Lan Cao


In the global economy, a General Motors automobile may involve South Korean assembly; Japanese engines; German design and style engineering; Taiwanese, Singaporean, and Japanese small components; British advertising and marketing; and Irish and Barbadian data processing. What is the country of origin of this product? How should U.S. trade laws evaluate a product's origin, if it is a global composite with research, assembly, processing, and manufacturing performed in different countries? Similarly, corporations have become increasingly global in orientation and operations. Even "national" corporations have lost their territorial ties to the state of their nationality. Through a phenomenon termed "global outsourcing" and foreign direct investment, and as a result of the transformation of the economy from an industrial to a postindustrial one, corporations are engaging in global webs of cross ownership and strategic alliances outside their home territories. 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 globalization 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 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.

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90 California Law Review 401-484 (2002)