The Foreign Trade Antitrust Improvements Act: Do We Really Want to Return to American Banana?

Abstract

The extra-territorial reach of the antitrust laws is subject to multiple constraints, including the Commerce Clause of the constitution, the text of the antitrust statutes, and a variety of policy considerations. At the beginning of the twentieth century, in the American Banana case, the Supreme Court severely limited the application of the antitrust laws to anti-competitive behavior beyond our shores. The next eighty years saw an expansion of their extra-territorial reach, by including within their coverage a range of foreign conduct which had domestic effects. However, confusion among the lower courts as to the extent of this coverage, as well as a concern about the application of American antitrust laws against exporters whose conduct principally affected competition in foreign markets, led to the passage in 1982 of the Foreign Trade Antitrust Improvements Act. FTAIA expressly excludes certain conduct from the antitrust laws, while maintaining the principle that they should continue to apply to import commerce and to foreign behavior having a domestic effect. In the intervening three decades, however, courts have given improperly broad readings to the FTAIA’s exclusionary provisions. The result has been to deny to American competitors and American consumers the appropriate level of protection afforded them by the antitrust laws. This Article reviews the history leading up to the passage of FTAIA and discusses its provisions. It then examines and critiques the judicial treatment FTAIA has received. It concludes that many of these decisions are wrong – both as a matter of statutory interpretation and as a matter of policy – and urges either a judicial redirection or legislative correction.

Keywords: antitrust, foreign trade, international law, antitrust jurisdiction

JEL Classification: K21, K33