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Full-Text Articles in Law
"Speculative" Antitrust Damages, Roger D. Blair, William H. Page
"Speculative" Antitrust Damages, Roger D. Blair, William H. Page
Washington Law Review
The most important antitrust penalties are treble damage awards based on the individual harms that violations cause. For these penalties to function as an economically rational deterrent, there must be a practical mechanism for proving individual harm, and for distinguishing such harm from "speculation." In this article, the authors present an account of that mechanism. First, they argue that the law's measure of antitrust damages is based on a standard of net individual harm that is qualified in certain cases by a principle of net social harm. Net harm is measured by the difference between the plaintiff's actual condition (given …
Introduction. Competition And Trade Policy: Europe, Japan And The United States, John O. Haley
Introduction. Competition And Trade Policy: Europe, Japan And The United States, John O. Haley
Washington International Law Journal
With the successful conclusion of the Uruguay Round of negotiations under the General Agreement on Tariffs and Trade, the focus of international trade concern has shifted from elimination of formal, governmentally imposed trade barriers to complex, and often contradictory, interrelationships among national and regional competition and trade policies. The promise of future negotiations under the aegis of the new World Trade Organization on competition (antitrust) policy as a trade issue thus brings us full circle. The GATT was itself the product of extensive planning within the United States Department of State for the postwar international economy. An effective international competition …
Competition Law And International Trade: The European Union And The Neo-Liberal Factor, David J. Gerber
Competition Law And International Trade: The European Union And The Neo-Liberal Factor, David J. Gerber
Washington International Law Journal
Ordoliberalism, a particular version of European Neo-Liberal thought, has played a central role in the relationship between competition law and trade policy with the European Union. The substantive component of this body of thought, which is based in Germany, emphasizes the importance of a transaction-based economy and economic freedom; the process component emphasizes the need for juridical processes in economic policy-making. Ordoliberalism has shaped European Union competition law and trade policy and their roles in European integration, and its weakening may cause major changes in that relationship.
Export Cartels And Voluntary Export Restraints Between Trade And Competition Policy, Ulrich Immenga
Export Cartels And Voluntary Export Restraints Between Trade And Competition Policy, Ulrich Immenga
Washington International Law Journal
This article discusses the conflicts between trade regulation and competition policy. It begins with a survey of the effect of restrictive practices—particularly those like export cartels that are exempted from competition law regulation—and continues with a critique of national support and authorization for restrictive practices as well as protective state activities, including antidumping rules, rules against "unfair" trade practices, and voluntary export restraints. The article concludes with a summary of unilateral, bilateral, and multilateral approaches to a more effective international regime for competition policy. It also introduces the recommendation for a Draft International Antitrust Code, which was submitted to GATT.
An Antitrust Remedy For International Price Predation: Lessons From Zenith V. Matsushita, Harry First
An Antitrust Remedy For International Price Predation: Lessons From Zenith V. Matsushita, Harry First
Washington International Law Journal
The purpose of this article is to articulate a set of rules for an antitrust cause of action against international predatory pricing. The article develops these rules in the context of the antitrust and trade litigation brought in the United States and Japan against the Japanese televisions manufacturers between 1956 and 1986. The thesis of this article is that the litigation illustrates that antitrust enforcement should concentrate on exclusion from the home market rather than on low prices in the target market. The article also argues that antitrust should encompass a concern with the strategic use of market power to …
Regulations On Bid Rigging In Japan, The United States And Europe, Naoaki Okatani
Regulations On Bid Rigging In Japan, The United States And Europe, Naoaki Okatani
Washington International Law Journal
This article provides a comparative perspective on bid rigging in Japan, the United States and Europe. It emphasizes the differences in both institutional structure as well as policy and business culture in the three jurisdictions, particularly in terms of antitrust and criminal law enforcement. It notes the greater tolerance of bid rigging in Japan in the case of construction contracts for public works.
Kodak And Aftermarket Tying Analysis: Some Comparative Thoughts, William R. Andersen
Kodak And Aftermarket Tying Analysis: Some Comparative Thoughts, William R. Andersen
Washington International Law Journal
This article examines three recent cases—one from the U.S. Supreme Court, one from the European Court of Justice and one from the High Court of Osaka—dealing with the antitrust implications of aftermarket tying arrangements. Tying occurs when the manufacturer of a machine refuses to sell spare parts to independent repair and service companies. The antitrust implications of tying will be of growing importance in the future as manufactured equipment becomes ever more complex and dependent on specialized repair parts and service. After an introductory review of conventional tying doctrine, the paper compares the approaches of the three courts, finding them …
A Comparison Of U.S.-Japan Antitrust Law: Looking At The International Harmonization Of Competition Law, Hiroshi Iyori
A Comparison Of U.S.-Japan Antitrust Law: Looking At The International Harmonization Of Competition Law, Hiroshi Iyori
Washington International Law Journal
This article focuses on the legislative history of the Japanese Antimonopoly Law and a comparison between the substantive provisions of the Japanese law and its U.S. origins. It begins with a historical overview of the fundamental differences between the economies of Japan and the U.S., as well as Japan through the postwar period and the contrasting contexts in which competition laws were enacted in each country. It offers a brief outline of the historical development of Japanese competition law, from the enactment of the Antimonopoly Law through amendments and defining judicial interpretations. The article then focuses on coverage, sanctions, and …
Foreign Firm Access To Japanese Distribution Systems: Trends In Japanese Antitrust Enforcement, Jiro Tamura
Foreign Firm Access To Japanese Distribution Systems: Trends In Japanese Antitrust Enforcement, Jiro Tamura
Washington International Law Journal
The Japanese substantive competition law is, in theory, very well equipped to prevent anticompetitive behavior that restricts competition. In reality, the JFTC has been weak in enforcing the law. The JFTC has been particularly weak in two areas, boycotts and non-price vertical restraints, making market entry difficult for foreign firms. In response to criticisms of weakness, the JFTC released the 1991 Guideline that states that boycotts may constitute an unreasonable restraint of trade and be subject to administrative surcharges and possible criminal sanctions. Despite the strengthening of the law against boycotts, no cases have been brought. Furthermore, the JFTC has …
Competition And Trade Policy: Antitrust Enforcement: Do Differences Matter?, John O. Haley
Competition And Trade Policy: Antitrust Enforcement: Do Differences Matter?, John O. Haley
Washington International Law Journal
This article deals with the question of differences in competition policy enforcement regimes in Japan, Europe and the United States. In answer to the question "Do differences matter?", the author concludes that they matter less than conventional wisdom suggests at least in terms of "fairness" and effectiveness. The article challenges the widely held views that Japan's competition rules are ineffectively enforced and that U.S. antitrust enforcement, especially treble damage actions, have had an unfair impact on foreign firms. The article concludes with recommendations for greater cooperation between trade regulation and antitrust enforcement authority in the United States and among competition …
Trips: Adequate Protection, Inadequate Trade, Adequate Competition Policy, Hanns Ullrich
Trips: Adequate Protection, Inadequate Trade, Adequate Competition Policy, Hanns Ullrich
Washington International Law Journal
This article analyzes the relationship between trade and competition policy with respect to intellectual property, focusing particularly on the inclusion into the Uruguay Round of the Trade Related Aspects of Intellectual Property ("TRIPS"). The article sets forth the traditional framework of protection as established by the Paris Convention for the Protection of Industrial Property in 1883. The TRIPS agreement provides new rules and principles to manage emerging problems in the field of industrial property. The main focus of this article is to analyze the effect that TRIPS will have on harmonizing (but not unifying) the system of intellectual property protection.
Competition Law And The Agenda For The Wto: Forging The Links Of Competition And Trade, Eleanor M. Fox
Competition Law And The Agenda For The Wto: Forging The Links Of Competition And Trade, Eleanor M. Fox
Washington International Law Journal
The Uruguay Round of the General Agreement on Tariffs and Trade is complete, and the agenda for the next round is being formulated. It is widely expected that issues of competition, the environment, and possibly labor will be on the agenda for the next round of the GATT. This article examines why it is that the world trading agenda may be thus expanding. Specifically as to competition law, it examines the history of devising world competition rules, the wisdom of revisiting the enterprise of doing so, and alternative approaches to competition in the GATT agenda. The article concludes with a …