Can International Antitrust Be Saved for the Post-Boeing Merger World? A Proposal to Minimize International Conflict and to Rescue from Misuse

Posted: 15 Jan 2001

See all articles by Daniel J. Gifford

Daniel J. Gifford

University of Minnesota - Law School

E. Thomas Sullivan

University of Vermont

Abstract

The different approaches taken by the U.S. and E.U. enforcement authorities on the lawfulness of the Boeing/McDonnell-Douglas merger raises the prospect of increasing conflict among the world's antitrust authorities. Both the U.S. and the E.U. claim the right to evaluate transactions which, although occurring abroad, produce economic effects within their borders. Traditional means of avoiding conflict through doctrines of comity or other balancing processes seem unpromising. We make a new proposal for minimizing conflict in the antitrust evaluation of transactions involving significant multimarket effects. We observe that all competition laws are based, to a significant extent, on the promotion of efficiency. Many such laws, however, also embody significant distributional concerns, such as protecting small business, protecting employment or promoting fairness. The most important differences in competition laws among jurisdictions thus are traceable primarily in the amount and design of the distributional concerns which they incorporate. We therefore propose, as a means of lessening international conflict over competition policies, that when a jurisdiction asserts the authority to evaluate a transaction involving significant multimarket effects, that the acting jurisdiction base its evaluation on the common element in all antitrust laws: efficiency. By forsaking distributional concerns which are unique to its domestic constituency, that jurisdiction avoids imposing its domestic policies on others and still performs a valuable service to the global community by enforcing the efficiency standard common to most antitrust laws.

Suggested Citation

Gifford, Daniel J. and Sullivan, E. Thomas, Can International Antitrust Be Saved for the Post-Boeing Merger World? A Proposal to Minimize International Conflict and to Rescue from Misuse. Antitrust Bulletin, Vol. 45, No. 1, P. 55, Spring 2000. Available at SSRN: https://ssrn.com/abstract=256155

Daniel J. Gifford (Contact Author)

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

E. Thomas Sullivan

University of Vermont ( email )

85 South Prospect Street
344-353 Waterman Building
Burlington, VT 05405
United States
8026567878 (Phone)
8026569220 (Fax)

HOME PAGE: http://www.uvm.edu

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