover, even where a case touches on very important interests of a foreign sovereign, there is a substantial risk that the foreign government will not learn of the proceeding or discover the case's potential impact on its sovereignty in time to participate as amicu.

l05 One commentator has described the attitude of the lower courts as follows: Committed to the value of the convenience of the plaintiff (particularly in tort actions), not to mention that of the local bar, a court asserts in personam jurisdiction on the basis of "minimum contacts," regardless of whether the defendant is from Rome, Italy or from Rome, Georgia. The court then orders depositions of the defendant's employees in Geneva, Switzerland as if they were in Geneva, New York and the inspection of documents or equipment located in Hanover, West Germany as if they were in Hanover, New Hampshire. The court normally faces the implications of what it is doing only when it comes up against a foreign criminal statute, and even then asserts the power to override foreign laws by ordering parties "before the court" to attempt in good faith to persuade foreign governments not to enforce their laws that interfere with United States discovery practices. [Oxman, 37 U.Miami L.Rev. at 741-42.

l06 See, e.g.. Murphy v. Reifenhauser K.G. Maschinenfabrik, 101 F.R.D. 360, 363 (D. Vt. 1984); International Society for Krishna Consciousness, Inc. v. Lee, 105 F.R.D. 435, 450 (S.D.N.Y. 198.

107 See Work v Bier, 106 F.R.D. 45, 55 (D.D.C. 1985) (in which the court refused enforcement of the Convention, apparently relying solely on a law review article to conclude: “It is obvious that [the Convention's] procedure for the gathering of evidence … will be highly ineffectual….”); Graco v. Kremlin Inc., 101 F.R.D. 503, 511 (N.D. 111. 1984) (“On the record before the court, there is great uncertainty as to the scope of discovery that Graco may obtain through a Letter of Request to France”.

108 See e.g., Graco v. Kremlin, Inc.. 101 F.R.D. at 521 (“discovery does not ‘take place within [a state's] borders’ merely because documents to be produced somewhere else are located there.”); Murphy v. Reifenhauser KG. Maschinenfabrik, 101 F.R.D. at 363 (comity “does not require plaintiff to proceed first under the Convention in this case, particularly at this relatively late stage of discovery, and particularly where it appears that a request for production of documents under the Convention would be futile”); Lasky v. Continental Products Corp., 569 F. Supp. 1227, 1229 (E.D. Pa. 1983) (denying protective order on finding that it was “not clear that compliance with the plaintiffs’ discovery request [would] require a violation of German law or impinge upon the sovereignty of the Federal Republic of Germany”.

109 Boreri v. Fiat S.PA., 763 F.2d 17, 20 (1st Cir. 1985) (refusing to address merits of mandamus petition raising question of interplay between Hague Evidence Convention and Federal Rules of Civil Procedure.

1 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, opened for signature Mar. 18, 1970, 23 U.S.T. 2555 et seq. (entered into force between the United States and France on Oct. 6, 1974), reprinted at Pet. App. 26a-4.

2 The Hague Evidence Convention provides three alternative methods for conducting evidence-taking proceedings abroad. Under the first method, a litigant may request the court where the action is pending to transmit a “Letter of Request” to the “Central Authority” in the country where the evidence is located. See arts. 1-2, 23 U.S.T. 2557-2558. The Central Authority, selected by the foreign government, then transmits the request to the appropriate foreign court, which conducts the evidentiary proceeding. See arts. 5-13, 23 U.S.T. 2560-2563. The foreign court, upon request, will conduct the evidentiary proceeding under procedures specified by the requesting court, unless those procedures are incompatible with internal law or impracticable. See art. 9, 23 U.S.T. 2561. Under the second method, the litigant may request that a diplomatic or consular officer of the country where the action is pending take evidence in the foreign country to which he is accredited. See arts. 15-16, 23 U.S.T. 2564-2565. Vnder the third method, the litigant may request that a specially appointed commissioner take evidence in the foreign country. See art. 17, 23 U.S.T. 2565. The three methods are similar to those identified by Fed. R. Civ. P. 28 (b.

3 The French statute, enacted in 1980, provides (Pet. App. 47a-48a): Subject to treaties or international agreements and applicable laws and regulations, it is prohibited for any party to request, seek or disclose, in writing, orally or otherwise, economic, commercial, industrial, financial or technical documents or information leading to the constitution of evidence with a view to foreign judicial or administrative proceedings or in connection therewi.

4 No question of sanctions under Fed. R. Civ. P. 37 is before this Court at this tim.

5 The Hague Conference is an international organization that promotes cooperation in the development of uniform rules of private international law. See Reese, The Hague Conference on Private International Law: Some Observations, 19 Int'l Law. 881 (198.

6 See, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982); Societe Internationale v. Rogers, 357 U.S. 197, 204-206 (1958); In re Marc Rich & Co., A.G., 707 F.2d 663, 667 (2d Cir.), cert, denied, 463 U.S. 1215 (1983); United States V. First National City Bank, 396 F.2d 897, 900-901 (2d Cir. 1968) ; Federal Maritime Commission v. DeSmedt, 366 F.2d 464, 468-469 (2d Cir.), cert, denied, 385 U.S. 974 (1966); SEC V. Minas de Artemisa S.A., 150 F.2d 215, 217 (9th Cir. 1945); International Society for Krishna Consciousness, Inc. V. Lee, 105 F.R.D. 435, 441 (S.D.N.Y. 1984) ; In re Uranium Antitrust Litiga-tion, 480 F. Supp. 1138, 1144-1145 (N.D. 111. 1979) ; Volkswagen-werk, A.G. V. Superior Court, 123 Cal. App. 3d 840, 856-857, 176 Cal. Rptr. 874, 883-884 (1981). See also Onkelinx, Conflict of International Jurisdiction: Ordering the Production of Documents in Violation of the Law of the Situs, 64 Nw. U. L. Rev. 487, 502-504 (1969) ; Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1053-1054 (1961); Note, Strict Enforcement of Extraterritorial Discovery, 38 Stan. L. Rev. 841, 843 (1986). Cf. Restatement (Second) of Foreign Relations Law of the United States §§39, 40 (1965.

7 See, e.g., Societe Nationale Industrielle Aerospatiale V. U.S. District Court, 788 F.2d 1408, 1410-1411 (9th Cir. 1986); In re Messerschmitt, 757 F.2d at 731; In re Anschuetz, 754 F.2d at 606-614; Lowrance v. Weinig, 107 F.R.D. 886, 388-389 (W.D. Tenn. 1985); Work V. Bier, 106 F.R.D. 45, 52-53 (D.D.C. 1985); Slauen-white v. Bekum Maschinenfabriken, Gmbh., 104 F.R.D. 616, 618-619 (D. Mass. 1985); International Society for Krishna Consciousness, Inc. V. Lee, 105 F.R.D. at 444-447; Compagnie Francaise D'Assurance Pour Le Commerce Exterieur V. Phillips Petroleum Co., 105 F.R.D. 16, 27-28 (S.D.N.Y. 1984); Laker Airways, Ltd. V. Pan American World Airways, 103 F.R.D. 42, 48-50 (D.D.C. 1984) ; Cooper Industries, Inc. V. British Aerospace, Inc., 102 F.R.D. 918, 919-920 (S.D.N.Y. 1984); Graco, Inc. V. Kremlin, Inc., 101 F.R.D. 503, 519-524 (N.D. 111. 1984); Gebr. Eickhoff Maschinenfabrik Und Eisengieberei mbh V. Starcher, 328 S.E.2d 492, 497 (W.Va. 1985) ; Pierburg Gmbh & Co. KG V. Superior Court, 137 Cal. App. 3d 238, 186 Cal. Rptr. 876, 879-880 (1982). Some foreign commentators continue to urge that the Convention is exclusive. See, e.g., Heck, U.S. Misinterpretation of the Hague Evidence Convention, 24 Colum. J. Transnat'l L. 231 (1986). However, we are aware of no reported decisions supporting that positio.

8 See, e.g., Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C. Cir. 1984) ; United States v. First National Bank, 699 F.2d 341, 345-347 (7th Cir. 1983) ; United States V. Vetco, Inc., 691 F.2d 1281, 1288-1291 (9th Cir.), cert, denied, 454 U.S. 1098 (1981); United States v. First National City Bank, 396 F.2d at 901-905. Cf. Soeiete Internationale v. Rogers, 367 U.S. 19.

9 As this Court noted in Guyot (159 U.S. at 164-165), Justice Story's Commentaries on the Conflicts of Law (first published in 1834) stated that “there is indeed great truth” in the observation “that comity is, and ever must be uncertain; that it must necessarily depend on a variety of circumstances which cannot be reduced to any certain rule; that no nation will suffer the laws of another to interfere with her own to the injury of her citizens; that whether they do or not must depend on the condition of the country in which the foreign law is sought to be enforced, the particular nature of her legislation, her policy, and the character of her institutions * * *.” J. Story, Commentaries on the Conflicts of Law § 28, at 28-29 (8th ed. 1883) (quoting Saul V. His Creditors, 5 Mart, (n.s.) 569, 596 (La. 1827).

10 Relying in part on comity principles, this Court recently concluded that foreign government instrumentalities established as independent juridical entities should normally be treated as distinct from their sovereigns, but refused to announce a “mechanical formula” for determining when that status should be disregarded. See First National City Bank v. Banco Para el Comercio, 462 U.S. 611, 626-627, 633 (1983). See also Banco Nacional V. Sabbatino, 376 U.S. 398, 428 (1964) (refusing to establish “an inflexible or all-encompassing rule” concerning acts of state) ; Disconto Gesellschaft V. Vmbreit, 208 U.S. 570, 579 (1908) (noting that the Guyot decision “shows that how far foreign creditors will be protected and their rights enforced depends upon the circumstances of each case”.

11 The Fifth and Ninth Circuits, like the court of appeals below, have rejected the first-use requirement. Societe Nationale Industrielle Aerospatiale V. U.S. District Court, 788 F.2d at 1411; In re Messerschmitt, 757 F.2d at 731; Pet. App. 7a. Most federal district court decisions have declined to impose that requirement. See, e.g., Lowrance v. Weinig, 107 F.R.D. at 388-389; Work v. Bier, 106 F.R.D. at 54-56; Slauenwhite v. Bekum Maschin-enfabriken, Gmbh., 104 F.R.D. at 618-619; International Society for Krishna Consciousness V. Lee, 105 F.R.D. at 449; Compagnie Francaise D'Assurance V. Phillips Petroleum Co., 105 F.R.D. at 32; Cooper Industries, Inc. v. British Aerospace, Inc., 102 F.R.D. at 919-920; Graco, Inc. v. Kremlin, Inc., 101 F.R.D. at 519-524. However, a few federal district courts, and a somewhat larger number of state courts, have required first resort to the Convention, at least in certain circumstances. See Laker Airways, Ltd. V. Pan American World Airways, 103 F.R.D. at 51; Philadelphia Gear Corp. V. American Pfauter Corp., 100 F.R.D. 58, 60 n.3 (E.D. Pa. 1983) ; Gebr. Eickhoff Maschinenfabrik Und Eisengieberei mbh V. Starcher, 328 S.E.2d at 506; Pierburg Gmbh & Co. KG V. Superior Court, 137 Cal. App. 3d at 243-244, 186 Cal. Rptr. at 879-880; Vincent V. Ateliers de la Motobecane S.A., 193 N.J. Super. 716, 721-724, 475 A.2d 686, 689-691 (1984) ; TH. Goldschmidt A.G. V. Smith, 676 S.W.2d 443, 445 (Tex. Ct. App. 1984.

12 Apart from the United States, the Convention is in force in Barbados, Cyprus, Czechoslovakia, Denmark, Finland, France, the Federal Republic of Germany, Israel, Italy, Luxembourg, the Netherlands, Norway, Portugal, Singapore, Sweden, and the United Kingdo.

13 See 7 Martindale-Hubbell Law Directory (pt. VII) at 15-19 (1986) ; Oxman, The Choice Between Direct Discovery and Other Means of Obtaining Evidence Abroad: The Impact of the Hague Evidence Convention, 37 U. Miami L. Rev. 733, Ill-Til (1983.

14 The Commission has a particularly keen need to obtain foreign evidence in carrying out its responsibilities for enforcement of federal securities laws in internationalized capital markets. See Fedders, Policing Internationalized U.S. Capital Markets: Methods to Obtain Evidence Abroad, 18 Int'l Law. 89 (1984.

15 The Commission sought evidence from a hotel, a credit card company, and two individuals who had acted as stockbrokers for purchases of Santa Fe securities shortly before the merger an nouncement. The federal district court issued letters of request to the British Central Authority on July 25, 1983. Upon presentation of the request, an English Master ordered that the evidence be given. The credit card company and hotel complied. However, the two individuals refused to comply, arguing that the Commission's requests were improper and would violate bank secrecy laws. On February 23, 1984, after briefing and four days of oral argument, the English court ordered the two individuals to testify. In re Evi dence (Proceedings in Other Jurisdictions) Act 1975 (Q.B. Feb. 23, 1984) (Drake, J.), reprinted in 23 Int'l Legal Materials 511 (1984). The witnesses testified two months late.

16 The federal district court issued letters of request in May 1983. The French witnesses contested the request. A French tribunal ultimately granted the Commission's request for witnesses testified two months later.on February on December 17, 1985. In re Testimony of Constandi Nasser, Trib. Admin, de Paris, 6eme section—2eme chambre, No. 51546/6 (Dec. 17, 1985). This victory proved, however, to be pyrrhic. The witnessrefused to testify and the French court, in response, imposed a minor fine. The witnesses testified two months later.on February 26, 198.

17 "The Italian request, issued by the federal court on Aug. 9, 1985, was directed to an SEC-registered broker-dealer in Milan and to certain individuals affiliated with him. The Court of Appeals of Milan, by decree dated September 10, 1985, authorized the letter of request and directed its execution by October 2, 1985. The Magistrate's Court of Milan took testimony from the witnesses but declined to compel production of documents in light of Italy's declaration, under Article 23 of the Convention, that it will not execute pretrial requests for documents. Statement on the Exami-nation of Witnesses as Requested by a Foreign Letter Rogatory (Pret. Milano, Italy Oct. 2, 1985). The Guernsey request, issued by the federal court on September 20, 1985, was directed to a Guernsey banking institution and concerned testimony and documents relating to the identity of the beneficial owners of an account utilized to execute certain questionable transactions. A Guernsey court ordered two witnesses to appear and to comply with the letter rogatory. On October 7, 1985, the witnesses moved in Guernsey to set aside the order, contending that the requested discovery was forbidden by Guernsey law. On March 11, 1986, the Deputy Bailiff of Guernsey denied the Commission's request for assistance on the ground that the testimony sought was a "search for defendants" and thus "fishing in nature." In re Evidence (Proceedings in Other Jurisdictions) Act 1975 (Guernsey) Order 1980 (Stat. Inst. 1980 No. 1956). A Guernsey appeals court dismissed the Commission's appeal from that order as moot following a decision of a United States court resolving other aspects of the case in the Commission's favor. See SEC V. Tome, [Current] Fed. Sec. L. Rep. (CCH) If 92,762 (S.D.N.Y. June 3, 1986.

18 See, e.g., Pain V. United, Technologies Corp., 637 F.2d 775, 788-790 (D.C. Cir. 1980), cert, denied, 454 U.S. 1128 (1981) (“there can be little doubt that the cost to the litigants of employing such procedures would be exceedingly high”) ; Gebr. Eickhoff Maschinen-fabrik, mbh. V. Starcher, 328 S.E. 2d at 506 (suggesting that there may be difficulties inherent in resort to the Convention); Work v. Bier, 106 F.R.D. 45, 54-55 (D.D.C. 1985) (discussing inadequacies in German procedures under the Convention, and the problem of obtaining evidence in admissible form); International Society for Krishna Consciousness v. Lee, 105 F.R.D. at 450 (suggesting that Convention procedures are “quite slow and costly”) ; see also Struve, Discovery from Foreign Parties in Civil Cases before U.S. Courts, 16 N.Y.U. J. Int'l L. & Pol. 1101, 1111 (1984) (“by comparison with the means of discovery provided by the Federal Rules of Civil Procedure, the Hague Convention represents a mode of discovery which is significantly less certain, less effective, more costly and more burdensome”). A rule mandating presumptive first use of the Convention could also impose tactical burdens on domestic litigants, requiring them to pursue discovery through possibly cumbersome procedures, while the foreign litigant could take full advantage of this Nation's liberal discovery methods. The resulting lack of mutuality in discovery could alter litigants’ judgments about settlement and trial strategy and could otherwise impair the domestic judicial process. See Hickman V. Taylor, 329 U.S. 495, 507 (1947) (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”) ; see also 4 J. Moore, Moore's Federal Practice fl 26.52 (2d ed. 1984). Notably, the United States freely permits litigants in foreign tribunals to use its liberal discovery methods when they seek evidence located in this country. See 28 U.S.C. 178.

19 See, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. at 707-709 (discovery sanctions) ; Herbert v. Lando, 441 U.S. 153, 176-177 (1979) (relevance determinations) ; Societe Internationale v. Rogers, 357 U.S. at 213 (discovery sanctions.

20 Section 40 of the Restatement (Second) of Foreign Relations Law of the United States (1965) suggests consideration of five factors to resolve international conflicts of law: (a) the “vital interests” of each state; (b) the resulting hardships to the affected party; (c) the extent to which conduct takes place in the foreign state; (d) the nationality of the person; and (e) the extent to which either state may be able to achieve compliance with its rules. In the past, courts have often looked to Section 40 for guidance in international discovery disputes. See, e.g., Compagnie Francaise D'Assurance v. Phillips Petroleum Co., 105 F.R.D. at 29-32. In addition, the American Law Institute's revised Restatement includes a specific provision dealing with international conflicts arising from foreign discovery. See Restatement (Revised) of Foreign Relations Law of the United States § 437 (Tent. Draft No. 7, 1986) (approved May 14, 1986). The provisions state (id. §437 (1) (c)) that United States courts should take into account the importance to the * * * litigation of the documents or other information requested; the degree of specificity of the request; whether the information originated in the United States; the availability of alternative means of securing the information; and the extent to which non-compliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located. Section 437 and its accompanying comments have proven controversial, particularly insofar as they suggest that foreign discovery should in all instances proceed by court order (see Section 437 comment (a) & reporter's note 2) and that discovery should be limited to “directly relevant” information (ibid.). See, e.g., Struve, supra, 16 N.Y.U. J. Int'l L. & Pol. at 1105-1107 (stating that “in view of the lack of prior authority supporting the Reporter's position, it is questionable whether the restrictions upon the scope of discovery contained in [Section 437] accurately represent the law as it is or the law as it should be”). The Justice Department has informed the ALI of its objections to several aspects of the proposed revisio.

21 This Nation's courts, of course, may exercise jurisdiction over a foreign party only if the party's contacts with the forum are sufficient “to make it reasonable and just” for the domestic forum to adjudicate the dispute. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 445 (1952).Once jurisdiction over a foreign party has properly attached, the court may require that party to produce evidence regardless whether it is located in this country or abroad. But the United States is “not the only nation to enforce its laws extraterritorially.” Toms, The French Response to the Extra-territorial Application of United States Antitrust Laws, 15 Int'l Law. 585, n.l (1981) (citing examples).While foreign governments often urge that any claim for production of evidence violates international law, it is not clear whether they themselves would decline to order production of evidence located abroad. A German commentator has suggested that “European courts make a similar claim, although this claim is hidden behind a different configuration of the relevant legal institutions and norms.” P. Schlosser, Der Justizkon-flikt zwischen den USA und Europa 44 (1985) (English Summary). “One can conclude,” he adds, “that there is no rule in international public law which limits the authority of national courts and agencies to require the cooperation of foreign parties in discovery and to impose sanctions for refusals in so far as this also can be done in a similar situation to a domestic party” (id. at 45.

22 The French blocking statute has been widely interpreted to evidence hostility both to this Nation's antitrust law and to its judicial procedures. See, e.g., Toms, supra, 15 Int'l Law. at 586; Herzog, The 1980 French Law on Documents and Information, 75 Am. J. Int'l L. 382 (1981). One commentator, examining the legislative report that accompanied the French blocking statute, agreed that the law “was ‘never expected or intended to be enforced against French subjects but was intended rather to provide them with tactical weapons and bargaining chips in foreign courts.'” Note, supra, 38 Stan. L. Rev. at 864 (quoting Adidas (Canada) Ltd. v. S.S. Seatrain Bennington, No. 80 Civ. 1922 (S.D.N.Y. May 30, 1984)).. We have lodged an English translation of the French legislative report, obtained from the Stanford Law Review (see 38 Stan. L. Rev. at 846 n.22), with the Clerk of this Court. See also Graco, 101 F.R.D. at 514 (noting that the foreign litigant had failed to identify a single case in which the French blocking statute's sanctions had been imposed.

23 As Judge Wilkey explained in Pain v. United Technologies Corp., 637 F.2d at 788-790 (footnotes omitted; emphasis in original): Although the Hague Evidence Convention provides a mechanism whereby the recipient nation's executing authority is required to assist an American court with such compulsory force as its own courts can exercise in a pretrial evidentiary situation, numerous exceptions to the international obligation exist, which potentially bar this device from being executed at all. For example, foreign judicial cooperation may be with-held altogether if the discovery assistance is deemed prejudicial to state sovereignty. Furthermore, even when discovery abroad is available, the breadth of evidence ordinarily expected from a full-fledged American-style deposition might be constricted for any number of reasons: the foreign state's own procedures might limit or foreclose cross-examination, full participation of counsel might not be allowed, or a verbatim record might not result, thus limiting admissibility of the testimony in an American court. The scope of foreign privilege might prove broader under the letter rogatory procedure than under either local law or American law, and in some cases, official translators might be required for each piece of paper involve.

24 See 7 Martindale-Hubbell Law Directory (pt. VII) at 16 (1986); Borel & Boyd, Opportunities for and Obstacles to Obtaining Evidence in France for Use in Litigation in the United States, 13 Int'l Law. 35, 43-44 (1979.

25 We understand that Germany is now considering domestic regulations that would limit the scope of its Article 23 reservat.

26 We strongly disagree with the court of appeals'. suggestion that “ ‘the greatest insult to a civil law country's sovereignty would be for American courts to invoke the foreign country's judicial aid merely as a first resort, subject to the eventual override of their rulings under the Federal Rules of Civil Procedure'” (Pet. App. 7a (quoting Anschuetz, 754 F.2d at 613)). We believe that a foreign court would welcome the opportunity to inform its American counterpart of the foreign perspective on discovery issues, even if the American court might ultimately disagree. Indeed, the Hague Convention provides a valuable means for domestic and foreign courts to engage in constructive discourse. That dialogue will provide the domestic and foreign courts with invaluable and authoritative insight into each others’ law.

1 See Message From the President of the United States Transmitting the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, S. Exec. Doc. No. A, 92d Cong., 2d Sess. (1972), reprinted in 12 lnt'l Legal Materials 323 (1973) (hereinafter cited as the “Message from the President”); Letter Of Submittal From Secretary of State William P. Rogers to the President Regarding the Evidence Convention, S. Exec. Doc. No. A.I, 92d Cong., 2d Sess. (1972), reprinted in 12 lnt'l Legal Materials 324 (1973) (hereinafter cited as the “Rogers Letter”); Senate Comm. on Foreign Rela tions, Evidence Convention, S. Exec. Rep. No. 92-25, 92d Cong., 2d Sess. 1-2 (1972.

2 To a lesser extent, the Convention also harmonized conflicting notions of discovery in various common law countries. Thus, for example, discovery in the United Kingdom is not as broad as that permitted in the United States. See e.g., Wilmarth, Lawyers and the Practice of Lav in England: One American Visitor's Observation, Part II, 14 Int'l Lawyer 171 (1980.

3 In particular, the drafters were cognizant of and seriously concerned with addressing civil law countries’ considerations of sovereignty. Id.; Rogers Letter, supra p. 4, at 32.

4 For discussions of the discovery rules of other civil law nations see, J. Merryman, The Civil Law Tradition, 120-131 (1969); International Cooperation in Litigation: Europe (H. Smit ed. 1965). See also Collins. Opportunities for and Obstacles to Obtaining Evidence in England for Use in Litigation in the United States, 13 Int'l Law. 27 (1979) (discovery in the United Kingdom is more narrow than that in the United States). Because there are over 350 jurisdictions in the world, O'Kane & O'Kane, Taking Depositions Abroad: The Problems Still Remain, 31 Fed'n Ins. Couns. Q. 343 (1981), numerous differences exist among approaches for evidence-gatherin.

5 The scholarly opinions of legal commentators carry great weight in France and are highly regarded as persuasive authority in the French legal system. Decided case law is not controlling in French jurisprudence, in contrast to the principle of stare decisis in the United States. See generally, Amos and Walton's Introduction to French Law (3d ed. 1967.

6 See also Oxman, The Choice Between Direct Discovery and Other Means of Obtaining Evidence Abroad: The Impact of the Hague Conven tion, 37 Univ. Miami L. Rev. 733, 764 (1983) ("The term "judicial sov ereignty' implies respect for the exclusivity of governmental organs within their own territories—the monopoly of governmental power that lies at the heart of territorial sovereignty.".

7 Letters of request from the judicial authorities in one sovereign state to those in another allow the requesting state's courts to enlist the assistance of the foreign state to obtain evidence or perform some other judicial act in a judicial proceeding. Hague Convention art. 1. The Convention requires the foreign authority to follow a request of the requesting authority that a special method or procedure be followed, unless [ill 's incompatible with’ internal law or procedures of the stale of execution. Hague Convention art. 9. In revising its own civil procedure code to be consistent with Hague Convention procedures, France deliberately denied to its courts the right to refuse execution of letters of request on such grounds of incompatibility. See infra pp. 19-20. Absent a request that a special procedure be followed, the judicial authority to which the request is made “shall apply its own law as to the methods and procedures to be followed.” Hague Convention art. 9. Article 10 requires the authorities in the state executing a letter of request to apply the same measures of compulsion to ensure compliance with the foreign request as are available lo ensure the execution of domestic orders. The enforcement measures that may be imposed by a French judge include: ordering the disclosure and production of documents, Nouv. C. Pr. Civ. arts. 133, 139, 142; imposing a daily fine for non-compliance with an order to produce documents, Nouv. C. Pr. Civ. arts. 134, 139; ordering the personal appearance of a party or witness to testify, Nouv. C. Pr. Civ. arts. 184-186, 222, et seq.\ drawing adverse inferences from the failure to produce evidence or appear when ordered, Nouv. C. Pr. Civ. art. 198; or assessing a fine against a person who refuses to testify when ordered, Nouv. C. Pr. Civ. art. 2.

8 Hague Convention arts. 15-17. Parties in an American litigation may obtain evidence from American parties in France by addressing themselves directly to an American diplomatic or consular official without going through French judicial channels. See infra pp. 24-25. Where evidence is sought from a French national or other non-American, discovery before such an official must be, and is as a matter of routine, authorized by the Civil Division of International Judicial Assistance of the Ministry of Justice. The available evidentiary procedures are virtually identical to those that may be carried out if discovery were to occur in the United States: depositions, written interrogatories, and production and inspection of documents or other physical items. Article 17 authorizes the appointment of a commissioner who has been approved by the appropriate authority in the state where discovery is to occur. If permitted by American law, a French or American lawyer could be appointed as a commissioner and conduct evidence-gathering procedures in France. Borel & Boyd, supra p. 6, at .

9 The first time that the Solicitor General of the United States was asked to advise this Court of the executive branch's views on the Hague Convention, he stated that it “deals comprehensively with the methods available to United States courts and litigants to obtain proceedings abroad for taking evidence” and that “parties to the Convention contemplated that proceedings not authorized by the Convention would not be permitted.” Brief for the United States as amicus curiae at 5-7, Volkswagenwerk A.G. v. Falzon, 465 U.S. 1014 (1984), reprinted in 23 Im'l Legal Materials 412, 414 (1984). Bui see subsequent Brief for the United States as amicus curiae. Club Mediterranee S.A. v. Dorin, 105 S. Ct. 286 (1984) (Hague Convention not exclusive) reprinted in 23 Int'l Legal Materials 1332 (1984); Brief for the United States as amicus curiae, Anschuetz £ Co., Gmbh v. Mississippi River Bridge Authority, 106 S. Cl. 52 (1985) (Hague Convention not exclusive.

10 See also Heck, U.S. Misinterpretation of the Hague Evidence Convention, 24 Colum. J. Transnat'l L. 231 (1986) (American courts breach United States international obligations by evading mandates of Convention); Radvan, The Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters: Several Notes Concerning its Scope, Methods and Compulsion, 16 N.Y.U.J. Int'l L. & Pol. 1031 (1984) (American litigants must follow Convention's binding provisions); Augustine, Obtaining International Judicial Assistance Under the Federal Rules and the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters: An Exposition of the Procedures and a Practical Example: In re Westinghouse Uranium Contract Litigation, 10 Ca. J. Int'l Comp. L. 101 (1980) (Convention provides standardized framework replacing all previous methods for seeking evidence in transnational litigation); Comment, The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad, 132 U. Pa. L. Rev. 1461 (1984) (minimum standards established by Convention preempt all other forms of discovery); Note, Gathering Evidence Abroad: The Hague Evidence Convention Revisited, 16 L.Pol'y in Int'l Bus. 963 (1984) (same.

11 [W]hen the meaning of a treaty is not clear, recourse may be had to the negotiations, preparatory works, and diplomatic correspondence of the contracting parties to establish its meaning. Arizona v. California, 292 U.S. 341, 359-60 (1934) (citations omitted.

12 See also Conference de La Haye de Droit International Prive, IV Actes et Documents de la Onzieme Session, Obtention des Preuves a I'Etranger 189 (Bureau Permanent de la Conference ed. 1970) (a state becoming a party to the Convention has freedom to offer unilaterally to any other state, with or without reciprocity, judicial assistance wider than the minimum presented in the Convention.

13 See, e.g., 1969 U.S. Delegation Report, supra p. 5, at 808; Rogers Letter, supra p. 4, at 324 (1973). According to well settled principles of treaty interpretation, the meaning American negotiators have attributed to the treaty should carry great weight. See Kolovrat v. Oregon, 366 U.S. 187, 194 (1961.

14 Notes Comments, United Stales Ratification of the Hague Con vention on the Taking of Evidence Abroad, 67 Am. J. Int'l L. 104, 105 (1973.

15 Articles 15-17 introduce “into the civil law world on a limited basis the concept of taking of evidence by [private] commissioners.” Id., at 106. See also Explanatory Report, supra p. 10, at 337-9, and 1969 U.S. Delegation Report, supra p. 5 at 807 (the taking of evidence by commissioners or consular officials raises serious questions of intrusion on sover eignty of civil law countries.

16 Notwithstanding the plain language of Article 27 and the clear history of the article, some American courts have surprisingly interpreted that provision not only to permit a signatory nation to allow more liberal discovery within its borders, but also to permit an American court to order discovery abroad by methods broader than those allowed by the Convention. See, e.g., Lasky v. Continental Products Corp., 569 F. Supp. 1227 (E.D. Pa. 1983). Such an interpretation renders the Convention meaningless and unjustifiably implies that the major concessions made by France and other signatories were unnecessary and useless gesture.

17 Article I of the 1980 Law prohibits communication of documents or information of an economic, technical, financial, commercial or industrial nature, where such communication would threaten French sovereign or security interests. It is not at issue her.

18 Reprinted and translated in Toms, The French Response to the Extraterritorial Application of United States Antitrust Laws, 15 lnt'1 Law. 585.611 (198.

19 Id. at 609 (French original), 611 (English translatio.

20 Under the French constitution, members of the French Parliament may submit written or oral questions to government ministers. Const, art. 48. See also Reglement de I'Assemblie Nationale, 133-139 (1982); Reglentert du Senat, arts. 74-82 (198.

21 See Brief for the United States as amicus curiae at 7, n.3, Volkswa-genwerk A.C. v. falzon, supra p. 9, at 415: “The fact that a state court has personal jurisdiction over a private party … does not mean that treaty limits on proceedings for the taking of evidence abroad somehow do not apply to discovery orders addressed to such parties. The Evidence Convention protects the judicial sovereignty of the country’ in which evidence is taken, not the interests of the parties to the suit. Accordingly, its strictures apply regardless of the existence of personal jurisdiction.” See also Oxman, supra p. 7, at 740: The most cursory reading of International Shoe Co. v. Washington and its progeny should suggest the supremacy of context over rigid preconceived jurisdictional conclusions. Shaffer v. Heitner, which requires that the standards for establishing in personam jurisdiction apply even where the defendant's property is located within the forum state, is stood on its head by the proposition that in personam jurisdiction places all property wherever located under the control of a court that once purported to assert jurisdiction only over that property located within the stat.

22 This principle of sovereign equality has been described by the United Nations General Assembly as including the following elements: “(a) States are juridically equal; (b) Each State enjoys the rights inherent in full sovereignty; (c) Each State has the duty to respect the personality of other States; (d) The territorial integrity and political independence of the State are inviolable… .” Declaration On Principles of International Law Concern ing Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, 25 U.S. GAOR Supp. (No. 28) at 21, U.N. Doc. A/8028 (1970), reprinted in 9 lnt'l Legal Materials 1292 (1970.

23 While the court below did not discuss whether a party who is subject to an American court's jurisdiction but is a non-resident of the United States may be ordered not only to produce documents solely pursuant to American rules, but also to appear in the United States for a deposition, the Fifth Circuit has addressed this question. In In re Messerschmitt Bolkow Blohm Gmbh, 757 F.2d 729 (5th Cir. 1985), cert, granted sub nom. Messerschmitt Bolkow Blohm Gmbh v. Walker, 106 S. Ct. 1633 (1986). the court stated that “[b]ecause the depositions will in fact be taken in the United States, they are not governed by the Hague Convention.” Id. at 732. See also Wilson v. Stillman A Hoag, 121 Misc. 2d 374, 467 N.Y.S.2d 764 (Sup. Ct. N.Y.Co. 1983). This conclusion, that ordering a person to travel for a deposition from one nation to the United States does not order an aaivity to be conducted in the territory of that nation, elevates the geographic fiction of “preparatory acts” to an absurdit.

24 The requirement that some American courts have sought to impose, under threat of sanctions, that a French witness seek a waiver of the 1980 Law is regarded by the Republic of France as a significant infringement or attempted infringement of its sovereignty and a material interference with its national interests. See e.g., Craco, Inc. v. Kremlin, Inc., 101 F.R.D. 503 (N.D. 111. 1984); Wilson v. Stillman & Hoag, Inc., 121 Misc. 2d 374, 467 N.Y.S.2d 764 (Sup. Ct. N.Y. Co. 1983). See also Jacobs, Extraterritorial Application of Competition Laws: An English View, 13 lnt'l Law. 645 (1979). No such waiver has ever been granted despite the contrary assump tion of United States court.

25 Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 432 (1964) (“[T]he concept of territorial sovereignty is so deep seated, [that) any state may resent the refusal of the courts of another sovereign to accord validity to acts within its territorial borders.”.

26 In this connection, the Republic of France naturally rejects the Eighth Circuit's conclusion that a first resort to the Hague Convention would somehow be more offensive to French sovereignty than complete disregard of the treat.

27 Articles 733 through 748 are translated into English in H. DeVries. N. Galston R. Loening, French Low—Constitution and Selective Legislation (1986.

28 Although certain French courts had permitted cross examination of witnesses pursuant to international letters of request prior to adoption of Articles 736-748, those cases were qualified as “exceptional.” Commission Rogatoire (Matiere Civile), Encyclopedie Dalloz de Droit International, 1 40 (1969.

29 In this regard, French law appears to go beyond American practice, which would normally permit questioning only by a member of a United States bar, and, indeed, sometimes only by a member of the bar of the state in which the examination is conducted. See e.g.. Rule 2(a), General, Civil, Criminal. Admiralty Magistrate Proceedings in the United States District Courts for the Southern and Eastern Districts of New York; N.Y. Jud. Law ( 478 (Consol. 1983); Cal. Bus. Prof. Code § 6125 (1974.

30 The French public prosecutors are responsible for insuring that the witnesses’ fundamental due process rights are respected in all of the afore mentioned proceedings. Nouv. C. Pr. Civ. art. 74.

31 In the eleven years since the Hague Convention entered into force in France, there have been no reported cases in which this “sovereignty or security” exception has been raise.

32 Recent steps to curb abuses of United States discovery procedures— even in wholly domestic cases—anticipate a more active role for the trial judge in scrutinizing discovery requests. See Fed. R. Civ. P. 26(b)(l), 26(0. 26(g) and the 1983 advisory committee notes thereto. Moreover, the draft Restatement requires that [b]efore issuing an order for production of documents, objects, or information located abroad, the court, or where authorized the agency, should scrutinize a discovery’ request more closely than it would scrutinize comparable requests for information located in the United States. Under Rule 26(b)(l) of the Federal Rules of Civil Procedure, discovery (including requests for documents) may extend to any matter not privileged which is relevant to the subject matter of the action, even if the information sought would be inadmissible at trial, if it appears reasonably calculated to lead to the discovery of admissible evidence. However, the second paragraph of that Rule, added in 1983, calls for imposition by the court of limits on the extent of discovery comparable to those set out in Subsection l(c). Given the degree of difficulty in obtaining compliance, and the amount of resistance that has developed in foreign states to discovery demands originating in the United States, it is ordinarily reasonable to limit foreign discovery to information necessary to the action (typically, evidence not otherwise readily obtainable) and directly relevant and material. Restatement of Foreign Relations Law of the United Slates (Revised) i 437(420) comment a (Tent. Draft No.7, 1986.

33 E.g., N.Y. Civ. Prac. R. 3120 (McKinney 1970.

34 Indeed, each of the signatories to the Convention, with the exception of the United States, Barbados, Israel and Czechoslovakia, exercised to some degree its right to make an Article 23 declaratio.

35 The Information Sheet also describes the Hague Convention proce dures for use of letters of reque.

36 While the Embassy is unable to arrange for court reporters, the parties are free to make such arrangements. The Embassy will provide to litigants wishing to make such arrangements a list of qualified stenographers and, if necessary, interpreter.

37 While a United Slates statutory fee for the presence of a consular officer will be charged if the proceeding occurs under Articles IS or 16, this is not true if a commissioner has been appointed pursuant to Article 17. Information Sheet at A7, .

38 Appearance pursuant to Articles 16 and 17 is voluntary and, pursuant to the Declarations, non-American parties from whom discovery is sought must be informed in advance that failure to appear will not give rise to criminal proceedings in the state from which evidence is requested. However, as the Republic of France recognizes, French parties subject to a United States court's jurisdiction have a strong incentive to cooperate with American discovery requests pursuant to Articles 16 and 17; their own case could be hampered by imposition of the civil sanctions permitted under Societe Internationale v. Rogers, 357 U.S. 197 (1958), and its progeny if they do not make good faith efforts to comply with American discovery requests, since France provides mechanisms for such discovery to occur.

* [The Table of Authorities has not been reproduced. Neither have the Appendices.

1 Hague Convention on the Taking of Evidence Abroad in Civilor Commercial Matters, opened for signature, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 (entered into force between the United States and Germany on June 26, 1979.

2 See 754 F.2d 602 (5th Cir. 1985), petition for cert, filed, 54 U.S.L.W. 3084 (U.S.Aug. 13, 1985) (No. 85-98); 757 F.2d 729 (5th Cir. 1985), petition for cert, granted, 106 S.Ct. 1633 (1986), cert, vacated, 54 U.S.L.W. 3809 (U.S. June 10, 1986) (No. 85-99). The prior briefs to the Court and the brief to the Fifth Circuit Court of Appeals In Re Anschuetz & Co., Gmbh are attached hereto as Appendices A, B, and .

3 For a description of the state of transnational litigation in the absence of organized cooperation see Jones, International Judicial Assistance: Procedural Chaos and a Program for Re form, 62 Yale L.J. 515 (1953); Heilpern, Procuring Evidence Abroad, 14 Tul.L.Rev. 29 (1939); Schein, Inter-American Judi cial Cooperation in Practice, 18 D.C.B.J. 446 (1951.

4 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (entered into force between the Federal Republic of Ger many and the United States on December 22, 1977.

5 See, e.g. Fed. R. Civ. P. 28(b) (stating the alternative procedures for taking deposition evidence located abroa.

6 While 28 U.S.C. §§ 1783 and 1784 also apply to discovery abroad, they are limited to U.S. nationals or residen.

7 See Advisory Committee note to 1963 amendment of Fed.R. Civ. P. 28(b.

8 For a scholarly analysis of German Law on Evidence, see Heck, U.S. Misinterpretation of the Hague Evidence Convention, 24 Colum. J. Transnat'l L. 231 (1986.

9 See, e.g.. United States v. Paraffin Wax, 23 F.R.D. 289 (E.D.N.Y. 1959); Danisch v. Guardian Life Insurance Co., 19 F.R.D. 235 (S.D.N.Y. 1956); Uebersee Finanz- Korpvration AG v. BrowneU, 121 F. Supp. 420 (D.D.C. 1954); Branyan v. Roniklijke Luchtvaart Maatschappij, 13 F.R.D. 425 (S.D.N.Y. 1953); Ali Akber Kiachif v. Philco International Corp., 10 F.R.D. 277 (S.D.N.Y. 1950.

10 See Explanatory Report of Philipp Amram (Conference of the Hague Convention on Private International Law) (Actes et documents de la onzieme session, TOME VI, 148 and 203 (1970.

11 See United States Amicus Curiae Brief at 6, in Club Med- iterranee v. Dorin, appeal dismissed, cert, denied, 105 S. Ct. 286 (1984), where the Department of Justice reiterated this view first expressed by the U.S. treaty negotiators; Statement of the government of the Federal Republic of Germany on the Act to Implement the Hague Convention, Bundestagsdrucksache 8/218 at 9 (1977), see also Appendix A attached hereto, at 9a n.1.

12 This is substantiated by the fact that all the cases the Court has been asked to decide in connection with the Convention involve discovery against corporations as defendant parties. Aerospatiale, 782 F.2d 120; Anschuetz, 754 F.2d 602; Messersch-mitt, 757 F.2d 729; Club Mediterranee, 105 S.Ct. 286; Falzon, 104 S.Ct. 12.

13 See, e.g., United States amicus curiae brief at 7 n. 3, Volkswagenwerk AG v. Falzon, appeal dismissed, 104 S.Ct. 1260 (1984.

14 Twenty-eight States have adopted the 1954 Convention, to which the United States is not a party; see I Ristau, Interna tional Judicial Assistance, at 6 (1984.

15 Order of February 13, 1968, Oberlandesgericht (OLG) Stutt gart, in I VA 3/6.

16 Corning Glassworks v. International Telephone and Telegraph Corp., (ITT), No. 76-0144 (W.D.VA. 1976); Judgment of Nov. 27, 1980, OLG Munich, 9 VA 4/80, translation of the judgment is attached as part of Appendix C at 43.

17 Id. at 52a of Appendix .

18 Platto, Taking Evidence Abroad for Use in Civil Cases in the United States, 16 Int'l Law 575, 584 (198.

19 U.S. amicus brief in Falzon, supra at 7 n.1.

20 This bilateral agreement supersedes the Article 33 and 34 declarations to Article 16 of the Convention, made by the Fed eral Republic of German.

21 Source: Department of Justice of the Federal Republic of German.

22 Article 23: A contracting state may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

23 See, e.g., Murphy v. Reifenhauser KG Maschinenfabrik, 101 F.R.D. 360 (D.Vt. 1984); Graco Inc. v. Kremlin Inc., 101 F.R.D. 503 (N.D. El. 1984); Lowrance v. Weinig, 107 F.R.D. 386 (W.D. Tenn. 1985); Work v. Bier, 106 F.R.D. 45 (D.D.C. 1985.

24 Act to implement the Hague Evidence Convention, Bundes- gesetzblatt December 22, 1977 I 3106, translated in Appendix A, at 1.

25 See, e.g., Zenith Radio Corp. v. Matsushita Elect. Indus. Corp., 494 F.Supp. 1263 (E.D. Pa. 1980.

26 Frank Cook v. U.S., 288 U.S. 102 (1933.

27 Zenith, supra at 12.

28 Heck, supra at 26.

29 Foley Bros. Inc. v. Filardo, 336 U.S. 281 (1949.

30 See Preiser v. Rodriguez, 411 U.S. 475 (1973); See generally, Sutherland, Stat. Const. § 15.05 (4th Ed) 1985 Re.

31 See n.17 OLG Munich at 52.

32 See, e.g., Judge Briant's opinion in Compagnie Francaise d' Assurance v. Phillips Petroleum Co., 105 F.R.D. 16 (S.D.N.Y. 1984.

33 Amram, United States Ratification of the Hague Convention on the Taking of Evidence Abroad, 67 Am. J. Int'l L. 104, 105 (1973.

34 See I Ristau at 25.

35 For a partial transcript of the 1978 meeting see 17 ILM 1417 (1978); and for the 1985 Commissioner Report, see 1985 Report on the Second Meeting of the Special Commission on the Operation of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, Permanent Bureau of the Conference, (hereinafter cited as 1985 Repor.

36 Article 36: Any difficulties which may arise between con tracting states in connection with the operation of this Conven tion shall be settled through diplomatic channels.

37 In Re Societe Nationale Industrielle Aerospatiale, 782 F.2d 120, at 123 (8th Cir. 1986.

38 “The taking of testimony from witnesses and parties is a typical responsibility of the court”, Order of February 13, 1968, OLG Stuttgart, see note .

39 Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 132 (1812.

40 Letter from Embassy of the Federal Republic of Germany to the U.S. Department of State (Nov. 7, 1983), reprinted in Brief for U.S. as Amicus Curiae at la, Volkswagenwerk v. Falzon, No. 82-1888 (U.S. 1983); Letter from Ambassador of the Federal Republic of Germany to the Supreme Court of Michigan (June 25, 1982), see also Volkswagenwerk Aktiengesellschaft v. Superior Court, 33 Cal. App. 3d 503, 505, 109 Cal. Rptr. 219, 220 (3d Dist. 1973); Letter of French Ministry of Justice to U.S. Department of Justice, reproduced in Brief for Appellants, Club Mediterranee, S.A. v. Dorin, appeal dismissed, cert, denied, 53 U.S.L.W. 3285 (U.S. Oct. 16, 1984); also, Oxman, The Choice Between Direct Discovery and Other Means of Obtaining Evi dence Abroad; The Impact of the Hague Evidence Convention, 37 U. Miami L. Rev. 733, 764-65 (1983.

41 See, e.g., Tucker v. Alexandrojf, 183 U.S. 424, 437 (1902); See also Bishop, Significant Issues in the Construction of The Hague Evidence Convention, 1 Int'l Litigation Q. 2, 38 (1985). Treaties must also be performed in good faith. See Restatement (Second) of the Foreign Relations Law of the United States § 138 (1965.

42 E.g. the U.K., Protection of Trading Interests Act, 1980; France, Statute No. 80-538 (July 17, 1980) reprinted in Journal Officiel de la Republique Francaise; the Netherlands, Statute enacted on June 28, 1956, reprinted in 1956 Staatsblad 401 and (1958) 413; Sweden, Royal Proclamation of May 13, 196.

43 On June 30, 1982, the Regional Court OLG Kiel, Recht der Internationalen Wirtschaft (RIW/AWD) 206, (1983), issued an injunction ordering a German bank which maintained a subsid iary in New York, under the threat of a penalty of up to DM 500,000 or 6 months imprisonment, not to comply with a U.S. District Court Order to produce documents pursuant to a sub poena. The court held that courts of the United States have no authority to enforce orders which only German courts are au thorized to issue. Even though this case deals with sanctions in an antitrust proceeding, German authors on the subject of the Convention acknowledge that injunctive relief is available to pre vent discovery in civil matters, Stuerner, 81 Zvglrw at 206 et seq., (1982); Schuetze, 21 Zeitschrift fuer Wirtschaft-und Bank-recht, at 636 (198.

44 See Aerospatiale, 782 F.2d 120, at 125-12.

1 Until the Convention is ratified by the Swiss Parliament, Switzerland is continuing its practice of providing evidence for use in civil proceedings in the United States through letters rogator.

2 In 1973, the United States and Switzerland entered into the Treaty on Mutual Assistance in Criminal Matters, 27 U.S.T. 2019, T.I.A.S. No. 8302. This Treaty, which entered into force in 1977, allows authorities of each nation, by making a written request on the other, to obtain documents, information, and other assistance in investigating a wide variety of crimes. The Treaty, when applicable, overrides Swiss laws that would otherwise prohibit disclosure of information to foreign parties. Since the Treaty came into effect, the Government of Switzerland has granted virtually all of the hundreds of requests made by the United States. The Treaty, which for the United States was the first of its kind, has served as a model for subsequent U.S. treaties on judicial assistance with other countries. See Senate Comm. on Foreign Relations, Treaty on Mutual Assistance with the Kingdom of the Netherlands, S. Exec. Rep. No. 36, 97th Cong., 1st Sess. 2 (1981) ; ef. Treaty Between the United States and Canada on Mutual Legal Assistance in Criminal Matters, March 18, 1985 (not yet entered into force). In 1981, Switzerland enacted the Federal Act on International Mutual Assistance in Criminal Matters (“IMAC”), translation reprinted in Am. Bar Ass'n Nat'l Inst., Transnational Litigation: Practical Approaches to Conflicts and Accommodations 492-532 (1984) (“Transnational Litigation”). Under this domestic law, all foreign governments, including the United States, can request assistance in various matters relating to law enforcement. For example, IMAC includes provisions under which the Government of Switzerland may provide foreign governments with documents held by persons within Switzerland. Like the Treaty, IMAC takes precedence over Swiss privacy laws. IMAC, in addition, covers certain areas of investigation not covered by the Treaty. See generally Frei, “Swiss Secrecy Laws And Obtaining Evidence from Switzerland” in Transnational Litigation at 1-3.

3 In the early 1980s, problems arose in connection with investiga-tions of securities law violations by the U.S. Securities and Exchange Commission (“SEC“) because “insider trading, as such, is not a crime in Switzerland and therefore not covered by the Treaty. Discussions between the governments led to the creation of the Memorandum of Understanding Between Switzerland and the United States to Establish Mutually Acceptable Means for Improving International Law Enforcement Cooperation in the Field of Insider Trading, reprinted in 22 Int'l Legal Materials 1-7 (1983), which operates in conjunction with a private convention among Swiss banks, Agreement XVI of the Swiss Bankers’ Association, reprinted in 22 Int'l Legal Materials 7-12 (1983). Under this arrangement, which was concluded in 1982, a combination of governmental and banking industry procedures enable the SEC to obtain information about transactions involving possible insider trading through Swiss banks. This arrangement is viewed as a temporary measure that will become obsolete when the Swiss Parliament enacts new legislation that will have the effect of making pertinent information available under the Treaty. See Frei, supra note 2, at 23-2.

4 Under current Swiss law, parties seeking evidence located within Switzerland for use in civil proceedings must request that evidence through use of the letters rogatory procedure. The Government of Switzerland has been extremely liberal in granting assistance in such cases; in recent years, about twenty requests per year have been received from the United States, and all have been executed. The Government of Switzerland expects to continue this liberal policy after Switzerland joins the Conventio.

5 For example, Article 273 of the Swiss Penal Code prohibits persons in Switzerland from releasing confidential business information relating to third parties within Switzerland to foreign government.

6 The relevant provision, Article 271, provides as follows in translation: “Acting without Authorization for a Foreign State.” “1. Anyone who, without authorization, takes in Switzerland for a foreign state any action which is within the powers of the public authorities, ”Anyone who takes such actions for a foreign party or for any other foreign organization, “Anyone who facilitates such actions, ”Shall be punished with imprisonment, in serious cases with penitentiary confinement..

7 See Frei, supra note 2, at 14-1.

8 The documents were available to the U.S. Government under the Swiss Federal Act on International Mutual Assistance in Criminal Matters. See note 2 supr.

9 See Marc Rich & Co., A.G. v. United States, 736 F.2d 864 (2d Cir. 1984.

10 The court had imposed a penalty of $50,000 per day on the company to coerce compliance. I.

11 Articles 271 and 273 of the Swiss Penal Code, discussed in notes 4 and 5 supra, were enacted in 193.

1 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature, March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 (entered into force between the United States and France on October 6,1974.

2 The term “blocking law” is used increasingly to refer to de fensive laws adopted by a majority of the member states of the Organization for Economic Cooperation and Development. Their general purpose is to limit the extraterritorial application of the laws of foreign states seeking to regulate persons or conduct within another state in a manner or with consequences that are viewed as undermining the sovereignty of that other state. This case in volves the French defensive law (French Penal Code Law No. 80- 538, 1980 J.O., 1799, 1980 D.S.L. 285).The relevant portion of the law states: Article 1—bis—Subject to treaties or international agreements and laws and regulations in force, it is forbidden to all persons to ask, research or communicate, by writing, orally or under any other form, documents or information on economical, commercial, industrial, financial or technical matters leading to establishing proofs for use directly or indirectly in foreign judicial or administrative proceedings. The French government has stated that it considers use of the Hague Evidence Convention (which is such an “international agreement … in force”) to seek documents reasonably specific and directly relevant to the litigation generally unobjectionable under the la.

3 A recent case raising many of the same considerations as the case below which has been a source of particular concern to the United Kingdom Government is In re Grand Jury Proceedings The Bank of Nova Scotia, 740 F.2d 817 (11th Cir. 1984), cert, den., U.S., 105 S.Ct. 788 (198.

4 Article 1 of the Convention expressly provides in pertinent part that— In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act. [Emphasis added.] In addition, Article 27 of the Convention explicitly recognizes that the domestic law of a signatory state may permit the transmission of letters of request or the gathering of information or taking of evidence in its territory upon less restrictive conditions, or by methods other than those provided for in the Conventio.

5 If the United Kingdom objects to the foreign assertion of jurisdiction, it may, of course, invoke the P.T.I.A., see p. 13 infra, but that is an exceptional case. Consistent with Article 12 (b) of the Convention, the Convention would not be available in such a case as an alternative means of discove.

6 Conference de La Haye de Droit International Prive, IV Aetes et Documents de la Onzieme Session: Obtention des Preuves a VEtranger 202 (Bureau Permanent de la Conference ed. 1970.

7 In the recent case of South Carolina Ins. Co. v. Assurantie Maatschappij “De Zeven Provincien” N.V., speeches delivered 29 July 1986 [not yet reported], the House of Lords struck down limitations imposed by U.K. lower courts on parties in English proceedings who make application to U.S. courts, under 28 U.S.C. § 1782, for production of evidence to be used in the English proceeding.

8 No other international agreement is relevant her.

9 The Solicitor General and Legal Adviser of the State Department agree. See Solicitor General's Brief for the United States as Amicus Curiae at 11, Anchuetz & Co., Gmbh v. Mississippi River Bridge Authority et al. (1985) (No. 85-98). Not all United States court have done so. One court has suggested that this Court granted a motion to compel discovery in Societe Internationale Pour Participations Industrielles Et Commer-dales, S.A. v. Rogers (“Societe”), 357 U.S. 197, 204-06, with no “hint that the disclosure policies of the American statute should be balanced against the secrecy policies of Swiss law.” In re Uranium Antitrust Litigation, 480 F. Supp. 1139, 1146 (N.D. 111. 1979). However, the issue of whether a comity analysis is required was not decided by this Court in Societe because it was not considered. Review of the briefs submitted by the parties in Societe shows that Petitioner did not raise the issue of whether the courts below impermissibly failed to undertake a comity analysis in that case. The issue was raised indirectly by the Respondent (at 67) when it asserted, in passing, that the Swiss Government “cannot by its laws, better the position of its national, over itself and all other claimants when to do so would seriously prejudice the administration of justice to the opposing party” (citing 348 U.S. 356). In its Reply Brief (at 20), the Petitioner denied that it was raising any such contention and the issue was not joined or briefe.

10 Other nations likewise have shown sensitivity to considerations of comity. For example, in Frischke v. Royal Bank, 17 Ont.2d 388 (1977), the Ontario Court of Appeal determined that court ordered disclosure of information from bank officers in Panama would constitute a breach of Panamanian law. In language recognizing the clear primacy of the territorial state's interest, the court declined to require production, notwithstanding some significant Canadian interests that would have been furthered by doing s.

11 Organization for Economic Cooperation and Development, PRESS/A (84)28, If 36 (May 18, 1984). In relevant part, these recommendations state: 27. In contemplating … exercise of jurisdiction which may conflict with the legal requirements or established policies of another Member country and lead to conflicting requirements being imposed on multinational enterprises, the Member countries concerned should: i) … ii) Endeavour to avoid or minimise such conflicts and the problems to which they give rise by following an approach of moderation and restraint, respecting and accommodating the interests of other Member countries Organization for Economic Cooperation and Development, International Investment and Multinational Enterprises: The 1984 Review of the 1976 Declaration and Decisions 26 (1984.

12 549 F.2d 597, 613 (9th Cir. 1976); see In re Grand. Jury Proceedings, United States v. Bank of Nova Scotia, 722 F.2d 657, 658 (11th Cir. 1983); United States v. First National Bank of Chicago, 699 F.2d 341, 345 (7th Cir. 1983) ; Montreal Trading Ltd. v. Amax, Inc., 661 F.2d 864, 869 (10th Cir. 1981), cert, denied, 455 U.S. 1001 (1982); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1302 (3d Cir. 1979) (concurring opinion); In re Grand Jury Proceedings, United States v. Field, 532 F.2d 404, 407 (5th Cir. 1976), cert, denied, 429 U.S. 940 (1976); National Bank of Canada v. Interbank Card Association, 507 F. Supp. 1113, 1119-20 (S.D.N.Y. 1980), aff'd on other grounds, 666 F.2d 6 (2d Cir. 1981). In Laker Airways Limited v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984), although Judge Wilkey declined to apply the Timberlane comity analysis to the particular fact situation, he noted that such an analysis might be more appropriate if the appellants were nationals of the foreign state whose interests would be balanced against American interests. Id. at 954 n.175. Further, in the earlier decision of FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1326 n.148 (D.C. Cir. 1980), Judge Wilkey expressly accepted the need to engage in balancing in the case of the very law here in issue. Cf. Natural Resources Defense Council Inc. v. Nuclear Regulatory Commission, 647 F.2d 1345, 1365 n.107 (D.C. Cir. 1981) (citing Timberlane to justify permitting Philippine sovereign interest to prevail over Nuclear Regulatory Commission administrative interest.

13 See, e.g., In re Hampers, 651 F.2d 19, 23 (1st Cir. 1981) (“comity and deference arising from federalism” support the granting of a “qualified privilege” to state officials who act in accordance with a state nondisclosure law); In re Cruz, 561 F. Supp. 1042 (D. Conn. 1983) (same) ; In re Grand Jury Empanelled Jan. 21, 1981, 535 F. Supp. 537 (D.N.J. 1982) (same.

14 73 Crim. App. 302 (C.A. 1981.

15 The Isle of Man has a separate legal system and is deemed a foreign jurisdiction by the courts of the United Kingdo.

16 See Restatement (Revised) §437, Reporters’ Note 1 (Tent. Draft No. 7, April 10, 1986). To the best of our knowledge, these nations have not, in peacetime, ever repudiated the territorial preference for resolving jurisdictional disputes, even in situations where this means foregoing their own claim to jurisdicti.

17 Underhill v. Hernandez, 168 U.S. 250, 252 (1897). This Court further opined in a case involving a conflict between federal law and the law of a state of the United States, that any supervised regulation of conduct within a state's territory which is predicated upon clear state policy should not be subject to attack. Southern Motors Carriers Rate Conference, Inc. v. United States, U.S. , 105 S.Ct. 1721 (1985.

18 Id. at 10.

19 Pet. App. 23.

20 Determining whether U.S. interests are challenged necessarily requires consideration of available alternatives.As a U.S. court determined in holding that a state official hadi a qualified privilege to refuse to furnish information to a federal grand jury on the basis of a state nondisclosure law, a court must “seek a more particular istic answer than the macrocosmic one that effective federal criminal law enforcement is more important than state tax collection.” In re Hampers, 651 F.2d 19, 23 (1st Cir. 1981). Similarly, another U.S. court, in resolving a conflict between a potential construction of the scope of FTC subpoena power and the very French law at issue here, acknowledged that the construction “less likely to conflict directly with regulations of other nations should be chosen.” FTC v. Com- pagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1327 n.150 (D.C. Cir. 1980.

21 SeeInteramerican Refining Corporation v. Texaco Maracaibo, Inc.,307 F. Supp. 1291, 1298 (D.C. Del. 1970), in which the court stated in respect to application of American antitrust laws to anti competitive practices compelled by foreign nations: “Were com pulsion not a defense, American firms abroad faced with a govern ment order would have to choose one country or the other in which to do business. The Sherman Act does not go so far.“.

22 While the United Kingdom has expressed the most serious concern about the proper scope of U.S. jurisdiction to impose reexport controls and anti-boycott restrictions once goods and information have left U.S. territory, the sovereignty of the United States to impose those controls within the United States (including transmission of information across its borders) should not be challenged. That jurisdiction “is necessarily exclusive and absolute.” The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116,136 (1812) (Marshall, C. J..

23 Concerns for due process and fairness to the parties have led this Court to define limits on the authority of lower courts to sanction parties for failure to produce required information. Absent bad faith conduct or the “courting of legal impediments”, no sanctions should be imposed, Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers (“Societe”), 357 U.S. 197, 209, 212 (1958), and adverse inferences should be drawn only as necessary to achieve fairness, not to deny it. However, neither bad faith by the party nor its courting of impediments can be a justification for overriding comity considerations in determining whether to order discovery in the first instance. Comity is intended to recognize the interests of foreign sovereigns as well as those of individuals caught in the middl.

24 See infra p. 1.

25 It should be observed that in these cases, which involved remedial decrees, the existence of in personam jurisdiction was of course assumed. That did not prevent the court from giving proper regard to the laws of the foreign sovereig.

1 23 U.S.T. 2555, TIAS No. 7444. The Hague Evidence Convention is also set forth in 28 U.S.C.A. §1781 (1986 Supp.); VII Martindale-Hubbell Law Directory, Part VII, at 12-14 (1986); 1 B. Ristau, International Judicial Assistance (Civil and Commercial) at DS-50-DS-63 (1984); Pet, App. at 26a-41a. The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters provides three methods of obtaining evidence abroad: by a letter rogatory, requesting authorities and a signatory state to obtain evidence or to perform some other judicial act to obtain evidence; by notice to appear before an American consulate officer or foreign officer; or by designation of a private commissioner. The Hague Convention, 23 U.S.T. 2555, TIAS No. 7444. Under the letter rogatory method, the letter of request is transmitted to the central authority of the foreign state and must specify:(a)the authority requesting its execution and the author ity requested to execute it, if known to the requesting authority; (b)the names and addresses of the parties to the proceed ings and their representatives, if any; (c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; (d)the evidence to be obtained or other judicial act to be performed. Other information as needed must also be specified, ac-cording to Article 3. 23 U.S.T. 2558-59. Letters of Request must be in the language of the authority requested to execute it or be accompanied by a translation into that language. Art. 4. France has made an authorization pursuant to Art. 33, providing that it will execute only letters in French, or accompanied by a translation in French. 28 U.S.C.A. §§ 1635-1960, 1984 pocket part, p. 90. Pet. App. 12a-13a. The Convention was ratified by the United States in 1970 and entered into force in 1972. Ristau, supra at DS-101. The Convention was ratified and entered into force by France in 1974. Ristau, supra at DS-75. France also declared under Art. 23 of the Convention that Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known common-law countries, will not be executed. Ristau, Ibi.

2 Law No. 80-538, [1980] Journal Officiel 1799; (Law Relating to the Communication of Economic, Commercial, Industrial, Financial or Technical Documents or Information to Foreign Natural or Legal Persons). Ristau, supra Vol. 2 at CI-72; Pet. App. 47a-51a. The relevant portions of the French Blocking Statute provide as follows: Article 1—bis—Subject to treaties or international agreements and laws and regulations in force, it is forbidden to all persons to ask, research or communicate, by writing, orally or under any other form, documents or information on economical, commercial, industrial, financial or technical matters leading to establishing proofs for use directly or indirectly in foreign judicial or administrative proceedings. Article 2—The persons affected by article 1 and 1A must inform, without delay, the Minister in charge whenever they are requested in any manner to provide such informatio.

3 Plaintiffs have no disagreement with the Magistrate's order that requires compliance with the Hague Evidence Convention if discovery depositions are to be conducted in Franc.

4 The title of the Convention itself states: “Convention on the Taking of Evidence Abroad in Civil or Commercial Matters”, (emphasis added) Pet. App. 26.

5 See e.g. Societe Nationale Industrielle Aerospatiale v. Unit ed States District Court for the District of Alaska, 788 F.2d 1408, 1410 (9th Cir. 1986); In re Messerschmitt Bolkow Blohm, Gmbh, 757 F.2d 729 (5th Cir. 1985); Lowrance v. Michael Weinig, Gmbh and Co., 107 F.R.D. 386, 388-89 (W.D. Tenn. 1985). It is noted that it has been held that the Hague Convention does not apply at all to the discovery of evidence available in the United States. International Society of Krishna Consciousness, Inc. v. Lee, 105 F.R.D. 435, 443-44 (S.D.N.Y. 1984). No doubt some of the in formation and documents requested by Plaintiffs are located in the United States, at least with regard to the Petitioners’ ad vertisements that appear in aviation magazines published in the United States. Although Petitioners claim (Pet. Br. p.13) that they maintain no corporate offices, manufacturing plants or service facilities in the United States, the fact is that they, or their American affiliates, are currently doing business and maintain offices in the United States. See Aerospatiale advertisement ap pearing in 113 Flying at pp. 62-63 (June 1986.

6 This proposition has been adopted by numerous courts including, SNIAS, 788 F.2d at 1410-11; Messerschmitt, 757 F.2d at 731; Anschuetz, 754 F.2d at 611; Lowrance, 107 F.R.D. at 389; Work v. Bier, 106 F.R.D. 45, 51-52 (D.D.C. 1985); Krishna, 105 F.R.D. at 44.

7 Citing Messerschmitt, 757 F.2d at 732. 5ee e.g. Krishna, 105 F.R.D. at 447; and Graco, 101 F.R.D. at 520-2.

8 Citing Anschuetz, 754 F.2d at 611.

9 Citing Anschuetz, 754 F.2d at 606, n.7; Compagnie Fran- ca/se D'Assurance Pour Le Commerce Exterieur v. Phillips Pet-roleum Co., 105 F.R.D. 16, 27 (S.D.N.Y. 1984). Some of the Courts finding that the Hague Convention is not to be the exclusive means of acquiring evidence from a foreign party are: Lowrance, 107 F.R.D. at 388; Work, 106 F.R.D. at 48 & 53; Slauenwhite v. Bekum Maschinenfabriken, Gmbh, 104 F.R.D. 616, 618-19 (D. Mass. 1985). (“In sum, the treaty does not prohibit the taking of discovery in this country from foreign corporations over whom the Court has personal jurisdiction. Nor does it require an initial resort to the procedures of the Convention. This is perhaps no more than a corollary to the proposition that when a corporation ‘purposely avails itself of the privilege of conducting activities with the forum State,’ it has clear notice that it is subject to suit there, [citations omitted] Providing discovery is one of the aspects of being ‘subject to suit’ in this country”); Krishna, 105 F.R.D. at 446; Compagnie, 105 F.R.D. at 27; Laker Airways, Ltd. v. Pan American World Airways, 103 F.R.D. 42, 48 (D.D.C. 1984); Graco, 101 F.R.D. at 517; Murphy v. Reitenhauser K.G. Maschinenfabrik, 101 F.R.D. 360, 361 (D. Vt. 1984); Philadelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. 58, 61 (E.D. Pa. 1983); Schroeder v. Lufthansa German Airlines, 18 Av. Cas. (CCH) 17,222, 17,223 (1983).

10 Brief of Solicitor General as amicus curiae at .

11 Brief of the government of United Kingdom of Great Britain and Northern Ireland as amicus curiae at 4 & 5.

12 onvention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, reprinted in VII Martindale-Hubbell Law Directory, Part VII p. 1 (1986).

13 ee Anschuetz, 754 F.2d at 608; Lasky v. Continental Products Corp., 569 F. Supp. 1227, 1228 (E.D. Pa. 1983); Krishna, 105 F.R.D. at 448; and Craco, 101 F.R.D. at 521-2.

14 See Report of the United States Delegation to Eleventh Session of Hague Conference on Private International Law, re printed in 8 Int'l Legal Materials, 785, 807-15 (1969); Amram, The ProDosed Convention on the Taking of Evidence Abroad, 55 A.B.A.J.651, 652-54 (1969).Even today, the question of exclusivity remains an issue with the experts representing the States which are now parties to the Convention. Report on the Second Meeting of the Special Commission on the Operation of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, reprinted in 24 Int'l Legal Materials 1668,1676 n.3 (1985.

15 Amram, 55 A.B.A.J. at 6.

16 Whether the Convention was intended to limit intrusive unauthorized discovery proceedings by prohibiting them, or merely by offering an attractive alternative, the Court cannot agree that the Convention was intended to protect foreign parties, over whom an American court properly has jurisdiction, from the normal range of pre-trial discovery available under the Federal Rules of Civil Procedure.” Graco, 101 F.R.D. at 521. Graco has been cited by numerous courts, including: Messer-schmitt, 757 F.2d at 731, n.5; Anschuetz, 754 F.2d at 611; Low-rance, 107 F.R.D. at 388; Work, 106 F.R.D. 45 at 50; Krishna, 105 F.R.D. at 448; Slauenwhite, 104 F.R.D. at 61.

17 Citing Graco, 101 F.R.D. at 520. The Convention would apply to depositions of non-party witnesses willing to be de posed at home, but unwilling to travel to the country in which the litigation is proceeding.It also would apply where an un willing non-party witness simply cannot be reached, if outside the court's jurisdiction, unless authorities’ and the witnesses' state use their authority to compel the giving of evidence. See e.g. Work, 106 F.R.D. at 48; Mclaughlin v. Fellows Gear Shaper Company, 102 F.R.D. 956, 958 (E.D. Penn. 1984.

18 The Anschuetz court stated that: “Anschuetz’ interpretation of the treaty, taken to its logical conclusion, would give foreign litigants an extraordinary advantage in United States courts. Insofar as Anschuetz seeks discovery, it would be permitted the full range of free discovery provided by the Federal Rules. But when a United States adversary sought discovery, this discovery would be limited to the cumbersome procedures and narrow range authorized by the Convention. Further, we believe that requiring domestic litigants to resort to the Hague Convention to compel discovery against their foreign adversaries encourages the concealment of information—a result directly antithetical to the expressed goals of the Federal Rules and the Hague Convention which aimed to encourage the flow of information among adversaries.“ 754 F.2d at 606. See e.g. Lowrance, 107 F.R.D. at 387; Krishna, 105 F.R.D. at 446; 'Compagnie, 105 F.R.D. at 28; and Adidas (Canada) Ltd. v. S.S. Seatrain Bennington, No. 80 Civ. 1922, Slip Op. at 6 (S.D.N.Y. May 30, 1984.

19 See e.g. Anschuetz, 754 F.2d at 613; Work, 106 F.R.D. at 52; Krishna, 105 F.R.D. at 438; and Laker Airways, 103 F.R.D. at 4.

20 No one denies the jurisdiction of the district court to order petitioners, at parties to the action before it, to give dis covery of evidence in France.“ Pet. Reply Brief, p. 5. “ * * * Conventions’ procedures must be used before resort to do mestic laws considered”. Pet. Brief, p. 2.

21 Petitioners’ counsel, in a letter dated October 18, 1983 to Plaintiffs' counsel, suggested that Plaintiffs' counsel indicate whether he preferred to proceed under the Hague Convention, or would accept Petitioners’ good-faith efforts to comply with Plaintiffs’ discovery requests on an informal basis. It was indi cated that if Plaintiffs preferred the informal route, Petitioners' counsel would contact his client to recommend that the Con vention be waived, but did note, that he did not have author ity to waive the Convention, but merely stated that he would recommend to his client that it do s.

22 In December 1983, Petitioners furnished to Plaintiffs cop ies of the Type Certificate and type certificate data for the air craft. No reference was made to the Hague Convention at this time. In May 1984, Petitioners supplied a copy of the flight manual. In October 1985, long after filing their Motion for Protective Order, Petitioners responded to Plaintiffs' request for admissions and further indicated that they would be sup plemente.

23 Craco, 101 F.R.D. at 519; Toms, The French Response to the Extraterritorial Application of United States Antitrust Laws, 15 Int'l Law. 585, 586 n.4, 596-98 (1981.

24 As in this case, the Lowrance case concerned request for production of documents and interrogatorie.

25 See e.g. Snias, 788 F.2d at 1411; Messerschmitt, 757 F.2d at 731; Anschuetz, 754 F.2d at 61.

26 Pet. App. 9a; United States v. First National Bank of Chicago, 699 F.2d 341, 345 (7th Cir. 1983); United States v. Vetco Inc., 691 F.2d 1281, 1288 (9th Cir. 1981); Compagnie, 105 F.R.D. at 2.

27 Ibid .

28 See e.g. Messerschmitt, 757 F.2d at 732; Anschuetz, 754 F.2d at 611; Krishna, 105 F.R.D. at 449; Slauenwhite, 104 F.R.D. at 618; Cooper Industries, Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y. 1984); Adidas, Slip Op. at .

29 See also Anschuetz, 754 F.2d at 60.

30 The Hague Convention machinery is quite slow and costly, even when the foreign government agrees to cooperate. Krishna, 105 F.R.D. at 450; Murphy, 101 F.R.D. at 361. The United States government, through the Securities and Exchange Commission, has first hand experience under the Convention in seeking to secure documents and testimony from third-party witness residing in France. Slow and costly indeed. Brief for United States and S.E.C. as amicus curiae, at 16. There is no reason to believe that French nationals will cooperate in United States pre-trial discovery. See Toms, French Response to the Extraterritorial Application of the United States Antitrust Laws, 15 Int'l Law. 585 (1981); National Assembly Report No. 1814, A. Mayoud, Reporter for the Commission on Production and Ex-changes (1980.

31 See e.g. First National Bank, 699 F.2d at 345; Vetco, 691 F.2d at 1281; Krishna, 105 F.R.D. at 447; Compagnie, 105 F.R.D. at 29; Craco, 101 F.R.D. at 509; and Soletanche and Rodio, Inc. v. Brown and Lambrecht Earth Movers, Inc., 99 F.R.D. 269 (N.D. III. 19.

32 See also Graco, 101 F.R.D. at 5.

33 Toms, 15 Int'l Law. at 59.

34 Petitioners filed their cross-claim on August 2, 1985, against the owner of the aircraft and the two pilot.

1 The details of the Japanese commitments were explained in a summary accompanying the letter from the Charge d'Affaires to the Secretary. First, the countries agreed that if Japan would withdraw its objection to the IWC zero sperm whale quota, Japanese whalers could harvest up to 400 sperm whales in each of the 1984 and 1985 coastal seasons without triggering certification. Japan's irrevocable withdrawal of that objection was to take place on or before December 13, 1984, effective April 1, 1988. App. to Pet. for Cert, in No. 85-955, pp. 104A-105A. Japan fulfilled this portion of the agreement on December 11, 1984. Id., at 110A, 112A-114A. Second, the two nations agreed that if Japan would end all commercial whaling by April 1, 1988, Japanese whalers could take additional whales in the interim without triggering certification. Japan agreed to harvest no more than 200 sperm whales in each of the 1986 and 1987 coastal seasons. In addition, it would restrict its harvest of other whale species—under limits acceptable to the United States after consultation with Japan—through the end of the 1986-1987 pelagic season and the end of the 1987 coastal season. The agreement called for Japan to announce its commitment to terminate commercial whaling operations by withdrawing its objection to the 1982 IWC moratorium on or before April 1, 1985, effective April 1, 1988. Id, at 105A-10.

2 The original plaintiffs to this action are: American Cetacean Society, Animal Protection Institute of America, Animal Welfare Institute, Center for Environmental Education, The Fund for Animals, Greenpeace U. S. A., The Humane Society of the United States, International Fund for Animal Welfare, The Whale Center, Connecticut Cetacean Society, Defenders of Wildlife, Friends of the Earth, and Thomas Garrett, former United States Representative to the IW.

3 In addition, plaintiffs also requested (1) a declaratory judgment that the Secretary's failure to certify violated both the Pelly and Packwood Amendments, because any whaling activities in excess of IWC quotas necessarily “diminishes the effectiveness” of the ICRW; and (2) a permanent injunction prohibiting any executive agreement which would violate the certification and sanction requirements of the Amendments. 604 F. Supp. 1398, 1401 (DC 1985). The Japan Whaling Association and Japan Fishing Association (Japanese Petitioners), trade groups representing private Japanese interests, were allowed to interven.

4 We also reject the Secretary's suggestion that no private cause of action is available to respondents. Respondents brought suit against the Secretary of Commerce, the head of a federal agency, and the suit, in essence, is one to “compel agency action unlawfully withheld,” 5 U. S. C. § 706(1), or alternatively, to “hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). The “right of action” in such cases is expressly created by the Administrative Procedure Act (APA), which states that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,” § 704, at the behest of “[a] person … adversely affected or aggrieved by agency action.” 5 U. S. C. § 702 (1982 ed., Supp. II). A separate indication of congressional intent to make agency action reviewable under the APA is not necessary; instead, the rule is that the cause of action for review of such action is available absent some clear and convincing evidence of legislative intention to preclude review. See, e. g., Block v. Community Nutrition Institute, 467 U. S. 340, 345 (1984); Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 410 (1971); Abbot Laboratories v. Gardner, 387 U. S. 136, 141 (1967). It is clear that Respondents may avail themselves of the right of action created by the APA. First, the Secretary's actions constitute the actions of an agency. See 5 U. S. C. § 551(1); Citizens to Preserve Overton Park v. Volpe, supra, at 410. In addition, there has been “final agency action,” in that the Secretary formally has agreed with the Japanese that there will be no certification, and this appears to be an action “for which there is no other adequate remedy in a court,” as the issue whether the Secretary's failure to certify was lawful will not otherwise arise in litigation. Next, it appears that respondents are sufficiently “aggrieved” by the agency's action: under our decisions in Sierra Club v. Morton, 405 U. S. 727 (1972) and United States v. SCRAP, 412 U. S. 669 (1973), they undoubtedly have alleged a sufficient “injury in fact” in that the whale watching and studying of their members will be adversely affected by continued whale harvesting, and this type of injury is within the “zone of interests” protected by the the Pelly and Packwood Amendments. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). Finally, the Secretary has failed to point to any expressed intention on the part of Congress to foreclose APA review of actions under either Amendment. We find, therefore, that respondents are entitled to pursue their claims under the right of action created by the AP.

5 The Court of Appeals relied upon the statement in S. Rep. No. 92-582 that the purpose of the Amendment was “ ‘to prohibit the importation of fishery products from nations that do not conduct their fishing operations in a manner that is consistent with international conservation programs. It would accomplish this by providing that whenever the Secretary of Commerce determines that a country's nationals are fishing in such a manner, he must certify such fact to the President.'” 247 U. S. App. D. C. 309, 768 F. 2d 426, 436 (1985) (emphasis omitted), quoting S. Rep. No. 92-582, at 2. This is indeed an explicit statement of purpose, but this is not the operative language in the statute chosen to effect that purpose. The section-by-section analysis contained in the same Report reCites that the operative section directs the Secretary of Commerce to certify to the President the fact that nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international conservation program whenever he determines the existence of such operations. Id., at 5. These are not the words of a ministerial duty, but the imposition of duty to make an informed judgment. Even respondents do not contend that every merely negligent or unintentional violation must be certified. It should be noted that the statement of purpose contained in the House Report tracks the language of the operative provisions of the Amendment. H. R. Rep. No. 92-468, p. 2 (1971.

6 Representative Pelly testified at the Senate hearings that the sanctions authorized by the Amendment were to be applied “in the case of flagrant violation of any international fishery conservation program to which the United States has committed itself.” Hearings on S. 1242 et al. before the Subcommittee on Oceans and Atmosphere of the Senate Committee on Commerce, 92d Cong., 1st Sess., 47 (1971). Similarly, Donald McKernan, Special Assistant for Fisheries and Wildlife, and Coordinator of Ocean Affairs, United States Department of State, stated: “We do not anticipate that there would be any need to invoke the proposed legislation where conservation needs are effectively met by the agreement of all nations involved to an international conservation regime. ”However, there are some situations where one or more nations have failed to agree to a program otherwise agreed among the involved nations, or having once agreed failed to abide by the agreement. “Under the proposed legislation, if the action of such countries diminished the effectiveness of the international fishery conservation program, consideration would need to be given to taking trade measures as necessary to support the conservation program.” Id., at 9.

7 The Committee also detailed two actions which “dramatically demonstrate] the value of the Pelly amendment to the United States in the conduct of international fishery negotiations.” H. R. Rep. No. 95-1029, p. 9 (1978). “In November, 1977, the Secretary of Commerce reported to the President that two nonmembers of the IWC—Peru and Korea—were taking whales in excess of IWC quotas. In March, 1978, the Secretary of Com-merce reported to the subcommittee that although these nations are violating IWC quotas, certification under the Pelly amendment is pending a thorough documentation and substantiation of each action that may diminish the effectiveness of the IWC conservation program.” Ibid. The fact that the Committee approved of the Secretary's actions in not automatically certifying these nations, even though they were found to be taking whales in excess of IWC quotas, is additional evidence that the Pelly Amendment does not require the per se rule respondents now ur.

8 The Cites regulates trade in endangered and threatened species through inclusion of those species in one of three Appendices. Cites, Arts. II-IV, 27 U. S. T. 1092-1097. The ICRW regulates whaling through the use of a Schedule which sets harvest limits for whale species. ICRW, Art. V, 62 Stat. 1718-1719. The Cites requires a two-thirds majority vote to amend an Appendix to include an additional species. Cites, Art. XV, 27 U. S. T. 1110-1112. The ICRW requires a three-fourths majority vote to amend the Schedule or to adopt regulations. ICRW, Art. Ill, 62 Stat. 1717. Both Conventions also contain analogous procedures for member nations to file timely objections to limitations imposed by the Convention. Compare Cites, Art. XV, 27 U. S. T. 1110-1112, with ICRW, Art. V, 62 Stat. 1719. See generally Recent Development, International Conservation—United States Enforcement of World Whaling Programs, 26 Va. J. Int'l L. 511, 531-532 (1986.

9 Indeed, to the extent that the hearings on the Packwood Amendment are indicative of congressional intent, they support the Secretary's view of his duty and authority to certify whaling in excess of IWC limits. Hearings before the Subcommittee on Fisheries and Wildlife Conservation and the Environment of the House Committee on Merchant Marine and Fisheries, 96 Cong., 1st Sess., 311-312, 317 (1979) We note also that in 1984, Senator Packwood introduced a further amendment to the Packwood-Magnuson Amendment. This proposal required that “[a]ny nation whose nationals conduct commercial whaling operations [after 1986] unless such whaling has been authorized by the International Whaling Commission shall be deemed to be certified for the purposes of this [act].” Quoted in Comment, The U. S.Japanese Whaling Accord: A Result of the Discretionary Loophole in the Packwood-Magnuson Amendment, 19 Geo. Wash. J. Int'l L. & Econ. 501, 533, n. 220 (1986). Congress thus had the express opportunity to mandate that the Secretary certify any foreign nation which exceeds an IWC quota, but chose not to do so. ‘.

10 The “diminish the effectiveness of” standard has been used in legislation other than the Pelly and Packwood Amendments. It first appeared in the 1962 amendment to the Tuna Convention Act of 1950, 64 Stat. 777, 16 U. S. C. § 951 et seq. It was also used in 1984 in the Eastern Pacific Tuna Licensing Act, 16 U. S. C. § 972 et seq. (1982 ed., Supp. II), which was en-acted to implement the Eastern Pacific Ocean Tuna Fishing Agreement. Nothing has been called to our attention in the history of these acts to indicate that this standard calls for automatic certification once the Secretary has discovered that foreign nationals are violating an international fishing convention or agreement. Indeed, to the extent they are relevant, they lend affirmative support to the position that Congress has employed the standard to vest a range of judgment in the Secretary as to whether a departure from an agreed limit diminishes the effectiveness of the international conservation effort and hence calls for certificati.

* Citations to “App.” refer to the joint appendix filed by the parties in the Court of Appeals; the Solicitor General sought and was granted leave not to file a joint appendix in this Cour.

1 NUE had filed its complaint four years earlier, in the District Court for the District of New Jersey. Zenith's complaint was filed separately in 1974, in the Eastern District of Pennsylvania. The two cases were consolidated in the Eastern District of Pennsylvania in 197.

2 The inadmissible evidence included various government records and reports, Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F. Supp. 1125 (ED Pa. 1980), business documents offered pursuant to various hearsay exceptions, Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F. Supp. 1190 (ED Pa. 1980), and a large portion of the expert testimony that respondents proposed to introduce. Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F. Supp. 1313 (ED Pa. 1981.

3 The District Court ruled separately that petitioners were entitled to summary judgment on respondents’ claims under the Antidumping Act of 1916. Zenith Radio Corp. v. Matsushita Electric Industrial Co., 494 F. Supp. 1190 (ED Pa. 1980). Respondents appealed this ruling, and the Court of Appeals reversed in a separate opinion issued the same day as the opinion concerning respondents’ other claims. In re Japanese Electronic Products Antitrust Litigation, 723 F. 2d 319 (CA3 1983). Petitioners ask us to review the Court of Appeals’ Antidumping Act decision along with its decision on the rest of this mammoth case. The Antidumping Act claims were not, however, mentioned in the questions presented in the petition for certiorari, and they have not been independently argued by the parties. See this Court's Rule 21. l(a). We therefore decline the invitation to review the Court of Appeals’ decision on those claims.

4 As to three of the 24 defendants, the Court of Appeals affirmed the entry of summary judgment. Petitioners are the 21 defendants who remain in the cas.

5 In addition to these inferences, the court noted that there was expert opinion evidence that petitioners’ export sales “generally were at prices which produced losses, often as high as twenty-five percent on sales.” 723 F. 2d, at 311. The court did not identify any direct evidence of below-cost pricing; nor did it place particularly heavy reliance on this aspect of the expert evidence. See n. 19, infra .

6 The Sherman Act does reach conduct outside our borders, but only when the conduct has an effect on American commerce. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 704 (1962) (“A conspiracy to monopolize or restrain the domestic or foreign commerce of the United States is not outside the reach of the Sherman Act just because part of the conduct complained of occurs in foreign countries”). The effect on which respondents rely is the artificially depressed level of prices for CEPs in the United States. Petitioners’ alleged cartelization of the Japanese market could not have caused that effect over a period of some two decades. Once petitioners decided, as respondents allege, to reduce output and raise prices in the Japanese market, they had the option of either producing fewer goods or selling more goods in other markets. The most plausible conclusion is that petitioners chose the latter option because it would be more profitable than the former. That choice does not flow from the cartelization of the Japanese market. On the contrary, were the Japanese market perfectly competitive petitioners would still have to choose whether to sell goods overseas, and would still presumably make that choice based on their profit expectations. For this reason, respondents’ theory of recovery depends on proof of the asserted price-cutting conspiracy in this count.

7 Respondents also argue that the check prices, the five-company rule, and the price-fixing in Japan are all part of one large conspiracy that includes monopolization of the American market through predatory pricing. The argument is mistaken. However one decides to describe the contours of the asserted conspiracy—whether there is one conspiracy or several— respondents must show that the conspiracy caused them an injury for which the antitrust laws provide relief. Associated General Contractors v. California State Council of Carpenters, 459 U. S. 519, 538-540 (1983); Brunsurick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 488-489 (1977); supra; see also Note, Antitrust Standing, Antitrust Injury, and the Per Se Standard, 93 Yale L. J. 1309 (1984). That showing depends in turn on proof that petitioners conspired to price predatorily in the American market, since the other conduct involved in the alleged conspiracy cannot have caused such an injur.

8 Throughout this opinion, we refer to the asserted conspiracy as one to price “predatorily.” This term has been used chiefly in cases in which a single firm, having a dominant share of the relevant market, cuts its prices in order to force competitors out of the market, or perhaps to deter potential entrants from coming in. E.g., Southern Pacific Communications Co. v. American Telephone & Telegraph Co., 238 U. S. App. D. C. 309, 331-336, 740 F. 2d 980, 1002-1007 (1984), cert, denied, 469 U. S. (1985). In such cases, “predatory pricing” means pricing below some ap-propriate measure of cost. E.g., Barry Wright Corp. v. ITT Grinnell Corp., 724 F. 2d 227, 232-235 (CA11983); see Utah Pie Co. v. Continental Baking Co., 386 U. S. 685, 698, 701, 702, n. 14 (1967). There is a good deal of debate, both in the cases and in the law reviews, about what “cost” is relevant in such cases. We need not resolve this de-bate here, because unlike the cases cited above, this is a Sherman Act § 1 case. For purposes of this case, it is enough to note that respondents have not suffered an antitrust injury unless petitioners conspired to drive respondents out of the relevant markets by (i) pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost. An agreement without these features would either leave respondents in the same position as would market forces or would actually benefit respondents by raising market prices. Respondents therefore may not complain of conspiracies that, for example, set maximum prices above market levels, or that set minimum prices at any leve.

9 We do not consider whether recovery should ever be available on a theory such as respondents’ when the pricing in question is above some measure of incremental cost. See generally Areeda & Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev. 697, 709-718 (1975) (discussing cost-based test for use in § 2 cases). As a practical matter, it may be that only direct evidence of below-cost pricing is sufficient to overcome the strong inference that rational businesses would not enter into conspiracies such as this one. See Part IV-A, infra. .

10 Respondents argued before the district court that petitioners had failed to carry their initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact. See Adickes v. S. H. Kress & Co., 398 U. S. 144,157 (1970). Cf. Catrett v. Johns-Manville Sales Corp., 244 U. S. App. D.C. 160, 756 F. 2d 181 (1985), cert, granted, 474 U. S.(1985). That issue was resolved in petitioners’ favor, and is not be fore u.

11 Rule 56(e) provides, in relevant part: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against h.

12 See n. 10, supra. .

13 NUE's complaint alleges that petitioners’ conspiracy began as early as 1960; the starting date used in Zenith's complaint is 1953. NUE Complaint f 52; Zenith Complaint 3.

14 During the same period, the number of American firms manufacturing television sets declined from 19 to 13. 5 App. to Brief for Appellant in No. 81-2331 (CA3), p. 1961a. This decline continued a trend that began at least by 1960, when petitioners’ sales in the United States market were negligible. Ibid. See Zenith Complaint 1IH 35, 3.

15 Respondents offer no reason to suppose that entry into the relevant market is especially difficult, yet without barriers to entry it would pre sumably be impossible to maintain supracompetitive prices for an extended time. Judge Easterbrook, commenting on this case in a law review arti cle, offers the following sensible assessment: “The plaintiffs [in this case] maintain that for the last fifteen years or more at least ten Japanese manufacturers have sold TV sets at less than cost in order to drive United States firms out of business. Such conduct cannot possibly produce profits by harming competition, however. If the Japanese firms drive some United States firms out of business, they could not recoup. Fifteen years of losses could be made up only by very high prices for the indefinite future. (The losses are like investments, which must be recovered with compound interest.) If the defendants should try to raise prices to such a level, they would attract new competition. There are no barriers to entry into electronics, as the proliferation of computer and audio firms shows. The competition would come from resurgent United States firms, from other foreign firms (Korea and many other nations make TV sets), and from defendants themselves. In order to recoup, the Japanese firms would need to suppress competition among themselves. On plaintiffs’ theory, the cartel would need to last at least thirty years, far longer than any in history, even when cartels were not illegal. None should be sanguine about the prospects of such a cartel, given each firm's incentive to shave price and expand its share of sales. The predation-recoupment story therefore does not make sense, and we are left with the more plausible inference that the Japanese firms did not sell below cost in the first place. They were just engaged in hard competition.” Easterbrook, The Limits of Antitrust, 63 Texas L. Rev. 1, 26-27 (1984) (footnotes omitted.

16 The alleged predatory scheme makes sense only if petitioners can re-coup their losses. In light of the large number of firms involved here, petitioners can achieve this only by engaging in some form of price-fixing after they have succeeded in driving competitors from the market. Such price-fixing would, of course, be an independent violation of § 1 of the Sherman Act. United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940.

17 The predators’ losses must actually increase as the conspiracy nears its objective: the greater the predators’ market share, the more products the predators sell; but since every sale brings with it a loss, an increase in market share also means an increase in predatory loss.

18 The same is true of any supposed excess production capacity that peti tioners may have possessed. The existence of plant capacity that exceeds domestic demand does tend to establish the ability to sell products abroad. It does not, however, provide a motive for selling at prices lower than nec essary to obtain sales; nor does it explain why petitioners would be willing to lose money in the United States market without some reasonable pros pect of recouping their investmen.

19 Respondents also rely on an expert study suggesting that petitioners have sold their products in the American market at substantial losses. The relevant study is not based on actual cost data; rather, it consists of expert opinion based on a mathematical construction that in turn rests on assumptions about petitioners’ costs. The District Court analyzed those assumptions in some detail and found them both implausible and inconsist ent with record evidence. Zenith Radio Corp. v. Matsushita Electric In dustrial Co., 505 F. Supp., at 1356-1363. Although the Court of Appeals reversed the District Court's finding that the expert report was inadmissi-ble, the court did not disturb the District Court's analysis of the factors that substantially undermine the probative value of that evidence. See 723 F. 2d, at 277-282. We find the District Court's analysis persuasive. Accordingly, in our view the expert opinion evidence of below-cost pricing has little probative value in comparison with the economic factors, discussed in Part IV-A, supra, that suggest that such conduct is irrationa.

20 The Court of Appeals correctly reasoned that the Five Company Rule might tend to insulate petitioners from competition with each other. 723 F. 2d, at 306. But this effect is irrelevant to a conspiracy to price preda torily. Petitioners have no incentive to underprice each other if they already are pricing below the level at which they could sell their goods. The far more plausible inference from a customer allocation agreement such as the Five Company Rule is that petitioners were conspiring to raise prices, by limiting their ability to take sales away from each other. Respond-ents—petitioners’ competitors—suffer no harm from a conspiracy to raise prices. Supra, at 7. Moreover, it seems very unlikely that the Five Company Rule had any significant effect of any kind, since the “rule” permitted petitioners to sell to their American subsidiaries, and did not limit the number of distributors to which the subsidiaries could resell. 513 F. Supp., at 119.

21 We do not imply that, if petitioners had had a plausible reason to con-spire, ambiguous conduct could suffice to create a triable issue of conspiracy. Our decision in Monsanto Co. v. Spray-Rite Sei-vice Corp., 465 U. S. 752 (1984), establishes that conduct that is as consistent with permissible competition as with illegal conspiracy does not, without more, support even an inference of conspiracy. Id., at 763-764. See supra, at .

1 The Court adequately summarizes the quite fact-specific holding in Cities Service. Ante, at 11-12. In Monsanto, the Court held that a manufacturer's termination of a price-cutting distributor after receiving a complaint from another distributor is not, standing alone, sufficient to create a jury question. 465 U. S., at 763-764. , To understand this holding, it is important to realize that under United States v. Colgate & Co., 250 U. S. 300 (1919), it is permissible for a manufacturer to announce retail prices in advance and terminate those who fail to comply, but that under Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911), it is impermissible for the manufacturer and its distributors to agree on the price at which the distributors will sell the goods. Thus, a manufacturer's termination of a price-cutting distributor after receiving a complaint from another distributor is lawful under Colgate, unless the termination is pursuant to a shared understanding between the manufacturer and its distributors respecting enforcement of a resale price maintenance scheme. Monsanto holds that to establish liability under Dr. Miles, more is needed than evidence of behavior that is consistent with a distributor's exercise of its prerogatives under Colgate. Thus, “[t]here must be evidence that tends to exclude the possibility that the manufacturer and nonterminated distributors were acting independently.” 465 U. S., at 764. Monsanto does not hold that if a terminated dealer produces some further evidence of conspiracy beyond the bare fact of post-complaint termination, the judge hearing a motion for summary judgment should balance all the evidence pointing toward conspiracy against all the evidence pointing toward independent actio.

2 Dr. DePodwin summarizes his view of the harm caused by Japanese cartelization as follows: “When we consider the injuries inflicted on United States producers, we must again look at the Japanese television manufacturers’ export agreement as part of a generally collusive scheme embracing the Japanese domestic market as well. This scheme increased the supply of television receivers to the United States market while restricting supply in the Japanese market. If the Japanese manufacturers had competed in both domestic and export markets, they would have sold more in the domestic market and less in the United States. A greater proportion of Japanese production capacity would have been devoted to domestic sales. Domestic prices would have been lower and export prices would have been higher. The size of the price differential between domestic and export markets would have diminished practically to the vanishing point. Consequently, competition among Japanese producers in both markets would have resulted in reducing exports to the United States and United States prices would have risen. In addition, investment by the United States industry would have increased. As it was, however, the influx of sets at depressed prices cut the rates of return on television receiver production facilities in the United States to so low a level as to make such investment uneconomic. “We can therefore conclude that the American manufacturers of television receivers would have made larger sales at higher prices in the absence of the Japanese cartel agreements. Thus, the collusive behavior of Japanese television manufacturers resulted in a very severe injury to those American television manufacturers, particularly to National Union Electric Corporation, which produced a preponderance of television sets with screen sizes of nineteen inches and lower, especially those in the lower range of prices.” 5 App. to Brief for Appellants in No. 81-2331 (CA3), pp. 1629a-1630.

3 The DePodwin Report has this, among other things, to say in sum-marizing the harm to respondents caused by the five-company rule, exchange of production data, price coordination, and other allegedly anticompetitive practices of petitioners: The impact of Japanese anti-competitive practices on United States manufacturers is evident when one considers the nature of competition. When a market is fully competitive, firms pit their resources against one another in an attempt to secure the business of individual customers. However, when firms collude, they violate a basic tenet of competitive behavior, i. e., that they act independently. United States firms were confronted with Japanese competitors who collusively were seeking to destroy their established customer relationships. Each Japanese company had targeted customers which it could service with reasonable assurance that its fellow Japanese cartel members would not become involved. But just as importantly, each Japanese firm would be assured that what was already a low price level for Japanese television receivers in the United States market would not be further depressed by the actions of its Japanese associates. “The result was a phenomenal growth in exports, particularly to the United States. Concurrently, Japanese manufacturers, and the defendants in particular, made large investments in new plant and equipment and expanded production capacity. It is obvious, therefore, that the effect of the Japanese cartel's concerted actions was to generate a larger volume of investment in the Japanese television industry than would otherwise have been the case. This added capacity both enabled and encouraged the Japanese to penetrate the United States market more deeply than they would have had they competed lawfully.” 5 App. to Brief for Appellant in No. 81-2331 (CA3), pp. 1628a-1629a. For a more complete statement of DePodwin's explanation of how the alleged cartel operated, and the harms it caused respondents, see 5 id., at 1609a-1642a. This material is summarized in a chart found at 5 id., at 1633.

4 In holding that Parts IV and V of the Report had been improperly excluded, the Court of Appeals said: “The trial court found that DePodwin did not use economic expertise in reaching the opinion that the defendants participated in a Japanese television cartel. 505 F. Supp. at 1342-46. We have examined the excluded portions of Parts IV and V in light of the admitted portions, and we conclude that this finding is clearly erroneous. As a result, the court also held the opinions to be unhelpful to the factfinder. What the court in effect did was to eliminate all parts of the report in which the expert economist, after describing the conditions in the respective markets, the opportunities for collusion, the evidence pointing to collusion, the terms of certain undisputed agreements, and the market behavior, expressed the opinion that there was concert of action consistent with plaintiffs’ conspiracy theory. Considering the complexity of the economic issues involved, it simply can not be said that such an opinion would not help the trier of fact to understand the evidence or determine that fact in issue.” In re Japanese Electronics Products Antitrust Litigation, 723 F. 2d 238, 280 (1983). The Court of Appeals had similar views about Parts VI and VI.

5 use the Third Circuit's analysis of the five-company rule by way of example; the court did an equally careful analysis of the parts the cartel activity in Japan and the check prices could have played in an actionable conspiracy. See generally id., at 303-311. In discussing the five-company rule, I do not mean to imply any conclusion on the validity of petitioner's sovereign compulsion defense. Since the Court does not reach this issue, I see no need of my addressing it 'Not in force. Not in force for the U.S. 3With reservation(s) and declaration(s). 4With declaration. 6In force provisionally for the U.S.