The explosion of the United States trade deficit in the last decade or so has produced a bumper crop of self-appointed experts offering various cures for the competitive decline of key domestic industries. Among their less obvious diagnoses is that the United States government strangles domestic businesses through the antitrust laws, which forbid industrial cartels that might be better able to match the competitiveness of the Japanese. For good or ill, the Bush Administration has hewn a path fairly close to this corporatist orthodoxy, and Congress has also appeared willing to loosen the hold of antitrust laws on United States industry in some circumstances.
Congress has recently considered another proposal to ease United States antitrust laws in order to improve the international competitiveness of domestic industries. The proposed National Cooperative Production Amendments (Amendments) are designed to encourage United States businesses to engage in transnational joint ventures with foreign rivals to produce new products.
This Note evaluates the Amendments as presently formulated, in light of the historical leniency with which United States antitrust law has treated transnational joint ventures, and concludes that the proponents of the Amendments have not made their case. Proponents seek to graft the Amendments onto an earlier piece of legislation, the National Cooperative Research Act (NCRA), but the supporting literature analogizing from the NCRA is inapposite. Transnational production joint ventures pose risks to the United States domestic market that research joint ventures do not. While proponents of the Amendments have largely dismissed these risks as inconsequential, this Note seeks to take such risks seriously.
Finally, this Note considers several possible alternatives to the Amendments. The best option would remake the Amendments in the image of Article 85 of the European Community's Treaty of Rome. Such an approach would, like the present draft of the Amendments, foster production joint ventures beneficial to consumers. This proposal also improves upon the present draft of the Amendments in two respects. First, it provides more of the business certainty claimed to justify the Amendments, and second, it more effectively protects consumers from ventures harmful to them.
Timothy K. Armstrong, Transnational Production Joint Ventures and United States Antitrust Law: Evaluating the Proposed National Cooperative Production Amendments, 28 Tex. Int'l L. J. 119 (1993)