We review today the limits of a federal court's power to conserve its adjudicatory authority over a case properly filed with the court when, instead of actively raising all defensive claims in the federal court, the named defendants initiate suits in foreign tribunals for the sole purpose of terminating the federal court's adjudication of the litigation. Three months after Laker Airways, Ltd. ("Laker") filed an antitrust action in United States District Court for the District of Columbia against several defendants, including domestic, British, and other foreign airlines, the foreign airlines filed suits in the High Court of Justice of the United Kingdom seeking an injunction forbidding Laker from prosecuting its American antitrust action against the foreign defendants. After the High Court of Justice entered interim injunctions against Laker, the Court of Appeal issued a permanent injunction ordering Laker to take action to dismiss its suit against the British airlines. In the meantime, Laker responded by requesting injunctive relief in the United States District Court, arguing that a restraining order was necessary to prevent the remaining American defendants and the additional foreign defendants Laker had named in a subsequent antitrust claim from duplicating the foreign defendants' successful request for an English injunction compelling Laker to dismiss its suit against the defendants.

If these defendants had been permitted to file foreign injunctive actions, the United States District Court would have been effectively stripped of control over the claims--based on United States law--which it was in the process of adjudicating. Faced with no alternative but acquiescence in the termination of this jurisdiction by a foreign court's order, United States District Judge Harold H. Greene granted Laker's motion for a preliminary injunction restraining the remaining defendants from taking part in the foreign action designed to prevent the district court from hearing Laker's antitrust claims.

Two of the defendants enjoined from taking part in the English proceeding, KLM Royal Dutch Airlines ("KLM") and Societe Anonyme Belge d'Exploitation de la Navigation Aerienne ("Sabena") now contend on appeal that the court abused its discretion. Their arguments are essentially two-fold: first, that the injunction tramples Britain's rights to regulate the access of its nationals to judicial remedies; second, that the injunction contravenes the principles of international comity which ordinarily compel deference to foreign judgments and which virtually always proscribe any interference with foreign judicial proceedings.

Our review of the limited available facts strongly suggests that both the United States and Great Britain share concurrent prescriptive jurisdiction over the transactions giving rise to Laker's claim. Ordinarily antisuit injunctions are not properly invoked to preempt parallel proceedings on the same in personam claim in foreign tribunals. However, KLM and Sabena do not qualify under this general rule because the foreign action they seek to join is interdictory and not parallel. It was instituted by the foreign defendants for the sole purpose of terminating the United States claim. The only conceivable benefit that KLM and Sabena would reap if the district court's injunction were overturned would be the right to attack the pending United States action in a foreign court. This would permit the appellants to avoid potential liability under the United States laws to which their business operations and treaty obligations have long subjected them. In these circumstances there is ample precedent justifying the defensive use of an antisuit injunction.

The injunction does not transgress either the principles of international comity or nationality-based prescriptive jurisdiction on which KLM and Sabena rely. Limitations on the application of comity dating from the origins of the doctrine recognize that a domestic forum is not compelled to acquiesce in pre- or postjudgment conduct by litigants which frustrates the significant policies of the domestic forum. Accession to a demand for comity predicated on the coercive effects of a foreign judgment usurping legitimately concurrent prescriptive jurisdiction is unlikely to foster the processes of accommodation and cooperation which form the basis for a genuine system of international comity. Similarly, the mere fact of Laker's British juridical status simply does not erase all other legitimate bases of concurrent jurisdiction, as appellants suggest. Thus, the appellants' arguments that the district court abused its discretion fall well short of their mark.

The claims raised by KLM and Sabena do pose serious issues regarding the Judiciary's role in accommodating the conflicting implementation of concurrent prescriptive jurisdiction. We have necessarily inquired into the source of the conflict facing the courts of the United States and United Kingdom, and probed the extent to which the judicial processes may effectively be employed to resolve conflicts like the present one. Given the inherent limitations on the Judiciary's ability to adjust national priorities in light of directly contradictory foreign policies, there is little the Judiciary may do directly to resolve the conflict. Although the flash point of the controversy has been the antisuit injunctions, the real powder keg is the strongly mandated legislative policies which each national court is bound to implement. Thus, it is unlikely that the underlying controversy would be defused regardless of the action we take today.

Because the principles of comity and concurrent jurisdiction clearly authorize the use of a defensive preliminary injunction designed to permit the United States claim to go forward free of foreign interference, we affirm the decision of the district court.

This case raises especially troublesome issues on two different fronts. It represents a head-on collision between the diametrically opposed antitrust policies of the United States and United Kingdom, and is perhaps the most pronounced example in recent years of the problems raised by the concurrent jurisdiction held by several states over transactions substantially affecting several states' interests. These problems are all the more intractable because of the vehicles involved in the collision: antisuit injunctions designed to preempt the parties' access to the courts of foreign jurisdictions. The intersection of these issues confronts us with the Herculean task of accommodating conflicting, mutually inconsistent national regulatory policies while minimizing the amount of interference with the judicial processes of other nations that our courts will permit. Resolution of this appeal thus requires a clear grasp of both the underlying factual background of Laker's antitrust claims and the complex sequence of litigation and counterlitigation in which those claims have been asserted by Laker and attacked by the foreign defendants.

Accepting the veracity of Laker's allegations for the purposes of this appeal only,1 we learn that Laker Airways, Ltd. was founded as a charter airline in 1966. It began charter operations between the United States and United Kingdom in 1970. As early as 1971 it sought to branch out into scheduled transatlantic air service. Laker hoped to gain a sizeable share of the transatlantic market by offering only basic air passage with little or no in-flight amenities and non-essential services. Flying at a reduced cost would enable Laker to set rates much lower than those then charged by existing transatlantic air carriers.

Laker's potential competitors allegedly resisted the entry of this new carrier, delaying the commencement of Laker's novel economy service for several years. However, by 1977 Laker obtained the necessary authorizations from the United States and British governments and inaugurated its low cost transatlantic airline service between London and New York.

The prices for scheduled transatlantic air service are substantially controlled by the International Air Transport Association ("IATA"), a trade organization of the world's largest air carriers. The IATA meets annually to establish fixed fares for air carriage, which are implemented after authorization by national governments of the individual carriers. Laker's fares were approximately one-third of the competing fares offered by other transatlantic carriers which were predominantly set under the auspices of the IATA. The airline members of IATA allegedly perceived Laker's operations as a threat to their system of cartelized prices. The new competition not only jeopardized the established markets of those carriers operating between the United Kingdom and the United States--such as British Airways and British Caledonian Airways--but also affected the demand for services provided by airlines flying direct routes between points in Continental Europe and the United States--such as Swiss Air Transport ("Swissair"), Lufthansa German Airlines ("Lufthansa"), KLM, and Sabena--since some passengers allegedly found it cheaper to fly through London on Laker Airways, rather than direct on the other European transatlantic carriers. During meetings of the IATA in July and August 1977 the IATA airlines allegedly agreed to set rates at a predatory level to drive Laker out of business.

Notwithstanding this asserted predatory scheme, up until 1981 Laker managed to operate at a profit. At its zenith, Laker was carrying one out of every seven scheduled air passengers between the United States and England.

However, during 1981 Laker's financial condition rapidly deteriorated. In mid 1981 the pound sterling declined precipitously. A large segment of Laker's revenues was in pounds, but most of its debts, such as those on its United States financed fleet of DC-10 aircraft, and expenses were in dollars. Already weakened by the asserted predatory pricing scheme, Laker ran into repayment difficulties. Fearing financial collapse, it sought to have its repayment obligations refinanced.

At this point several airlines allegedly conspired to set even lower predatory prices. In October 1981 Pan American Airlines, Trans World Airlines, and British Airways dropped their fares for their full service flights to equal those charged by Laker for its no-frills service. They also allegedly paid high secret commissions to travel agents to divert potential customers from Laker. These activities further restricted Laker's income, exacerbating its perilous economic condition. At IATA meetings in December 1981 at Geneva, Switzerland, and in January 1982 at Hollywood, Florida, the IATA airlines allegedly laid plans to fix higher fares in the spring and summer of 1982 after Laker had been driven out of business.

IATA members also interfered with Laker's attempt to reschedule its financial obligations. After Laker arranged a refinancing agreement, KLM, Sabena, and other IATA airlines allegedly pressured Laker's lenders to withhold the financing which had previously been promised. As a result of these alleged conspiracies, Laker was forced into liquidation under Jersey law in early February 1982.

In the aftermath of these asserted conspiracies, Laker, through its liquidator, commenced an action in United States District Court for the District of Columbia to recover for the injuries sustained by the airline as a result of the alleged predatory pricing and unlawful interference with its refinancing arrangements. Laker's complaint filed on 24 November 1982, Civil Action No. 82-3362, alleged two counts: (1) violation of United States antitrust laws, and (2) a common law intentional tort. Named as defendants were four American corporations, Pan American World Airways, Trans World Airlines, McDonnell Douglas Corp., and McDonnell Douglas Finance Corp., as well as four foreign airlines, British Airways, British Caledonian Airways, Lufthansa, and Swissair.

Fearing that Laker would commence a second antitrust action against it, Midland Bank, a British corporation involved in Laker's abortive refinancing attempt, filed a preemptive action in the United Kingdom's High Court of Justice on 29 November 1982 seeking to enjoin Laker from naming it as a defendant in any United States antitrust action. An ex parte injunction was issued the same day; this became a more permanent preliminary injunction on 4 February 1983.

Shortly thereafter the four foreign defendants in No. 82-3362 initiated a similar suit in the High Court of Justice. Their writs filed on 21 January 1983 sought (1) a declaration that the four foreign defendants were not engaged in any unlawful combination or conspiracy, and (2) an injunction prohibiting Laker from taking any action in United States courts to redress an alleged violation by the defendants of United States antitrust laws. The writs specifically sought to compel Laker to dismiss its suit against the foreign defendants in No. 82-3362 and to prohibit Laker from instituting any other proceedings in any non-English forum to redress any alleged violation of English or other laws prohibiting intentional or unlawful commercial injury.2

The substantive basis for the requested relief was the alleged inapplicability of United States antitrust laws under the Bermuda II Treaty3 and the British Protection of Trading Interests Act.4 Shortly thereafter Justice Parker issued an interlocutory injunction preventing Laker from taking any action in the United States courts or elsewhere to interfere with the proceedings the defendants were commencing in the High Court of Justice.

On 24 January 1983, to avoid being enjoined from continuing to sue the four United States defendants, Laker sought a temporary restraining order from the United States District Court preventing the American defendants from instituting similar preemptive proceedings in England. The order was granted the same day, and later extended pending a hearing on Laker's motion for a preliminary injunction.

Approximately three weeks later, on 15 February 1983, Laker commenced in the district court a second antitrust suit, Civil Action No. 83-0416. Appellants KLM and Sabena were named as defendants. A temporary restraining order was also entered against the appellants, preventing them from taking any action in a foreign court that would have impaired the district court's jurisdiction. This order was extended pending a hearing on Laker's motion for a preliminary injunction.

On 2 March 1983, the British defendants in No. 82-3362 successfully petitioned Justice Parker of the High Court of Justice to grant a second interim injunction against Laker preventing Laker from taking "any further steps" to prosecute its United States claim against the British airlines. Although the injunction was only designed to preserve the status quo pending a ruling by the High Court of Justice on the merits of the British airlines' suit seeking dismissal of No. 82-3362, the injunction prevented Laker from filing any discovery or other motions against British Airways and British Caledonian.

At a hearing held five days later, Laker's motion for a preliminary injunction against the four American defendants, KLM, and Sabena was considered by the United States District Court. By order5 of 7 March 1983 and memorandum opinion6 dated 9 March 1983, the district court granted a preliminary injunction. The terms of the injunction were designed only to "protect the jurisdiction of [the district court] over these proceedings" to the extent necessary to preserve "the rights of the plaintiff under the laws of the United States." The injunction prevented the defendants from taking any action before a foreign court or governmental authority that would interfere with the district court's jurisdiction over the matters alleged in the complaint.7 In its memorandum opinion, the court made it clear that it would consider further narrowing the terms of the injunction at the request of any party as long as it would not leave the defendants "free to secure orders which would interfere with the litigation pending" before the district court.8 The court also consolidated Laker's two antitrust actions, No. 82-3362 and No. 83-0416.

KLM Royal Dutch Airlines and Sabena Belgian World Airlines, joined by amici curiae Swissair and Lufthansa, now appeal the 7 March 1983 order and 9 March 1983 memorandum of the district court which enjoined KLM and Sabena from seeking an injunction against Laker's antitrust suit in the English courts. However, during the pendency of this appeal, the process of litigation and counterlitigation has continued in the United States and English courts.

On 29 March 1983, Justice Parker vacated his 2 March 1983 injunction against Laker's prosecution of its antitrust suit against the foreign defendants in No. 83-3362. This interim injunction was then reinstated pending appeal.

In April and May 1983 Laker continued its efforts to proceed in its United States antitrust actions while defending itself against the proceedings in the High Court of Justice which were designed to terminate its United States claims. On 26 April 1983 Laker issued a summons in the High Court of Justice seeking a dismissal or stay of the suits initiated by Lufthansa and Swissair. Laker also moved in the High Court of Justice for a discharge of the injunction granted on 21 January 1983. In a motion for partial summary judgment filed in the United States District Court, Laker affirmatively challenged the defendants' contentions that the action should be dismissed on forum non conveniens grounds. By an opinion and order dated 3 May 1983 the district court granted Laker's motion and held that the principles of forum non conveniens did not require that jurisdiction be relinquished.9

In a judgment read by Justice Parker on 20 May 1983, the High Court of Justice held that the injunctive relief requested by the British airlines was not justified and terminated claims for relief filed by British Caledonian and British Airways.10 Justice Parker held that the application of American antitrust laws to companies carrying on business in the United States was not contrary to British sovereignty or the terms of the Bermuda II Treaty, at least while the dormant terms of the British Protection of Trading Interests Act had not been invoked. The judgment did recognize that a determination by the English Secretary of State that Britain's trading interests were negatively implicated by the United States antitrust action could change the result.11 However, at this point, before any intervention by the British Executive, the British court was willing to hold that Laker could not be prohibited from proceeding with its antitrust claims against British Airways and British Caledonian. The original interim injunctions were maintained pending an appeal to the Court of Appeal by British Airways and British Caledonian.

The complexion of the controversy changed dramatically the next month when the British Government invoked the provisions of the British Protection of Trading Interests Act ("Act").12 Upon a determination that measures taken to regulate international trade outside the United Kingdom "threaten to damage the trading interests of the United Kingdom," the Act authorizes the English Secretary of State to require that any person conducting business in the United Kingdom disobey all foreign orders and cease all compliance with the foreign judicial or regulatory provisions designated by the Secretary of State. The Act authorizes the Secretary of State to prevent United Kingdom courts from complying with requests for document production issued by foreign tribunals, and forbids enforcement of treble damage awards or antitrust judgments specified by the Secretary of State.13 On 27 June 1983 the Secretary of State for Trade and Industry cited his powers under the Act and issued an order and general directions prohibiting persons who carry on business in the United Kingdom, with the exception of American air carriers designated under the Bermuda II Treaty, from complying with "United States antitrust measures" in the district court arising out of any (1) "agreement or arrangement (whether legally enforceable or not) to which a UK designated airline is a party," or (2) "any act done by a UK designated airline" that relates to the provision of air carriage under the Bermuda II Treaty.14

Laker applied for judicial review of the validity of the order and directions. The Court of Appeal considered this application with the appeals by British Airways and British Caledonian of Justice Parker's judgment of 20 May 1983.

On 26 July 1983 the Court of Appeal announced its judgment that the order and directions were well within the power of the Secretary of State to issue, and hence valid. Because the order and directions of the British Executive prevented the British airline from complying with any requirements imposed by the United States District Court and prohibited the airlines from relying on their own commercial documents located within the United Kingdom to defend themselves against Laker's charges, the Court of Appeal concluded that the United States District Court action was "wholly untriable" and could only result in a "total denial of justice to" the British airlines.15 As a result, the Court of Appeal held that Laker must be permanently enjoined from proceeding with its United States antitrust claims against British Airways and British Caledonian.

After a hearing following judgment, the Court of Appeal granted an injunction (1) restraining Laker from taking any steps against British Airways and British Caledonian in the United States action, and (2) directing Laker to use its best efforts to have British Airways and British Caledonian dismissed from the United States action. The second aspect of the injunction was stayed pending appeal to the House of Lords.16 Subsequently, on 21 October 1983 Laker's summons to dismiss or stay the Lufthansa and Swissair action issued on 26 April 1983 was also adjourned pending the outcome of Laker's appeal.17

As the litigation now stands, British Airways and British Caledonian have obtained an injunction by the English Court of Appeal restraining Laker from prosecuting its civil antitrust claim against them. Swissair and Lufthansa have applied for similar relief, but their applications are still pending. However, they are apparently protected by the interim injunctions that prevent Laker from taking any action in United States courts to thwart their 21 January 1983 claim for relief. KLM and Sabena are restrained by the United States District Court from joining the English proceedings.

Supported by amici curiae Swissair and Lufthansa, KLM and Sabena challenge the United States District Court's preliminary injunction on appeal to this court.18 They claim that the injunction was unnecessary to protect the district court's jurisdiction and violates their right to take part in the "parallel" actions commenced in the English courts. Denial of this opportunity, they assert, flouts international principles of comity. Moreover, they charge that the district court ignored Britain's "paramount right" to apply British law to Laker, which is a British subject. Appellants and amici request that we overturn the district court's injunction as a clear abuse of discretion.

This appeal is the direct result of a clash between two governments asserting jurisdiction to prescribe law over a single series of transactions. The district court's injunction is defended by Laker as necessary to protect the court's jurisdiction. If there is no justification for the court's exercise of jurisdiction, the injunctive relief should necessrily fail. Similarly, if the United Kingdom courts would lack jurisdiction over a claim filed by Sabena and KLM, the district court should be under no obligation to defer to the actions of those foreign tribunals. A true conflict arises only if the national jurisdictions overlap. We must therefore begin our analysis with a review of the recognized bases supporting prescriptive jurisdiction, and then examine whether the alleged facts of this case satisfy those requirements.

A. Bases of Concurrent Prescriptive Jurisdiction: Territoriality and Nationality

Territoriality and nationality are the two fundamental jurisdictional bases on which courts of the United States and United Kingdom rely to assert control over the controversy between Laker and the antitrust defendants.

The prerogative of a nation to control and regulate activities within its boundaries is an essential, definitional element of sovereignty. Every country has a right to dictate laws governing the conduct of its inhabitants. Consequently, the territoriality base of jurisdiction is universally recognized. It is the most pervasive and basic principle underlying the exercise by nations of prescriptive regulatory power.19 It is the customary basis of the application of law in virtually every country.20

In the context of remedial legislation, prohibition of effects is usually indivisible from regulation of causes. Consequently, the principles underlying territorial jurisdiction occasionally permit a state to address conduct causing harmful effects across national borders. Territoriality-based jurisdiction thus allows states to regulate the conduct or status of individuals or property physically situated within the territory, even if the effects of the conduct are felt outside the territory.21 Conversely, conduct outside the territorial boundary which has or is intended to have a substantial effect within the territory may also be regulated by the state.22

Just as the locus of the regulated conduct or harm provides a basis of jurisdiction, the identity of the actor may also confer jurisdiction upon a regulating country. The citizenship of an individual or nationality of a corporation has long been a recognized basis which will support the exercise of jurisdiction by a state over persons. Under this head of jurisdiction a state has jurisdiction to prescribe law governing the conduct of its nationals whether the conduct takes place inside or outside the territory of the state.23

Because two or more states may have legitimate interests in prescribing governing law over a particular controversy, these jurisdictional bases are not mutually exclusive. For example, when the national of one state causes substantial effects in another state, both states may potentially have jurisdiction to prescribe governing law.24 Thus, under international law, territoriality and nationality often give rise to concurrent jurisdiction.25 A court faced with assertions of conflicting or inconsistent prescriptive power under facially concurrent jurisdiction must first examine the sufficiency of jurisdictional contacts under each base of jurisdiction to determine whether either claim of jurisdiction is unfounded. If both claims to jurisdiction are legitimately exercised, avenues of conflict resolution must be considered before jurisdiction to prescribe can go forward.

The prescriptive application of United States antitrust law to the alleged conspiracies between KLM, Sabena, and the other antitrust defendants is founded upon the harmful effects occurring within the territory of the United States as a direct result of the alleged wrongdoing. Before we examine the nature of those effects and consider whether they support the prescriptive jurisdiction over the claimed conspiracies, we wish to make it clear that this aspect of territorial jurisdiction is entirely consistent with nationally and internationally recognized limits on sovereign authority.

It has long been settled law that a country can regulate conduct occurring outside its territory which causes harmful results within its territory.26 The traditional example of this principle is that of the transnational homicide: when a malefactor in State A shoots a victim across the border in State B, State B can proscribe the harmful conduct.27 To take a more likely example, embezzlement or unauthorized access to computerized financial accounts can certainly be controlled by the territory where the accounts are located, even though the thief operates by telephone from a distant territory. Other examples are easily multiplied.28

Even if invisible, the radiating consequences of anti-competitive activities cause economic injuries no less tangible than the harmful effects of assassins' bullets or thieves' telephonic impulses. Thus, legislation to protect domestic economic interests can legitimately reach conduct occurring outside the legislating territory intended to damage the protected interests within the territory. As long as the territorial effects are not so inconsequential as to exceed the bounds of reasonableness imposed by international law,29 prescriptive jurisdiction is legitimately exercised.

The territorial effects doctrine is not an extraterritorial assertion of jurisdiction.30 Jurisdiction exists only when significant effects were intended within the prescribing territory. Prescriptive jurisdiction is activated only when there is personal jurisdiction, often referred to as "jurisdiction to adjudicate." A foreign corporation doing business within the United States reasonably expects that its United States operations will be regulated by United States law. The only extraterritoriality about the transactions reached under the territorial effects doctrine is that not all of the causative factors producing the proscribed result may have occurred within the territory. Although some of the business decisions affecting United States operations may be made outside the forum state, the entire transaction is not ordinarily immunized.

Certainly the doctrine of territorial sovereignty is not such an artificial limit on the vindication of legitimate sovereign interests that the injured state confronts the wrong side of a one-way glass, powerless to counteract harmful effects originating outside its boundaries which easily pierce its "sovereign" walls, while its own regulatory efforts are reflected back in its face.31 Unless one admits that there are certain vital interests that can be affected with impunity by careful selection of the decision-making forum, with the result that a country may be forced to rely entirely on the good offices of a foreign state for vindication of the forum's interests--even when vindication of the forum state's own policies--then availability of territorial effects jurisdiction must be recognized. For these reasons territorial effects jurisdiction has been implemented by several European forums.32 Indeed, the British have vigorously legislated on this principle in the Protection of Trading Interests Act.

a. Territorial Contacts Justifying Application of United States Antitrust Law.

The circumstances of this litigation suggest numerous American interests that would be vindicated if Laker is permitted to proceed with its antitrust claim. Although some of the alleged anticompetitive actions occurred within the United States,33 most of the conspiratorial acts took place in other countries. This distinction, however, has no overriding significance, since the economic consequences of the alleged actions gravely impair significant American interests. If the only interest involved were that of Laker, a British corporation, then it may very well be that United States jurisdiction to prescribe would not exist. However, Laker is in liquidation. Therefore its interests are only nominal compared to those claiming through it.

A primary objective of antitrust laws is to preserve competition, and thus ultimately protect the interests of American consumers.34 For decades, a great percentage of passengers on North Atlantic air routes has been United States citizens.35 The greatest impact of a predatory pricing conspiracy would be to raise fares for United States passengers. No other single nation has nearly the same interest in consumer protection on the particular combination of routes involved in Laker's antitrust claims. Application of antitrust laws would thus directly benefit American consumers.

Because Laker is currently being liquidated, the claims of its creditors are even more directly at stake than consumer interests. Laker is now little more than a corporate conduit through which its assets, including any damages owed Laker, will pass to its creditors. Its antitrust action is primarily an effort to satisfy its creditors, who ultimately bear the brunt of the injury allegedly inflicted upon Laker.

Although the precipitous actions of the British airline defendants prevented the district court from conducting a thorough inquiry into the underlying facts relevant to this aspect of the litigation, the facts indicate that Laker's principal creditors are Americans. Laker's fleet of American manufactured DC-10 aircraft was largely financed by banks and other lending institutions in the United States.36 Moreover, a substantial portion of its total debt obligations are likely to have been American, since the bulk of the debts and expenses were payable in American dollars.37 The actions of the alleged conspirators destroyed the ability of Laker to repay these American creditors; any antitrust recovery will therefore benefit these United States interests.

In addition to the protection of American consumers' and creditors' interests, the United States has a substantial interest in regulating the conduct of business within the United States. The landing rights granted to appellants are permits to do business in this country. Foreign airlines fly in the United States on the prerequisite of obeying United States law.38 They have offices and employees within the United States, and conduct substantial operations here. By engaging in this commercial business they subject themselves to the in personam jurisdiction of the host country's courts. They waive either expressly or implicitly other objections that might otherwise be raised in defense.39 A major reason for this subjection to business regulation is to place foreign corporations generally in the same position as domestic businesses.40 Thus, United States creditors are entitled to, and do, rely on their ability to enforce their claims against foreign corporations like the appellants.

This equivalency works in both directions. Foreign corporations are privileged to, and do, rely on United States law.41 Consequently, creditors rely on the ability of foreign corporations, not only to be sued, but to sue in courts. Creditors expect to recover claims derivatively when foreign corporations possess a claim. Foreign corporations thus have the same obligation as domestic corporations--to sue for benefit of creditors when they are financially troubled and need money for satisfaction of creditors' claims.42

The United States has an interest in maintaining open forums for resolution of creditors' claims. Just as the appellants are expected to abide by the United States laws governing those who do business here, so is Laker entitled to the protection of those laws. Permitting Laker to maintain its antitrust suit satisfies the legitimate expectations of Laker and its creditors.

b. Adequacy of United States Territorial Interests

It is beyond dispute that these contacts support an exercise of jurisdiction under the Sherman and Clayton Acts. Jurisdiction exists under United States antitrust laws whenever conduct is intended to, and results in, substantial effects within the United States.43 Under the conspiracy alleged by Laker, the intent to affect American commerce is obvious. The asserted predatory pricing of fares and interference with refinancing attempts were designed specifically to drive Laker out of business and eventually to raise the fares paid by transatlantic passengers, the bulk of whom are American.

Substantial realization of those intended effects has also been alleged by Laker. Laker was forced into liquidation shortly after its refinancing attempts collapsed. Its creditors have not yet been satisfied. The downward pressure on fares induced by Laker's competition, which previously benefitted transatlantic passengers, has been eliminated. Moreover, providing a forum for Laker's suit would also respect domestic creditors' reliance on the ability of foreign corporations to sue and be sued under the United States laws which ordinarily govern the business operations of foreign corporations within the United States. Thus, significant and long standing American economic interests would be vindicated through a successful antitrust action by Laker.

Some of the British jurisdictional contacts are territorial. The plaintiff did business on routes between the United States and United Kingdom. A number of the purported conspiratorial acts took place in Great Britain. The conspiracy allegedly caused bankruptcy of a corporation operating in Great Britain.

However, the primary base of jurisdiction is the British nationality of the parties involved in the transactions cited in Laker's complaint.44 Laker itself is incorporated under Jersey law, and is thus a British national for purposes of this litigation. Two of the named defendants, British Airways and British Caledonian, are also incorporated under British law. In addition, the conspiracy may also tangentially implicate the activities of other British entities such as the Bank of England and the Civil Aviation Authority.45

Regulating the activities of businesses incorporated within a state is one of the oldest and most established examples of prescriptive jurisdiction.46 We cannot say that these nationality-based jurisdictional contacts would be insufficient to support British jurisdiction over a claim filed by KLM or Sabena, especially when the conspiracy charged does have territorial contacts with the United Kingdom. Thus, existence of British jurisdiction to prescribe is not seriously challenged by Laker.

The sufficiency of jurisdictional contacts with both the United States and England results in concurrent jurisdiction to prescribe. Both forums may legitimately exercise this power to regulate the events that allegedly transpired as a result of the asserted conspiracy.

Concurrent jurisdiction does not necessarily entail conflicting jurisdiction. The mere existence of dual grounds of prescriptive jurisdiction does not oust either one of the regulating forums. Thus, each forum is ordinarily free to proceed to a judgment.

In the current situation, appellants charge that the district court abused its discretion by forbidding them from joining the "parallel" proceeding in the English courts. They argue that this result is compelled both by principles of comity and by respect for a country's paramount interest in controlling the remedies available to its nationals. Before we can fully consider the extent of appellants' rights based on comity and Laker's nationality to participate in the English proceedings, we examine whether the district court's injunction contravenes the well-established limits on the use of in personam injunctions against litigation in foreign jurisdictions.

It is well settled that English and American courts have power to control the conduct of persons subject to their jurisdiction to the extent of forbidding them from suing in foreign jurisdictions.47 However, the fundamental corollary to concurrent jurisdiction must ordinarily be respected: parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other.48 The mere filing of a suit in one forum does not cut off the preexisting right of an independent forum to regulate matters subject to its prescriptive jurisdiction. For this reason, injunctions restraining litigants from proceeding in courts of independent countries are rarely issued.49

A second reason cautioning against exercise of the power is avoiding the impedance of the foreign jurisdiction. Injunctions operate only on the parties within the personal jurisdiction of the courts. However, they effectively restrict the foreign court's ability to exercise its jurisdiction.50 If the foreign court reacts with a similar injunction, no party may be able to obtain any remedy.51 Thus, only in the most compelling circumstances does a court have discretion to issue an antisuit injunction.

There are no precise rules governing the appropriateness of antisuit injunctions. The equitable circumstances surrounding each request for an injunction must be carefully examined to determine whether, in light of the principles outlined above, the injunction is required to prevent an irreparable miscarriage of justice. Injunctions are most often necessary to protect the jurisdiction of the enjoining court, or to prevent the litigant's evasion of the important public policies of the forum. We consider the applicability of each category in turn.

Courts have a duty to protect their legitimately conferred jurisdiction to the extent necessary to provide full justice to litigants. Thus, when the action of a litigant in another forum threatens to paralyze the jurisdiction of the court, the court may consider the effectiveness and propriety of issuing an injunction against the litigant's participation in the foreign proceedings.

These situations may arise either before or after a judgment has been entered.52 The policies that guide the exercise of discretion vary slightly in each situation. When the injunction is requested after a previous judgment on the merits, there is little interference with the rule favoring parallel proceedings in matters subject to concurrent jurisdiction.53 Thus, a court may freely protect the integrity of its judgments by preventing their evasion through vexatious or oppressive relitigation.54

However, when a party requests the issuance of an injunction to protect the court's jurisdiction before a judgment has been reached, the rules are less clear. Some courts issue the injunction when the parties and issues are identical in both actions, justifying the injunction as necessary to prevent duplicative and, therefore, "vexatious" litigation.55 However, this rationale is prima facie inconsistent with the rule permitting parallel proceedings in concurrent in personam actions. The policies underlying this rule--avoiding hardship to parties and promoting the economies of consolidated litigation--are more properly considered in a motion for dismissal for forum non conveniens.56 They do not outweigh the important principles of comity that compel deference and mutual respect for concurrent foreign proceedings. Thus, the better rule is that duplication of parties and issues alone is not sufficient to justify issuance of an antisuit injunction.57

Similarly, the possibility of an "embarrassing race to judgment" or potentially inconsistent adjudications58 does not outweigh the respect and deference owed to independent foreign proceedings.59 The parallel proceeding rule applies only until a judgment is reached in one of the actions.60 After that point, the second forum is usually obliged to respect the prior adjudication of the matter.61 If the rules regarding enforcement of foreign judgments are followed there will seldom be a case where parties reach inconsistent judgments.

There is little, if any, evidence of courts sacrificing procedural or substantive justice in an effort to "race" to a prior judgment. To the extent this slight risk exists it is outweighed by the more important policies favoring respect for concurrent proceedings. In any event, most forums need not fear that their crucial policies would be trampled if a foreign judgment is reached first, since violation of domestic public policy may justify not enforcing the foreign judgment.62

These and other factors63 relied upon to support issuance of prejudgment protective injunctions in aid of jurisdiction do not usually outweigh the importance of permitting foreign concurrent actions. Thus, although they suggest possible bases favoring the district court's decision to enjoin the appellants, we do not find them controlling.

The logical reciprocal of the parallel proceeding rule proves that there must be circumstances in which an antisuit injunction is necessary to conserve the court's ability to reach a judgment. Just as the parallel proceeding rule counsels against interference with a foreign court's exercise of concurrent jurisdiction, it authorizes the domestic court to resist the attempts of a foreign court to interfere with an in personam action before the domestic court.64 When the availability of an action in the domestic courts is necessary to a full and fair adjudication of the plaintiff's claims, a court should preserve that forum.65 5] Thus, where the foreign proceeding is not following a parallel track but attempts to carve out exclusive jurisdiction over concurrent actions, an injunction may be necessary to avoid the possibility of losing validly invoked jurisdiction. This would be particularly true if the foreign forum did not offer the remedy sought in the domestic forum.

The district court's injunction was clearly proper under these principles. As far as could be determined by the initial pleadings and papers filed, jurisdiction to prescribe was properly exercised. Consequently, the court's ability to render a just and final judgment had to be protected, absent clear evidence that the foreign action could fully consider the litigant's claims.

Appellants characterize the district court's injunction as an improper attempt to reserve to the district court's exclusive jurisdiction an action that should be allowed to proceed simultaneously in parallel forums. Actually, the reverse is true. The English action was initiated for the purpose of reserving exclusive prescriptive jurisdiction to the English courts, even though the English courts do not and can not pretend to offer the plaintiffs here the remedies afforded by the American antitrust laws.

Although concurrently authorized by overlapping principles of prescriptive jurisdiction, the British and American actions are not parallel proceedings in the sense the term is normally used. This is not a situation where two courts are proceeding to separate judgments simultaneously under one cause of action. Rather, the sole purpose of the English proceeding is to terminate the American action. The writs filed in the High Court of Justice sought to paralyze or halt the proceedings before the United States District Court. Although they also sought a determination that the defendants had not engaged in any unlawful conduct, the clear thrust of the requested relief was the termination of the United States antitrust claim.66 Appellants conceded at oral argument that they are not interested in concurrent proceedings in the courts of the United Kingdom--they want only the abandonment or dismissal of the American action against them.67 Further proof of this is Judge Greene's offer to draft the injunction more narrowly to permit certain proceedings that were not inconsistent with the unhindered continuation of the United States antitrust action.68 That no suggestions were made by the appellants to narrow the injunction indicates that they are only interested in interfering with the antitrust action, and not in adjudicating the existence of an unlawful conspiracy under British law.

Judge Greene faced the stark choice of either protecting or relinquishing his jurisdiction. Midland Bank had previously obtained a preemptive interim injunction against Laker's naming it as a defendant in a United States antitrust action. Subsequently all of the foreign defendants in No. 82-3362 appeared in the High Court of Justice without notice to either Laker or the United States District Court and obtained interim protection. The remaining defendants, although domestic corporations, had to be restrained from attempting to follow the same path. It was equally clear that appellants also intended to seek English injunctive relief. Due to the lack of any prior notice by the four foreign defendants, the district court was threatened with a potential fait accompli by the appellants which would have virtually eliminated the court's effective jurisdiction over Laker's facially valid claim. Given the tensions between the parties, it is likely that the threat worsened every day. Thus, there was nothing improper in the district court's decision to enjoin appellants from seeking to participate in the English proceedings solely designed to rob the court of its jurisdiction.

Antisuit injunctions are also justified when necessary to prevent litigants' evasion of the forum's important public policies.69 This principle is similar to the rule that a foreign judgment not entitled to full faith and credit under the Constitution will not be enforced within the United States when contrary to the crucial public policies of the forum in which enforcement is requested.70 Both rules recognize that a state is not required to give effect to foreign judicial proceedings grounded on policies which do violence to its own fundamental interests.71

The standard for refusing to enforce judgments on public policy grounds is strict; defendants are rarely able to block judgments on these grounds.72 Enjoining participation in a foreign lawsuit in order to preempt a potential judgment is a much greater interference with an independent country's judicial processes. It follows that an antisuit injunction will issue to preclude participation in the litigation only when the strongest equitable factors favor its use.73 Both the importance to the forum of the law allegedly evaded, and the identity of the potentially evading party are relevant.

In this situation, the district court's injunction properly prevented appellants from attempting to escape application of the antitrust laws to their conduct of business here in the United States. KLM and Sabena seek to evade culpability under statutes of admitted economic importance to the United States74 which are specifically applicable to their activities in the United States, and upon which Laker may have legitimately relied.

Whatever the merits of the British defendants' claims based upon the Bermuda II Treaty,75 KLM and Sabena have no claim to antitrust immunity under their air service treaties. In fact, far from conferring any immunity, their treaties contain express language subjecting them to the jurisdiction of the United States over predatory pricing and abuse of monopoly power. Article Twelve of the United States-Belgium Air Transport Services Agreement provides,

(1) Each Party shall allow prices for air transportation to be established by each designated airline based upon commercial considerations in the marketplace. Intervention by the Parties shall be limited to:

(a) prevention of predatory or discriminatory prices or practices;

(b) protection of consumers from prices that are unduly high or restrictive because of the abuse of a dominant position; and

(c) protection of airlines from prices that are artificially low because of direct or indirect governmental subsidy or support.76

There is similar language in the United States-Netherlands air service agreement77 and the United States-Germany78 air service agreement.

These provisions were all negotiated recently, at a time when the countries could be expected to have been familiar with the United States' position regarding enforcement of its antitrust laws over foreign corporations operating in the United States. Significantly, in the face of these express treaty provisions appellants have not asserted before the United States courts any claim to immunity under the air service treaties.

In light of these treaty provisions, we find it offensive that KLM and Sabena attempt to ride on the coattails of the British airlines under the Bermuda II Treaty and the British Protection of Trading Interests Act, which were respectively intended to regulate British air carriage and to protect primarily the economic interests of British domestic corporations. We do not see how a suit by a British corporation against Dutch and Belgian corporations involving anticompetitive activities allegedly taken by the defendants to protect their United States-Dutch and United States-Belgian air markets adversely implicates British trading interests. British interests would be damaged only if a British corporation will have to pay the judgment. Conceivably, British trading interests may even be furthered by retaining KLM, Sabena, and the other non-British parties to the action, since a judgment against any one of them would contribute towards the full satisfaction of the creditors' claims against a British corporation in liquidation.

KLM and Sabena are not less properly enjoined from pursuing the British litigation by virtue of their status as foreign corporations. Because of the inherent interference of an antisuit injunction, injunctions are occasionally limited to restrain only residents of the forum state from pursuing foreign litigation, and do not necessarily run to all those who would be subject to the forum state's in personam jurisdiction. However, on occasion, circumstances have even permitted restraints on actions by foreign parties in other forums.79

The propriety of such a restraint should be clear with respect to KLM and Sabena. Foreign corporations doing business in the enjoining forum are expected to abide by the forum's laws. We recognize that the British Government disputes the right of the United States to apply its antitrust laws to British air carriers operating in the United States. However, KLM and Sabena have not argued that their status as air carriers under their air service treaties guarantees them any special status in this regard. Indeed, their treaties permit signatory government intervention to redress predatory prices or abuse of dominant market position. In this situation, KLM and Sabena should be treated as any other resident or corporation operating within this country. They are not permitted to escape forum policies any more than other residents.

Sabena's argument that the district court's antisuit injunction "compels Britain to acquiesce in conduct by its nationals that may violate its policies disfavoring international application of treble damages laws"80 is disengenuous. The district court's order does not compel Britain to do anything, but only preserves free access to United States courts. The British Government is free to pursue other sanctions against Laker.81

The district court's injunction was within its discretion even though the United Kingdom courts have issued in personam injunctions stopping Laker from proceeding against British Airways and British Caledonian. Long experience derived from this country's federal system teaches that a forum state may,82 but need not,83 stay its own proceedings in response to an antisuit injunction against a party before the court. This is consistent with the general rule permitting concurrent proceedings on transitory causes of action.84 In extreme cases it may even be necessary to issue a counterinjunction to thwart another state's attempt to assert exclusive jurisdiction over a matter legitimately subject to concurrent jurisdiction.85

In suits involving states, even the Full Faith and Credit Clause does not compel recognition of an antisuit injunction. In Pacific Employers Insurance Co. v. Industrial Accident Commission86 the Supreme Court held that when two states each create an exclusive remedy for a liability which each state has jurisdiction to impose, neither is bound to defer to the other's jurisdiction by enforcing the other jurisdiction's remedy to the exclusion of its own. Although one state may exercise its prescriptive jurisdiction to create an "exclusive" remedy for an injury, absent some other overriding constitutional stricture, that exclusivity is never so total as to prevent another sovereign from disregarding a foreign remedy in favor of its own administrative scheme tailored to serve its unique needs.

The same result is reached here a fortiori, since the mandatory policies of the Full Faith and Credit Clause do not apply to international assertions of exclusive jurisdiction. The antisuit injunction was a necessary and proper vehicle to protect the United States District Court's jurisdiction and prevent the evasion by KLM and Sabena of important domestic laws governing their conduct of business within the United States.

We turn now to the appellants' argument that Laker's nationality requires the United States District Court to defer to the injunctions issued by the courts of the United Kingdom.

KLM and Sabena do not dispute the power of the United States District Court to issue the injunction. They contend rather that the district court abused its discretion by issuing an antisuit injunction instead of relinquishing its jurisdiction, staying its proceedings, or adopting some other vehicle of conflict resolution. Appellants are therefore in the contradictory position of supporting the right of English courts to issue an antisuit injunction, but opposing the United States District Court's issuance of the same kind of injunction. The only way appellants can differentiate between the two injunctions is to focus on the nationality of Laker.

The similarity of the injunctions is underscored by the way Sabena phrased the issue posed by this case: "which sovereign, the United States or Great Britain, has the right to determine whether British law permits Laker to conduct private treble damage actions in the United States."87 As counsel for Sabena recognized at oral argument, whether British law permits or proscribes certain activities is primarily a matter for the British courts to determine.88 On parity of reasoning the availability of treble damage actions in United States courts is a question of United States law. Appellants' case thus hinges entirely on the consequences attending the existence in one court of nationality-based jurisdiction over Laker.

Appellants attempt to prioritize the authority of the courts to proceed in cases of concurrent jurisdiction by arguing that the nationality of the plaintiff gives the plaintiff's state an inherent advantage which displaces all other jurisdictional bases. They label this principle "paramount nationality," and present this as the theory of conflict resolution to be used when concurrent jurisdiction is present: "assuming that two or more states exercise jurisdiction over Laker's allegations, the state with jurisdiction over its national must have the paramount right to determine whether and, if so, where litigation by that national may go forward."89

We are asked to recognize an entirely novel rule. Although a court has power to enjoin its nationals from suing in foreign jurisdictions, it does not follow that the United States courts must recognize an absolute right of the British government to regulate the remedies that the United States may wish to create for British nationals in United States courts. The purported principle of paramount nationality is entirely unknown in national and international law. Territoriality, not nationality, is the customary and preferred base of jurisdiction.90 Moreover, no rule of international law or national law precludes an exercise of jurisdiction solely because another state has jurisdiction.91 In fact, international law recognizes that a state with a territorial basis for its prescriptive juridsiction may establish laws intended to prevent compliance with legislation established under authority of nationality-based jurisdiction.92

All proposed methods of avoiding conflicts stemming from concurrent jurisdiction indicate that nationality of the parties is only one factor to consider, not the paramount or controlling factor.93 Appellants have not cited any cases where the principle has been followed as a method of choosing between competing claims of jurisdiction, despite the numerous occasions when the principle could have been decisive.94 As this paucity of case law implies, significant adverse consequences would attend the adoption of this rule, and we decline to do so.

The rationale behind the claim of paramount nationality seems to be that particularly important foreign sovereign prerogatives are infringed when a foreign national sues in domestic courts against the wishes of a foreign state. However, this argument ignores the stronger policy interests of the domestic forum. If a country has a right to regulate the conduct of its nationals, then a fortiori it has the power to regulate the activities of its very governmental organizations, such as its courts, which it establishes and maintains for the purpose of furthering its own public policies.

United States courts must control the access to their forums. No foreign court can supersede the right and obligation of the United States courts to decide whether Congress has created a remedy for those injured by trade practices adversely affecting United States interests. Our courts are not required to stand by while Britain attempts to close a courthouse door that Congress, under its territorial jurisdiction, has opened to foreign corporations. Under the nationality base of jurisdiction, Britain can punish its corporations for walking through that courthouse door, but it cannot close the American door. Thus, although British courts can sanction their citizens for resorting to United States antitrust remedies, United States courts are not required to cut off the availability of the remedy.

The position advanced by appellant would require United States courts to defer to British policy when there is no statement by Congress that it does not wish the courts to provide the remedy. Appellants' argument that there is no absolute duty to exercise jurisdiction has no merit in this context.95 It is based on abstention and forum non conveniens cases, which in turn are premised on the availability of a second forum that can fully resolve the plaintiff's claims. In this case, the English Court of Appeal has admitted that there is no other forum for Laker's claims.

Besides lacking any basis in national or international law, and besides ignoring important domestic interests, the paramount nationality rule would generate more interference than it would resolve. Legislation based on nationality tends to encourage chauvinism and discrimination without enhancing international comity.96 The paramount nationality rule would be no exception. Foreign plaintiffs in our courts could routinely face public policy challenges in their domestic courts, while our courts would be required to stay proceedings pending foreign authorization. On the other hand, as the district court noted, United States courts could use corporate nationality as a pretext to interject themselves in foreign proceedings involving United States corporations and subsidiaries.97

The paramount nationality rule would also be impractical to administer. It would be difficult or impossible to determine when the nationality of a corporation is sufficiently strong that legitimate territorial contacts should be nullified.98 There are at least five competing methods of determining nationality of a corporation.99 Multiple countries could simultaneously assert controlling jurisdiction over one "national" corporation based, for example, on shareholder nationality, state of incorporation, or other corporate links to a particular forum. There would be no paramount nation in this situation. The conflicts associated with concurrent jurisdiction would continue to confront the courts.

Finally, KLM and Sabena are not British nationals. Thus, their claims are fundamentally different from those advanced by British Airways and British Caledonian. Nothing gives KLM or Sabena a supreme right to vindicate the British national interests that may be implicated by Laker's suits. Sabena, at least, is specifically entitled to the protection of United States anti-trust laws under its air services agreement.100 KLM no doubt would expect the same protection.101 No rule of paramount nationality should free them from obligation under United States antitrust laws and at the same time protect them from other corporations' violations. Contrary to appellants' arguments, Laker's nationality is clearly an insufficient basis to reverse the district court.

Appellants and amici curiae argue strenuously that the district court's injunction violates the crucial principles of comity that regulate and moderate the social and economic intercourse between independent nations. We approach their claims seriously, recognizing that comity serves our international system like the mortar which cements together a brick house. No one would willingly permit the mortar to crumble or be chipped away for fear of compromising the entire structure.

"Comity" summarizes in a brief word a complex and elusive concept--the degree of deference that a domestic forum must pay to the act of a foreign government not otherwise binding on the forum. Since comity varies according to the factual circumstances surrounding each claim for its recognition, the absolute boundaries of the duties it imposes are inherently uncertain.102 However, the central precept of comity teaches that, when possible, the decisions of foreign tribunals should be given effect in domestic courts, since recognition fosters international cooperation and encourages reciprocity, thereby promoting predictability and stability through satisfaction of mutual expectations. The interests of both forums are advanced--the foreign court because its laws and policies have been vindicated; the domestic country because international cooperation and ties have been strengthened. The rule of law is also encouraged, which benefits all nations.103

Comity is a necessary outgrowth of our international system of politically independent, socio-economically interdependent nation states. As surely as people, products and problems move freely among adjoining countries, so national interests cross territorial borders. But no nation can expect its laws to reach further than its jurisdiction to prescribe, adjudicate, and enforce. Every nation must often rely on other countries to help it achieve its regulatory expectations. Thus, comity compels national courts to act at all times to increase the international legal ties that advance the rule of law within and among nations.

However, there are limitations to the application of comity. When the foreign act is inherently inconsistent with the policies underlying comity, domestic recognition could tend either to legitimize the aberration or to encourage retaliation, undercutting the realization of the goals served by comity. No nation is under an unremitting obligation to enforce foreign interests which are fundamentally prejudicial to those of the domestic forum. Thus, from the earliest times, authorities have recognized that the obligation of comity expires when the strong public policies of the forum are vitiated by the foreign act.104 Case law on the subject is extensive and recognizes the current validity of this exception to comity.105

Opinions vary as to the degree of prejudice to public policy which should be tolerated before comity will not be followed, but by any definition the injunctions of the United Kingdom courts are not entitled to comity. This is because the action before the United Kingdom courts is specifically intended to interfere with and terminate Laker's United States antitrust suit.

The district court's antisuit injunction was purely defensive --it seeks only to preserve the district court's ability to arrive at a final judgment adjudicating Laker's claims under United States law. This judgment would neither make any statement nor imply any views about the wisdom of British antitrust policy. In contrast, the English injunction is purely offensive --it is not designed to protect English jurisdiction, or to allow English courts to proceed to a judgment on the defendant's potential liability under English anticompetitive law free of foreign interference. Rather, the English injunction seeks only to quash the practical power of the United States courts to adjudicate claims under United States law against defendants admittedly subject to the courts' adjudicatory jurisdiction. The Court of Appeal itself recognized that there is no other forum available for resolution of Laker's claims.

It is often argued before United States courts that the application of United States antitrust laws to foreign nationals violates principles of comity. Those pleas are legitimately considered.106 In conducting this inquiry, a court must necessarily examine whether the antitrust laws were clearly intended to reach the injury charged in the complaint.107 If so, allowing the defendant's conduct to go unregulated could amount to an unjustified evasion of United States law injuring significant domestic interests. This is one context in which comity would not be extended to a foreign act. On the other hand, if the anticompetitive aspect of the alleged injury is not appreciable; the contacts with the United States are attenuated; and the actions of foreign governments denote the existence of strong foreign interests, then comity may suggest a lack of Congressional intent to regulate the alleged conduct.108 In this context, comity may have a strong bearing on whether application of United States antitrust laws should go forward.109

However, the appellants' plea to comity is fundamentally different. KLM and Sabena contend that comity compels us to recognize a decision by a foreign government that this court shall not apply its own laws to corporations doing business in this country. Thus, the violation of public policy vitiating comity is not that the evasion of United States antitrust law might injure United States interests, but rather that United States judicial functions have been usurped, destroying the autonomy of the courts. Under the position advanced by appellants, the United States District Court would no longer be free to rule that comity prevented the United States from exercising prescriptive jurisdiction over the defendants, since that determination would be made as of right by a separate forum.110

In this latter context we cannot rule that the district court abused its discretion to protect its jurisdiction. Between the state courts, the Full Faith and Credit Clause has not been held to compel recognition of an antisuit injunction.111 A fortiori, the principles of comity do not prevent proceeding in the face of a foreign injunction.

Comity ordinarily requires that courts of a separate sovereign not interfere with concurrent proceedings based on the same transitory claim, at least until a judgment is reached in one action, allowing res judicata to be pled in defense. The appeal to the recognition of comity by the American court in order to permit the critical issues to be adjudicated in England, which is the plea made by appellants here, thus comes based on a very strange predicate. Since the action seeking to determine Laker's right to recover for anticompetitive injuries was first instituted in the United States, the initial opportunity to exercise comity, if this were called for, was put to the United Kingdom courts. No recognition or acceptance of comity was made in those courts. The appellants' claims of comity now asserted in United States courts come burdened with the failure of the British to recognize comity.

Although reciprocity may no longer be an absolute prerequisite to comity,112 certainly our law has not departed so far from common sense that it is reversible error for a court not to capitulate to a foreign judgment based on a statute like the British Protection of Trading Interests Act, designed to prevent the court from resolving legitimate claims placed before it. We cannot forget that the foreign injunction which creates an issue of comity or forbearance was generated by the English Executive's deliberate interference with a proceeding which had been ongoing in the American courts for over six months. Deference to the English courts is now asked in a situation in which all the English courts are doing is supporting and acquiescing in the action taken by their executive. There never would have been any situation in which comity or forbearance would have become an issue if some of the defendants involved in the American suit had not gone into the English courts to generate interference with the American courts.

There is simply no visible reason why the British Executive, followed by the British courts, should bar Laker's assertion of a legitimate cause of action in the American courts, except that the British government is intent upon frustrating the antitrust policies of the elective branches of the American government. The effort of the British therefore is not to see that justice is done anywhere, either in the United States or British courts, but to frustrate the enforcement of American law in American courts against companies doing business in America. Absent a clear treaty concluded by the United States Executive Branch, this simply cannot be agreed to by the courts of the United States.

Nothing in the British Executive order and directions suggests that they are entitled to comity. The order and directions purport to counteract United States regulation of international trade outside its territorial jurisdiction.113 The Protection of Trading Interests Act and the order govern "any person in the United Kingdom who carries on business there."114 They forbid any person in the United Kingdom from furnishing "any commercial document in the United Kingdom," or "any commercial information [apparently regardless of location ] which relates to the said Department of Justice investigation or the grand jury or the District Court proceedings."115 Even United States airlines would be swept within these broad directives, but for the directions' specific exclusion of United States carriers.

The English Executive has thus issued an order to every airline in the world doing business in England to refuse to submit to the jurisdiction of the American court and not to submit any documents from England pursuant to an order of the American court. If the exercise of "extraterritorial" jurisdiction under United States antitrust laws can ever be described as arrogant, the order and directions issued by the British Government certainly bear the same characteristic. United States antitrust laws are enforced where there is an impact in the United States, but only after an adjudication in the United States courts of a violation. Here the English Executive has presumed to bar foreigners from complying with orders of an American court before there is an adjudication by a court on the merits of the dispute.

Moreover, since oral argument before this court, the English Secretary of State has interpreted the order and directions to bar the furnishing of any "commercial information," even that located exclusively within United States territory.116 On the basis of this interpretation the British Government has refused to permit Laker's use of commercial information contained in documents situated in the United States to respond to interrogatories propounded by Trans World Airlines. The orders thus interfere with any attempt by Laker to use any commercial information, whether located in the United Kingdom or the United States, to proceed against any of the defendants, whether British or American.

This development completely undermines the appellants' strongest argument in favor of the application of comity--namely, that all United States interests protected under the antitrust laws could be adequately enforced through means other than a treble damage suit, such as a civil or criminal action brought by the Government,117 or a creditors' class action.118 Since the British Government is refusing to permit Laker to proceed with its suit even insofar as it relates to American defendants, it is clear that it would prevent Laker's participation in any proceeding designed to vindicate United States interests allegedly harmed as a result of injuries suffered by Laker and its customers.119 Thus, Laker would be hampered in assisting the plaintiffs in any alternative action. Without crucial information provided by the injured party, Laker, any other suit would be procedurally doomed to failure, regardless of its merits. Therefore, comity can not be extended on the grounds that the British directions protect solely British interests while permitting the United States to vindicate its own policies; the truth, the reality, is far different.

If we are guided by the ethical imperative that everyone should act as if his actions were universalized, then the actions of the British Executive in this particular matter scarcely meet the standard of Kant.120 For, if the United States and a few other countries with major airlines enacted and enforced legislation like the Protection of Trading Interests Act, the result would be unfettered chaos brought about by unresolvable conflicts of jurisdiction the world over. If we were to forbid every American airline and every foreign airline doing business in the United States from producing documents in response to the summons of an English court, or a French court, or a German court, and the French and the German governments were to enact and enforce similar legislation, there could be no complete resolution of any legal dispute involving airlines around the world. The operations of the airlines would be snarled in a criss-cross of overlapping and tangled restrictions to the extent that no airline could be certain of its legal obligations anywhere. Thus, even the practical consequences that would flow from a grant of comity counsel against deferring to the British injunctions triggered by the Protection of Trading Interests Act.121

There is nothing in the nature of the parties which suggests comity should be exercised. Laker appears before the court as a voluntary plaintiff, under no compulsion to sue. Laker prosecutes its action here subject to sanctions that may be issued against it in the United Kingdom. Thus, there is no suggestion that comity should be exercised to avoid hardship to a party who might otherwise be caught between the inconsistent imperatives of two forums.

No facts have been presented here suggesting that the antitrust suit adversely affects the operations of foreign governments. Laker is a privately owned airline. To the extent KLM and Sabena are governmentally owned, they are non-British. The ownership of these airlines implicates no significant interests of Britain as a state. The parties have not seriously asserted otherwise.

Similarly, the parties have not invoked either the sovereign immunity doctrine or the act of state doctrine, which insulate from review those foreign governmental actions which are not compatible with judicial scrutiny in our domestic courts. That neither of these doctrines even arguably would apply here is further evidence that no significant British or other governmental interest would be violated by Laker's suit.

Although unlikely, it may subsequently be shown that there was sufficient foreign governmental involvement that enforcement of United States antitrust laws is not appropriate.122 In that event, any of several other well-established principles could be invoked in favor of the defendant.123 However, these are hurdles that are more appropriately cleared at later stages in the proceeding when the facts are fully developed.