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Going It Alone

By Jim Walden and Matthew Benjamin
May 27, 2008

For the past six years, the Bush Administration has been embroiled in foreign policy disputes, leading some to claim that the United States has alienated our friends and damaged our credibility around the world. In particular, many critics condemn the Administration's controversial unilateralism. But one need not endorse unilateralism to observe that the mercurial and contrarian perspectives sometimes held by our allies also deserve a share of the blame. And as these perspectives have dogged U.S. diplomats at the negotiating table, so too have they affected U.S. enforcement and regulatory authorities.

For example, French courts recently resurrected their long-dormant blocking statute to slap away the unwanted hand of American law enforcement on its soil. In December 2007, the Cour de Cassation rejected the challenge of a French attorney trained in the U.S. to his criminal conviction and Euro 10,000 fine for attempting to gather evidence on behalf of the California Insurance Commissioner. See Cour de Vassation, Chambre Criminelle [Cass. crim.] [highest court of
ordinary jurisdiction], Dec. 12, 2007, Bull. crim., No. 7168. This unprecedented criminal conviction ' the first in the statute's history ' may have been intended to forewarn U.S. authorities who attempt to conduct uncoordinated surrogate investigations. Moreover, it offers yet another reminder that unilateralism begets protectionism, and visa versa. Global enforcement requires diplomacy.

Faced with an unsympathetic foreign audience, it is critical that U.S. authorities note instructive examples of multilateral cooperation. In this respect, the Antitrust Division of the Department of Justice (DOJ), which has adopted an cooperative strategy that has enabled it to negotiate new treaties and secure exceptional assistance in gathering evidence, serves as a model.

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