Emerging Principles of International Competition Law

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ISBN: 9780199207527 | 0199207526
Cover: Hardcover
Copyright: 3/15/2008

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Many firms operate in complex legal environments where several States may regulate the same activity against a background of international law. International competition law has grown in importance as national economies have become more integrated, at the

Table of Cases	p. xix
Table of Treaties and International Instruments	p. xxxvii
Table of Legislation	p. xlv
Abbreviations	p. xlix
Understanding and Reconciling National Interests
Introduction	p. 3
The Scope of the Study	p. 3
The International Competition Law System	p. 3
The Inter-relatedness of International Competition Law Problems	p. 4
Comprehensive Coverage of International Business Activity	p. 8
Complex Solutions and Simple Organizing Principles	p. 11
The Terminology of the Internationalization of Law	p. 12
Internationalization and Transnationalization	p. 12
Cooperation and Coordination	p. 13
Harmonization	p. 14
The Structure of the Study	p. 17
The Fundamental Forces Shaping International Competition Law	p. 21
The Almost Anarchical International Competition Law System	p. 21
The Nature of International Relations	p. 21
The Domestic Political Economy of National Interests	p. 22
National Security Interests may Trump Competition Concerns	p. 25
The Interests of States in Cooperation on Competition Law	p. 27
The Distinction between National and Global Welfare	p. 27
International Regulatory Competition Failures	p. 28
International Trade Theory	p. 28
Underlying Power Relations will Shape the Terms of Cooperation	p. 29
The Costs of Cooperation and the Principle of Subsidiarity	p. 30
The Concept and Implications of Subsidiarity	p. 30
Sovereignty	p. 31
Autonomy and Opportunism	p. 33
Accountability and Responsiveness	p. 34
Legitimacy of Decision-Making Processes	p. 36
The Direct Costs of International Cooperation	p. 38
The Forms and Facilitators of International Cooperation	p. 40
Conditions that Facilitate Cooperation	p. 40
Resolving Conflict by Reducing Transaction Costs and Assigning Entitlements	p. 41
Options for a Multilateral Competition Law Regime	p. 43
The Role of the WTO in International Competition Law	p. 51
A New Institution to Coordinate Competition Law Cooperation	p. 55
The Inevitably Incomplete Convergence of Competition Laws	p. 59
An Overview of Competition Law	p. 59
The Common Elements of Competition Laws	p. 59
Objectives and Underlying Ideas	p. 63
The Influence of Economics	p. 69
The Relationship with Industrial and Regulatory Policies	p. 72
Competition Law in Developing and Transitional Countries	p. 73
The Adoption of Competition Laws by Developing and Transitional Countries	p. 73
The Influence of Domestic Circumstances and External Influences on Competition Law	p. 74
Competition Law and Development	p. 76
Appropriate Institutions and Technical Assistance	p. 79
Developing Countries and International Competition Law	p. 81
The Inevitably Incomplete Convergence of Competition Laws	p. 83
Distinguishing Proselytization from Problem Solving	p. 83
Legal Transplantation	p. 84
Dealing with Limited Knowledge of Foreign Laws	p. 86
Conventions and Model Laws cannot Guarantee Uniformity	p. 87
Intellectual Harmonization	p. 89
A Marginally Cosmopolitan Conception of Self-Interest	p. 89
General Organizing Principles are Missing from Most Proposals for WTO Competition Rules	p. 89
The Influence of Ideas on International Relations	p. 90
Competition Law and the International Distribution of Wealth	p. 91
Global Consumer Welfare as the Guiding Principle	p. 94
Conclusion	p. 97
The Limited Case for Harmonization to Protect Competitiveness	p. 99
Introduction	p. 99
The Competition to Upgrade Competitive Advantage through Competition Law	p. 99
What is Fair Trade?	p. 99
No A Priori Reason not to Apply International Trade Rules to Competition Law	p. 104
Competition Law for a Competitive Advantage	p. 107
The Competitive Advantages and Disadvantages Resulting from Competition Law	p. 107
The Optimal Competition Law with Domestic Distortions and Non-Efficiency Objectives	p. 115
Should Harmonization of Competition Law be Required on National Competitiveness Grounds?	p. 118
Conclusion	p. 120
Models of Regulatory Competition	p. 121
Regulatory Competition in Practice	p. 124
The Effect of Government Policies on Investment Decisions	p. 124
Industry Support for Harmonization	p. 125
International Regulatory Market Failures	p. 127
A General Race to the Bottom is Unlikely	p. 127
Regulatory Redistribution	p. 129
Failure of Competition among Competition Law Providers	p. 130
Mobility	p. 131
Internalization of Benefits and Costs	p. 132
Decentralization and Compatibility	p. 135
Conclusion	p. 137
International Competition Law in a Trade Policy Framework	p. 139
The Interface between Trade Law and Competition Law	p. 139
Introduction	p. 139
Trade and Competition Law Interfaces	p. 139
Competition Law within a Trade Policy Framework	p. 143
Introduction	p. 143
The Complementary Role of Competition Law in Trade and Investment Liberalization	p. 144
Competition Law can Facilitate Trade Liberalization Processes	p. 146
Competition Law in a Liberalized Trading Environment	p. 148
Responses to Foreign and Multinational Anticompetitive Conduct	p. 154
Competition Law is a Poor Tool for Strategic Trade Policy	p. 167
Transnational Exclusionary and Predatory Conduct	p. 171
Application of Competition Law to International Predatory and Exclusionary Conduct	p. 171
Lax Competition Rules may Cause the Cross-Subsidization of Exports and Dumping	p. 174
Raising Rivals Costs and Market Access Barriers	p. 178
Transaction and Compliance Costs	p. 180
Costs to Business Understanding and Complying with Multiple Legal Regimes	p. 180
Multiple Pre-Merger Review	p. 182
Private Market Access Barriers	p. 185
Introduction	p. 185
Defining Structural Impediments	p. 187
Trade Arguments for Competition Law to Protect Market Access	p. 188
The Ambiguous Effects of Competition Law on Market Access	p. 191
The Welfare Effects of Eliminating Private Market Access Barriers	p. 191
Greater Enforcement Efforts could Reduce Imports	p. 195
The Need for Internal/External Consistency	p. 198
Conclusion	p. 199
Transnational Competition Law
Competition Law Jurisdiction under International Law	p. 207
Introduction	p. 207
International Law Limits on National Jurisdiction	p. 209
Jurisdiction in International Law	p. 209
Types of Jurisdiction	p. 211
Public and Private Competition Law Actions	p. 213
Bases of Jurisdiction	p. 215
The Territorial Principle	p. 215
The Nationality Principle	p. 218
Other Principles	p. 221
Summary	p. 221
The Scope of Application of Competition Laws	p. 223
Contrasting Approaches to Jurisdiction	p. 223
The United States Antitrust Laws	p. 224
Historical and Statutory Context	p. 224
Judicial and Administrative Jurisdiction	p. 227
The Traditional Territorial Analysis	p. 230
The Development of a New Jurisdictional Principle in the Post-War Period	p. 231
The Formulation of a Rule to Balance between US and Foreign Interests	p. 237
Hartford Fire Insurance and Afterwards	p. 244
Non-Import Commerce and the Foreign Trade Antitrust Improvements Act	p. 247
Merger Cases	p. 269
Forum Selection and the Application of Foreign Law	p. 270
The European Union Competition Law	p. 273
The Economic Entity and Implementation Doctrines	p. 273
The Scope of Application of the Merger Regulation	p. 277
The Application of Competition Law to Export Commerce	p. 279
The Limited Role for Comity	p. 281
Private Competition Law Action in National Courts	p. 282
Summary	p. 284
The Japanese Antimonopoly Law	p. 285
Introduction	p. 285
Judicial Competence	p. 285
Service	p. 287
Import Commerce Jurisdiction	p. 287
Export Commerce Jurisdiction	p. 291
Declining Jurisdiction in Exceptional Cases	p. 292
Applying Foreign Law	p. 293
Summary	p. 294
Conclusion	p. 295
International Competition Law Defences	p. 299
Introduction	p. 299
Sovereign Immunity	p. 300
Outline and Justification for Sovereign Immunity	p. 300
Sovereign Immunity in United States Antitrust Actions	p. 303
Sovereign Immunity in Other Countries	p. 309
Conclusions	p. 311
Acts of State	p. 312
The United States Act of State Doctrine	p. 312
Treatment of Foreign Acts of State Outside the United States	p. 326
Foreign Sovereign Compulsion	p. 329
Foreign Sovereign Compulsion in the United States	p. 330
Foreign Sovereign Compulsion in Other Countries	p. 334
The Appropriate Scope of the Foreign Sovereign Compulsion Defence	p. 337
Petitioning Immunity and Foreign Governments	p. 341
The Noerr Doctrine	p. 341
Petitioning Immunity in Other Countries	p. 345
The Case for Extending Immunity to Petitioning Foreign States	p. 346
Conclusion	p. 348
The Proper Scope of Transnational Competition Law	p. 351
Competition Law in Conflict of Laws Theory	p. 351
The Case for Proportionality in Extraterritoriality	p. 351
Competition Law Jurisdiction and Multi-State Considerations	p. 351
Rejecting Territorial Jurisdiction as the Exclusive Basis for Competition Law Jurisdiction	p. 353
Matching Jurisdiction to Policy Interests	p. 355
Relevant Effects in the Effects Doctrine	p. 365
Fairness and Legitimacy	p. 370
Reducing Concurrent Jurisdiction	p. 371
Comity is not a Legal Rule that could Reduce Concurrent Jurisdiction	p. 372
The General Absence of a Hierarchy of Jurisdictional Bases	p. 373
Balancing Tests and Choice of Laws Methods	p. 373
International Competition Law Defences	p. 377
Improving the Management of Concurrent Jurisdiction	p. 392
Difficulty of Agreeing on the Comprehensive Allocation of Competition Law Jurisdiction	p. 392
States Need Principles to Guide Unilateral Adoption of Cooperative Conflicts Rules	p. 394
Operationalizing Forum Selection as an Alternative to Jurisdiction Restriction	p. 395
Extraterritorial Criminal Competition Law Actions	p. 398
Private Competition Law Suits	p. 399
Bilateral Multilateralism	p. 401
Conclusion	p. 402
The Internationalization of Competition Law
The Competition Rules of the World Trade Organization	p. 405
Introduction	p. 405
Obligations to Address Anticompetitive Conduct	p. 405
The Havana Charter	p. 405
GATT Consultations on Restrictive Business Practices	p. 407
GATS Consultations on Restrictive Business Practices	p. 409
Telecommunications	p. 410
Private Bodies with Delegated or Self-Regulatory Powers	p. 415
Exceptions to General Rules to Address Anticompetitive Conduct: TRIPS	p. 415
Obligations not to Encourage or Compel Anticompetitive Conduct	p. 418
Controlling Government Encouragement of Anticompetitive Conduct	p. 418
State Trading Enterprises	p. 422
Import Monopolies	p. 423
Service Industry Monopolies	p. 424
Market Access for Services	p. 425
Agreement on Subsidies	p. 426
Non-Violation Complaints	p. 427
Situation Complaints	p. 432
Rules Limiting National Competition Laws	p. 432
Taming Aggressive Unilateralism in Competition Law	p. 432
The Effect of the Antidumping Agreement on Competition Law	p. 444
The Effect of the National Treatment of Goods Obligation on Competition Law	p. 448
Prohibited Discrimination between Services through Competition Law	p. 455
Prohibited Discrimination in Relation to Intellectual Property Rights through Competition Law	p. 456
Non-Discrimination as a Core International Competition Law Rule	p. 457
Mutual Recognition and Most Favoured Nation Obligations	p. 460
Conclusion	p. 460
Dispute Settlement and Enforcement	p. 463
Introduction	p. 463
Private Party Participation in International Competition Law Dispute Settlement	p. 464
Panel Proceedings Initiated by Non-Governmental Organizations	p. 464
Application of International Competition Law in National Courts	p. 466
Participation of Non-Governmental Organizations in Proceedings	p. 468
Supervision of Competition Law and Enforcement	p. 471
The Constitution of the Panel	p. 471
Information Gathering and Analysis	p. 471
Reviewing Competition Law Actions	p. 477
Remedies	p. 484
Disputes over Jurisdiction	p. 487
Other Dispute Settlement Options	p. 488
Conclusion	p. 491
International Enforcement Cooperation and Judicial Assistance	p. 493
Remaining Problems and Solutions	p. 493
The Evolution of Competition Law Cooperation	p. 494
The Types of Enforcement Cooperation Agreement	p. 494
Conflict Avoidance and Soft Cooperation	p. 496
Competition Law Disciplines in Free Trade Agreements	p. 510
Foreign Assistance in Investigation and Analysis	p. 517
Introduction	p. 517
Exchange of Confidential Information under Enforcement Cooperation Agreements	p. 518
Limitations on the Power of National Authorities and Courts to Investigate Conduct Abroad	p. 519
Opposition to Unilateral Foreign Investigations and Discovery	p. 524
The Limitations of Mutual Legal Assistance Treaties	p. 526
International Antitrust Enforcement Assistance Act	p. 528
Integration of Trans-Tasman Investigation and Discovery into Domestic Regimes	p. 533
Conclusions	p. 533
Recognition and Enforcement of Competition Law Judgments	p. 534
Recognition and Enforcement of Foreign Judgments	p. 534
Blocking and Clawback Statutes	p. 536
Obstacles to International Agreement	p. 537
The Enforcement and Recognition of Trans-Tasman Competition Law Judgments	p. 538
Potential Conflict between Competition Law Remedies	p. 541
Positive Comity	p. 544
The Concept of Positive Comity	p. 544
The Experience under the EC-US Agreement	p. 545
Refining and Strengthening Positive Comity	p. 548
Coordinating Parallel Investigations	p. 550
Coordination of Investigations under the EC-US Agreement	p. 551
United States Antitrust Federalism	p. 553
Intra-European Union Coordination	p. 554
Prerequisites for Improving Coordination of Investigation and Enforcement	p. 555
Choosing a Lead Jurisdiction	p. 558
The Emerging Principles of International Competition Law	p. 561
Select Bibliography	p. 571
Index	p. 619
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Emerging Principles of International Competition Law

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