Marceau, Gabrielle Zoe; (1993) Antidumping and antitrust issues in free trade areas: Under what legal conditions should an extended applicaton of the provisions against abuse of a dominant position replace antidumping measures within the North American Free Trade area? (or towards an international code on competition?). Doctoral thesis (Ph.D), UCL (University College London).

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Abstract

In this thesis the legitimacy of anti-dumping measures in free-trade areas is contested. Economists argue that, generally, antidumping actions restrict and distort competition. In political terms, antidumping measures are biased in favour of a privileged interest-group: the producers. Legally, they infringe the obligation of National Treatment contained in the GATT and NAFTA. Within regional groupings they contradict the guidelines of Article XXIV(8)(b) of the GATT. Anti-dumping laws should be phased out in favour of an extraterritorial application of national competition laws dealing with similar issues domestically. The traditional alternative for antidumping actions has always been the application of domestic legislation against predation and price discrimination. It is argued that this solution is inappropriate or at least incomplete. Many abuses, other than predation, can be exercised in transnational markets: transnational vertical restraints, tying, refusal to deal, restrictions on patents, trade marks and copyright which all may facilitate dumping (i.e. difference in price between two national markets). It is argued that anti-dumping actions could be phased out within NAFTA if a comprehensive legislation on competition were to be enforceable against any transnational restrictive business practice. NAFTA can also constitute a laboratory for needed discussion on an international code of conduct of firms and governments. In an international forum, what constitute market power and abusive conduct differ from what would otherwise be acceptable in the domestic market. Security and other national policies ought to be weighted against efficiency considerations. In that context, the European framework of analysis, where variables additional to efficiency are balanced in competition assessment, provides a good model for such an international code of competition. Enforcement of the National Treatment obligation of the GATT and Public Interest clauses in antidumping laws are the best way to reconcile trade and competition considerations.

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