The Competing Approaches to the Foreign Trade Antitrust Improvements Act: A Fundamental Disagreement

This Comment explores the history and reasoning behind a recent reexamination of the FTAIA in light of Arbaugh v. Y & H Corp., examines both the propriety and the implications of the competing interpretations of the FTAIA, and argues that the resolution of the competing approaches is beyond the purview of the lower courts. Part II provides an overview of the extraterritorial reach of the Sherman Act leading up to the FTAIA, as well as the judicial treatment of the FTAIA prior to Arbaugh. Part III discusses the impact of Arbaugh and subsequent Supreme Court cases applying the “clearly states” test on the jurisdictional characterization of the FTAIA, ultimately leading to a circuit split. Part IV applies the “clearly states” test to the FTAIA and looks at the factors that weigh in favor of and against a jurisdictional interpretation of the FTAIA. Part V explores the consequences of the competing approaches and contends that the lower courts should not decide the jurisdiction issue because the Supreme Court and Congress possibly differ in their approaches to the extraterritorial reach of American law—rather, the Supreme Court should address the issue and Congress, either by silence or legislative reaction, should settle the issue. Part VI concludes