Governmental Intervention in Enterprise Activities and the Enterprise’s Liability Under the Fair Trade Act

The thesis seeks to provide an overview of how governmental intervention in enterprise activities affects the enterprise’s liability under the Fair Trade Act. Based on the activeness and timing of governmental intervention as well as whether such intervention is from foreign or domestic government, the thesis develops its discussion under three different scenarios. In the first part, the government, who in the end adopts anticompetitive measures, is “passively” motivated by enterprise’s petition. Although anticompetitive result is caused by enterprise’s action, such petitioning is an act protected under right to petition. For such conflict of rights, referring Noerr-Pennington doctrine in the U.S. jurisdiction, the thesis proposes that such petitioning act, although anticompetitive, should be immunized from the Fair Trade Act from the perspective of the operation of democracy. In the second part, the government actively encourages, and even demands the enterprise to take anticompetitive actions. The thesis focuses on the administrative guidance issued by the government to enterprises. Under such scenario, although the enterprise follows the government’s instruction, its action is typically what the Fair Trade aims at. The thesis discusses about whether the enterprise’s action can be an “exception” under the Fair Trade Act from the perspectives of the principle of rule of law and the activeness of enterprise. In the third part, the aforementioned two scenarios are proposed in the context of international trade. With the impact of foreign sovereign, the enterprise’s liability and the possible defenses depends on how foreign sovereign involves in the enterprise’s activities. To conclude, the thesis distinguish different scenarios in which the enterprise has different immunity or exception under the Fair Trade Act. It is expected that the thesis can help delineating the purview of the Fair Trade Act.