Antitrust and the Clash of Sovereigns – Bringing Under One Roof: Extraterritoriality, Industrial Policy, Foreign Sovereign Compulsion, and (Bad) Applications of Law Against 'My Country’s' Firms

Eleanor M. Fox, Antitrust and the clash of sovereigns - Bringing under one roof: Extraterritoriality, industrial policy, foreign sovereign compulsion, and (bad) applications of law against “my country’s” firms, November 2019, Concurrences N° 4-2019, Art. N° 92045, pp. 73-80, https://www.concurrences

Posted: 5 May 2021

See all articles by Eleanor M. Fox

Eleanor M. Fox

New York University School of Law

Date Written: November 15, 2019

Abstract

When sovereign conflicts arise in the course of antitrust litigation, the traditional response is to retreat to “comity.” This article challenges the traditional response. It argues that we have been too quick to find sovereign clashes and too timid to recognize common ground that may counsel reaching out rather than reining in. This is especially true in the case of hard core cartels in view of the near-universal norm against them. The article proposes that world welfare should be relevant especially in the case off-shore hard core cartels, justifying jurisdiction where the cartel harms the enforcing nation but the harm is not literally direct. Further, it proposes principles of legitimacy and illegitimacy in cross-border enforcement.

Keywords: United States of America, European Union, China, Anticompetitive practices, Cartel, Abuse of dominance, Economic analysis, Effect on competition, Effect on interstate trade, Competence, Cooperation between NCAs, Concurrent jurisdictions

JEL Classification: K21

Suggested Citation

Fox, Eleanor M., Antitrust and the Clash of Sovereigns – Bringing Under One Roof: Extraterritoriality, Industrial Policy, Foreign Sovereign Compulsion, and (Bad) Applications of Law Against 'My Country’s' Firms (November 15, 2019). Eleanor M. Fox, Antitrust and the clash of sovereigns - Bringing under one roof: Extraterritoriality, industrial policy, foreign sovereign compulsion, and (bad) applications of law against “my country’s” firms, November 2019, Concurrences N° 4-2019, Art. N° 92045, pp. 73-80, https://www.concurrences, Available at SSRN: https://ssrn.com/abstract=3835242

Eleanor M. Fox (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6171 (Phone)

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