The International Scope of U.S. Antitrust

AuthorChristopher L. Sagers
As with most of the law discussed in this book, the problem at the
heart of international antitrust is a problem of compromise between
antitrust values and other policy values, or between antitrust
constituencies and other constituencies. In principle, U.S. federal
antitrust law could apply quite broadly to overseas conduct, and in some
respects it does. But unlimited enforcement may conflict with other
policy goalsspecifically, diplomatic relations with other nations and
the interests of U.S. exportersand so the courts and Congress have
limited it through a number of rules of international law and special
statutory modifications.
A. Political Compromises Underlying the International Scope of
Overseas enforcement of U.S. antitrust may conflict with two other
U.S. policy priorities: the conduct of U.S. diplomatic relations and the
protection of U.S. exporters.
Antitrust policy relating to international enforcement can at times
conflict with diplomatic goals, both because U.S. antitrust lawsuits can
strain foreign relations and because international trade is already subject
to an array of trade restraints that can seem inconsistent with open
As to the latter, competition policy and trade law do not
always conflict. Liberalization of trade restraints has been underway for
. See, e.g., Harvey Applebaum, The Coexistence of Antitrust Law and
Trade Law with Antitrust Policy, 9 CARDOZO L. REV. 1169, 1169 (1988);
Edward T . Hand, Department of Justice Experience in Reconciling
Antitrust and Trade, 47 N. Y. L. SCH. L. REV. 131 ( 2003).
. The United States, like most other nations, p ervasively regulates
international trade through a range of export and import re strictions,
including subsidies, tariffs, license requirements, quotas, embargos, and
other measures. See gener ally FOUNDATIONS AND PERSPECTIVES OF
INTERNATIONAL TRADE LAW (Ian F. Fletcher et al., eds 2001).
A Handbook on the Scope of Antitrust
decades, resulting in a series of multilateral free trade agreements
and in
the World Trade Organization (WTO) framework.
Competition and
trade laws even produce the same result in certain cases.
. The United States and other nations have co mpleted free trade
agreements throughout North and South America, Africa, Asia, and the
Middle East. The European Union countries also operate as a free market.
The United States participates in a number of other intergovernmental
and nongovernmental organizations that work to encourage trad e
liberalization, including the Organisation for Economic Cooperation and
Development (OECD) and the United Nations Conference on Trade and
Development (UNCTAD). See generally Jeffrey J. Schott, Overview, in
(Jeffrey J. Schott, ed. 2004).
. The World Trade Organization (WTO) has the ability to create binding
rules regarding trade and competition, and it uses t hat power to encourage
liberalized trade. WTO, “Understanding the WTO: BasicsPrinciples of
the Trad ing System,” available at
english/thewto_e/whatis_e/ tif_e/fact2_e.htm. The WTO’s 153 member
countries agree to reduce tariffs and other trade barriers, and must grant
one another non-discriminatory treatment, including “most favored
nation” status. Id.
WT O members have also agreed to support the goals of co mpetition
law, and several agreements specifically req uire antimonopoly
safeguards. The General Agreement o n Trade in Services includes
safeguards to protect market access and prevent a supplier from abusing
its monopoly position. General Agreement o n Trade in Services, arts.
VIII and XVI, Apr. 15, 1994, Marrakesh Agreement Establishing the
World Trade Organization, Annex 1B, 1869 U.N.T.S. 183. The WTO has
also played some role in d eveloping a harmonized international
competition policy, including through the creation of the Working Group
on the Interac tion between Trade and Co mpetition Policy, see, e.g.,
WTO, Documents of the Working Group on the Interactio n between
Trade and Competition P olicy (WGTCP), available at, but so
far that effort has not borne significant fruit. See WTO, Doha Work
ProgrammeDecision Adopted by the General Cou ncil on 1 August
2004, WT/L/579 (Aug. 2, 2004), at 3, available a t
(finding that competition po licy “will not form part of the Work
Programme set out in that Declaration and therefore no work towards
negotiations on any of these issues will take place”).
. For example, in 2000 the United States s uccessfully filed a complaint
against Mexico at the WTO requesting that the WTO force Mexico to
require Telmex, a Mexican telecommunications firm, to provide U.S.

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