Corporate and Product Identity in the Post-National Economy: Rethinking U.S. Trade Laws

Abstract

The trade laws of the U.S. are replete with references to “domestic industry,” “domestic” corporations, and “domestic” products. U.S. trade laws, like those of other countries in the world trading system, remain rooted in antiquated understandings of “nationality” and “national origin.” Without a thorough reassessment of these two concepts, the U.S. responds to the challenges posed by globalizations in a piecemeal manner, its trade laws vacillating between the pull of nationalism and internationalism. The Article proposes an alternative that balances the current global reality with the nationalist call for a return to the local. To the extent that a “national” market can still be accurately identified, its identification does not come from the traditional conceptions of a national corporation or a national product, but from the one factor in the production process that is still territorial rather than globally oriented: the national workforce. Any company that meets what is termed a substantial socioeconomic participation test should be granted the benefits of nationality available under U.S. trade laws. A product’s “national origin” should also be reassessed. Despite the calls from nationalists to fortify national boundaries to protect domestic products and industry, products that are globally sourced are in fact the products of no one country in particular. Country-of-origin designations thus merely perpetuate this chimera of nationality in a world of internationality. The Article proposes to revise the interpretation of current rules to accomplish two objectives: first, to reflect the emergence of the postindustrial economy, and second, to address the nationalist fault lines required to ensure the continued political survival of the current trading system.

Keywords: international trade, international law

JEL Classification: F1, O1, K33