4. You should note that certain of the provisions of the Bill were amended in the House of Lords so that in points of details the Notes on Clauses depart from the provisions of the Act as finally passed, but there are no major differences of policy or procedure between the Act and the Notes on Clauses, which provide useful background.
5. Since you may wish to consider whether the new Act should be applied in your territory, some aspects of the Bill are highlighted as follows:
Section 1: This allows the Secretary of State for Trade to prohibit compliance with measures taken by, or under the laws of, overseas countries which have extraterritorial effect and are or would be damaging to the trading interests of the United Kingdom.
This pro- vision is based on Section 1 of the 1964 Act but instead of applying just to shipping it extends to all trading interests.
Section 2: This strengthens Section 2 of the 1964 Act, which allowed the Secretary of State for Trade to prohibit compliance with a request from a foreign Court, tribunal or authority for the production of commercial documents or information in the UK. For the 1964 Act to be used, two tests had to be applied: the documents had to be in the UK and the demand by a foreign authority etc. had to infringe the jurisdiction of the UK. Under the 1980 Act, the territorial test (i.e. that the person addressed or the documents are in the UK) will usually be enough to allow the Secretary of State to block their production, although there are certain limitations on the blocking power which are defined in the Act. This Section therefore provides additional protection for all UK companies facing litigation or investigation by authorities or courts of overseas countries.
Section 5: This Section has no forerunner in the 1964 Act.
It pro- vides that judgments for multiple damages given in civil proceedings by courts of overseas countries (usually US private treble damage judgments) shall not be enforceable in the UK. We believe this reflects the current common law position as to non-enforcability of foreign penal awards. The section further provides that civil judgments given in overseas countries based on competition laws which have been specified by an order made by the Secretary of State for Trade shall not be enforceable in the UK. The Secretary of State would clearly specify only overseas legislation which was at odds with our own, for example possibly judgments under the US shipping legislation where the US have consistently tried to impose on our companies regulatory solutions which we do not support, or which was introduced to circumvent the main provision of Section 5.
Section 6: This Section breaks new ground. It would enable citizens of the UK and colonies, bodies corporate and incorporated in the UK or in a territory outside the UK for whose international relations HMG is responsible and other persons carrying on business in the UK to recover sums paid under overseas judgments for multiple damages in excess of an amount reflecting the element of compensation for the loss suffered by the person or company in whose favour the judgment was given. For this Section to operate, the person or company who received the original judgment in its favour would have to be sued and to have assets in the UK. This Section is primarily aimed at US treble damages awards in private antitrust cases. We consider multiple
or
/damages