International Trade Law Commons^™

Moderating Antitrust Subject Matter Jurisdiction: The Foreign Trade Antitrust Improvements Act And The Restatement Of Foreign Relations Law (Revised), Daniel T. Murphy

Law Faculty Publications

Within the last several years two approaches have been taken to tempering the extraterritorial application of the United States antitrust laws. In October 1982 the Foreign Trade Antitrust Improvements Act of 1982 (the "FTAIA") was signed into law. In addition, for the past four years the American Law Institute has been engaged in an effort to revise thoroughly the Restatement of Foreign Relations Law of the United States. It is expected that this effort will culminate in May 1986 with the promulgation of the Restatement of Foreign Relations Law of the United States (Revised) (the "Restatement (Revised)"). These two efforts …

Government Trade Policy And The Professional Regulation Of Foreign Lawyers, Sydney M. Cone Iii.

Articles & Chapters

This paper discusses United States government trade policy and the regulation of foreign lawyers. Although the expression "trade policy" implies a settled course of action adopted and followed by the United States government, in the area of legal services the formulation of government trade policy has been a rather fortuitous occurrence. Further, while the term "regulation," particularly in the context of the legal profession, suggests a recognizable and ordered system, the rules and procedures for the regulation of foreign lawyers in various jurisdictions do not fall readily into any pattern; instead they appear to be quite random. The regulation of …

The Shipping Act Of 1984: Bringing The United States In Harmony With International Shipping Practices, Martha L. Cecil

Penn State International Law Review (1982 - 2011)

To place the Shipping Act of 1984 in context, this Comment begins by outlining the development of ocean liner conferences and the economics of liner operations. It then describes the changes in case law that increased foreign carriers' exposure to antitrust liability and caused foreign governments to enact retaliatory blocking statutes in an effort to protect their nationals from the extraterritorial application of United States laws. The major portion of the Comment then analyzes the Shipping Act of 1984 and compares the provisions that are responsive to international shipping practices with those that remain in conflict with generally accepted shipping …

The United States Policy Toward Inward Foreign Direct Investment, Harvey E. Bale, Jr.

Vanderbilt Journal of Transnational Law

This paper presents the perspective of the author, a trade and investment policy official, on the most significant aspects of the United States policy toward foreign direct investment. The summary in this section is presented to give the author's policy viewpoint in order to assist the reader in evaluating the paper's arguments... United States policy, at both the federal and local levels, reflects a strong positive attitude concerning the general benefits of inward foreign direct investment. While foreign ownership of United States assets is restricted in certain sectors, the general United States approach is one of "national treatment"--i.e., foreign investors …

Determinants Of Foreign Plant Start-Ups In The United States: Lessons For Policymakers In The Southeast, Michael I. Luger, Sudhir Shetty

Vanderbilt Journal of Transnational Law

This article examines the elasticity of DFI in relation to these promotional activities. It also analyzes the effect that agglomeration economies, urbanization economies, and labor market conditions have on DFI. Its specific focus is upon the effect that those four determinants had on new plant start-ups in three separate industries: drug manufacturing, industrial machinery, and motor vehicle production over the 1979-1983 period. (Those industries have been given standard industrial classification (SIC) numbers of 283, 355 + 356, and 371, respectively, by the U.S. Department of Commerce.) The industries are considered separately in order to test the hypothesis that the importance …

Mitsubishi Motors Corporation V. Soler Chrysler-Plymouth, Inc., Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Third World Trade Partnership: Supranational Authority Vs. National Extraterritorial Antitrust--A Plea For "Harmonized" Regionalism, Wolfgang Fikentscher

Michigan Law Review

That "Third World countries" should receive the assistance of the "industrialized nations" in increasing the level of their economic development is a matter beyond dispute. Yet the years following the "economic decade" of the 1970's have made apparent a crisis in the concepts underlying this philosophy of Third World assistance. The nature of this crisis has not yet been fully ascertained, and the following text does not undertake that task. Rather, it starts from the general feeling among experts involved in one way or another with "development aid" that the paths so far followed and the methods so far applied …

Export Trade Certificates Of Review: Will Efficacy Be Permitted?, John A. Maher, Nancy J. Lamont

Penn State International Law Review (1982 - 2011)

A vital concept explicit in the Export Trading Company Act (ETCA) and implicit in its Title III is that the time has come for American export cartelism. This is in response to a world in which international trading does not routinely honor the competition principles to which the United States ordinarliy adheres. Despite various successful and unsuccessful attempts, it is not America's job to reform the world. It is foolish to expect American companies to compete in world markets on terms other than those which govern their competitors.

Exports, Banking And Antitrust: The Export Trading Company Act: A Modest Tool For Export Promotion, George E. Garvey

Scholarly Articles

After discussing briefly some of the statute's economic implications and limitations, this article will analyze the more significant provisions of the Export Trading Company Act. The Act only recently has been implemented so there is insufficient experience or empirical basis for critiquing the performance of the enforcement agencies. It is not premature, however, to suggest that all administrative and enforcement policies should foster a limited role for government in the operation of export markets. Therefore, regulators empowered to exempt firms from potential antitrust liability should recognize the dual problems inherent in their regulatory activities: They must not impede the efficient …

The Extraterritorial Application Of The Export Administration Act Of 1979, Peter T. Knopf

LLM Theses and Essays

This thesis deals with the major legal issues of the gas pipeline embargo. It is not an abstract treatise on extraterritoriality under international law, but a legal expertise on the legality of the unique measures imposed in 1982. It also tries to point out the legal trends as indicated by the recent publications. The first part of the thesis examines to what extent some European firms were affected by the American embargo. The second part examines whether the President had the authority under the Export Administration Act of 1979 to impose the far-reaching extraterritorial restrictions. It concludes that the President …

Reforming American Antitrust In Foreign Commerce, James A. Rahl

Michigan Law Review

A Review of Antitrust and American Business Abroad (Second Edition) by James R. Atwood and Kingman Brewster

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Emerging Financial Centers: Legal and Institutional Framework

Edited by Robert C. Effros

Washington, D.C.: International Monetary Fund, 1982. Pp. xvi, 1150. $35.00.

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The Foreign Corrupt Practices Act

By George C. Greanias and Duane Windsor

Lexington, Massachusetts: Heath and Co.,1982. Pp. ix, 187. $23.95.

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Foreign Commerce and the Antitrust Laws Vols. I-II.

By Wilbur L. Fugate

Boston and Toronto: Little, Brown and Company, 1982. Vol. I, pp. xxiv, 427; vol. II, pp. xxiv, 460. $100.00.

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The Fund Agreement in the Courts: Volume II.

By Joseph Gold

Washington, D.C.: International Monetary Fund, 1982. Pp.xii, 499. $17.50.

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International Capital …

Extraterritorial Effects Of United States Commercial And Antitrust Legislation: A View From "Down Under", Warren Pengilley

Vanderbilt Journal of Transnational Law

British Commonwealth lawyers, in general, and Australian lawyers, in particular, traditionally maintain a conservative view of the extraterritorial reach of commercial legislation. As a result of the Alcoa decision in 1945, if not earlier decisions, the United States courts have espoused fairly grand ideas on the stretch of their judicial writ. In fact, the "effects" doctrine was first proclaimed in 1909 by the United States Supreme Court in American Banana Co. v. United Fruit Co. In this case, the Court proclaimed that the United States has the power to punish "acts done outside [the] jurisdiction but intended to produce and …

Standards For The Application Of United States Antitrust Law In An International Environment, William F. Baxter

BYU Law Review

No abstract provided.

Commercial Treaties And Foreign Companies: The Mutually Reinforcing Principles Of Remedial Antitrust And National Treatment, Alan Van Kampen

University of Michigan Journal of Law Reform

This Note argues that greater appreciation for the nature and importance of national treatment obligations will compel tribunals fashioning antitrust relief to provide more suitably for foreign firms, and thus avoid straining international trade relations. Moreover, because antitrust relief and national treatment objectives are mutually reinforcing, greater recognition of national treatment requirements should improve remedial orders from the standpoint of antitrust economics. Meeting national treatment requirements should place little added burden on the antitrust tribunal; it must merely extend impartial economic analysis to all market suppliers, not just domestic firms.

This Note explores methods to ensure that antitrust relief orders …

Updating The Antitrust Guide On International Operations, Eleanor M. Fox

Vanderbilt Journal of Transnational Law

Since the enactment of the antitrust laws, policy makers, scholars, and business executives have debated whether the United States antitrust laws chill export and investment abroad. The terms of the debate have not changed significantly for more than a decade. The law and the government's enforcement policies, however, have changed. Since the United States Department of Justice issued its Guide on Antitrust and International Operations (Guide) on January 26, 1977, law and enforcement policy have become more hospitable to private business decisions that would increase exports and foreign investment.

This Article attempts to update the Guide. It is confined largely …

The Foreign Trade Antitrust Improvements Act Of 1981, George E. Garvey

Scholarly Articles

This article will explore the effects of the antitrust laws on international trade and the probable reasons for any adverse impact. It will then consider the primary alternative legislative proposal intended to remedy the perceived antitrust barrier to trade, the Export Trade Association Act of 1981. Finally, the article examines the responsiveness of the Antitrust Improvements Act to the problems and the potential hazards of an altered antitrust policy.

Symposium Introduction, Terry Calvani

Vanderbilt Journal of Transnational Law

This Symposium issue of the Vanderbilt Journal of Transnational Law presents a collection of excellent articles on current antitrust law and United States international trade practices by some of the most knowledgeable scholars in the field, all of whom possess not only superb academic credentials but also a wealth of experience in international antitrust practice. Wilbur Fugate, former chief of the Foreign Commerce Section of the Antitrust Division and a distinguished author on antitrust and foreign commerce, opens the Symposium by examining the Webb-Pomerene Act" in light of the very recently enacted Export Trading Company Act of 1982...

The Symposium …

The Export Trade Exception To The Antitrust Laws: The Old Webb-Pomerene Act And The New Export Trading Company Act, Wilbur L. Fugate

Vanderbilt Journal of Transnational Law

This Article discusses the history of the Webb Act as a prelude to a discussion of the new legislation. Because the standards in the new Export Act are similar to those in the Webb Act, the precedents under the Webb Act will remain important for interpreting the new legislation. Furthermore, a review of the Webb Act and of the alternatives proposed over the years gives an insight into the reasoning behind having an export exception to the antitrust laws... This Article will examine the Webb Act and its operation; the courts' treatment of the Webb Act; the manifold suggestions and …

The Impact Of United States Antitrust Law On The Balance Of Trade, David N. Goldsweig, Kenneth D. Enborg, Thomas F. Walton

Vanderbilt Journal of Transnational Law

This Article explores the underlying propositions that the United States antitrust agencies have created a barrier to the export of United States industrial goods or have impeded their domestic manufacture with respect to this nation's major trading partners. We conclude that neither proposition is well supported by solid evidence, although improved cooperation among Government and business and a less litigious climate are desirable in this area as well as all other industry-government relations." This Article first considers the impact of antitrust enforcement on the export or overseas distribution stage of United States domestic producers and then turns to the effect …

United Kingdom Regulation Of Transnational Corporate Concentration, J. Denys Gribbin

Michigan Journal of International Law

This article begins by describing the United Kingdom's policy toward outward and inward direct investment and then sets out the essentials of the competition laws that are among the major, nondiscriminatory regulatory mechanisms that affect corporate behavior and planning. The article also analyzes the development of competition policy as a microeconomic instrument along with its application to monopoly, oligopoly, and cartels involving transnational corporations. Competition policy, except for cartels, is shown to be relatively benign toward mergers until recently, and with respect to monopoly and oligopoly has sought remedies in regulation of prices and behavior rather than through structural change. …

Introduction: Transnational Corporate Concentration-The Issues, Thomas E. Kauper

Michigan Journal of International Law

Competition policy in the United States, particularly reflected in antitrust policy, in recent years has focused on corporate structure. To some, this emphasis simply reflects a belief in a close correlation between corporate structure and behavior. A single firm monopoly inevitably will restrict output and raise prices above levels that would prevail under competition conditions, distorting allocative efficiency. The behavioral pattern is a direct consequence of structure. Many believe that high corporate concentration, even short of single firm monopoly, is at least conducive to, if not a cause of, monopolistic behavior. Some also view high corporate concentration, and the aggregation …

The Relationship Between National And Community Antitrust Law: An Overview After The Perfume Cases, Jean-Francois Verstrynge

Northwestern Journal of International Law & Business

The European Coal and Steel Community Treaty and the Treaty of Rome have been recognized as transferring the jurisdictional authority to apply antitrust laws to the European Communities. After surveying the impact of these treaties on various sectors, the author argues that it is necessary to subordinate the jurisdictional authority of the Member States in this field to fulfill the objectives of the Common Market.

Reflections On Recent Oecd Activities: Regulation Of Multinational Corporate Conduct And Structure, Kurt Stockmann

Michigan Journal of International Law

In recent, years, the Organization for Economic Cooperation and Development (OECD) has repeatedly addressed, in a variety of forms, the problem of transnational corporate concentration. In the field of restrictive business practices, it has made suggestions on specific antitrust problems, issued council recommendations, and promulgated the 1976 Concil Guidelines for multinational enterprises. Not surprisingly for an organization that adheres to the principle of unanimity and, consequently, is governed by the law of the smallest common denominator, these efforts have thus far focused more on procedure than on substance. Even where quasisubstantive rules have been adopted, such as in competition guideline …

National Panasonic (U.K.) Ltd. V. Commission Of The European Communities: The Common Market's First Look At Warrantless Searches In Antitrust Investigations, Catherine C. Gale

Northwestern Journal of International Law & Business

In Antitrust Investigations National Panasonic (UK) Ltd v. Commission of the European Communities' is the first decision of the European Court of Justice delineating the powers of the European Commission to conduct evidentiary searches on the premises of firms suspected of violating the European Economic Community's antitrust laws. The Court held that the Commission may conduct on-the-spot searches of firms without prior notification. The Court's decision greatly expands the investigatory powers of the Commission at the expense of significant privacy and due process rights for firms operating within the European Community. This note will examine the extent to which the …

Structural Aspects Of Multinational Corporate Trade With The Nonmarket Economies Of Eastern Europe: An Mnc Perspective On Domestic And Foreign Regulation, John G. Scriven

Michigan Journal of International Law

In considering the structural aspects of multinational corporate trade relationships with the nonmarket economies of Eastern Europe, it is important, as a preliminary matter, to acknowledge certain intractable features of that trade. Only through a continuing awareness of the interplay of these factors can one hope to understand the role of law or regulation in trade with these states.

The "Economic" Analysis Of Transnational Mergers, William James Adams

Michigan Journal of International Law

No congregation of lawyers can be considered complete without a token economist. The role of the economist consists of describing the economic mode of analyzing the legal problem under consideration. Unfortunately from the standpoint of the token, economists rarely agree on criteria appropriate for the appraisal of economic phenomena. With respect to transnational corporate mergers, four modes of analysis may be described legitimately as economic.

Regulating Multinational Corporate Concentration-The European Economic Community, John Temple Lang

Michigan Journal of International Law

It is the purpose of this article to discuss the policies and goals of the efforts of the European Communities to regulate multinational corporate concentration. For reasons that will become clear in the course of the article, it is necessary to start by outlining the means available to the European Communities, both presently and potentially, to promote these policies. It is not possible to see what those policies might be or how they are likely to develop without understanding the practical implications of the various legal rules on which the Community might rely in the future. This article does not …

Canadian Merger Policy And Its International Implications, Eric K. Gressman

Michigan Journal of International Law

The implications of Canadian merger policy are of deep concern to U.S. and other foreign investors who have invested or are considering investing in Canada. U.S. interests own 60 percent of Canada's manufacturing industry. In 1978, approximately 250 mergers in Canada involved a foreign-owned or foreign-controlled buyer (usually U.S.). Therefore, it is not surprising that Canada's merger policy is no less important to the decisions of foreign investors in Canada than the Justice Department's policies are to domestic investors in the United States. At the same time, the Canadian government and public are concerned with their merger policy as a …

Regulation Of Concentration Through Merger Control: Germany's Continuing Efforts, Kurt Stockmann

Michigan Journal of International Law

The Federal Republic of Germany's Law Against Restraints on Competition (the ARC), establishes an extensive regime for regulating market-dominating enterprises. Therefore, large corporations, both national and multinational, are the subject of particular scrutiny in the Federal Republic. Rather than identify and address all the provisions pertinent to corporate concentration (a task whose tedium would be matched only by its enormity), this analysis will undertake three tasks: (1) briefly describe the general scope of West German merger law, (2) discuss the application of the law to cases of transnational concentration, and (3) explain the proposed Fourth Amendment to the ARC as …