The Role of Transnational Legal Process in Enforcing WTO Law and Competition Policy

This Article creates a paradigm for future studies of the role of Transnational Legal Process in the field of the interface between trade and competition policy to enhance a legal-based trade relationship between countries. It suggests that essential synergies that exist between trade and competition. In examining cartel issues both under WTO treaty obligations and under antitrust laws, Transnational Legal Process will largely prove a positive role in constraining the opportunities for States to play one system (trade) against the other (competition). I explore several recent U.S. antitrust litigations involving Chinese export cartels. I also examine the relationship between trade associations and the government under the hybrid nature of China’s regulatory environment. I argue that the involved U.S. courts and the executive branch’s stance in the above litigations perfectly illustrates a pervasive Transnational Legal Process. The courts and the executive branch as transnational actors stimulate each other to avert gaming by the litigants due to ambiguous factual evidence in cartel cases. In this context, the U.S. not only represents all antitrust nations’ interests when it is anti-cartel. The transnational actors generated interactions that led to WTO law and competition policy interpretations that become internalized, thereby binding under domestic law