Foreign State's Entanglement in Anticompetitive Conduct

40(2) World Competition 299 (2017)

19 Pages Posted: 14 Feb 2018

See all articles by Marek Martyniszyn

Marek Martyniszyn

Queen's University Belfast - School of Law

Date Written: 2017

Abstract

Transnational competition cases pose numerous challenges — from accessing foreign-based evidence to effectively enforcing decisions or judgments in their aftermath. Some of such cases are quite special in that the underlying conduct involves or implicates a foreign State. This article makes an original contribution to the scholarship by filling the existing gap and developing a typology of State’s entanglement in conduct causing competitive harm abroad. It also examines the way in which foreign State’s involvement or implication can be addressed in the adversely affected forum. Moreover, the key broader considerations which need to inform policies and approaches toward such cases are identified and evaluated. It is argued that competitive harm resulting from commercial dealings should be pursued under competition laws regardless of the character of the parties involved, unless there are overriding reasons justifying abstention. States should not enjoy immunity for competitive harm resulting from their commercial dealings. Agencies and courts in the affected fora should strive to clarify this matter. A clear State’s policy on dealing with inbound competitive harm may also make foreign partners more receptive to concerns about policies which facilitate competitive harm which they may be pursuing.

Keywords: Antitrust Law; Antitrust Litigation; Foreign State Compulsion; State Compulsion; Chinese Export Cartels; Competition Law; Blocking Legislation; Blocking Statutes; Blocking Legislation; Competition Law; Antitrust; Extraterritoriality; Extraterritorial Jurisdiction; OPEC; FTAIA

JEL Classification: K21; K41; L40; P16; Q48; L44; L52; K42

Suggested Citation

Martyniszyn, Marek, Foreign State's Entanglement in Anticompetitive Conduct (2017). 40(2) World Competition 299 (2017). Available at SSRN: https://ssrn.com/abstract=3116910

Marek Martyniszyn (Contact Author)

Queen's University Belfast - School of Law ( email )

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HOME PAGE: http://go.qub.ac.uk/Martyniszyn

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