Sec. 501. Predatory pricing by entities owned, controlled, or directed by a foreign state

509 words·~2 min read·/bill/117/s/4632/is/section-501

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

No entity owned, controlled, or directed by a foreign state or an agent or instrumentality of a foreign state (as defined in section 1603 of title 28, United States Code) and participating in international commerce may establish or set prices below the average variable cost in a manner that may foreseeably harm competition. In determining the average variable cost under paragraph (1), the court may take into account the effects of economic support provided by the owning or controlling foreign state to the entity on a discriminatory basis that may allow the entity to unfairly price at or below marginal cost.

In determining the foreseeability of the elimination of market competitors under paragraph (1), the court may take into account the aggravating factor of the actions of the foreign state owning or controlling the entity referred to in such paragraph to use government resources to subsidize or underwrite the losses of the entity in a manner that allows the entity to sustain the predatory period and recoup its losses. For the purpose of establishing the elements of (a)(1), the plaintiff shall not be required to demonstrate that the defendant has monopoly or market power.

Any person (as defined in section 1(a) of the Clayton Act ( 15 U.S.C. 12(a) ) whose business or property is injured as a result of the actions of an entity described in subsection

(a)shall be entitled to recovery from the defendant for damages and other related costs under section 4 of such Act ( 15 U.S.C. 15 ). A plaintiff may initiate a claim against a defendant in an appropriate Federal court for a violation of subsection

(a)in order to recover damages under subsection

(b)by— establishing, by a preponderance of the evidence, that the defendant— is a foreign state or an agency or instrumentality of a foreign state (as defined in section 1603 of title 28, United States Code); and is not immune from the jurisdiction of the Federal court pursuant to section 1605(a)(2) of title 28, United States Code; and setting forth sufficient evidence to establish a reasonable inference that the defendant has violated subsection (a). If a Federal court finds that a plaintiff has met its burden of proof under subsection (c), the court may determine that— the plaintiff has established a prima facie case that the conduct of the defendant is in violation of subsection (a); and the defendant has the burden of rebutting such case by establishing that the defendant is not in violation of subsection (a). For the purposes of considering questions of international comity with respect to making decisions regarding commercial activity and the scope of applicable sovereign immunity, the Federal court may receive and consider relevant amicus briefs filed by the Secretary of State. For the purposes of considering questions regarding assessing potential harm to competition, the Federal court may receive and consider relevant amicus briefs filed by the Attorney General. Nothing in paragraph

(1)may be construed to limit the ability of the Federal court to receive and consider any other amicus briefs.