Mercer Law Review, Vol. 27, No. 3 (Spring 1976), pp. 629-656


This article will focus on the legal environment within the State in regard to foreign investment and trade. In making this survey it is also necessary to note briefly the full context in which foreign investment and trade is accomplished. The State cannot act or fail to act in areas dictated by the economic, political, and social philosophies held by its citizens. Likewise, the State cannot act in areas in which the Federal Government has acted pursuant to the United State Constitution. Among the areas in which the State is prohibited or preempted from acting are foreign affairs, especially in regard to concluding agreements between itself and a foreign sovereign, immigration, customs and other trade barriers, and exchange controls. The Due Process and Equal Protection Clauses of the fourteenth amendment of the Constitution are other powerful limitations on the legislative power of Georgia. Pursuant to the explicit grants of power to the Federal Government under Constitutional provisions, a large number of statutes have been enacted. For example, there is federal legislation, inter alia, concerning antitrust, securities regulations, transportation, and communications, all of which are "Commerce Clause" based. Other areas of the economic life of the United States, such as taxation, banking, and the protection of intellectual property are regulated by both federal and state legislation. Of course, federal legislation, limiting or prohibiting aliens or alien controlled enterprises from engaging in a certain number of specific types of activities, is a further limitation on the power of the states. The effects of the limitations of the legislative and executive power of Georgia are substantial in that they narrow considerably the scope within which Georgia may act in regard to foreign investment and trade. Thus, in every case the State legislature and State officials must take these limits of power and authority into account.