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 Affairs 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
Affairs 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 Affairs, 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 oetca@ita.doc.gov
The Guidelines
for the Export Trade Certificate of Review program can
be found at 50 FR 1786, and the Regulations can be
found at 50 FR 1804 (15 CFR Part 325).
For more information or to request an information
package, please call Export Trading
Company Affairs 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.
Export Trading Company Affairs
Room
1104
U.S. Department of Commerce
Washington, DC
20230
(202) 482-5131
oetca@ita.doc.gov
