tion, the Canal Zone is not listed by the Department of State as a territory or dependency in reports by the United States to the United Nations. Finally, the United States has allowed Panama to display its flag within the Zone, to collect income taxes within the Zone, and to exercise customs and immigration functions within the Zone.

For all these reasons, therefore, the Committee agrees with the Attorney General that "the Republic of Panama retained titular sovereignty over the Canal Zone"-although as noted above it does not regard that fact as a matter of legal consequence.

S. Ex. Rept. 12, 95th Cong., 2d sess. (1978), pp. 69–71.

For the statements of Attorney General Griffin B. Bell regarding Panamanian retention of titular sovereignty in the Canal Zone, see his testimony before the Sen. Comm. on Foreign Relations, Sept. 29, 1977, Panama Canal Treaties, Hearings Before the Committee on Foreign Relations, U.S. Senate, 95th Cong., 1st sess. (1977), pt. 1, pp. 198, 204, 209.

Berlin-United States Court

On August 30, 1978, a Polish LOT airliner, on a flight from Danzig, Poland, to East Berlin, was hijacked and forcibly diverted to Tempelhof Airport, in the U.S. Sector of Berlin. After discussions with British, French, and West German authorities, the United States decided to exercise its reserved responsibilities and rights as an Occupying Power in Berlin and to try the individuals involved on criminal charges which would be preferred in the United States Court for Berlin.

The Court, whose establishment was provided for by U.S. High Commissioner Law No. 46, April 28, 1955, as amended, had not previously been constituted. Under article 3, paragraph 1, of Law No. 46, the Court had original jurisdiction to hear and decide any criminal case arising under any legislation in effect in the United States Sector of Berlin, including West German criminal law, as taken over in the Western Sectors of Berlin, if the offense had been committed within the area of Greater Berlin. Paragraph 5 of article 3 of Law 46 authorized the United States Judge for Berlin, inter alia, to "establish consistently with applicable legislation rules of practice and procedure.” Under article 2, paragraph 5, personnel of the United States Court for Berlin, including one or more judges authorized by paragraph 1, were to be appointed by the Chief of Mission, i.e., the chief of the United States diplomatic mission in [the Federal Republic of] Germany.

Proceedings were initiated on December 6, 1978, before a judge appointed by the American Ambassador in Bonn. Charges were brought against the two individuals involved in the hijacking, one of whom was remanded to custody in a West Berlin prison. Further proceedings were held on January 12, 1979, presided over by Herbert Jay

Stern, United States District Court Judge from New Jersey, who succeeded the earlier judge as Judge of the United States Court for Berlin. The Legal Adviser to the U.S. Mission in Berlin, André M. Surena, was appointed as United States Attorney for Berlin, under the authority of article 2, paragraph 2, of Law No. 46; Roger A. Adelman, a member of the U.S. Attorney's Office in the District of Columbia, was appointed Special Assistant U.S. Attorney for Berlin. The defendants were represented by both United States and Berlin (German) defense counsel. Bruno A. Ristau, the Director of the Office of Foreign Litigation, Department of Justice, served as Clerk of the Court.

For U.S. High Commissioner Law No. 46, Apr. 28, 1955, see Official Gazette of the Allied Kommandatura Berlin, No. 71, Apr. 30, 1955, p. 1056; for amendment, by U.S. Sector Ordinance (unnumbered), Oct. 19, 1955, see ibid., No. 75, Oct. 31, 1955, p. 1083; for amendment, by U.S. Sector Ordinance No. 2, Feb. 9, 1957, see ibid., No. 83, Feb. 28, 1957, p. 1132.

The Rules of Criminal Procedure for the United States Court for Berlin, closely tracking the Federal Rules of Criminal Procedure, were promulgated by the court on Nov. 30, 1978, and governed the proceedings.

Foreign States

In Pfizer, Inc. et al. v. Government of India et al., 434 U.S. 308 (1978), affirming Pfizer, Inc. v. Government of India, 550 F.2d 396 (8 Cir. 1976), the Supreme Court of the United States held, by five to three, that a foreign nation."otherwise entitled to sue in our courts is entitled to sue for treble damages under the antitrust laws to the same extent as any other plaintiff." The respondents on certiorari, the Governments of India, the Imperial Government of Iran, and the Republic of the Philippines, had brought separate actions, later consolidated, against six pharmaceutical manufacturing companies, alleging violations of sections 1 and 2 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S.C. 1, 2, and seeking treble damages under section 4 of the Clayton Act, 38 Stat. 731; 15 U.S.C. 15. Ruling on pretrial motions, the district court had held that the respondents were "persons," and refused to dismiss the actions; and the Court of Appeals for the Eighth Circuit had affirmed (550 F.2d 396).

The Court discussed the two attributes of the respondents which, the petitioners on certiorari had argued, excluded them from suing as "persons" for treble damages under section 4 of the Clayton Act: the fact that they were foreign, and the fact that they were sovereign nations. As to the first, the Court considered the inclusion of foreign corporations within the definition of "person" in the Sherman and Clayton Acts, as well as the extension of the antitrust laws to trade "with foreign countries," as constituting evidence of a congressional intent not to restrict the treble-damages remedy to consumers within the United States.

As to the second attribute, the Court noted that neither statutory provisions nor legislative histories of either the Sherman or the Clayton Act provided a "clear answer," whether a foreign nation were included within the definition of "person." It pointed out that each Act, however, defined "person" to include "corporations existing under or authorized by the laws. . . of any foreign country" (15 U.S.C. 7, 12).

The Court then discussed its earlier decisions, United States v. Cooper Corp., 312 U.S. 600 (1941) and Georgia v. Evans, 316 U.S. 159 (1942). In the former case "statements made during the congressional debates on the Sherman and Clayton Acts" had "provided further evidence the Congress affirmatively intended to exclude the United States from the treble-damage remedy." In the latter, the Court had "relied . . . upon the entire statutory context to hold that Georgia was entitled to sue." In Pfizer, the Supreme Court decided that the rationale applied to a suit for treble damages by a State in Georgia v. Evans was "equally applicable" to such a suit, when brought by a foreign nation. Excerpts follow from the opinion of Justice Potter Stewart, writing for the Court:

(footnotes selectively omitted)

[A] foreign corporation is entitled to sue for treble damages, since the definition of "person" contained in the Sherman and Clayton Acts explicitly includes "corporations and associations existing under or authorized by . . . the laws of any foreign country." . . . Moreover, the antitrust laws extend to trade "with foreign nations" as well as among the several States of the Union. 15 U.S.C. 1,2..

The fact that Congress' foremost concern in passing the antitrust laws was the protection of Americans does not mean that it intended to deny foreigners a remedy when they are injured by antitrust violations

In Georgia v. Evans, 316 U.S. 159, . . . the [Supreme] Court did not rest its decision upon a bare analysis of the word "person," but relied instead upon the entire statutory context to hold that Georgia was entitled to sue. Unlike the United States, which "had chosen for itself three potent weapons for enforcing the Act," 316 U.S., at 161, a State had been given no other remedies to enforce the prohibitions of the law. To deprive it also of a suit for damages "would deny all redress to a State, when mulcted by a violator of the Sherman Law, merely because it is a State." Id., at 162–163. Although the legislative history of the Sherman Act did not indicate that Congress ever considered whether a State would be entitled to sue, the Court found no reason to believe that Congress had intended to deprive a State of the remedy made available to all other victims of antitrust violations.

[T]he reasoning of that case [Georgia v. Evans] leads to the conclusion that a foreign nation, like a domestic State, is entitled to pursue the remedy of treble damages when it has been injured in its business or property by antitrust violations. . . . The words of Georgia v. Evans are thus equally applicable here:

"We can perceive no reason for believing that Congress wanted to deprive a [foreign nation], as purchaser of commodities shipped in [international] commerce, of the civil remedy of treble damages which is available to other purchasers who suffer through violation of the Act. . . . Nothing in the Act, its history, or its policy, could justify so restrictive a construction of the word 'person' in § 7. . . . Such a construction would deny all redress to a [foreign nation], when mulcted by a violator of the Sherman Law, merely because it is a [foreign nation]." 316 U.S., at 162–163.

III

This Court has long recognized the rule that a foreign nation is generally entitled to prosecute any civil claim in the courts of the United States upon the same basis as a domestic corporation or individual might do. [Citations cmitted.] . . . 19 To allow a foreign sovereign to sue in our courts for treble damages to the same extent as any other person injured by an antitrust violation is thus no more than a specific application of a long-settled general rule

Finally, the result we reach does not require the Judiciary in any way to interfere in sensitive matters of foreign policy. It has long been established that only governments recognized by the United States and at peace with us are entitled to access to our courts, and that it is within the exclusive power of the executive branch to determine which nations are entitled to sue. [Citations omitted.]... Nothing we decide today qualifies this established rule of complete judicial deference to the executive branch.

19 Congress has explicitly conferred jurisdiction upon the Federal courts to entertain such suits:

"The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between

"(4) a foreign state... as plaintiff and citizens of a State or of different States." 28 U. S.C. A. 1332 (a) (4) (Supp. 1977).

Among the actions foreign sovereign governments were entitled to maintain at the time of the passage of the Sherman and Clayton Acts were suits for common-law business torts, such as unfair competition, similar in general nature to antitrust claims. See French Republic v. Saratoga Vichy Spring Co., 191 U.S. 427 (1903); La Republique Francaise v. Schultz, 94 F. 500 (SDNY 1899).

408 U.S. 308, 313-314, 317-320.

Chief Justice Warren E. Burger dissented, on the grounds that the result in the majority decision was not affirmatively supported by the

legislative history of the Sherman Act, which he set out in detail, nor by the language of the statute itself, which reflected the international law of sovereign immunity at the time of enactment of both the Sherman and Clayton Acts. He also disputed the existence of an analogy between the remedies available to a State of the United States injured by a violation of the antitrust laws, and those available to foreign sovereigns (nations), and concluded by emphasizing the "dramatic and very real differences in terms of coercive economic power and political interests which distinguish our own States from foreign sovereigns." The Chief Justice, with whom Justices Lewis F. Powell, Jr., and William H. Rehnquist joined in dissenting, stated in part:

The very fact that foreign sovereigns were not included within the definition of "person" despite the explicit reference to corporations and associations existing under the "laws of any foreign country" in the same definition ought to be dispositive under established doctrine governing interpretation of statutes. I therefore see no escape from the conclusion that the omission by Congress of foreign nations was deliberate.

The inclusion of foreign corporations within the statutory definition in no sense argues for a different characterization of Congress' intent. At the time of the passage of both the Sherman and Clayton Acts, foreign sovereigns, even when acting in their commercial capacities, were immune from suits in the courts of this country under the doctrine of sovereign immunity. See The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); Ex parte Peru, 318 U.S. 578 (1943); Mexico v. Huffman, 324 U.S. 30 (1945). Foreign corporations, of course, had no such immunity. [Citations omitted.]

Given that "person" as used in the Clayton and Sherman Acts refers to both antitrust plaintiffs and defendants, see United States v. Cooper Corp., 312 U.S. 600, 606 (1941), the decision of Congress to include foreign corporations while omitting foreign sovereigns from the definition most likely reflects this differential susceptibility to suit rather than any intent to benefit foreign consumers or to enlist their help in enforcing our antitrust laws. It would be little short of preposterous to think that Congress in 1890 was concerned about giving such rights to foreign nations, even though it might well decide to do so now.

Respondents' claim that this disparate treatment cannot be justified today when foreign states effectively control many large foreign corporations and when sovereign immunity has been limited by the Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891, is not an argument appropriately addressed to or considered by this Court. If revisions in the statute are required to take into account contemporary circumstances, that task is properly one for Congress particularly in light of the sensitive political nature and foreign policy implications of the question.

The Court's reliance on the references to "foreign nations" in §§ 1 and 2 of the Sherman Act and § 1 of the Clayton Act to support an argument that Congress was specifically concerned with foreign