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Publication Date

5-1-2016

Abstract

This note argues that the United States courts need to apply a more consistent interpretation of the meaning of "direct" within the context of the Foreign Trade Antitrust Improvements Act (FTAIA). The FTAIA serves to apply U.S. antitrust law, specifically the Sherman Act, to trade or commerce with foreign nations. One scenario in which this law may be applied is when trade or commerce with a foreign nation has a "direct, substantial, and reasonably foreseeable" effect on domestic commerce. However, courts purport to apply different standards to determine whether an effect is direct, leading to confusion and inconsistency. Contributing to this is an apparent lack of substantive difference between the two leading "tests" of directness. In order to provide for consistent application of the FTAIA, and thus facilitate U.S. business interests in an increasingly globalized economy, courts need to adopt a consistent, practical approach to directness in the context of the FTAIA.

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