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Articles 31 - 60 of 72
Full-Text Articles in Antitrust and Trade Regulation
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 …
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 …
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 …
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.
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.
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 …
Reflections On Eastman Kodak Co. V. Image Technical Services, Inc.: Continued Confusion Regarding Tying Arrangements And Antitrust Jurisprudence, Daniel E. Lazaroff
Reflections On Eastman Kodak Co. V. Image Technical Services, Inc.: Continued Confusion Regarding Tying Arrangements And Antitrust Jurisprudence, Daniel E. Lazaroff
Washington Law Review
This Article begins with a brief history of the Supreme Court's often unclear and contradictory treatment of tying arrangements. Against this historical background, the discussion then turns to an analysis of the majority and dissenting opinions in Kodak in part I. Part IV focuses on the important legal questions left unresolved by Kodak and considers its impact on existing tying doctrine. Finally, the Article discusses possible alternative approaches to existing tying analysis. The pervading theme of the Article is that the Supreme Court has missed an opportunity to articulate a clearer, more workable rule regarding tie-ins. While the actual result …
Clayton Act Scrutiny Of Nonprofit Hospital Mergers: The Wrong Rx For Ailing Institutions, David L. Glazer
Clayton Act Scrutiny Of Nonprofit Hospital Mergers: The Wrong Rx For Ailing Institutions, David L. Glazer
Washington Law Review
The Sherman and Clayton antitrust laws have long been used to challenge anticompetitive mergers between for-profit entities. Recently, the federal government began challenging mergers between nonprofit hospitals under the Clayton Act. Two federal circuit courts are divided on whether nonprofit mergers are subject to Clayton Act scrutiny. This Comment examines the statutory interpretations and the policy arguments suggested by the two cases, and concludes that the Clayton Act does not, and should not, apply to nonprofit hospital mergers.
Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston
Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston
Washington Law Review
Should a parent corporation be allowed to discriminate in favor of its wholly-owned subsidiary? Courts have long grappled with this question when interpreting section 2(a) of the Robinson-Patman Act (the "Act"). Section 2(a) prohibits price discrimination between "different purchasers." If the subsidiary corporation is a "different purchaser" when it purchases goods from its parent, then the parent violates the Robinson-Patman Act by discriminating in the subsidiary's favor. Many courts, when faced with this issue, have ruled that the parent and subsidiary are per se parts of a single entity. The Fifth Circuit was the first court to adopt this per …
Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston
Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston
Washington Law Review
Should a parent corporation be allowed to discriminate in favor of its wholly-owned subsidiary? Courts have long grappled with this question when interpreting section 2(a) of the Robinson-Patman Act (the "Act"). Section 2(a) prohibits price discrimination between "different purchasers." If the subsidiary corporation is a "different purchaser" when it purchases goods from its parent, then the parent violates the Robinson-Patman Act by discriminating in the subsidiary's favor. Many courts, when faced with this issue, have ruled that the parent and subsidiary are per se parts of a single entity. The Fifth Circuit was the first court to adopt this per …
The Sovereign Compulsion Defense In Antitrust Actions And The Role Of Statements By Foreign Governments, Steven J. Hawes
The Sovereign Compulsion Defense In Antitrust Actions And The Role Of Statements By Foreign Governments, Steven J. Hawes
Washington Law Review
Large numbers of export cartels and increasing governmental involvement in commerce present the potential for greater conflicts between United States antitrust law and the decrees of foreign governments. Sovereign compulsion as a defense to antitrust complaints is one method for dealing with the contradictory obligations imposed on private parties where such conflicts exist. Sovereign compulsion has been discussed by courts and commentators many times in recent years, yet the limits of the defense and the requirements for its application remain unclear. To demonstrate a sovereign compulsion defense, defendants must show that their actions, although possibly in violation of United States …
The Demise Of The Intra-Enterprise Conspiracy Doctine: Flexible Antitrust Enforcement Policy Abandoned In A Maze Of Economic Certainty—Copperweld Corp. V. Independence Tube Corp., 104 S. Ct. 2731 (1984), S. John Goodwin
Washington Law Review
In Copperweld Corp. v. Independence Tube Corp. the United States Supreme Court held that corporations and their wholly owned subsidiaries cannot conspire and, thus, cannot violate section 1 of the Sherman Act. The decision signals an important shift in interpretation of the Sherman Act. Before Copperweld, corporations and their wholly owned subsidiaries were subject to conspiratorial liability under the Act. The Supreme Court had recognized intra-enterprise conspiracies on at least six occasions. Despite their diverging views on how broadly the doctrine was to be interpreted, the federal courts of appeals had unanimously applied the doctrine. The Court implicitly addressed the …
Streamlining Antitrust Litigation By "Facial Examination" Of Restraints: The Burger Court And The Per Se-Rule Of Reason Distinction, Edward Brunet
Streamlining Antitrust Litigation By "Facial Examination" Of Restraints: The Burger Court And The Per Se-Rule Of Reason Distinction, Edward Brunet
Washington Law Review
Against a backdrop of a definitional skepticism, this article focuses on the important Burger Court contribution to the per se and rule of reason approaches. The Burger Court now requires a facial examination of antitrust restraints that may improve the lethargic process of antitrust litigation. Much of the article concerns the differences between the per se and rule of reason tests. The Burger Court's decisions, however, require that careful attention be given to the similar and complementary features of the rule of reason and per se methods. The article examines carefully the methodologies courts employ to classify alleged restraints as …
Antitrust Sanctions And Remedies: A Comparative Study Of German And Japanese Law, John O. Haley
Antitrust Sanctions And Remedies: A Comparative Study Of German And Japanese Law, John O. Haley
Washington Law Review
The legal systems of the Federal Republic and Japan have much in common. The basic institutions and concepts of German civil, criminal, and administrative law provided the principal models for Japan's legal reforms during the late nineteenth and early twentieth centuries. Contemporary legislation and doctrinal changes in the Federal Republic also continue to influence Japanese legal developments. Despite the American origins of Japanese antitrust legislation, which was drafted by Americans and imposed during the Occupation on a less than enthusiastic Japanese government, the influence of German law and practice on Japanese antitrust law, at least since 1953, has been profound. …
Restricted Distribution Contracts And The Opportunistic Pursuit Of Treble Damages, Henry N. Butler
Restricted Distribution Contracts And The Opportunistic Pursuit Of Treble Damages, Henry N. Butler
Washington Law Review
The analysis presented in this article addresses the narrow issue of the effects of potential treble damage actions on the behavior of contractually-related manufacturers and distributors. Part II of this article presents the notion of opportunistic behavior, which has influenced much of the economic analysis and the Supreme Court's recent treatment of vertical nonprice restraints. The transformation of the threat of opportunism into socially-wasteful expenditures of resources is also discussed. Part III examines the problematic role of opportunism in the distribution of goods, restricted distribution practices that aim to solve the problem, and the antitrust treatment of such restricted distribution …
Antitrust Problems In International Technology Transfers—United States V. Westinghouse Electric Corp., 648 F.2d 642 (9th Cir. 2981), Christina Marie Ager
Antitrust Problems In International Technology Transfers—United States V. Westinghouse Electric Corp., 648 F.2d 642 (9th Cir. 2981), Christina Marie Ager
Washington Law Review
In 1970 the Department of Justice brought an antitrust action against Westinghouse Electric Corporation and two Japanese corporations, Mitsubishi Electric Corporation (MELCO) and Mitsubishi Heavy Industries Ltd. (MHI) (together Mitsubishi). The government alleged violations of section 1 of the Sherman Act. Since 1923 the defendants or their predecessors had a series of technology-sharing agreements under which Westinghouse granted licenses of its Japanese patents to Mitsubishi. It excluded its counterpart patents in the United States and Canada from the agreements. The government contended that Mitsubishi had become so dependent on Westinghouse technology because of the technology-sharing agreements that it could not …
Antitrust And Health Care—Psychologists Entitled To Blue Shield Reimbursement—Virginia Academy Of Clinical Psychologists V. Blue Shield Of Virginia, 624 F.2d 476 (4th Cir. 1980), Cert. Denied 450 U.S. 916 (1981), Donna M. Moniz
Washington Law Review
In Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, the Fourth Circuit Court of Appeals held that Blue Shield violated section 1 of the Sherman Antitrust Act because Blue Shield refused to pay psychologists who did not bill through physicians. The court held that Blue Shield constituted a conspiracy of individual physicians acting to reduce competition in the delivery of psychotherapeutic services. This holding significantly enhances the ability of psychologists and other licensed health care providers to compete with physicians. This Note discusses Virginia Academy in light of the pertinent antitrust doctrines. It approves the Fourth Circuit's holding …
Purpose And Effect In Sherman Act Conspiracies, Richard A. Wirtz
Purpose And Effect In Sherman Act Conspiracies, Richard A. Wirtz
Washington Law Review
The Gypsum decision supplies the proper occasion for a renewed effort to sort out and line up the Court's pronouncements since Trans-Missouri concerning the respective functions in cases arising under section 1 of proof of anticompetitive purpose and effect. Once this is done, a reasonably coherent body of doctrine emerges and the unresolved issues come more clearly into focus. The first two sections of this article deal with purpose and effect as determinants, respectively, of "restraint of trade" and of "contract, combination . . . and conspiracy." The third section takes up the problems that arise when the doctrine that …
The Antitrust Consequences Of Manufacturer-Suggested Retail Prices—The Case For Presumptive Illegality, William R. Andersen
The Antitrust Consequences Of Manufacturer-Suggested Retail Prices—The Case For Presumptive Illegality, William R. Andersen
Washington Law Review
A manufacturer's suggestion of resale prices to dealers is an example of price-affecting conduct which is said to create no antitrust liability despite the fact that liability would result from identical conduct if the parties were horizontally related. This article argues that permitting parties to tamper with the price term in any fashion risks contravention of the policies behind the antitrust laws, and that making the antitrust consequence turn on whether the parties appear to be related vertically or horizontally is not an intelligible way of minimizing that risk. In conclusion it is recommended that suggested prices should be presumptively …
The Economics Of The Joint Antitrust Dissents Of Justices Harlan And Stewart, Ray O. Werner
The Economics Of The Joint Antitrust Dissents Of Justices Harlan And Stewart, Ray O. Werner
Washington Law Review
Professor Werner presents a chronological study of the antitrust dissents authored by Justices Harlan and Stewart in an attempt to identify the minority rationale which may guide the Court's future antitrust decisions. Analyzing these dissenting opinions against the economic criteria of industry structure, conduct and performance, Professor Werner concludes that the dissenters focus primarily on industry performance while showing some concern for the structure of the industry. The author views the dissenters as strict constructionists and believes that their conservative economic orientation may emerge as the antitrust philosophy of the Nixon appointees to the United States Supreme Court.
Section 7 Of The Clayton Act As A Tool To Curtail Conglomerate Acquisitions Of Insurance Companies, Roland W. Johnson
Section 7 Of The Clayton Act As A Tool To Curtail Conglomerate Acquisitions Of Insurance Companies, Roland W. Johnson
Washington Law Review
Mergers of insurance companies with corporations which do not write insurance pose a substantial threat both to competition and to the resource allocating capability of the economy. This comment indicates that an attack on these mergers under the federal anti-trust laws will not be prevented by the McCarran-Ferguson Act. The comment also analyzes the possible application of Section 7 of the Clayton Act to conglomerate insurance mergers and evaluates possible attacks based on the principles covering vertical mergers, transfer of market power, and reciprocity.
Enforcement Of Legislation Prohibiting Sales Below Cost In Washington, Eldon H. Reiley
Enforcement Of Legislation Prohibiting Sales Below Cost In Washington, Eldon H. Reiley
Washington Law Review
Mr. Reiley analyzes Washington's complex Unfair Practices Act from the strengths and weaknesses of the defendant's position by tracing the various requirements and defenses of the act under two recent Washington Supreme Court decisions. To facilitate effective enforcement he offers specific suggestions for future interpretation of the act. Mr. Reiley especially urges that the intent to injure requirement be interpreted to require nothing more than proof of injury to a competitor and that the meeting competition defense be limited to require a seller to have actual knowledge of his competitor's current prices and their legality
Enforcement Of Legislation Prohibiting Sales Below Cost In Washington, Eldon H. Reiley
Enforcement Of Legislation Prohibiting Sales Below Cost In Washington, Eldon H. Reiley
Washington Law Review
Mr. Reiley analyzes Washington's complex Unfair Practices Act from the strengths and weaknesses of the defendant's position by tracing the various requirements and defenses of the act under two recent Washington Supreme Court decisions. To facilitate effective enforcement he offers specific suggestions for future interpretation of the act. Mr. Reiley especially urges that the intent to injure requirement be interpreted to require nothing more than proof of injury to a competitor and that the meeting competition defense be limited to require a seller to have actual knowledge of his competitor's current prices and their legality
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Washington Law Review
Respondents Dean Foods Company and Bowman Dairy Company, substantial competitors in the sale of packaged milk, planned to merge. Dean was to purchase substantially all of Bowman's assets and Bowman was to cease doing business. The Federal Trade Commission, after issuing a formal complaint under section 7 of the Clayton Act and section 5 of the Federal Trade Commission Act, applied to the Seventh Circuit Court of Appeals for a preliminary injunction to maintain the status quo until the Commission could hold hearings to determine the legality of the merger. Dismissal of the Commission's petition was appealed to the Supreme …
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Washington Law Review
Respondents Dean Foods Company and Bowman Dairy Company, substantial competitors in the sale of packaged milk, planned to merge. Dean was to purchase substantially all of Bowman's assets and Bowman was to cease doing business. The Federal Trade Commission, after issuing a formal complaint under section 7 of the Clayton Act and section 5 of the Federal Trade Commission Act, applied to the Seventh Circuit Court of Appeals for a preliminary injunction to maintain the status quo until the Commission could hold hearings to determine the legality of the merger. Dismissal of the Commission's petition was appealed to the Supreme …
The Robinson-Patman Act And Antitrust Policy: A Time For Reappraisal, Philip Elman
The Robinson-Patman Act And Antitrust Policy: A Time For Reappraisal, Philip Elman
Washington Law Review
What has been learned from thirty years' enforcement of the Robinson-Patman Act? To answer that question Federal Trade Commissioner Elman calls for an objective and thorough study and reappraisal of the act in relation to basic antitrust goals and policy. The fundamental question is how a price discrimination law can operate to help attain the broader antitrust goals of achieving economic growth and progress while preserving and enlarging economic opportunity. Commissioner Elman points out the major problem areas which should be the subject of such a study, among them standards of competitive injury, cost justification, and the meeting competition defense. …
Ftc Proceeding Without Industrywide Enforcement: Patent Abuse Of Discretion, Anon
Ftc Proceeding Without Industrywide Enforcement: Patent Abuse Of Discretion, Anon
Washington Law Review
The Federal Trade Commission issued a cease and desist order under section two of the Clayton Act against petitioner, a manufacturer and distributer of plumbing supplies and equipment having 5.75 per cent of the national market. The gravamen of the FTC prosecution was price discrimination in the allowing by petitioner of a ten per cent price discount on "truck load" orders of its products. Petitioner requested the FTC to stay the cease and desist order until the FTC had investigated and instituted enforcement proceedings against the entire plumbing fixture industry. Petitioner alleged that enforcement of the order would put it …
Withholding Of Appraisment Under The United States Anti-Dumping Act: Protectionism Or Unfair-Competition Law?, Roy L. Prosterman
Withholding Of Appraisment Under The United States Anti-Dumping Act: Protectionism Or Unfair-Competition Law?, Roy L. Prosterman
Washington Law Review
The Anti-dumping Act of 1921 is, in the view of Professor Prosternman, in very real danger of being diverted from an antitrust law into a protectionist or tariff-like measure as a result of an unfortunate comnbination of administrative techniques built into the act and current practical pressures. The author discusses the cause of this diversion and offers some suggestions for reform which will prevent the antidumping law from growing into a protectionist device which is inimical to the current trends toward free trade.
Private Action For Treble Damages Under Clayton Act Section 7, Anon
Private Action For Treble Damages Under Clayton Act Section 7, Anon
Washington Law Review
Plaintiffs, corporate distributors, sought treble damages under section 4 of the Clayton Act, alleging that defendant's acquisition of a manufacturer for which plaintiffs were distributors violated section 7 of the Clayton Act and that plaintiffs were damaged by defendant's termination of plaintiffs' distributorship contracts pursuant to the acquisition. Defendant moved to dismiss, contending that there could be no action for damages under section 4 based upon a section 7 violation, as a section 4 recovery is predicated upon an existing illegal monopoly, which is not prohibited by section 73. The United States District Court for the Southern District of New …