Antitrust Lawyer Blog Commentary on Current Developments

Articles Posted in International Highlights

The Center for International Private Enterprise recently hosted an event on Digitalization in Central America: Strategies for Regional Transformation and Recovery. On June 10, 2021, the group, which focuses on supporting private enterprise and market-based democratic reform across the world, brought together four leaders from the George W. Bush Institute’s Central American Prosperity Project (CAPP) to discuss possibilities for digital growth in the Northern Triangle countries of Guatemala, Honduras, and El Salvador.

As part of CAPP’s Future of Work initiative, the discussion was moderated by Matthew Rooney, Managing Director of the Bush Institute-SMU Economic Growth Initiative, and featured Marcos Andrés Antil, CEO and Founder of XumaK; Mey Hung, Walmart Corporate Affairs Leader for Honduras and Guatemala; and Kathia Yacaman, Executive Vice President at Grupo Karim.

The discussion centered on ways Northern Triangle and Central American countries can promote investment and encourage companies and workers to get involved in the region. Transparency, licensing regulations, and workforce training were identified by the panelists as some of the more pressing issues and opportunities for growth for governments and industry leaders.

On March 9, 2020, a new U.S. antidumping petition was filed against common alloy aluminum sheet (“CAAS”) imports from 18 countries.  The Petitioners in the case are Aleris Rolled Products, Inc., Arconic, Inc., Constellium Rolled Products Ravenswood, LLC, JW Aluminum Company, Novelis Corporation, and Texarkana Aluminum, Inc.

The countries named in the Petition are Bahrain, Brazil, Croatia, Egypt, Germany, Greece, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, South Korea, Spain, Taiwan, and Turkey.  In the petition, it alleges that these countries are “dumping,” meaning that they are exporting the product at issue, CAAS, at a lower market price than it would charge normally in its own market in its home country.

The alleged anti-dumping margins for each country are as follows:

On February 4, 2019, the American Institute of Steel Construction, LLC filed antidumping (“AD”) and countervailing (“CVD”) petitions with the U.S. Department of Commerce (“DOC”) and the U.S. International Trade Commission (“ITC”).

Under U.S. law, a domestic industry can petition the government to initiate an AD investigation into the pricing of an imported product to determine whether it is sold in the United States at less than fair value (i.e., “dumped”).  A domestic industry can also petition the initiation of a CVD investigation of alleged subsidization of foreign producers by their government.  Additional duties can be imposed if DOC determines that imported goods are dumped and/or subsidized, and if the ITC also determines that the domestic industry is materially injured or threatened with such injury by reason of subject imports.

If the ITC and DOC make preliminary affirmative determinations, U.S. importers will be required to post cash deposits in the amount of the AD and/or CVD duty rates for all entries on or after the date DOC’s preliminary determination is published in the Federal Register.  The preliminary AD/CVD rates can change in the final DOC determination, especially if foreign producers and their governments participate fully in the investigations.

On July 6, 2018, the Office of the U.S. Trade Representative (USTR) announced procedures for requesting product exclusions from the  25% tariff imposed on certain Chinese goods under Section 301.

The announcement of exclusion procedures coincided with the imposition of the first phase of tariffs on July 6, 2018 covering 818 tariff subheadings listed in USTR’s Federal Register notice on June 20. The tariffs were imposed following USTR’s investigation of the Chinese government related to technology transfer, intellectual property and innovation. The goods identified relate to  industrial sectors that are part of China’s Made in China 2025 initiative.

Interested persons have until October 9, 2018 to request a product exclusion. Requests will be open for response within 14 days after the request is posted in USTR’s docket number USTR-2018-0025 at Replies to responses will be due 7 days after the close of the 14-day response period.

On June 17, 2014, the Ministry of Commerce (“MOFCOM”) blocked the proposed P3 Network shipping alliance between Denmark’s AP Maller-Maersk (“Maersk”), Switzerland’s Mediterranean Shipping Company (“MSC”), and France’s CMA CGM (“CMA CGM”).

This is MOFCOM’s second block since it started conducting merger reviews approximately six years ago.  This is the first time that MOFCOM blocked a transaction between foreign firms.


On September 5, 2014, following a public comment period, the Federal Trade Commission (“FTC”) has approved a final order settling charges that Actavis plc (“Actavis”)’s acquisition of Forest Laboratories (“Forest”), Inc. would likely be anticompetitive. Under the proposed order, the two companies agreed to divest four drugs in order to preserve competition in those markets.

On July 1, 2014, Actavis announced that it has completed the acquisition of Forest in a cash and equity transaction currently valued at approximately $28 billion. The combination creates one of the world’s fastest-growing specialty pharmaceutical companies, with annual revenues of more than $15 billion anticipated for 2015.

On a pro forma combined basis for full year 2014, the combined company will have an approximately $2 billion CNS franchise; Gastroenterology (GI) and Women’s Health franchises valued at approximately $1 billion each; a Cardiovascular franchise that generates approximately $500 million; and Urology and Dermatology/Established Brand franchises approaching $500 million a year in sales each.

On July 11, 2014, Germany’s association of booksellers announced that European Union (“EU”) officials contacted them regarding its dispute with The booksellers have already asked German antitrust authorities to investigate Amazon, alleging that the online retailer is delaying the shipment of one of its member, Bonnier AG’s books over a dispute on the price of the publisher’s e-books.

Amazon, in response, stated that Bonnier AG wanted Amazon to charge prices for its e-books that would have been higher than its hard-copy books. According to Amazon, their regular course of action is to charge lower prices for e-books compared to the hard copies. Amazon has been caught in similar disputes, including one with French publisher Hachette Book Group. Amazon is thought to be attempting to boost its margins in its e-books division by negotiating lower prices from publishers.

Similar cases may give prediction to Amazon’s course of action in the face of antitrust investigation. In 2012, Apple Inc. and four publishers changed the pricing model for e-books in Europe in the face of scrutiny from EU antitrust authorities. They were suspected to have conspired to keep Amazon from charging less for e-books.

On June 12, 2014, the European General Court handed down a ruling that rejected Intel’s appeal to have its $1.44 billion fine overturned.

In 2009, the European Commission (“EC”) concluded that Intel engaged in anticompetitive practices.  According to the EC, Intel’s alleged anticompetitive behavior included giving rebates to PC makers Dell, Hewlett-Packard, NEC and Lenovo to discourage them from using computer chips made by its rival Advanced Micro Devices. Intel was also alleged to have paid German retail chain Media Saturn Holdings to only stock computers that use Intel chips.

While the $1.44 billion fine is a record fine by the EC, European competition officials say it is a mild amount given that the EC could have exacted a fine as high as 10% of Intel’s turnover in 2008.  The fine only represents 4.15% of Intel’s 2008 turnover.

On May 29, 2014, Russia’s Federal Antimonopoly Service (“FAS”), the country’s top antitrust regulator, has lowered the fine levied on Severnoi Company for its part in a cartel operating in the Norwegian salmon supply sector, according to Russian newspaper Kommersant.

The fine was lowered after SK Retail, part of the Severnoi company group, told the FAS that it acquired fish that had already been imported from Norway, and therefore did not benefit from neither the existence of the cartel nor limited competition.

The fine was reportedly lowered from 43 roubles (approximately $1.3 million) to 100,000 roubles (approximately $3,000). The FAS reportedly initiated the antitrust case in July 2013, while the fine was initially levied in December 2013.

On May 27, 2014, Hitoshi Hirano, an executive of car heater panel manufacturer Tokai Rika, was indicted to fix the price of auto parts with other Japanese parts manufacturers.

In addition, Mr. Hirano was charged with persuading company employees to destroy records that would reveal the conspiracy. According to the indictment, Mr. Hirano learned of a Department of Justice (“DOJ”) raid in February 2012, and the same month he encouraged his employees to destroy potentially incriminating documents.

Executives and company employees must understand that the destruction of documents during and prior to a government investigation will only cause more legal problems.  Because of technology advancements, the government will learn of the destruction because hitting the delete button is not the end of the document.  The document still exists somewhere.  The proliferation of electronic data storage means that an attempt to destroy documents is much more complicated than it used to be.  A potential evidence destroyer must canvass emails, hard-drives, cloud storage spaces as well as the traditional paper copies. Those who are not thorough enough usually make a bad situation worse, as is the case of Mr. Hirano and Tokai Rikai.  

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