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Export Trading Company Act (ETCA)
The Export Trade Certificate of Review Program - The Competitive Edge for U.S. Exporters
Export Trade Certificates of Review (COR) are issued by the U.S. Dept. of Commerce with the concurrence of the U.S. Dept. of Justice. Under Title III of the Export Trading Company Act, (ETC Act) any U.S. resident, business association, group of firms, or state and local government entity may apply to the Export Trading Company Act for an Export Trade Certificate of Review. The Certificate provides antitrust preclearence for the specified export activities of the Certificate holder. Through the Title III antitrust preclearence, Congress sought to minimize what it viewed as serious impediments to U.S. exports: the uncertain application of U.S. antitrust laws to export activities and the related risk of expensive antitrust litigation.
A Certificate of Review provides exporters with two important benefits: immunity from federal and state government antitrust suits with regard to all export activities specified in the Certificate and important procedural advantages in private antitrust suits. A Certificate of Review holder (and all members identified in the Certificate) receives immunity from federal and state civil and criminal antitrust laws and unfair competition suits. This immunity extends to all activities and conduct specified in the Certificate and carried out in compliance with the terms and conditions of the Certificate. The only exception to the immunity afforded by the Certificate is when the export conduct threatens clear and irreparable damage to the national interest. In that circumstance the Department of Justice may bring an action against the Certificate holder to enjoin the harmful conduct.
A Certificate of Review also provides procedural safeguards that protect the Certificate holder and members against suits filed by private parties. If a private party claims to have been injured by certified conduct, any actions filed by the injured party are restricted by procedural advantages granted to Certificate of Review holders:
1) A private party may bring an action based on certified conduct only if the conduct in question does not comply with the standards for certification in Title III. Since the statute contains a rebuttable presumption that conduct certified by a Certificate of Review is in compliance with the standards for certification, any plaintiff claiming injury would have to establish that: a) Commerce & Justice erred in their finding that the conduct in question met the standards in Title III, or b) circumstances had so changed that while the conduct in question may have met the the standards at the time the Certificate was issued, the certified conduct no longer met the standards given the current state of affairs.
2) Title III contains a shorter statue of limitations for claiming injury by a Certificate holder than what is typically found in antitrust laws. Under Title III any action related to certified conduct must be filed within two years of the date that the plaintiff had notice of the failure to comply with Title III, but in any event, within four years after the cause of action accrues. This statute of limitations is more prodefendant than the four years plus continuing effects typically found in U.S. antitrust law.
3) The treble damages normally associated with U.S. antitrust law are not available to the plaintiff in actions alleging damages resulting from certified conduct under Title III. In the event that a plaintiff were to prevail in an action under Title III the plaintiff can only gain injunctive relief, actual damages, interest on actual damages, and litigation costs.
4)A Certificate holder who prevails against a plaintiff in an action based upon certified conduct may recover the cost of defending against the action including reasonable attorney's fees. This provision of Title III differs from the usual rule on attorney's fees that each party in litigation bears its own costs. (Except for certain victorious plaintiffs.)
The procedural advantages conveyed by Title III to Certificate holders can reduce antitrust risks and uncertainty by deterring lawsuits of dubious merit. For this reason alone a Certificate of Review is a valuable legal tool for exporters as an "insurance policy" against such harassment suits. Moreover, a Certificate of Review can remove the risk associated with export conduct that falls into "gray areas" under antitrust laws. Certification of conduct by a Certificate of Review removes any doubt regarding antitrust exposure arising from the qualified opinions of counsel that a particular activity is "unlikely" to raise issues under U.S. antitrust law. In addition, unlike Business Review letters, which are not binding upon the issuing agency, an Export Trade Certificate of Review offers guaranteed protections.
Under the Title III of the ETC Act, the Department of Commerce (Commerce) receives the applications for Export Trade Certificates of Review. Commerce performs most of the administrative functions in connection with the Certificates. The Department of Justice receives a copy of an application for a Certificate of Review, and must concur in the issuance of every Certificate.
The ETC Act provides a very tight timetable for the issuance of Export Trade Certificates of Review: Commerce determines whether the proposed Certificate meets the certification standards contained in the ETC Act, obtains the concurrence of the Department of Justice, and issues the final Certificate all within 90 calendar days.
The application form and supporting materials provided by the applicant are treated with strict confidentiality and are exempt from disclosure under the Freedom of Information Act. At any time, an applicant may withdraw an application, in which case all copies of the documents submitted are returned. No fees are involved with applying for a Certificate. Department of Commerce staff will be assigned to work with you during the entire process.
Certificates of Review have been issued to cover variety of organizational arrangements : individual firms, shipper's associations and trade associations, with firms coming from a variety of industries including agriculture, manufacturing, as well as other industries.
Examples of activities that may be certified include: joint establishment of export prices; exclusive agreements with domestic suppliers and/or foreign representatives; joint export marketing/selling arrangements among domestic competitors; allocation of export markets, territories, or customers; refusals to deal; exchanges of business information; and the joint licensing of technology.
If desired, the Export Trading Company Act team would be glad to arrange a no cost confidential counseling or briefing session to answer questions regarding the Certificate of Review program conducted by members of Export Trading Company Act, and the Office of the Chief Counsel for International Commerce. A session can be arranged by contacting OETCA by phone at (202) 482-5131 or by emailing the office at firstname.lastname@example.org
For more information or to request an information package, please call the Export Trading Company Act team at (202) 482-5131, or email ETCA. An application form for an Export Trade Certificate of Review in PDF format is available on this site.
Team Up for Exporting outlines some of the competitive advantages for joint export activities. The summary also describes the benefits to be derived for trade and industry associations in obtaining a Certificate of Review for their members.
Applying for a Certificate of Review provides information, instructions and guidance for completing the application for an Export Trade Certificate.