Antitrust and Trade Regulation Commons^™

Globalize Me: Regulating Distributed Ledger Technology, Roee Sarel, Hadar Y. Jabotinsky, Israel Klein

Vanderbilt Journal of Transnational Law

Distributed Ledger Technology (DLT)—the technology underlying cryptocurrencies—has been identified by many as a game-changer for data storage. Although DLT can solve acute problems of trust and coor- dination whenever entities (e.g., firms, traders, or even countries) rely on a shared database, it has mostly failed to reach mass adoption outside the context of cryptocurrencies.

A prime reason for this failure is the extreme state of regulation, which was largely absent for many years but is now pouring down via uncoordinated regulatory initiatives by different countries. Both of these extremes-—under-regulation and over-regulation—-are consistent with traditional concepts from law and economics. Specifically, …

Sovereignty 2.0, Anupam Chander, Haochen Sun

Vanderbilt Journal of Transnational Law

Digital sovereignty-the exercise of control over the internet-is the ambition of the world's leaders, from Australia to Zimbabwe, seen as a bulwark against both foreign states and foreign corporations. Governments have resoundingly answered first-generation internet law questions of who, if anyone, should regulate the internet. The answer: they all will. Governments now confront second-generation questions--not whether, but how to regulate the internet. This Article argues that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy's dreaded antagonist. As international law scholar Louis Henkin taught, sovereignty can insulate a government's worst ills from foreign intrusion. Assertions of digital …

Is Strict Reciprocity Required For Fair Trade?, Daniel C.K. Chow, Ian Sheldon

Vanderbilt Journal of Transnational Law

The administration of Donald J. Trump has repeatedly claimed that reciprocity is required for "fair" trade. While this concept is not new in US political discourse, the Trump administration's insistence that strict or absolute reciprocity is required goes beyond any claims made by previous US administrations. By strict reciprocity, the United States means that all trade volumes and terms and conditions of trade must be mirror images of each other. As the United States has a trade deficit with all of its largest trading partners, the Trump administration claims that this is evidence of unfairness in trade harming the United …

Cartel Criminalization In Europe: Addressing Deterrence And Institutional Challenges, Francesco Ducci

Vanderbilt Journal of Transnational Law

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a "panoply" of sanctions against both corporations and individuals may be necessary under a …

Tweet To Defeat Government Bribes: Limiting Extraterritorial Jurisdiction Under The Foreign Corrupt Practices Act To Combat Global Corporate Corruption, Sarah Routh

Vanderbilt Journal of Transnational Law

Congress enacted the Foreign Corrupt Practices Act (FCPA) in the 1970s to address the rampant bribery of foreign officials by US companies. Because that resulted in a competitive disadvantage to US companies in the global corporate community, Congress amended the Act to add § 78dd-3, which extended the FCPA's jurisdiction to foreign entities and individuals whose alleged offenses had occurred within the United States. This led to a vast overall increase in enforcement matters, but foreign entities and individuals have been impacted the most, even if their actions have had virtually no connection to the United States. Not only have …

A Plurilateral Investment Treaty: Marrying Trade And Investment To Re-Establish A Customary International Norm, Kellie Travis

Vanderbilt Journal of Transnational Law

Despite some inherent risks, foreign direct investment (FDI) is for some the preferred method of investment. The rising number of bilateral investment treaties governing FDI is merely reflective of this investment vehicle's popularity. Since the early-nineteenth century, developed countries have sought to gain protection for investors engaging in these investment opportunities. One such protection, the Hull Doctrine, requires national governments to fully compensate investors in cases of unlawful expropriation. Until World War II, when developing countries began applying their own domestic eminent domain law to foreign investors, the Hull Doctrine was considered binding, customary international law. This Note analyzes the …

The Perks Of Being A Whistleblower: Designing Efficient Leniency Programs In New Antitrust Jurisdictions, Sandra M. Colino

Vanderbilt Journal of Transnational Law

This Article develops a framework for effective leniency policy design in jurisdictions that have limited or no mileage enforcing antitrust laws. Through an extensive review of legal and economic studies of leniency and comparative analysis, the Article identifies hurdles common to young systems that may be tackled with analogous solutions. Some issues simply require a methodological enforcement strategy and time. Others, however, call for a readjustment of either the leniency programs or the antitrust systems they help to enforce. While the latter approach is preferable, it is more difficult to implement. This Article focuses on leniency and recommends three general …

Capturing The Transplant: U.S. Antitrust Law In The European Union, Silvia Beltrametti

Vanderbilt Journal of Transnational Law

The scholarly literature on the movement of legal norms focuses almost exclusively on transfers from one jurisdiction to another. It largely ignores transfers into new regulatory regimes. Drawing on a case study of the transplantation of U.S. antitrust law into the nascent entity that was to become the European Community, and analyzing its evolution from a public choice perspective, this Article suggests that transfers into new regulatory regimes are more likely to be effective when the lack of established institutions creates opportunities for stakeholders. The endorsement of a new law will enable stakeholders to influence its application and to capture …

Did Trinko Really Kill Antitrust Price Squeeze Claims?, Caroline C. Rudaz

Vanderbilt Journal of Transnational Law

This Article presents a critical analysis of the Linkline case that refuses to recognize price squeeze claims as antitrust claims under § 2 of the Sherman Act. It argues that Linkline gives a distorted reading of Trinko without giving proper attention to the application of § 2 of the Sherman Act. The Linkline decision takes a dogmatic position and thus, while refuting the Alcoa decision, appears to be a missed opportunity to more precisely define price squeezing.

This Article offers a comparison between the U.S. Supreme Court's decision and the recent European decisions delivered in broadband access cases that are …

The Demise Of Regulation In Ocean Shipping, Chris Sagers

Vanderbilt Journal of Transnational Law

Over its 140 year history, ocean liner shipping has almost always enjoyed an antitrust exemption permitting price-fixing cartels of ocean carriers. The exemption was premised on the belief that problems of cost and capacity inherent in the trade can be resolved only by horizontal collusion. Now that that exemption has been whittled away by deregulatory efforts, the pre- and post-deregulation evidence presents one of the world's rare opportunities for natural experiment on the behavior and effectiveness of collusive cartel pricing.

Moreover, because normal and effective competition never really existed prior to 1998, the normative foundation of the antitrust exemption was …

Harold Maier, Comity, And The Foreign Relations Restatement, Andreas F. Lowenfeld

Vanderbilt Journal of Transnational Law

Hal Maier's career and mine have interacted in several respects. We have both served in the Legal Adviser's Office of the State Department; we have both taught Conflict of Laws as well as International Law; and we have both tried to show--I believe successfully--that there is no sharp divide between "Public International Law" and "Private International Law." In particular, we have both been interested in the reach and limits of economic regulation across international frontiers, initially in connection with antitrust and securities regulation, but also in connection with economic sanctions, pollution controls, and other interactions of governmental and private activity. …

As Soft As Tofu: Consumer Product Defamation On The Chinese Internet, Elizabeth Spahn

Vanderbilt Journal of Transnational Law

This Article examines the most notorious Chinese internet defamation case, Wang Hong v. Maxstation, which awarded substantial damages against an individual consumer as well as two online magazines for criticizing a laptop product on the internet. The case created a widespread political controversy on the internet in China, highlighting an underlying tension in the current policies of the Chinese government, which promotes a more open market economy while maintaining tight censorship over public speech. The case developed landmark legal doctrine in China, extending judge made defamation law while ignoring the Chinese consumer protection statute. Extending defamation doctrine to include factual …

Old Man And The Sky: The Brazilian Antitrust Implications For Rupert Murdoch's Expansion Of The Sky Global Satellite Network, Geoffrey Drake

Vanderbilt Journal of Transnational Law

To expand its global satellite network to the United States, Rupert Murdoch's News Corporation purchased DirecTV in 2003. Brazil's antitrust regulatory body, CADE, has expressed concern about a potential monopoly in the Brazilian satellite market controlled by Murdoch because News' Sky Latin America competes directly with DirecTV. If News opts to combine the two Brazilian satellite services, it will consolidate control of ninety-five percent of Brazil's satellite market, leaving satellite and cable competitors at a disadvantage. The Author argues that CADE should conditionally approve the acquisition because of the combination's ability to benefit Brazilian consumers, the government, and News Corporation …

The Natural Law Basis Of Legal Obligation: International Antitrust And Opec In Context, Joel B. Moore

Vanderbilt Journal of Transnational Law

The Organization of the Petroleum Exporting Countries (OPEC) stabilizes petroleum prices to promote the economic prosperity of its member nations for which oil is a substantial export. Price stabilization influences the price of petroleum around the world, impacting the economies of developed and developing countries. Under U.S. antitrust jurisprudence, the OPEC quota agreements that stabilize prices would likely be declared illegal, and other countries might also declare price fixing to be illegal under their respective competition laws.

Several U.S. Senators have recently proposed that price fixing should be illegal under international law as well. This Note avoids a superficial analysis …

The Return Of Timberlane?: The Fifth Circuit Signals A Return To Restrictive Notions Of Extraterritorial Antitrust, William J. Tuttle

Vanderbilt Journal of Transnational Law

Over the past 100 years, the United States has remained ambivalent regarding the potential extraterritorial application of its antitrust laws. The executive, legislative, and judicial branches began with a doctrine of strict territoriality but promptly shifted toward an examination of the effects of the antitrust activity on U.S. commerce. Since the 1970s, the branches of government have refrained the question as one of statutory interpretation, embraced considerations of international comity, modified those considerations, and eventually rejected many of those same considerations.

Throughout this chaos, however, the results reached by the various branches of government have typically been consistent with the …

Nafta's Investment Chapter: Initial Thoughts About Second-Generation Rights, Charles H. Brower Ii

Vanderbilt Journal of Transnational Law

In this Article Professor Brower argues that most observers of NAFTA's investment chapter have missed an important and surprising development: Although the treaty's text shares a philosophical affinity with civil and political rights, its application has revealed an astonishing level of support for economic and social rights (ESCRs) in North America. Professor Brower examines the practical implications of this development both for the presentation of claims in investor-state arbitration and for the better integration of ESCRs into the mainstream of international law.

Global Antitrust And The Evolution Of An International Standard, William Sugden

Vanderbilt Journal of Transnational Law

This Note explores recommendations for developing a global antitrust regime and ultimately rejects those suggestions in favor of more traditional nationally-based applications of antitrust rules. Part II introduces an economic model of global antitrust to show the systemic difficulties inherent in creating a global regime. Part III contrasts the difficulties in creating a global regime with the greater historical success of developing regional antitrust authorities. Part IV tracks the history of the extraterritorial application of antitrust laws by the United States and the European Union. Part V argues that the path to effective global antitrust lies not in the creation …

Language And The Globalization Of The Economic Market: The Regulation Of Language As A Barrier To Free Trade, Stacy A. Feld

Vanderbilt Journal of Transnational Law

The European Union has devoted recent efforts to establishing an integrated global economy, free of barriers or hindrances, primarily through Article 30 of the Treaty Establishing the European Community, the central free movement of goods principle. By eliminating barriers to free trade, the European Union seeks to achieve a single globalized economy among its Member States. Not surprisingly, economic globalization in the European Union has given rise to an integration of political and cultural values among European nations. As a result of this "convergence of values," Member States have responded by enacting protectionist measures that reassert their regulatory autonomy over …

U.S. Supreme Court Subordinates Enforcement Of Regulatory Statutes To Enforcement Of Arbitration Agreements, Christine L. Davitz

Vanderbilt Journal of Transnational Law

Through a series of cases culminating with Vimar Seguros Y Reaseguros v. M/V Sky Reefer, the U.S. Supreme Court has developed a strong pro-arbitration stance regarding disputes arising out of international commercial contracts. This Note analyzes the Court's reasons for this stance and compares those reasons with the history and purposes of the Federal Arbitration Act and the New York Convention. The author concludes that the Court's reasons are at odds with the FAA and the New York Convention. The Note further articulates the dangers posed to U.S. public policies that are created by allowing arbitration of statutory claims. The …

Trade, Competition, And Intellectual Property--Trips And Its Antitrust Counterparts, Eleanor M. Fox

Vanderbilt Journal of Transnational Law

This Article examines the interface between TRIPS' protection of intellectual property rights and antitrust law, and the extent to which TRIPS invites a counterpart agreement that would internationalize intellectual property antitrust rules.

Professor Fox argues that TRIPS does not call for internationalizing antitrust law, and that even developing countries, which might find a greater need for antitrust protection against abuse of dominance after TRIPS, might be better served by developing and enforcing a national antitrust law of their own.

She argues that TRIPS does, however, contemplate some limits to antitrust, lest antitrust enforcement impair protections guaranteed by TRIPS. Professor Fox …

The Justice Department's Recent Antitrust Enforcement Policy, Robert D. Shank

Vanderbilt Journal of Transnational Law

Obstacles to free competition are abundant in the international economy. Before 1992, the United States Department of Justice only attacked such obstacles if they impeded the import commerce of the United States. But as more and more businesses enter the international markets, the ability of U.S. businesses to compete in foreign markets free of export cartels and other obstacles to free competition is of greater concern. In 1992, the U.S. Justice Department addressed this concern by reversing prior policy and announcing that the U.S. government would also attack obstacles that impede the ability of U.S. businesses to export their products …

The Nafta Investment Chapter And Foreign Direct Investment In Mexico: A Third World Perspective, Gloria L. Sandrino

Vanderbilt Journal of Transnational Law

The investment provisions of NAFTA, which establish a liberal investment regime and a hospitable atmosphere for foreign investment amongst its signatories, the United States, Canada, and Mexico, represents a new chapter in Mexico's approach to foreign investment. This Article examines the significance of Mexico's shift to welcoming foreign investment and its concomitant acquiescence to traditional notions of expropriation and compensation espoused by more developed states. The author explores Mexico's historical love-hate relationship with foreign investment and its role over the years as leading voice for Third World concerns regarding the potentially exploitive nature of such investment. In this article, a …

The North American Free Trade Agreement: A Market Analysis, Leonard Bierman, Donald R. Fraser, James W. Kolari

Vanderbilt Journal of Transnational Law

The North American Free Trade Agreement (NAFTA) was the subject of heated debate in the United States Congress. The central issue of the debate was whether NAFTA would have a positive or negative economic impact on the parties to the treaty. This Article is a direct empirical market analysis that measures the perceived economic impact of NAFTA on the parties to the agreement and other states. The authors use stock market event analysis to study the effect of NAFTA on different sectors of the economy of the United States, Mexico, Canada, Europe, and the Asia/Pacific region. In doing so, the …

A Theory Of The Gatt "Like" Product Common Language Cases, Rex J. Zedalis

Vanderbilt Journal of Transnational Law

The thesis of this Article is that the decisional law involving GATT "like" product provisions understands the concept of likeness as tied to the theory of comparative economic advantage. The thesis is developed by first analyzing the specific language and negotiating history of the relevant provisions. This is followed by an examination of the opinions of the GATT dispute panels evaluating the meaning and objectives of the term "like." From the perspective of conventional interpretive assessment like is said to have a broad meaning in the context of GATT's basic obligations, and a narrow meaning in the context of its …

Tax Considerations In Foreign Trade And Investment In The Ussr, Michael Newcity

Vanderbilt Journal of Transnational Law

The purpose of this Article is to provide a primer on the tax treatment accorded in the USSR to the various forms of income that foreign companies and individuals may earn in the course of doing business or otherwise investing there. This Article will not provide exhaustive answers to all questions arising in connection with the taxation of income earned by foreign businesses in the USSR. Such exhaustive answers are not currently possible because of frequent changes in Soviet tax legislation and the lack of comprehensive and sophisticated regulations interpreting that legislation.

The Soviet Government, at both the union and …

Trade And Investment In Central And Eastern Europe: A Bibliographic Survey Of Current Literature In English, Igor I. Kavass, William M. Walker

Vanderbilt Journal of Transnational Law

The year 1989 will be remembered as an important year in the histories of the Central and Eastern European countries because of the demise of the Soviet-controlled regimes and the emergence of independent and largely pluralistic political movements. A major catalyst for such radical political change was the decline of the centralized command economies in the Central and Eastern European countries. These so-called "Soviet Bloc" countries modeled their economic systems after the Soviet Union and, like the Soviet model, these countries found themselves saddled with an increasingly inefficient economic system. When the political systems changed, the new governments immediately took …

Bringing Meaning To Interest Balancing In Transnational Litigation, Spencer W. Waller

Vanderbilt Journal of Transnational Law

This Article contends that the current state of the debate over the balancing of interests in the extraterritorial application of United States law is outmoded and in need of serious reexamination. Most commentators and scholars continue to focus on the area of jurisdiction to prescribe, the acceptability of the effects test, and the development of lists of United States and foreign interests to be balanced by a United States court before exercising jurisdiction.

Professor Waller contends that this debate is no longer productive. Extraterritoriality, with some limitations for the interests of other states, is an accepted feature of United States …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MEDICAL MALPRACTICE ABROAD BY UNITED STATES PHYSICIAN IN CONNECTION WITH DEPARTMENT OF STATE REGULATIONS GOVERNING TORT CLAIMS PROVIDED FOR AN INVESTIGATIVE PROCEDURE FOLLOWED BY AGENCY DECISION--AGENCY FOR INTERNATIONAL DEVELOPMENT HOLDS NO CONSTITUTIONAL OBLIGATIONS TO EVALUATE MEDICAL MALPRACTICE CLAIM ON THE MERITS AND IN ACCORD WITH MINIMAL DUE PROCESS. Tarpeh-Doe v. United States, 904 F.2d719 (D.C. Cir. 1990).

THE FOREIGN CORRUPT PRACTICES ACT DOES NOT CREATE AN IMPLIED PRIVATE RIGHT OF ACTION THAT KENTUCKY TOBACCO GROWERS COULD USE TO RECOVER DAMAGES FROM COMPANIES THAT ALLEGEDLY ENGAGED IN CORRUPT PRACTICES TO THE DETRIMENT OF GROWERS. THE ACT OF STATE DOCTRINE, HOWEVER, DOES …

A New Look At The European Economic Community Directive On Insider Trading, Amy E. Stutz

Vanderbilt Journal of Transnational Law

On 13 November 1989, the European Council passed a directive on the regulation of insider trading. This legislation is designed to coordinate the various laws of the European Economic Community states and to encourage investor confidence in their securities markets. In analyzing the directive, the author proposes the United States experience in the regulation of insider trading as a model for the efforts of the EEC. Considering both the strengths and weaknesses of the United States experience, the author describes the United States shift in emphasis from the regulation of individuals to the regulation of institutions. This shift reflects the …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

This Case Digest provides brief analyses of cases that represent current aspects of transnational law. The Digest includes cases that establish legal principles and cases that apply established legal principles to new factual situations. The cases are grouped in topical categories, and references are given for further research:

Constitutionality of the Immigration Marriage Fraud Amendments Upheld over Challenge by Deportable Alien and United States Spouse

Anetekhai v. Immigration and Naturalization Service

876 F.2d 1218 (5th Cir. 1989)

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Standing Granted to Challenge Hostile Takeover between Foreign Firms under United States Antitrust and Securities Laws

Consolidated Gold Fields PLC v. Minorco, …