Anticompetitive Trade Remedies: How Antidumping Measures Obstruct Market Competition

Abstract

Through trade policies such as antidumping remedies, the United States government often protects domestic producers at the expense of market competition. Yet a judicially created antitrust immunity, the Noerr-Pennington doctrine, obstructs the Federal Trade Commission’s antitrust investigations of these trade remedies. This Article argues that judicial and administrative interventions are needed to restore antitrust oversight when implementing trade remedies. This Article does not propose a repealing of the current antidumping statue, an act that would be politically infeasible in the current protectionist atmosphere of Congress. Instead, it takes a more modest yet realistic stance: antidumping remedies must be sanitized by bringing certain abusive behavior in antidumping proceedings – such as deliberate misrepresentations of facts and data – under antitrust rules. In order to prevent domestic producers from abusing antidumping remedies, courts should interpret the sham exception broadly enough to effectively foreclose non-price predation. At the same time, the Federal Trade Commission, under its vested antitrust authority, should strengthen its surveillance and enforcement activities to guard against the abuse of trade remedies. In the long-term, these targeted judicial and administrative interventions will lead the public and legislators alike to rethink the antidumping statute itself.

Keywords: antitrust, trade remedies, Federal Trade Commission, antidumping