[DOCID: f:sr068.110]
From the Senate Reports Online via GPO Access
[wais.access.gpo.gov]
Calendar No. 160
110th Congress Report
SENATE
1st Session 110-68
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NO OIL PRODUCING AND EXPORTING CARTELS ACT OF 2007
_______
May 22, 2007.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
[To accompany S. 879]
The Committee on the Judiciary, to which was referred the
bill (S. 879), to amend the Sherman Act to make oil-producing
and exporting cartels illegal, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
CONTENTS
Page
I. Purpose and Need for S. 879......................................1
II. Legislative History and Committee Consideration..................6
III. Section-by-Section Analysis......................................7
IV. Cost Estimate....................................................8
V. Regulatory Impact Statement......................................9
VI. Changes in Existing Law..........................................9
I. Purpose and Need for S. 879
A. INTRODUCTION
The purpose of S. 879, the No Oil Producing and Exporting
Cartels Act of 2007 (``NOPEC'' Act), is to subject to U.S.
antitrust law foreign nations acting as cartels to raise the
price of petroleum products in the United States through
anticompetitive means. This legislation will make it illegal
for any foreign state, or any instrumentality or agent of a
foreign state, to act collectively with another foreign state,
or any instrumentality or agent of a foreign state, to limit
the production or set the price for oil, natural gas, or any
petroleum product, or take any other action in restraint of
trade for such product when the action has a direct,
substantial and reasonably foreseeable effect on the market for
oil, natural gas, or any petroleum product in the United
States. This legislation will authorize the Attorney General to
file suit against nations or other entities that engage in such
activity. In addition, it will expressly specify that the
doctrines of sovereign immunity and ``act of state'' do not
exempt nations that participate in oil cartels from antitrust
law.
B. NEED FOR LEGISLATION
1. Factual Background
The actions of the Organization of Petroleum Exporting
Countries (OPEC) oil cartel to have limit the supply of crude
oil in order to raise prices directly caused the price of oil,
and therefore gasoline, home heating oil, and other petroleum
products to increase drastically, harming millions of American
consumers and the U.S. economy generally. The Federal Trade
Commission has estimated that 85% of the variability of the
price of gasoline is caused by changes in the worldwide price
of crude oil.\1\ The worldwide price of crude oil is, in turn,
determined by supply limitations and supply quotas imposed by
OPEC. As of May 4, 2007, the average worldwide price of crude
oil was more than $63 per barrel, an increase of 16% from the
price in the first week of January 2007, and an increase of 80%
from the beginning of January 2005.\2\ The retail price of
gasoline reached record levels in the United States in the last
year, with prices for regular unleaded frequently approaching
(and sometimes exceeding) $3.00 per gallon. While prices
temporarily receded last fall, the general trend has been
significantly upwards, and prices continue to rise even today.
On May 7, 2007, national average gasoline prices stood at more
than $3.00 per gallon, a 30% increase since the beginning of
the year.\3\
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\1\ Testimony of William E. Kovacic, General Counsel, Federal Trade
Commission at Hearing of the Subcommittee on Antitrust, Competition
Policy and Consumer Rights, Senate Judiciary Committee, April 7, 2004.
(S. Hrg. 108-604, Serial No. J-108-85 at page 15.)
\2\ Data from Weekly Petroleum Status Report, U.S. Energy
Information Administration, found at http://www.eia.doe.gov/pub/
oil_gas/petroleum/data_publications/weekly_petroleum_status _report/
current/pdf/table13.pdf.
\3\ Data from U.S. Energy Information Administration found at
http://tonto.eia.doe.gov/oog/ftparea/wogirs/xls/pswrgvwall.xls#'1-
Regular Conventional'!A1.
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As the Committee has examined gas price changes, one fact
has remained consistent--any move downwards in price ends as
soon as OPEC decides to cut production. The statement of the
oil cartel's leaders confirms that this is their intent.
Referring to the 18% rise in worldwide crude oil prices since
the start of 2007, OPEC President Mohammed al-Hamli commented
``we had a bad situation at the beginning of the year. It is
much better now.'' The difference was the combined output cuts
of 1.7 million barrels of oil a day adopted by OPEC last
October and December, which had the effect of driving up crude
oil prices and, thus, the price of gasoline in the U.S.
The consequence for our economy and American consumers of
the actions of the oil cartel are serious and growing.
Americans are forced to spend more of their hard-earned money
when they visit the gas pump as a result of rising prices.
Higher oil prices also harm our economy by driving up the cost
of transportation and shipping. These costs are then passed on
to consumers in the form of higher prices for manufactured
goods. Higher oil prices also mean consumers and businesses
must pay higher heating bills in the winter and higher cooling
bills in the summer.
2. Need for Change to Law
The blatantly anti-competitive conduct by the oil cartel
violates the most basic principles of fair competition and free
markets enshrined in our antitrust law for over a century.
There is no doubt that if OPEC were a group of international
private companies rather than foreign governments, their
actions would constitute an illegal price fixing scheme.
Cartels, in the words of the U.S. Supreme Court, are the
``supreme evil of antitrust.'' Verizon Commc'ns, Inc. v.
Trinko, 540 U.S. 398, 408 (2004). ``Under the Sherman Act a
combination formed for the purpose and with the effect of
raising, depressing, fixing, pegging, or stabilizing the price
of a commodity in interstate or foreign commerce is illegal per
se.'' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223
(1940). Because the law of supply and demand establishes that
an agreement to limit output is tantamount to an agreement to
fix price, courts have held per se illegal agreements to limit
supply, limit production, or set quotas just as agreements to
fix price. Hartford-Empire Co. v. United States, 323 U.S. 386,
406-407 (1945); American Bar Association Section of Antitrust
Law, Antitrust Law Developments (4th Ed. 1997) at pages 82-83.
a. Sovereign Immunity
This NOPEC legislation is necessary, however, because OPEC
members have used the shield of ``sovereign immunity'' to
escape accountability for their price-fixing activities under
antitrust law. In International Ass'n of Machinists and
Aerospace Workers v. OPEC, 447 F. Supp. 553 (C.D. Cal. 1979),
aff'd 649 F.2d 1354 (9th Cir. 1981), a federal district court
ruled that OPEC and its member nations were immune from suit
under the antitrust laws pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. 1330 et seq. (FSIA). This decision
has been widely criticized.\4\ The FSIA already recognizes that
the ``commercial'' activity of nations is not protected by
sovereign immunity. 28 U.S.C. 1602 (a)(2). And it is hard to
imagine an activity that is more obviously commercial than
selling oil for profit, as the OPEC nations do. Thus, many
commentators argue that sovereign immunity should not protect
the activities of OPEC member nations.\5\ The legislation
settles this issue, overruling International Ass'n of
Machinists by (i) expressly establishing that the sovereign
immunity doctrine will not divest a U.S. court from
jurisdiction to hear a lawsuit alleging that members of an oil
cartel are violating U.S. antitrust law, and (ii) amending the
FSIA to exempt expressly antitrust actions under this
legislation from the immunity granted to foreign nations under
the FSIA.
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\4\ See, e.g., Comment, Slaying Goliath: The Extraterritorial
Application of U.S. Antitrust Law to OPEC, 50 Amer. U. Law Rev. 1321,
1361 (2001) (``Judge Hauk's rationale [in International Ass'n of
Machinists] . . . was flawed''); see also, infra, n. 5.
\5\ See A. Rueda, Price-Fixing at the Pump--Is the OPEC Oil
Conspiracy Beyond the Reach of the Sherman Act 24 Hous. J. Int'l Law 1,
58 (2001) (``The Crucial Question--Does OPEC Conduct Commercial
Activities? The Clear Answer--Yes''); Comment, Slaying Goliath: The
Extraterritorial Application of U.S. Antitrust Law to OPEC, supra, 50
Amer. U. Law Rev. at 1361 (``The nature of OPEC's conduct was price-
fixing, and, given OPEC's overriding concern of serving its own
economic interests, it is indeed manifest that this conduct qualifies
as commercial under FSIA''); Note, The Applicability of the Antitrust
Laws to International Cartels Involving Foreign Governments, 91 Yale
Law J. 765 (1982).
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b. Act of State Doctrine
Another obstacle to the application of antitrust laws
against OPEC member nations is the act of state doctrine, which
declares that ``a United States court will not adjudicate a
politically sensitive dispute which would require the court to
judge the legality of the sovereign act of a foreign state.''
Int'l Ass'n of Machinists, 649 F.2d at 1358; see Underhill v.
Hernandez, 168 U.S. 250, 252 (1897). The act of state doctrine
``is a prudential doctrine designed to avoid judicial action in
sensitive areas.'' Int'l Ass'n of Machinists, 649 F.2d at 1359.
The Ninth Circuit Court of Appeals upheld the decision
dismissing the antitrust case against OPEC member nations in
International Ass'n of Machinists based on its application of
the act of state doctrine. Id. at 1361.
Congress has overruled the act of state doctrine in other
contexts. For example, a statute known as the ``Hickenlooper
Amendment'' \6\ overturned the Supreme Court's application of
the act of state doctrine in Banco National de Cuba v.
Sabbatino, 376 U.S. 398 (1964), in which the Court refused to
adjudicate the legality of expropriation by the Cuban
government of property owned by U.S. nationals. The Fifth
Circuit Court of Appeals recognized that the Hickenlooper
Amendment ``legislatively overruled'' the application of the
act of state doctrine to bar lawsuits asserting the invalidity
of the Cuban confiscations. Indus. Inv. Dev. Corp. v. Mitsui &
Co., Ltd., 594 F.2d 48, 57 n. 7 (5th Cir. 1979); see also, West
v. Multibanco Comermex, S.A., 807 F.2d 820, 829 (the
Hickenlooper Amendment ``overrides the judicially developed
doctrine of act of state'').
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\6\ The Hickenlooper Amendment is section 301(d)(4) of the Foreign
Assistance Act, codified as 22 U.S.C. Sec. 2370(e)(2).
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Overriding the act of state doctrine with respect to the
actions of member nations of an oil cartel designed to raise
the price of crude oil is consistent with the commercial act
exception to the act of state doctrine recognized by the Court
in Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682,
703-704 (1976), and the Second Circuit in Hunt v. Mobil Oil
Co., 550 F.2d 68 (2d Cir.), cert. denied, 434 U.S. 984 (1977).
As Justice Stevens wrote in Alfred Dunhill, ``subjecting
foreign governments to the rule of law for their commercial
dealings presents a much smaller risk of affronting their
sovereignty than would an attempt to pass on the legality of
their government acts.'' 425 U.S. at 703. Courts have on many
occasions refused to apply the act of state doctrine to block
antitrust lawsuits, ruling that antitrust policy overrides the
prudential concerns motivating the act of state doctrine.\7\
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\7\ See, e.g., United States v. Sisal Sales Corp., 274 U.S. 268
(1927) (holding that conspiracy affecting U.S. commerce was not immune
from judicial review under the Sherman Act even though the conspiracy
was due in part to discriminatory foreign legislation); see also Envtl.
Tectonics v. W.S. Kirkpatrick, Inc., 847 F.2d 1052 (3rd Cir. 1988)
(holding that act of state doctrine does not bar inquiry into
defendant's use of illegal tactics to influence the awarding of a
military procurement contract by a foreign government); Indus. Dev.
Corp. v. Mitsui, 594 F.2d 48 (5th Cir. 1979) (holding that act of state
doctrine does not preclude Sherman Act claim brought by American
corporation against Japanese corporation for conspiring to have
Indonesian government deny timber concession); Williams v. Curtiss-
Wright Corp., 694 F.2d 300 (3rd Cir. 1982) (holding that act of state
doctrine does not stop court from examining motives of foreign
government in refusing to purchase jet engines from plaintiff). As the
court in Williams notes, ``the act of state doctrine should not be
applied to thwart legitimate American regulatory goals in the absence
of a showing that adjudication may hinder international relations . . .
in antitrust litigation of American commerce, there is a public
interest in clearing monopolistic activities from the channels of
American commerce, even though some of the conduct occurred in foreign
countries.'' 694 F. 2d at 304.
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Accordingly, the bill overrides the act of state doctrine
in this context and declares that it shall not bar a court from
adjudicating an antitrust lawsuit to enforce the NOPEC
legislation. It expressly states that ``[n]o court of the
United States shall decline, based on the act of state
doctrine, to make a determination on the merits in an action
brought under'' this legislation. In sum, under this bill,
Congress has determined that the policy goal of preventing
anti-competitive international cartels that seriously harm
American consumers by limiting the supply of a vital commodity,
like petroleum, makes it appropriate for U.S. courts to
adjudicate antitrust lawsuits against member nations in such a
cartel, and outweighs the prudential concerns motivating the
act of state doctrine.
c. Extraterritorial Application of U.S. Antitrust Law
Extraterritorial application of U.S. antitrust law is
permissible under current law as long as the conduct produces a
substantial effect in the United States. As the Supreme Court
has explained, ``it is well established by now that the Sherman
Act applies to foreign conduct that was meant to produce and
did in fact produce some substantial effects in the United
States.'' Hartford Fire Ins. Co. v. California, 509 U.S. 764,
796 (1993); see also, 1995 Department of Justice and Federal
Trade Commission Antitrust Enforcement Guidelines for
International Operations, Section 3.1 (``Anticompetitive
conduct that affects U.S. domestic or foreign commerce may
violate the U.S. antitrust laws regardless of where such
conduct occurs or the nationality of the parties involved.'').
Consistent with these principles, this legislation
expressly states that collective action to limit production or
fix the price of crude oil or any petroleum product by any
foreign state is illegal if ``such action, combination, or
collective action has a direct, substantial, and reasonably
foreseeable effect on the market, supply, price, or
distribution of oil, natural gas, or other petroleum product in
the United States.'' Crude oil is a fungible commodity and the
price is set on the world market. The U.S. imports 60% of its
crude oil needs \8\ and there can be no doubt that the actions
of OPEC or any other oil cartel will have a ``direct,
substantial, and reasonably foreseeable effect'' on the supply
and price of oil and petroleum products within the United
States. Therefore, under the language of the new section 7A(a)
of the Sherman Act to be added by this legislation, the supply
limiting (or price fixing) actions of the member nations of
OPEC (or any similar cartel) plainly would be reachable.
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\8\ Date from U.S. Energy Information, found at http://
www.eia.doe.gov/neic/quickfacts/quickoil.html.
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C. PROVISIONS OF NOPEC LEGISLATION
The provisions of this legislation are simple and
straightforward. The bill adds a new section 7A to the Sherman
Act. Section 1 of the existing Sherman Act declares that every
``contract, combination . . . or conspiracy in restraint of
trade'' is illegal. The new section 7A(a) added by this
legislation makes it illegal for ``any foreign state, or any
instrumentality or agent of any foreign state, to act
collectively or in combination with any other foreign state,
any instrumentality or agent of any other foreign state'' . . .
``(1) to limit the production or distribution of oil,
natural gas, or any other petroleum product;
(2) to set or maintain the price of oil, natural gas,
or any petroleum product; or
(3) to otherwise take any action in restraint of
trade for oil, natural gas, or any petroleum product.''
The action of such a cartel must have a ``direct,
substantial, and reasonably foreseeable effect on the market,
supply, price, or distribution of oil, natural gas, or other
petroleum product in the United States'' in order to violate
section 7A of the Sherman Act.
The new section 7A(b) of the Sherman Act specifies that a
foreign nation engaged in an oil cartel shall not be immune
under the doctrine of sovereign immunity from the jurisdiction
of U.S. courts to enforce this statute. The new section 7A(c)
likewise provides that no court of the United States ``shall
decline, based on the act of state doctrine, to make a
determination on the merits in an action brought under this
section.''
The new section 7A(d) of the Sherman Act added by this
legislation only authorizes the Attorney General to enforce
this statute. Versions of this legislation introduced in prior
Congresses had also allowed enforcement by the Federal Trade
Commission; however, in the sponsors' view, enforcement should
be limited to the executive branch due to the foreign policy
implications of enforcement actions under this legislation.
D. SUMMARY
The most fundamental principle of free market competition
is that competitors cannot be permitted to conspire to limit
supply or fix prices. This tenet is central to full and fair
competition. This legislation will make clear that the actions
of nations and their agents to limit supply and fix prices of
oil, natural gas and other petroleum products to affect the
U.S. market violates U.S. antitrust law, and it will authorize
the Attorney General to enforce antitrust law against such
nations, and prevent technical legal doctrines such as
sovereign immunity and act of state from preventing actions for
redress.
II. Legislative History and Committee Consideration
The NOPEC legislation was first introduced in the 106th
Congress by Senator Kohl on June 22, 2000 (S. 2778). The bill
had nine co-sponsors (Senators DeWine, Leahy, Specter,
Grassley, Feingold, Thurmond, Schumer, Lieberman and Smith). It
was reported favorably without amendment by the Committee on
the Judiciary on September 21, 2000. No further action was
taken on the NOPEC bill in the 106th Congress.
The NOPEC legislation was introduced again in the 107th
Congress by Senator Kohl on March 30, 2001 (S. 665). The bill
had seven co-sponsors (Senators DeWine, Leahy, Specter,
Grassley, Feingold, Thurmond and Schumer). It was referred to
the Committee on the Judiciary. No further action was taken on
the NOPEC bill in the 107th Congress.
The NOPEC legislation was introduced again in the 108th
Congress by Senator DeWine on April 1, 2004 (S. 2270). The bill
was co-sponsored by Senator Kohl and 13 other Senators
(Senators Leahy, Specter, Grassley, Feingold, Schumer, Coleman,
Durbin, Boxer, Wyden, Levin, Snowe, Dayton and Corzine). A
hearing on the bill titled ``Crude Oil: The Source of High Gas
Prices?'' was held at the Judiciary Committee's Subcommittee on
Antitrust, Competition Policy and Consumer Rights on April 7,
2004. The bill was reported favorably without amendment by the
Committee on the Judiciary on April 22, 2004. No further action
was taken on the NOPEC bill in the 108th Congress.
The NOPEC legislation was introduced again in the 109th
Congress by Senator DeWine on March 8, 2005 (S. 555).\9\ The
bill was co-sponsored by Senator Kohl and 15 other Senators
(Senators Leahy, Specter, Grassley, Feingold, Schumer, Durbin,
Snowe, Levin, Wyden, Boxer, Corzine, Dayton, Coburn, Mikulski
and Stabenow). The bill was reported favorably without
amendment by the Committee on the Judiciary on April 14, 2005.
On June 21, 2005, S. 555 was offered as an amendment to the
Energy Policy Act of 2005, H.R. 6, and passed the Senate by
voice vote on that date. This amendment was not included in the
version of H.R. 6 that passed the House of Representatives. The
NOPEC bill as an amendment to H.R. 6 was removed from H.R. 6 by
the House-Senate Conference Committee.
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\9\ The NOPEC bill as introduced in the 106th, 107th, 108th and
109th Congresses was identical to the current version of the bill, with
the one exception that these earlier versions authorized the Federal
Trade Commission to bring suit to enforce its provisions. The current
version of the bill does not authorize the Federal Trade Commission to
enforce its provisions.
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On March 14, 2007, Senator Kohl introduced the No Oil
Producing and Exporting Cartels Act of 2007 (S. 879). The
legislation has 12 co-sponsors (Senators Leahy, Specter,
Grassley, Feingold, Schumer, Durbin, Snowe, Coburn, Boxer,
Levin, Lieberman and Sanders). The Committee on the Judiciary
considered the bill on April 25, 2007, and agreed to report it
favorably without amendment by unanimous consent.
III. Section by Section Analysis
Section 1 contains the short title of the No Oil Producing
and Exporting Cartels Act of 2007.
Section 2 amends the Sherman Act, 15 U.S.C. Sec. Sec. 1 et
seq., by adding a new section 7A. References below are to
subsections (a) through (d) of this new section 7A--
Subsection (a) states that it shall be illegal and a
violation of this Act for any foreign state, or any
instrumentality or agent of any foreign state to act
collectively or in combination with any other foreign state, or
any instrumentality or agent of any other foreign state, or any
other person, whether by cartel or any other association or
form of cooperation or joint action--
(1) to limit the production or distribution of oil,
natural gas, or any other petroleum product;
(2) to set or maintain the price of oil, natural gas,
or any petroleum product; or
(3) to otherwise take any action in restraint of
trade for oil, natural gas, or any petroleum product.
Subsection (a) also provides that the ``action,
combination, or collective action'' must have a
``direct, substantial and reasonably foreseeable
effect'' on the U.S. market for oil, natural gas, or
other petroleum product to be within the ambit of
section 7A of the Sherman Act.
Subsection (b) provides that a foreign nation engaging in
conduct in violation of subsection (a) shall not be immune
under the doctrine of sovereign immunity from the jurisdiction
or judgments of U.S. courts to enforce this statute.
Subsection (c) provides that no court of the United States
shall decline, based on the act of state doctrine, to make a
determination on the merits in an action brought under this
section.
Subsection (d) authorizes the Attorney General of the
United States to enforce this section in any district court of
the United States.
Section 3 amends the Federal Sovereign Immunities Act, 28
U.S.C. Sec. 1605, to add an action brought under section 7A of
the Sherman Act to the list of circumstances under which a
foreign state is not immune from the jurisdiction of U.S.
courts.
IV. Cost Estimate
The Committee sets forth, with respect to the bill, S. 879,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 4, 2007.
Hon. Patrick J. Leahy, Chairman,
Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 879, the No Oil
Producing and Exporting Cartels Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Daniel
Hoople.
Sincerely,
Peter R. Orszag,
Director.
Enclosure.
S. 879--No Oil Producing and Exporting Cartels Act of 2007
S. 879 would seek to prohibit foreign states from working
collectively to limit the production, set the price, or
otherwise restrain the trading of petroleum and natural gas
when such actions affect U.S. markets. The bill would authorize
the Department of Justice (DOJ) to enforce the legislation by
filing antitrust actions in federal courts. The bill also would
provide that foreign states that restrain trade in petroleum
and natural gas would not be immune from the judgment of U.S.
courts under the doctrine of sovereign immunity.
CBO cannot project the cost of implementing S. 879 because
we have no basis for assessing the likelihood that the
Administration might initiate antitrust actions against foreign
states under the bill. Based on information from DOJ on the
costs of investigations of alleged antitrust violations, CBO
estimates that similar investigations to those that might be
brought under S. 879 could cost up to $4 million per year,
subject to appropriation of the necessary funds.
S. 879 could result in the collection of additional
criminal or civil penalties. Collections of criminal fines are
recorded in the budget as revenues, which are deposited in the
Crime Victims Fund and later spent. Civil fines are also
recorded as revenues. CBO cannot estimate the impact of S. 879
on direct spending and revenues because we cannot determine
whether DOJ would file suit against alleged violators, whether
the agencies would win such legal action, or the amount of any
penalties that might be collected by federal agencies.
S. 879 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Daniel Hoople.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
V. Regulatory Impact Statement
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 879.
VI. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 879, as reported, are shown as follows (new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman type):
SHERMAN ACT (15 U.S.C. Sec. Sec. 1, ET SEQ.)
SEC. 7A. OIL PRODUCING CARTELS.
(a) In General.--It shall be illegal and a violation of
this Act for any foreign state, or any instrumentality or agent
of any foreign state, to act collectively or in combination
with any other foreign state, any instrumentality or agent of
any other foreign state, or any other person, whether by cartel
or any other association or form of cooperation or joint
action--
(1) to limit the production or distribution of oil,
natural gas, or any other petroleum product;
(2) to set or maintain the price of oil, natural gas,
or any petroleum product; or
(3) to otherwise take any action in restraint of
trade for oil, natural gas, or any petroleum product;
when such action, combination, or collective action has a
direct, substantial, and reasonably foreseeable effect on the
market, supply, price, or distribution of oil, natural gas, or
other petroleum product in the United States.
(b) Sovereign Immunity.--A foreign state engaged in conduct
in violation of subsection (a) shall not be immune under the
doctrine of sovereign immunity from the jurisdiction or
judgments of the courts of the United States in any action
brought to enforce this section.
(c) Inapplicability of Act of State Doctrine.--No court of
the United States shall decline, based on the act of state
doctrine, to make a determination on the merits in an action
brought under this section.
(d) Enforcement.--The Attorney General of the United States
may bring an action to enforce this section in any district
court of the United States as provided under the antitrust
laws.'.
TITLE 28, UNITED STATES CODE, PART IV, CHAPTER 97. JURISDICTIONAL
IMMUNITIES OF FOREIGN STATES
* * *
Section 1605. General exceptions to the jurisdictional
immunity of a foreign state.
(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States in
any case--
* * *
; or
(8) in which the action is brought under section 7A
of the Sherman Act.
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