National Laws and International Markets: Strategies of Cooperation and Harmonization in the Enforcement of Competition Law
18 Pages Posted: 15 Oct 2008 Last revised: 24 Jun 2009
Date Written: October 13, 2008
This Article contrasts how two leading competition law systems, the United States and the European Union ("EU"), have reacted to the growing internationalization of markets and the relative decline of the ability of any single jurisdiction to regulate transnational business behavior. For reasons unique to their respective histories, cultures, and politics, these two jurisdictions have adopted very different strategies for dealing with this problem. The United States has offered two distinct visions of antitrust enforcement as part of a conscious opposition to the creation of international antitrust rules or true international enforcement. The United States first embarked on a fifty year strategy premised on the extraterritorial application of its antitrust laws. Only recently has the United States deemphasized this aspect of government policy and sought instead to embrace international cooperation as an alternative to either aggressive unilateral enforcement or the true internationalization of antitrust law.
In contrast, the EU has used competition law to cement and expand the single internal market that defines the Union, and then has sought to spread the influence of its competition law through the expansion of the EU, the negotiation of new trading arrangements which require the adoption of EU competition law as a condition of preferential access to the EU market, and the promotion of harmonization of competition law at the international level.
This Article offers the story of the U.S.-Canadian antitrust cooperation as the paradigm for how the United States would like the internationalization of antitrust to proceed, and the spread of EU competition through expansion and antitrust diplomacy as the paradigm for the EU approach. This Article then examines how these different approaches will play out in setting the agenda for the WTO and other international organizations that deal with competition issues. Rather than argue for the better approach, this Article seeks to suggest how politics, interest groups, and bureaucratic imperatives dictate, and sometimes defeat, national interests. The Article further speculates how other players and pressures in the enforcement of competition law may affect the success of the strategies of these two traditional antitrust powers in facing the decline of the nation state over this most traditional and sensitive area of national economic regulation and law enforcement. Finally, the Article closes with a suggested approach for harnessing self-interest to overcome collective action problems in order to address international antitrust issues without having to create the kind of new rules or institutions that have proved so unpalatable in the past.
Keywords: antitrust, harmonization, cooperation, international antitrust, international trade, World Trade Organization, WTO, EU, OECD, NAFTA, UNCTAD, MLAT, IAEAA
JEL Classification: F02, F13, F15, K21, K33, L40
Suggested Citation: Suggested Citation