A Retrospective on Twenty-Five Years of the Foreign Trade Antitrust Improvements Act

Max Huffman, May 17, 2007

Now twenty-five years after the Foreign Trade Antitrust Improvements Act (FTAIA) was enacted as part of the Export Trading Company Act of 1982, the once-ignored statute has come fully into the fore. The FTAIA is inelegantly phrased; its opaque language has resulted in further confusion in an area of the law that was already confused and unsettled. The FTAIA is nonetheless massively important. Commentators and judges uniformly have noted the explosion in cross-border implications of U.S. antitrust enforcement. Since the mid-1990s, when the FTAIA was resurrected by foreign plaintiffs seeking the protection of U.S. antitrust laws and plaintiff-friendly procedures, numerous suits seeking billions of dollars in damages for harm suffered world-wide have been filed and consolidated into multi-district litigation proceedings. Litigation has occurred in federal courts at all levels, with the Supreme Court finally addressing the FTAIA directly in 2004 in F. Hoffman-LaRoche Ltd. v. Empagran S.A. And recently, the Antitrust Modernization Commission has considered the statute, declining to recommend it be amended, but noting the need for further clarity.

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