COMPORTAMIENTO DE LAS REMESAS ANTE ESCENARIOS DE CRISIS

Liability is examined in the context of the co-ordination of antidumping and antitrust measures. It would not be useful to be able to initiate a complaint about dumping if it would result in antitrust liability.

It is clear that, in any country, the initiation of a legitimate antidumping investigation does not cause liability for the plaintiff.^^^ In the USA, the Noerr- Pennington doctrine exempts US citizens from antitrust liability when they legally ask for governmental intervention and protection. Temple Lang and Marcos Mendes

A rticle 29 o f the Regulation: The com petent administrative authorities should consider the possibility o f making the countervailing duty less than the margin o f dumping or the subsidy allowed if in their opinion a lesser amount is sufficient to elim inate the injurious effects on domestic com petition.

Otherwise, it "would put the EEC industry in a catch 22", Bourgeois J.,"Antitrust and Trade Policy: A Peaceful Co-existence?" I, Int'l Bus.Lawver (February 1989), p.58.

argue that there is a European Noeer-Pennington doctrine^^. It seems a basic principle of law that the legal enforcement of rights provided for in a statute should not constitute at the same time an infraction to another statute. This is true for Canada, Mexico and most countries.

The antidumping actions are, however, exceptions to the general principle of the GATT in favour of free trade and non-discrimination. As an exception the antidumping process must be interpreted narrowly and the procedure must be fully respected.

The antidumping process must not involve any sharing of information between competitors. The information received in antidumping procedures may only be used "for the purpose for which it was requested"^^^ which excludes antitrust measures.^**® In the USA lawyers and persons involved in the administration of an antidumping file must be under "protective order"^^. In Europe, the same principles of confidentiality apply but lawyers do not have access to confidential information.^^^

The Advocate General Francis Jacobs and the European Court of justice, in the recent Spanish Bank^^^ concluded in favour of a restrictive use of the information

Tem ple Lang writes that "all exchange o f information between the E E C com panies which are necessary to make a complaint are lawful under EEC antitrust rules"in "Reconciling EEC antidumping and antitrust...", 1988 Annual proceeding Fordham Corporate Law Institute. 1989, chapter 7, p.43. Vandoren insists on the strict interpretation o f this principle in "The Interface between Antidum ping and Com petition Law and Policy in the European Community", Legal Issues Eur. Integration N o.2 (1986), p.4.

A rticle 8(1) o f the EEC Antidumping Regulation.

Anthony R. Byrne J. "Safeguarding Confidential Information in ITC Injury proceedings" L.& Policy Int'l Bus., vol. 17 (1985), p .l, and Ehrenhaft P. "A Practitioner’s response to the Anthony- Byrne Report" L. & policy in Int. Bus, vol. 17 (1985), p.71.

A PO is an administrative protective order which authorises lawyers involved in antidumping cases to have access to all confidential information with the obligation not to divulge any part o f it even to their own client. Article 84-88 o f SIM A provides for a similar protective order.

Kell C. "Antidumping-Redefinition o f Confidentiality and Right o f Judicial review" Oa.J.Int’1 & Comp.L. vol. 16, p. 179; Vermulst E. and Taylor J. "Disclosure o f Confidential Information in Antidum ping and Countervailing Duty Proceedings under the U nites States Law: A framework for the European Communities" Int’l Lawyer vol.21 (1987), p.43; Lasa H. "Confidential Information in Antidum ping proceedings before the United States Courts and the European Courts E.L Rev. v o l.ll (1986), p.331.

Direcccion General de Defensa de la Competencia et A ssociation Espanola de Banca Privada et autres Case C-67\91.

received during competition investigations. It was decided that information received by the Commission under article 2, 4 ,5 , 11 of Regulation 17 cannot be used by national authorities for the enforcement of national or EEC competition law.^^^

Antidumping investigations cannot be used to form cartels or oligopolies, or for restricting competition.^^^ Undertakings to raise prices in order to avoid antidumping duties can be concluded only under the umbrella of the antidumping regulation with the participation of the authorities of the importing country. Otherwise they constitute an illegal cartel infringing competition rules.-^^^ Informal settlements such as a withdrawal of a petition in exchange for commitments by foreign exporters or foreign governments raise antitrust problems.^^^

Staiger and Wolak have suggested that US antidumping actions can be used by domestic firms to promote collusion between domestic firms and foreign firms to their mutual advantage.^^'^ In Europe, Professor Messerlin has also demonstrated that EEC firms have been able to capture EEC antidumping procedure: firms colluding have paid the fines for cartelization imposed by the Competition Directorate, DG IV, but thereafter have been able to limit the penetration of imports in initiating antidumping investigation.^^^

The exchange o f confidential and other information between the parties is on e o f the arguments submitted by France in the challenge o f the G U S-C EC Agreem ent. For further discussion see chapter 2, section 2.4.2.5 o f the present thesis.

The "Sham litigation" doctrine o f the N oeer- Pennington prohibits the m isuse o f trade laws. See Applebaum H. "Antitrust Aspects o f Trade Law cases" Antitrust L.J. vol. 50, p.759; Waller S., "Abusing the Trade Laws: an Antitrust Perspective" L.& Policy Int'and Bus, v o l.17 (1985), p.515.

Earlier in Pioneer 1983 ECR 1825, at p. 1904, the Court had stated: restrictions imposed by public authorities cannot justify the implementation by private persons, o f concerted practices intended to restrict com petition. In the EEC, for example in Alum inium from Eastern Europe. producers argued that they had agreed on a price-fixing cartel in order to avoid an antidumping investigation (where, they argued, a similar or worst undertaking would be negotiated).

T he conclusion o f Voluntary Export Agreements under threats o f antidumping actions can also be condemned along the sam e argument. Koulen M. "Potential A nti trust Liability o f Exporters Participating in Various Forms o f Export Restraint Arrangements", T he new G A TT Round o f Multilateral N egotiations. Petersmann E. and H ilf M. (Ed.), 1991, p.437.

Referred to by Baldwin R. and Steagall J. in "An Analysis o f Factors Influencing ITC decisions in Antidumping, Countervailing Duty and Safeguard Measures" Paper presented at Carleton University for the Conference on Trade Policy, Ottawa, 16 May 1991.

Temple Lang wrote^^® that the initiation of an antidumping investigation by a firm in a dominant position may constitute an abuse under 86. Potential liability does not establish rights of private enforcement. In Europe, where the Court has denied the BEUC, the right to access non-confidential information in an antidumping procedure, initiating a case for antitrust liability becomes very difficult since there is no access to the evidence. Moreover, it is doubtful that the one Direction of the Commission, (DGIV for instance), would initiate proceeding against trade measures negotiated by another Direction, (DGI).

In the USA, private actions by consumer groups are possible in domestic courts for antitrust violations. In Kissinger^^^ a consumer union filed suit concerning a Voluntary Export Restraint on steel from Japan to the USA. The standing of the consumer group to challenge the trade agreement was not contested.^^^ Parallels can be drawn for antidumping actions, but with the important limitation that the GATT expressly authorises antidumping laws, which is not the case Voluntary Export Restraints.

It can be argued that the best safeguard against abusive antidumping procedures is strong enforcement of private antitrust rights, both in the importing and in the exporting countries. In chapter seven and eight of the present thesis, a system of private enforcement for NAFTA is suggested, and in chapter nine, proposals for

"Reconciling European Community Antitrust and Antidumping..." in 1988 Annual Proceedings Fordham Corporate Law Institute. 1989, chapter 7, p.48.

^ 506 F.2d 136.

On 18/2/1981 the Attorney General o f the U S A wrote about antitrust liability o f import restraints :

.... The antitrust risks that would be raised by concerted, voluntary, private behaviour by foreign producers have led us to conclude that in any negotiations between our government and a foreign government in which our government seeks a reduction in imports from that country. U nited States negotiators should emphasize the need for the foreign government to provide protection to its com panies from actions under United States antitrust laws, by ordering, directing, or com pelling any agreement restraining exports to the U nited States in terms as specific as possible.

....where such negotiations are implemented through voluntary private behaviour serious antitrust risks arise. Copy o f the letter reproduced in Grey R. U nited States Policy Legislation A Canadian view. 1982, p.30

expanded private rights in the domestic judicial system of trade partners are submitted.