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Blast that OPEC, Let's Sue!



The Senate will have a cloture vote in the next day or two over S. 3044, the Consumer-First Energy Act of 2008. The bill contains all sorts of anti-market provisions -- price controls via anti-gouging provisions, windfall profits tax, etc. -- and one humdinger of a litigation-related section: TITLE IV--NO OIL PRODUCING AND EXPORTING CARTELS.

As CRS summarizes it: "No Oil Producing and Exporting Cartels Act of 2008 or NOPEC - Amends the Sherman Act to make it illegal for any foreign state to act with another foreign state to: (1) limit the production or distribution of oil, natural gas, or any other petroleum product; (2) set or maintain prices for such products; or (3) otherwise take any action in restraint of trade for such products. Denies sovereign immunity or act of state doctrine protections for foreign states who engage in such such illegal conduct."

The bill is viewed as a political statement, very unlikely to garner the 60 votes to end cloture. Still, wonder how the rest of the world regards this latest outbreak of American litigiousness.

We've put the text of Title IV in the extended entry section.

S.3044
Consumer-First Energy Act of 2008 (Placed on Calendar in Senate)

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TITLE IV--NO OIL PRODUCING AND EXPORTING CARTELS

SEC. 401. NO OIL PRODUCING AND EXPORTING CARTELS ACT OF 2008.

(a) Short Title- This section may be cited as the `No Oil Producing and Exporting Cartels Act of 2008' or `NOPEC'.

(b) Sherman Act- The Sherman Act (15 U.S.C. 1 et seq.) is amended by adding after section 7 the following:

`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.'.

(c) Sovereign Immunity- Section 1605(a) of title 28, United States Code, is amended--

(1) in paragraph (6), by striking `or' after the semicolon;

(2) in paragraph (7), by striking the period and inserting `; or'; and

(3) by adding at the end the following:

`(8) in which the action is brought under section 7A of the Sherman Act.'.

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.