3.4 International antitrust enforcement

International antitrust enforcement tackles anticompetitive behavior across borders. Countries apply domestic laws extraterritorially, using principles like the effects doctrine. This can lead to jurisdictional conflicts, but comity and cooperation agreements help manage tensions.

Global organizations play a key role in shaping competition policy. The EU enforces rules across member states, while groups like the OECD and ICN promote best practices. Despite challenges, there's a growing trend towards harmonization of international antitrust standards.

Extraterritorial Enforcement and Comity

Principles of Extraterritorial Enforcement

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• Extraterritoriality allows nations to apply domestic antitrust laws to foreign conduct affecting their markets
• Effects doctrine enables prosecution of anticompetitive behavior occurring abroad that impacts domestic commerce
• U.S. courts have expanded extraterritorial reach through cases like Hartford Fire Insurance Co. v. California
• Foreign Trade Antitrust Improvements Act (FTAIA) clarifies application of Sherman Act to foreign commerce
• Extraterritorial enforcement can lead to jurisdictional conflicts between nations

Comity and International Cooperation

• Comity promotes respect for other nations' laws and judicial decisions in antitrust matters
• Negative comity involves refraining from enforcement actions that may harm another nation's interests
• Positive comity allows one country to request another to investigate anticompetitive conduct
• Timberlane balancing test weighs factors to determine if exercising jurisdiction is reasonable
• Comity considerations help mitigate tensions arising from extraterritorial enforcement

Bilateral Agreements and Enforcement Coordination

• Bilateral agreements facilitate cooperation between antitrust authorities of different countries
• U.S. has entered agreements with major trading partners (EU, Canada, Japan, Australia)
• Agreements typically include provisions for information sharing and coordination of investigations
• Mutual Legal Assistance Treaties (MLATs) enable exchange of evidence in criminal antitrust cases
• Bilateral cooperation has led to successful coordinated enforcement actions (Microsoft, Vitamins cartel)

EU and International Antitrust Organizations

European Union Competition Law Framework

• EU competition law applies across all member states to ensure fair competition in the single market
• Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) form the basis of EU antitrust law
• European Commission serves as the primary enforcer of EU competition rules
• EU merger regulation requires notification and approval for large-scale mergers with community dimension
• National competition authorities of member states cooperate with the Commission through the European Competition Network

OECD and Global Competition Policy Development

• OECD Competition Committee promotes international cooperation and best practices in antitrust enforcement
• Committee conducts peer reviews of national competition policies to improve effectiveness
• OECD Guidelines for Multinational Enterprises include recommendations on competition
• Hard Core Cartel Recommendation encourages member countries to combat international cartels
• OECD hosts the Global Forum on Competition to engage non-member countries in policy discussions

International Competition Network and Voluntary Cooperation

• ICN serves as a virtual network for competition authorities worldwide to address practical enforcement issues
• Network develops non-binding recommendations and best practices for antitrust enforcement
• ICN working groups focus on specific areas (mergers, cartels, unilateral conduct, advocacy)
• Annual conference brings together competition officials to share experiences and discuss emerging trends
• Merger Working Group has developed influential recommended practices for merger review procedures

Multilateral Frameworks and Future Developments

• World Trade Organization (WTO) addresses competition policy issues related to international trade
• United Nations Conference on Trade and Development (UNCTAD) promotes competition law in developing countries
• Efforts to create a global competition agreement have faced challenges (failed WTO initiative in the early 2000s)
• Regional trade agreements increasingly include competition policy provisions (USMCA, EU-Japan EPA)
• Ongoing discussions explore potential for greater harmonization of international antitrust standards