Updating the Antitrust Guide on International Operations

Since the enactment of the antitrust laws, policy makers, scholars, and business executives have debated whether the United States antitrust laws chill export and investment abroad. The terms of the debate have not changed significantly for more than a decade. The law and the government\u27s enforcement policies, however, have changed. Since the United States Department of Justice issued its Guide on Antitrust and International Operations (Guide) on January 26, 1977, law and enforcement policy have become more hospitable to private business decisions that would increase exports and foreign investment. This Article attempts to update the Guide. It is confined largely to substantive analysis of transactions which may have the statutorily proscribed effect on competition. It does not address the defenses based upon foreign government action or involvement, or the limits of United States personal or subject matter jurisdiction over firms located abroad or acts committed abroad. Since the issuance of the Guide in 1977, noteworthy change in the direction of a more favorable attitude toward private business decisions, and particularly international transactions, has been reflected by court decisions, government enforcement policies, and legislative action. This analysis begins with an outline of some of the important changes effected by law and enforcement policy, and then reviews the 1977 Guide, including relevant case illustrations, to demonstrate when and how current law and policy may indicate answers different from those given in the Guide