When Antitrust Met WTO: Why U.S. Courts Should Consider U.S.-China Disputes in Deciding Antitrust Cases Involving Chinese Exports

 
By: Dingding Tina Wang

 

Antitrust law is domestic, while WTO law is international. Domestic antitrust law generally targets private conduct, while WTO law targets state conduct. What happens when private and state conduct mix? The peculiar, hybrid nature of China’s “socialist market” economic system and export regulatory regime has opened the country up to legal challenges on two fronts: U.S. private antitrust suits against Chinese exporters for private price-fixing and U.S. WTO suits against China for government-imposed export price restraints. The legal interests of U.S. industry litigants and the U.S. government have consequently starkly
diverged, and U.S. private parties and the U.S. Trade Representative are making contradictory claims about China’s export practices in parallel forums, U.S. courts and the WTO dispute resolution system. This Note argues that U.S. courts should be careful that their decisions in private antitrust actions involving Chinese exports do not undermine the U.S. executive branch’s conduct of WTO litigation with China, due to constitutional separation of powers principles. This Note also recommends that U.S. courts examine the U.S.-China WTO dispute record to give nuance to their findings in domestic antitrust cases by harnessing the informative and persuasive potential of U.S. arguments before the WTO and of WTO rulings.

 

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