The United States/Canadian Antitrust Relationship in the Context of a Free Trade Zone
![handle is hein.journals/canusa12 and id is 39 raw text is: The United States/Canadian Antitrust Relationship in the
Context of a Free Trade Zone
by Joel Davidow*
In 1889, Canada enacted the first antitrust law in the modem world.' In
1890, the United States followed with enactment of the Sherman Act.2
Both laws reflected prairie populist concern with the monopoly power
of railroads and graineries. Despite common origins in terms of time and
motivation, the two antitrust laws developed in quite different ways. In
general, the U.S. antitrust system emerged as broader, tougher, more ex-
traterritorial and more frequently enforced privately than the antitrust
system of Canada. Nor did common origins and purposes ensure that
antitrust enforcement across the U.S.-Canadian border would be easily
accepted. Eventually, U.S.-Canadian agreements for antitrust coopera-
tion were developed and refined, but disputes about extraterritorial U.S.
enforcement have been heated and recurrent over the last four decades,
and have resulted in the passage of Canadian blocking legislation which
is the complete antithesis of cooperation.3
At present, the United States and Canada are embarked upon a seri-
ous effort to negotiate a free trade zone between themselves. The issue
has been raised whether such a trade zone should not only involve elimi-
nation of tariffs but also coordination and harmonization of rules gov-
erning competition. Such rules are contained both in international trade
laws, such as those dealing with dumping and subsidized competition,
and in antitrust laws. There are international agreements, namely the
GATT codes of conduct on dumping and subsidies, which commit the
* Partner, Dickstein, Shapiro & Morin, Washington, D.C., Lecturer on International Trade
and Antitrust Law at Columbia University School of Law. Formerly Chief, Foreign Commerce
Section and Director, Policy Planning, Antitrust Division, U.S. Department of Justice; U.S. Dele-
gate to U.N. conferences on restrictive business practices and on transfers of technology.
I An Act for the Prevention and Suppression of Combinations Formed in Restraint of Trade,
1889, 52 Vict., ch. 41 (Can.). This enactment was incorporated into the Criminal Code in 1892,
where the provisions remained until their consolidation in 1960 in the Combines Investigation Act.
An Act to amend the Combines Investigation Act and the Criminal Code, R.S.C. ch. 23 (1960)
[hereinafter cited as the Combines Investigation Act]. See generally Cambell, Canadian Combines
Law: 4 Perspective on the Current Combines Investigation Act and Recent Case Law, 5 N.C.J. oF
INT'L L. & Comm. R.E. 57-60 (1980).
2 The Sherman Act was the Act of July 2, 1890, ch. 617, 26 Stat. 209, 15 U.S.C.A. §§ 1-7
(1982). See I THE LEGISLATIVE HISTORY OF THE FEDERAL ANTITRUST LAWS AND RELATED
STATUTES 9-16 (E. Kitner ed. 1978) for the historical background of the passage of the Act.
3 See infra notes 9, 10, 24, 31, 40 and accompanying text.](ViewImageLocal?handle=hein.journals/canusa12&div=9&collection=journals&method=preview&ext=.png&size=3)
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The United States/Canadian Antitrust Relationship in the Context of a Free Trade Zone
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