James B Townsend - Extraterritorial Antitrust: The Sherman Antitrust ACT and U.S. Business Abroad

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Extraterritorial Antitrust

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Westview Special Studies in International Economics and Business

Extraterritorial Antitrust: The Sherman Antitrust Act and U.S. Business Abroad

James B. Townsend

For severity years U.S. business has claimed that the Sherman Act inhibits its foreign operations and makes it less able to compete in world markets. This book, the first unbiased investigation of the effects of extraterritorial antitrust on U.S. business abroad, examines the influence of the Sherman Antitrust Act on the market-entry strategy of U.S. multinational corporations (USMNCs). It considers the legal foundations of antitrust, applies the rules of extraterritorial antitrust to the general ways in which a USMNC may do business abroad (export, ownership, or license), compares theoretical considerations of the law to actual USMNC experiences, and assesses the interaction of public interest and the law.

Dr. Townsend concludes that the extraterritorial application of the Sherman Act nullifies the market-entry strategy of USMNCs engaged in manufacturing. He finds that, although there is insufficient justification at present to reexamine present antitrust policy, there is evidence that the extraterritorial application of the act adversely affects U.S. business abroad.

James B. Townsend is assistant professor of business administration at Kansas State University.

Extraterritorial Antitrust: The Sherman Antitrust Act and U.S. Business Abroad

James B. Townsend

First published 1980 by Westview Press

Published 2019 by Routledge
52 Vanderbilt Avenue, New York, NY 10017
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright 1980 by Taylor & Francis

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

Library of Congress Cataloging in Publication Data
Townsend, James B 1923
Extraterritorial antitrust.
(Westview special studies in international economics
and business)
Bibliography: p.
Includes indexes.
1. Antitrust law--United States. 2. Corporations,
American. I. Title.
KF1652.T68 343'.73'072 79-18802

ISBN 13: 978-0-367-02127-6(hbk)

Contents

1. iii

Guide

Several hundred lawyers at a meeting of the Antitrust Section of the American Bar Association listened to a nationally prominent attorney, who subsequently became an Associate Justice of the Supreme Court, contend that it was fruitless to worry about antitrust's intellectual problem. Antitrust, the attorney said, is in the good old tradition of the sheriff of a frontier town: he did not sift evidence, distinguish between suspects, and solve crimes, but merely walked the main street and every so often pistol-whipped a few people.

--Robert Bork, The Antitrust Paradox

These words caught the eye of J. Fred Weston, who said that antitrust could become the economic battleground of the next decade since antitrust takes and has taken some ominous turns.mental cast that had served the United States poorly in its extraterritorial manifestations.

In early 1978 the Carter administration put together a task force that was to help combat an appalling trade deficit. I was heartened to read that my iceberg was to be brought out of the closet: "If Justice can make the case that our antitrust laws don't inhibit exports, OK. But it will be required to make it." the mountain gave forth the proverbial mouse and my iceberg resumed its original position.

The president disappointingly spoke only of the need to modify Department of Justice procedures. Certainly the patient, tired, long-suffering American people deserved to be better served. If the United States was to prevail in the international trade scramble, we ought to at least play the game with a full deck. With these thoughts in mind, I reviewed my earlier study and adjusted its content to reflect the glacierlike progress of the Sherman Antitrust Act since 1976. My earlier findings are still valid.

To Dr. David A. Peterson, the most exceptional of many fine men in the Department of Commerce, must go the credit for assuring me that my original study lay within the realm of possibility. And whatever technical competence is to be found therein can be attributed to the fine and tutored hand of Dr. Edwin Timbers. Two wonderful friends and mentors, Dr. Rod Eldridge and Dr. G. Peter Lauter, took a considerate interest in the overall content. The judgments, conclusions, and errors are mine and mine alone.

The word processing competence of Peggy French, Dorothy Couture, and Karen Lynch made readable copy of illegible draft. The lengthy reconsideration of the original manuscript called forth from Miriam Gilbert the same charity and empathy that epitomized Ruth in the Old Testament. The accomplishment of this study, however, reflects above all else the love, patience, and understanding of my devoted wife, Betty Carol.

J.B.T.
Manhattan, Kansas

Notes

J. Fred Weston, "Antitrust: The Coming Battlefield," Wall Street Journal , 14 April 1978, p. 16.

A study from which statistical inferences could be drawn was not intended. Instead, I used the smaller judgmental sample of a pilot study. To have expanded the study, to say fifty companies, would have required far greater resources than were at my disposal.

Mark Green, Antitrust Policy and the Antitrust Division , 7 October 1976, memorandum prepared for the Carter-Mondale Transition Planning Group, quoted in Allen C. Holmes, "Have the Antitrust Laws Promised Too Much and Accomplished Too Little?" Antitrust Law Journal 46:3 (Summer 1977): 771. The memo seems to have been written prior to the presidential election and addressed afterwards.

Senator Edward M. Kennedy, "Report from the United States Senate," Antitrust Law Journal 47:2 (April 1978): 762.

The words are those of Stanley Marcus, deputy to Frank Weil, assistant commerce secretary for trade and industry, as reported in Business Week , 24 April 1978, p. 34.

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