released. The notification shall specify the time within which the sentencing country must request the return of the offender which shall be no longer than thirty days.

(b) Upon receiving a request from the sentencing country that the offender ordered released be returned for the completion of his sentence, the Attorney General may file a complaint for the return of the offender with any justice or judge of the United States or any authorized magistrate within whose jurisdiction the offender is found. The complaint shall be upon oath and supported by affidavits establishing that the offender was convicted and sentenced by the courts of the country to which his return is requested; the offender was transferred to the United States for the execution of his sentence; the offender was ordered released by a court of the United States before he had completed his sentence because the transfer of the offender was not in accordance with the treaty or the laws of the United States; and that the sentencing country has requested that he be returned for the completion of the sentence. There shall be attached to the complaint a copy of the sentence of the sentencing court and of the decision of the court which ordered the offender released.

A summons or a warrant shall be issued by the justice, judge or magistrate ordering the offender to appear or to be brought before the issuing authority. If the justice, judge, or magistrate finds that the person before him is the offender described in the complaint and that the facts alleged in the complaint are true, he shall issue a warrant for commitment of the offender to the custody of the Attorney General until surrender shall be made. The findings and a copy of all the testimony taken before him and of all documents introduced before him shall be transmitted to the Secretary of State, that a Return Warrant may issue upon the requisition of the proper authorities of the sentencing country, for the surrender of offender.

(c) A complaint referred to in subsection (b) must be filed within sixty days from the date on which the decision ordering the release of the offender becomes final.

(d) An offender returned under this section shall be subject to the jurisdiction of the country to which he is returned for all purposes.

(e) The return of an offender shall be conditioned upon the offender being given credit toward service of the sentence for the time spent in the custody of or under the supervision of the United States.

(f) Sections 3186, 3188 through 3191, and 3195 of this title shall be applicable to the return of an offender under this section. However, an offender returned under this section shall not be deemed to have been extradited for any purpose. (g) An offender whose return is sought pursuant to this section may be admitted to bail or be released on his own recognizance at any stage of the proceedings.

§ 4115. Execution of sentences imposing an obligation to make restitution or reparations

If in a sentence issued in a penal proceeding of a transferring country an offender transferred to the United States has been ordered to pay a sum of money to the victim of the offense for damage caused by the offense, that penalty or award of damages may be enforced as though it were a civil judgment rendered by a United States district court. Proceedings to collect the moneys ordered to be paid may be instituted by the Attorney General in any United States district court. Moneys recovered pursuant to such proceedings shall be transmitted through diplomatic channels to the treaty authority of the transferring country for distribution to the victim.

SEC. 2. That section 636 of title 28, United States Code, is amended by adding a subsection (f) as follows:

"(f) A United States magistrate may perform the verification function required by section 4107 of title 18, United States Code. A magistrate may be assigned by a judge of any United States district court to perform the verification required by section 4108 and the appointment of counsel authorized by section 4109 of title 18, United States Code, and may perform such functions beyond the territorial limits of the United States. A magistrate assigned such functions shall have no authority to perform any other function within the territory of a foreign country."

SEC. 3. That chapter 153 of title 28, United States Code, is amended by adding the following section:

Ҥ 2256. Jurisdiction of proceedings relating to transferred offenders

"When a treaty is in effect between the United States and a foreign country providing for the transfer of convicted offenders

"(1) the country in which the offender was convicted shall have exclusive jurisdiction and competence over proceedings seeking to challenge, modify, or set aside convictions or sentences handed down by a court of such country; "(2) all proceedings instituted by or on behalf of an offender transferred from the United States to a foreign country seeking to challenge, modify, or set aside the conviction or sentence upon which the transfer was based shall be brought in the court which would nave jurisdiction and competence if the offender had not been transferred;

"(3) all proceedings instituted by or on behalf of an offender transferred to the United States pertaining to the manner of execution in the United States of the sentence imposed by a foreign court shall be brought in the United States district court for the district in which the offender is confined or in which supervision is exercised and shall name the Attorney General and the official having immediate custody or exercising immediate supervision of the offender as respondents. The Attorney General shall defend against such proceedings;

"(4) all proceedings instituted by or on behalf of an offender seeking to challenge the validity or legality of the offender's transfer from the United States shall be brought in the United States district court of the district in which the proceedings to determine the validity of the offender's consent were held and shall name the Attorney General as respondent; and

"(5) all proceedings instituted by or on behalf of an offender seeking to challenge the validity or legality of the offender's transfer to the United States shall be brought in the United States district court of the district in which the offender is confined or of the district in which supervision is exercised and shall name the Attorney General and the official having immediate custody or exercising immediate supervision of the offender as respondents. The Attorney General shall defend against such proceedings."

SEC. 4. That chapter 48, title 10, United States Code, is amended by adding the following section:

"§ 955. Prisoners transferred to or from foreign countries

"(a) When a treaty is in effect between the United States and a foreign country providing for the transfer of convicted offenders, the Secretary concerned may, with the concurrence of the Attorney General, transfer to said foreign country any offender against chapter 47 of this title. Said transfer shall be effected subject to the terms of said treaty and chapter 306 of title 18, United States Code.

"(b) Whenever the United States is party to an agreement on the status of forces under which the United States may request that it take custody of a prisoner belonging to its armed forces who is confined by order of a foreign court, the Secretary concerned may provide for the carrying out of the terms of such confinement in a military correctional facility of his department or in any penal or correctional institution under the control of the United States or which the United States may be allowed to use. Except as otherwise specified in such agreement, such person shall be treated as if he were an offender against chapter 47 of this title."

SEC. 5. (a) There is authorized to be appropriated such funds as may be required to carry out the purposes of this Act.

(b) The Attorney General shall certify to the Secretary of State the expenses of the United States related to the return of an offender to the foreign country of which the offender is a citizen or national for which the United States is entitled to seek reimbursement from that country under a treaty providing for transfer and reimbursement.

(c) The Attorney General shall certify to the Administrative Office of the United States Courts those expenses which it is obligated to pay on behalf of an indigent offender under section 3006A of title 18, United States Code, and similar statutes.

For information concerning the Treaty between the United States and Mexico on the Execution of Penal Sentences signed on Nov. 25, 1976, see the 1976 Digest, Ch. 6, § 3, pp. 282-292.

$4

Jurisdiction Based on Universal and Other
State Interests

Jurisdiction Over Foreign Trade

Transactions of U.S. Corporations Abroad

On January 25, 1977, James H. Michel, Assistant Legal Adviser for Politico-Military Affairs, Department of State, responded to a letter dated January 14, 1977, from Mr. Norman E. Bayles in behalf of a client who had expressed an interest in selling to the Government of the Republic of Chile certain ammunition manufactured in Europe without the use of U.S. origin technology, equipment, or components and shipped through a Central American country without transiting the United States. Mr. Bayles asked whether such a "transaction would violate any United States law or regulation.” Mr. Michel responded that the United States would have no legal basis to prevent the transaction but expressed the preference of the Department of State that U.S. citizens refrain from such activities:

Section 38(a) of the Arms Export Control Act (22 U.S.C. 2778) authorizes the President to control the export of defense articles and defense services from the United States, in furtherance of world peace and the security and foreign policy of the United States. This authority is delegated by Executive Order 11958 (42 FR 4311) to the Secretary of State, who has issued implementing regulations to require licenses for the export of defense articles and services (the International Traffic in Arms Regulations, 22 CFR Parts 121–130). Section 406 (a) (2) of the International Security Assistance and Arms Export Control Act of 1976 (Public Law 94-329, 90 Stat. 758) prohibits the issuance of any license under the above described law and regulations with respect to exports to Chile. If your client's proposed transaction involved any shipment from or through the United States, it would be subject to export licensing requirements and we would be obliged to deny the required license. However, since the ammunition will never be physically present in the United States or otherwise subject to our control, we have no legal basis to prevent the transaction.

Although the proposed transaction does not contravene any law or regulation for which the Department of State has enforcement responsibility, we are concerned with its policy implications. The existing legislative prohibition on licenses with respect to exports to Chile was intended to disassociate the United States from the military government in Chile, because of that government's evident disregard for fundamental, internationally recognized human rights. Obviously, the direct involvement of a United States citizen in a sale of ammunition to the Chilean Government would be incompatible with the legislative intent. Accordingly, as a policy mat

ter, the Department of State would prefer that American citizens refrain from such activities.

Dept. of State File No. P77 0123-641.

Antitrust Laws

Extraterritoriality

In its "Antitrust Guide for International Operations" issued on January 26, 1977, the Department of Justice outlined its position on subject matter and personal jurisdiction concerning overseas activities under U.S. antitrust law in part as follows:

Questions of Jurisdiction

The application of U.S. antitrust law to overseas activities raises some difficult questions of jurisdiction. First, there is the question of subject matter jurisdiction: whether United States antitrust law applies to certain overseas acts which affect U.S. commerce. The acts of U.S. citizens in a foreign nation normally are subject to the law of the country where they take place." Yet U.S. law in general, and the U.S. antitrust laws in particular, are not limited to transactions which take place within our borders. 12 When foreign transactions have a substantial and foreseeable effect on U.S. commerce, they are subject to U.S. law regardless of where they take place.13... [C]onsiderations of jurisdiction, enforcement policy, and comity often, but not always, lead to the same conclusion: the U.S. antitrust laws should be applied to an overseas transaction when there is a substantial and foreseeable effect on the United States commerce; and, consistent with these ends, it should avoid unnecessary interference with the sovereign interests of foreign nations.14

For example, to use the Sherman Act to restrain or punish an overseas conspiracy whose clear purpose and effort is to restrain significant commerce in the U.S. market is both appropriate and necessary to effective U.S. enforcement.15 By contrast, to apply the Sherman Act to a combination of United States firms for foreign activities which have no direct or intended effect on United States consumers or export opportunities would, we believe, extend the Act beyond the point Congress must have intended. This could encroach upon the sovereignty of a foreign state without any overriding justification based on legitimate United States interests. In fact, antitrust laws and enforcement programs various foreign nations have adopted (or could adopt) may offer a more direct means for redressing unreasonable trade restraints which have their primary impact on the residents of those jurisdictions, but have no significant impact on United States consumer interests and export opportunities.16

17

Subject matter jurisdiction may sometimes be challenged through affirmative defenses such as (i) the act of state doctrine; " (ii) the doctrine of foreign governmental compulsion; 18 and (iii) other claims based on considerations of comity.19 These defenses often are claimed much more broadly than seems appropriate if the Department is to carry out its essential function of protecting the com

petitiveness of U.S. markets and export opportunities. Therefore, we seek to explain their application in the factual settings which will be found in the case material which follows.

Second, there is the question of personal jurisdiction over those who would be charged with a violation of our law. The general trend of modern history has been to expand the personal jurisdiction of our courts to reach those who transact business in a certain place, even if they are not "found" there in a traditional jurisdictional sense. 20 The Department will utilize these principles to seek to exercise the fullest permissible jurisdiction over those who illegally cartelize our markets. Finally, the doctrine of sovereign immunity provides a defense to the personal jurisdiction of the U.S. courts, but we believe only for conduct of the sovereign acting in its "sovereign" capacity rather than in a "proprietary" capacity."

"Restatement (Second) of Conflict of Laws § 9, Comment F (1971); Restatement (Second) of Foreign Relations Law §§ 20, 30 (1965).

"See W. Fugate, Foreign Commerce and the Antitrust Laws, 29 et seq. (1973).

See Steele v. Bulova Watch Co., 344 U.S. 280 (1952); United States v. Aluminum Company of America, 148 F.2d 416, 444 (2d Cir. 1945), Continental Ore Co. v. Union Carbide and Carbon Corp., 370 U.S. 690, 704-05 (1962).

"Restatement (Second) of Foreign Relations Law § 40 (1965); see also United States v. Field, 532 F.2d (5th Cir. 1976); cert. denied, 45 U.S.L.W. 3345 (Nov. 8, 1976); Timberlane Lumber Co. v. Bank of America, 797 A.T.R.R. G-1 (9th Cir. 1976).

15 United States v. Aluminum Company of America, 148 F.2d 416 (2d Cir. 1945).

16 The U.S. Government is a party to voluntary guidelines which discourage participation by international businesses (including U.S. businesses) in anticompetitive trade practices wherever they occur. See Code of Conduct for Multinational Enterprises adopted by the Council of the Committee on International Investment and Multinational Enterprises of the Organization for Economic Cooperation and Development (June 1976). The United States is committed to a program of cooperation with foreign antitrust agencies, including joint efforts to improve the enforcement efforts of each participating nation under its own national law. See e.g., Agreement between the Government of the United States of America and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices, signed June 23, 1976. In addition, the Department of Justice has been, and will continue to be, quite active in urging governmental bodies to be less restrictive in regulating international trade where public goals can be served by less restrictive meas

ures.

17 American Banana v. United Fruit Company, 213 U.S. 347 (1909); see United States v. Sisal Sales Corp., 274 U.S. 268 (1927); Continental Ore v. Union Carbide & Carbon Co., 370 U.S. 690 (1962).

18 Interamerican Refining Corporation v. Texaco Maracaibo, Inc., 307 F. Supp. 1291 (D.Del. 1970).

19

20

Restatement (Second) of Foreign Relations Law § 40.

See e.g., Cofinco Inc. v. Angola Coffee Co., A.C., 1975-2 Trade Cas. 60,456 (S.D.N.Y. 1975).

21 Dunhill v. Republic of Cuba, 425 U.S. 682 (1976); Victory Transport, Inc. v. Comisaria General, 336 F.2d 354 (2d. Cir. 1964); United States v. Deutsches Kalisyndicat Gesellschaft, 31 F.2d 199 (S.D.N.Y. 1929). This doctrine has been codified in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1602 et seq. Pub. L. 94-583, Oct. 21, 1976, 90 Stat. 2891. Compare In re Investigation of World Oil Arrangements, 13 F.R.D. 280 (D.D.C. 1952). Since World Oil seems inconsistent with the later Dunhill case and the sovereign immunity statute. we do not rely on it in our enforcement actions. We recognize that drawing the line between what is "sovereign" and what is "commercial" may prove difficult in particular cases, which may turn in part on questions of foreign law, custom and practice.