Penn State International Law Review


The antitrust laws of the United States have taken on an increasingly significant role with regard to acquisitions and investments generally, and must be taken into consideration by a foreign investor interested in making foreign investments in the United States. Where the requisite contracts exist to establish subject matter jurisdiction, the antitrust laws of the United States will be applied to all proscribed acts regardless of the nationality of the participants. It is clear that most foreign investment in the United States constitutes the requisite minimum contacts required for jurisdiction.

There are two primary antitrust areas which should be addressed by those counseling foreign investors interested in investing in the United States. First, attention should be given to antitrust matters relating to the initial acquisition of assets in the United States. Second, foreign investors should receive counsel regarding general prohibitions contained in the United States antitrust laws, particularly where United States law applied more stringent or different requirements than typical antitrust laws in foreign countries.

Two statutes are of primary concern in this analysis. The Sherman Act prohibits any contract, combination or conspiracy that creates an unreasonable "restraint on trade," and restricts monopolies or attempts to monopolize. These provisions apply to all "trades or commerce amoung the several states or with foreign nations." The Clayton Act proscribes price discrimination, ties-ins and exclusive dealings, and, of most significance for this analysis, bars the acquisition of stock or assets where the effect is to substantially lessen competition in a line of commerce.