The Enduring Vitality of Comity in a Globalized World

22 Pages Posted: 30 Sep 2018 Last revised: 1 Oct 2018

See all articles by Douglas H. Ginsburg

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

John Taladay

Baker Botts

Date Written: September 28, 2018

Abstract

Consideration of comity in antitrust cases is more important than ever. The global proliferation of competition law enforcement agencies has produced profound effects. Most are highly beneficial for consumers at a local level, but these many agencies create significant difficulties because they apply different legal standards, procedures, and approaches to identifying and redressing perceived antitrust violations. One inescapable consequence is a much greater risk of conflict. This conflict can take various forms. In the extreme case, it can mean that different jurisdictions impose conflicting remedies for the same conduct irrespective of the effect in another jurisdiction, making it impossible for a party to comply with both remedies. But there are more subtle tensions, equally problematic, that can result in the regulation of a party’s conduct by one or more agencies that affect market conduct far beyond the enforcing agency’s own borders. These risks are particularly high when an agency applies the “effects” doctrine, which often results in remedies that necessarily have an effect beyond that jurisdiction’s own borders. Agencies seeking to enforce their antitrust laws should recognize these risks and guard against interfering with the legitimate interests of other governments regulating conduct within their own borders and determining how their own domestic markets should function. This Article examines some of the sources of tension in the competition ecosystem and the means the agencies now use to address those conflicts. The Article identifies a gap that still exists between the need for and mechanisms of coordination and proposes an expanded use of traditional comity to ensure that international competition law enforcement produces benefits for consumers while minimizing unnecessary and inappropriate interference with the legitimate interests of foreign jurisdictions.

Keywords: antitrust, effects doctrine, European Commission, intellectual property, competition, OECD, ICN, International Competition Network, competition law, conflict of laws, comity

JEL Classification: K2, K21, K33, L4, L40

Suggested Citation

Ginsburg, Douglas H. and Taladay, John, The Enduring Vitality of Comity in a Globalized World (September 28, 2018). George Mason Law Review, Vol. 24, No. 5, 2017; George Mason Law & Economics Research Paper No. 18-36. Available at SSRN: https://ssrn.com/abstract=3257019

Douglas H. Ginsburg (Contact Author)

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

John Taladay

Baker Botts ( email )

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