Harmonization of Antitrust Laws around the World


There has been much concern expressed in the United States in recent years about inconsistent results in merger investigations. This is a problem, but one that is overstated, in my view.

Antitrust law is viewed as an important aspect of a nations sovereignty and it is a way of protecting a country's own consumers from anticompetitive harm. As a result, antitrust authorities outside the United States are not going to rely on the US enforcement agencies to protect their consumers any more than the US agencies would rely on authorities outside the US to protect US consumer welfare. In the merger area, that creates potential for inconsistent results among jurisdictions.

Nevertheless, the similarities among the laws of most jurisdictions and among the major authorities like the EU and the US are much greater than the differences. Outcomes of merger investigations are normally consistent, and the divergences that occur are relatively rare and normally a function of different market facts in various countries e.g., more significant overlaps with different entry conditions in one jurisdiction than in another. The antitrust authorities of both the US and the EU have noted frequently that they agree on outcomes far more frequently than they disagree , and they coordinate their investigations to minimize the likelihood of really divergent outcomes. When the EU or the US reaches different results on mergers that involve global markets, it is news precisely because it happens so infrequently.

To my mind, the more significant problem is that the proliferation of merger control provisions and antitrust laws in jurisdictions other than the US and EU has not always been accompanied by a fully developed appreciation of the role that antitrust should play in a market economy that of being minimally intrusive so as to preclude artificial distortions of the competitive process without interfering with the competitive process itself. There have been remedies imposed by some antitrust enforcers in some parts of the world that would appear to be anti-competitive. There have been concerns and investigations that appear to have been prompted by political necessities or protectionist concerns, rather than competitive problems.

As I have noted, there are efforts underway at a number of different levels to promote greater understanding among antitrust enforcers of what is the appropriate analysis and to coalesce around a set of best practices. Today, antitrust enforcers confer with each other frequently about specific investigations and general developments. These are important developments that should continue and intensify , since it is very unlikely that countries that do not presently have antitrust laws are going to refrain from adopting them when antitrust is perceived as one of the mainstays of a market economy.




Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
ISBN: N/A
EAN: N/A
Year: 2004
Pages: 102

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