Article by: Morgan Franz

41 PEPP. L. REV. 861 (2014)

Between 2011 and 2012, the Third Circuit decided an antitrust case involving a company owned by the Chinese government; the Seventh Circuit decided a case involving companies based in Canada, Russia, and Belarus; and the Northern District of California decided a dispute involving companies from South Korea, Japan, and Taiwan. As federal courts in the United States are confronted with a rising number of antitrust lawsuits implicating foreign conduct and foreign interests, other countries are becoming increasingly concerned about United States interference with the regulation of foreign markets, particularly because of the potential for foreign citizens to bypass their own antitrust regulation systems in favor of the more generous treble-damages remedy available in American courts. In the midst of this concern, uncertainty has arisen among circuit and district courts as to whether the Foreign Trade Antitrust Improvements Act (FTAIA) limits the subject matter jurisdiction of United States courts over foreign anticompetitive conduct or instead establishes an additional element to a Sherman Act claim. This uncertainty has led to inconsistent foreign antitrust decisions both among the circuits and among district courts within the same circuit, further aggravating the confusion about the reach of United States antitrust law.

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