Douglas Ginsburg and John Taladay about ‘The Enduring Vitality of Comity in a Globalized World’ (2017) George Mason Law Review 24 1069

Different competition agencies apply different legal standards, procedures and approaches to identifying and redressing perceived antitrust violations. One inescapable consequence of the global proliferation of competition regimes is a much greater risk of conflict, which can take various forms and which are particularly high when an agency applies an “effects” doctrine that allows for the imposition of remedies that necessarily have an effect beyond that jurisdiction’s own borders. This article, available here,  identifies a deficit in the international coordination mechanisms that are available, and proposes an expanded use of traditional comity to ensure that international competition law enforcement produces benefits for consumers while minimising unnecessary and inappropriate interference with the legitimate interests of foreign jurisdictions. Section I looks at how the difference in the substantive standards applied by different jurisdictions can be a source of potential international conflict. A key source of tension in international competition law enforcement emanates from differences in the substantive standards applied by different jurisdictions. The…

Pieter J. F. Huizing ‘Comparing territorial limits to EU and US public enforcement of the LCD cartel’ (2018) Journal of Antitrust Enforcement 6 231

This article, available here, describes the US and EU positions on the territorial scope of public cartel enforcement – i.e. how far outside their territories can competition authorities reach to punish cartel conduct committed abroad by foreign undertakings – by reference to the LCD cartel. Cartelised LCD panels were manufactured by a number of Asian producers with varying levels of direct and indirect imports into the EU and the USA. Both the European Commission (Commission) and the U.S. Department of Justice (DOJ) had to determine the territorial limits to their enforcement in respect of this international cartel, and to then defend their approach in court. In both jurisdictions, it is accepted that competition authorities benefit from long territorial reach and wide discretion in determining the amount of fines. It is submitted that the legal precedents created by decisions regarding this cartel are a cause for concern in view of the increasingly crowded global cartel enforcement arena. This argument is developed…

Luca Prete ‘On Implementation and Effects: The Recent Case-law on the Territorial (or Extraterritorial?) Application of EU Competition Rules’ (2018) Journal of European Competition Law & Practice 9(8) 487

In an era of globalisation and digitalisation, complex issues may arise as regards the laws applicable to situations that either involve cross-border elements or occur in cyberspace. The disconnect between the borderless nature of modern trade and the essentially domestic character of economic laws may give rise to complex issues of jurisdiction. Rules and principles of private international law often determine which national laws are applicable in any given situation. However, no equivalent system of binding rules exists as far as the public enforcement of antitrust rules is concerned. As a result, the same business conduct may potentially fall within the jurisdiction of a number of States, each having its own rules. Clearly, problems may not only arise when those rules are dissimilar (or interpreted and applied differently), but also when various jurisdictions with identical rules are applied cumulatively to the same conduct. This piece, available here, reviews European jurisprudence concerning the reach and scope of the EU’s competition laws….

The Common Understanding of G7 Competition Authorities on “Competition and the Digital Economy”

While adopted on 5 June, this communique was embargoed until yesterday. It can now be found here. As it says on the tin, this document reflects the common position that the competition authorities in the G7 countries (namely, the Autoritá Garante della Concorrenza e del Mercato (Italy), the Autorité de la Concurrence (France), the Bundeskartellamt (Germany), the Competition Bureau (Canada), the Competition and Markets Authority (United Kingdom), the Department of Justice (United States of America), the Directorate General for Competition (European Commission), the Federal Trade Commission (United States of America) and the Japan Fair Trade Commission (Japan)) have reached on the digital economy. It may come as no surprise that the level of agreement is relatively thin, and that the document does not go into the most controversial topics addressed in the reports reviewed last week and further below. The common understanding begins with the mandatory section on the benefits of the digital economy. Investment and innovation in the digital…

Chiara Muraca ‘Cultural and Political Forces in the Criminalisation of Cartels: A Case Study on the Chilean Experience’ (2018) World Competition 579

In addition to rising monetary fines against both companies and individuals, over the last ten years more than thirty countries have decided to criminalise cartel activities. At the same time, and despite the growing number of countries opting for a criminal enforcement, the implementation of such measures has been quite deficient outside the US. Many of these countries have encountered procedural and political obstacles to enforcing criminal provisions against anticompetitive conduct, including a lack of support from key players in the enforcement process. Among the main explanations for this state of affairs is a belief that criminalisation of cartels outside the US is often the product of a top-down process led by transnational enforcement interests rather than domestic bottom-up forces. The aim of this article, available here, is to test this explanation by conducting an empirical study of criminalisation efforts in Chile. The study involved interviews with the main stakeholders who took part in the criminalisation process in Chile, such…

David Gerber ‘Competitive Harm in Global Supply Chains’  (2018) Journal of Antitrust Enforcement 6(1) 5-24

This paper – which can be found here – focuses on the difficulties that transnational supply chains pose for competition law enforcement. ‘Transnational supply chain’ is a concept used to describe the process through which multiple firms located in multiple jurisdictions provide components for and/or assemble and manufacture end-use products. As a result of this process, anticompetitive conduct in one jurisdiction may have anticompetitive effects in other jurisdictions. However, few legal tools are available for deterring such harms. The article reviews current responses to the problem, and identifies the potential value of transnational coordination as a response. The article is structured as follows: A first section outlines the challenge posed by global supply chains. It describes their development with the deepening of globalisation, and the form that supply chains usually take. Global supply chains have major consequences for many countries, so we might expect them to have generated legal developments on the transnational level. Yet, little attention has been paid…

Florian Wagner Von Papp ‘Competition Law in EU Free Trade and Cooperation Agreements (and What the UK Can Expect After Brexit)’ European Yearbook of International Economic Law, Forthcoming

This paper – which can be found here – focuses on the interplay between trade and competition from a competition perspective. Its basic argument is that the more integrated a trade area is, the more similar competition rules are likely to be, and the easier it will be for international cooperation to occur.  The focus of the paper is on demonstrating how this occurs in practice, by looking at “the concentric circles of cooperation around the EU by examining the intergovernmental and inter-agency agreements concluded by the EU to face the complexities of the transnational economy of the 21st century.” Section 2 contains a short overview of the relationship between free trade and competition law. Free trade interacts with competition law on many levels, and their relationship is mainly symbiotic and self-reinforcing. However, competition and trade law conflict at points. Free trade should increase competition, since market entry by foreign competitors undermines domestic market power. Competition law is then useful…

David Gerber ‘Competition Law: Convergence in Uncertainty are We Where We Thought We Were?’

This paper – which you can find here – focuses on the international convergence of competition law. Global convergence has been a central theme in competition law for more than two decades. Until recently, the trend seemed to be for greater convergence; given recent developments, however, should we expected this trend to hold? The author’s analysis begins from the observation that convergence has been driven by:  (1) continuing political stability and transnational engagement in Europe and the US, (2) the capacity and willingness of the US and Europe to lead competition law developments elsewhere; and (3) the willingness of others to accept the EU and US’ leadership in competition law. These elements have all  been under attack recently. Both the political stability and transnational engagement of Europe and the US are not what they used to be; the same can be said about their capacity (if not willingness) to lead competition law developments across the world; and, importantly, the willingness…