Is Interface of Antidumping and Antitrust Laws Possible?
Ehrenhaft, Peter D., The George Washington International Law Review
The costumed protesters on the streets of Seattle in December 1999 claimed success in halting the Ministerial Conference of the World Trade Organization. In fact, the conference failed for reasons wholly unrelated to the rumpus in the streets. The principal problem was the lack of an agreed agenda among the key negotiating parties. No agreement had been reached-nor has agreement been reached as of mid-2002-on two contentious points: First, whether a WTO Competition Code should be negotiated to express commonly agreed principles of fair-and unfair-business practices and, second, whether the WTO Antidumping Code, negotiated in 1994, should be revisited primarily to weaken enforcement against that particular business practice. The United States has opposed both ideas. The European Union supports negotiation of a Competition Code, while developing countries focus on revising the Antidumping Code. In the Doha Ministerial Meeting in November 2001, the United States did agree that at least it would permit the Working Party on Competition to continue its efforts and entertain comment on its antidumping law.1
Well prior to the Seattle Conference, governments and commentators had been exploring whether competition and antidumping policies could be more closely accommodated or coordinated. Both sets of rules seem to address the right of parties to engage in fair competition in an open market. In 1997, the American Bar Association's Sections of International Law and Practice and Anti
trust Law created a Joint Task Force of practitioners of trade law and antitrust law to attempt to develop common ground embracing both disciplines. I participated in the preparation of a paper addressing the "Interface of Antidumping and Antitrust Laws." It was not adopted by the Task Force, but with the thought that others might be interested in the issue, it forms the basis of this Essay. This Essay, however, is exclusively my responsibility. The two other major contributors to the initial paper submitted to the Task Force, Harvey Applebaum and Timothy Reif, contributed substantial ideas to our original submission. But I alone, bear responsibility for the views here expressed. At the same time, the careful analyses and thoughtful contributions of Messrs. Applebaum and Reif are gratefully acknowledged, as is the additional research and contribution of Kristen Smith, Joseph Whitlock and Daniel Fisher-- Owens, associated with Miller & Chevalier, and David Foster and Joel Davidow, fellow members of that firm.
This Essay considers the relationship of U.S. antidumping law2 with antitrust law3 as they are presently applied in the United States, with specific focus on the issues of whether it may be appropriate, first to modify antidumping law enforcement in certain circumstances through the application of "competition policy" norms and, second, to improve antitrust compliance through the use of certain procedures successfully used in antidumping administration.
The first issue has been posed in recent years in the emergence of regional common markets, customs unions, free trade areas, and "economies in transition." In countries with liberalized trading relationships, such as the European Union, enforcement of antidumping law with respect to trade within such regions is
regarded as inconsistent with the free trade premise of the arrangement.4 Antidumping enforcement is unnecessary where trade, labor, and investment flows are free within the region. Moreover, the "unfairness" and economic distortion against which the antidumping law is directed can, within such a region, be treated under traditional notions of antitrust law.5 With respect to the "transition economies," a relaxed application of the law may be necessary to enable such economies to take a proper role in the present global trading system. …