Commercial Treaties and Foreign Companies: The Mutually Reinforcing Principles of Remedial Antitrust and National Treatment

This Note argues that greater appreciation for the nature and importance of national treatment obligations will compel tribunals fashioning antitrust relief to provide more suitably for foreign firms, and thus avoid straining international trade relations. Moreover, because antitrust relief and national treatment objectives are mutually reinforcing, greater recognition of national treatment requirements should improve remedial orders from the standpoint of antitrust economics. Meeting national treatment requirements should place little added burden on the antitrust tribunal; it must merely extend impartial economic analysis to all market suppliers, not just domestic firms.

This Note explores methods to ensure that antitrust relief orders satisfy both national treatment and remedial antitrust principles. Part I considers the history, purpose, and effects of national treatment obligations, focusing on their impact on foreign investment. Part II follows by inquiring into the essentials of effective antitrust relief. It emphasizes the need for remedial orders to be tailored on two levels; the first, corresponding to the market’s overall characteristics, and the second, to the differences between individual market suppliers. Part III devises an analytical framework reconciling national treatment and remedial antitrust principles, and accordingly analyzes decisions attempting to accommodate these principles. The Note concludes by urging the adoption of requirements for the explicit use of economic reasoning to support discriminatory orders.