Comparative Antitrust

Modified on July 26, 2011

Comparative Antitrust – Europe, Latin America, Asia. In the United States, “antitrust law” refers to the body of State and Federal laws that prohibits unlawful agreements and practices by firms with market power that harm competition. Europe, Asia and Latin America call the governance of market competition “competition law”. These laws typically seek to preserve robust market competition by enabling authorities to address anti-competitive conduct by monopolists; to review certain mergers and acquisitions between firms; and to correct unlawful pricing and contracting practices. Antitrust law almost always outlaws cartels (e.g., market-controlling alliances).

Other than Europe-wide competition law established by the European Union (EU), there are no international laws regulating antitrust. Some nations have significantly divergent antitrust laws, and even those with similar laws may enforce them somewhat differently. These differences can make doing business internationally quite complex. There is a spirited debate over whether and how much to harmonize the laws of different nations, and which nation’s approach is best for consumers, innovation, economic growth, and competition. Antitrust authorities of different countries sometimes meet to discuss these issues.

These issues arise in discussions of comparative antitrust:
  • How different countries balance different and sometimes conflicting economic goals when making and enforcing competition regulations – e.g., boosting the national and/or local economy, limiting the power of large firms, protecting consumers, and fostering local enterprise.

  • How economic theory and evidence should be brought to bear on antitrust law and policy.

  • How similar are the competition laws of Europe and the United States.

  • What effect new antitrust laws passed in India, China, Brazil, and developing nations will have on trade partners.

  • How much intellectual property protection should be given in competition disputes involving patents and copyrighted works, in cases where enforcing antitrust law creates tension with the exercise of intellectual property rights.

  • Whether private firms, as opposed to the government, should be permitted to file antitrust lawsuits against rivals.

  • How broadly jurisdictions should choose to apply formalistic per se tests to prohibit certain conduct, as opposed to a “rule of reason” analysis looking closely at evidence in each case to determine the competitive effects of the conduct.

TAP Academics researching comparative antitrust include:

Jay Pil Choi of Michigan State University has written several papers on international antitrust enforcement when multinational firms operate in several markets.

Andy Gavil of the Howard University School of Law is the author of a book on competition law, including comparisons of the law in the United States with laws abroad.

Richard Gilbert of UC Berkeley served for many years with the United States Department of Justice, and has written many works on antitrust and competition.

Keith Hylton of the Boston University School of Law has written on the differences between the United States and Europe in addressing competition issues with Microsoft.

Michael Whinston of Northwestern University has written on many issues relating to competition law, including comparisons of merger law in the United States and Europe.

Guofu Tan of the University of Southern California is an expert on competition and the economy in China.

Nicholas Economides of the Stern School of Business of New York University (currently Visiting Professor at Stanford University) has compared competition cases in the United States and Europe.

Joshua Wright of the George Mason University School of Law studies an array of competition issues, recently focusing on problems of judicial error in the United States and abroad.

These sources are a good place to start in understanding comparative antitrust issues. Richard Gilbert compares competition rules in the United States and Europe relating to the production of technology in “Converging Doctrines? U.S. and EU Antitrust Policy for the Licensing of Intellectual Property.” Joshua Wright looks at competition issues with big retailers such as Walmart in “Sui Generis? An Antitrust Analysis of Buyer Power in the United States and European Union.” Keith Hylton looks at cases involving leading firms like Microsoft in the United States and Europe in “Section 2 and Article 82: A Comparison of American and European Approaches to Monopolization Law” – arguing  that consumers are better off when courts give firms the benefit of the doubt. Nicholas Economides and coauthor Ioannis Lianos take another view in “The Elusive Antitrust Standard on Bundling in Europe and in the United States at the Aftermath of the Microsoft Cases.” Scholar Daniel A. Crane looks at competition policy enforcement problems in Latin America in “Private Enforcement against International Cartels in Latin America: A U.S. Perspective.” Jay Pil Choi and his coauthor Heiko Gerlach study international antitrust enforcement when multinational firms operate in several markets with antitrust authorities in each market, in their paper “International Antitrust Enforcement and Multi-Market Contact.”

Recent Developments

With more than 110 jurisdictions having competition regulations, the need for coordination and cooperation has never been stronger.  Fortunately, organizations such as OECD, ICN, and UNCTAD seek to foster cross-border collaboration between competition authorities.

In February 2011, OECD held its 10th annual Global Forum on Competition Law in Paris. Discussion focused on cross-border merger control in emerging markets, the competition law and policy of Egypt, and the role and regulation of “crisis cartels.” Throughout 2011, OECD will facilitate best practice roundtables on a variety of competition-related topics. Past roundtables have focused on the difficulty in defining and policing single firm conduct, and the range of views among competition authorities on the definition of market dominance.

In May 2011 the Netherlands Competition Authority will host the ICN annual conference. The ICN continues to promote multilateral antitrust coordination through various working groups. The ICN’s cartel working group recently published its presentation on trends in cartel enforcement, highlighting the increased focus on enforcement around the globe and the strengthening of anti-cartel laws and regulations.  These trends are having an impact.  The ICN reports that cartel penalties levied by the EU alone almost tripled over the last half of the last decade, culminating in a $1.1B USD fine against the so-called airline “cargo” cartel, and a $403M USD fine against a cartel of DRAM manufacturers. 

In November 2010 UNCTAD held its 6th conference focused on the UN multilateral agreement on competition policy (UN Set). One key issue discussed was the importance of judicial review to the enforcement process. The papers and policy statements presented at the conference focus on the challenges of cross-border competition enforcement, including the barriers to cooperation between cross-border enforcement agencies and the role of competition policy in times of economic crisis

Key Legislation
  • H.R. 5330 extends earlier amendments to antitrust law in the United States to allow for more lenient criminal penalties in some cases, and became Public Law No: 111-190.

  • In January 2011, S. 75, the Discount Pricing Consumer Protection Act was proposed. It would amend the Sherman Act to declare that any contract, combination, conspiracy, or agreement setting a minimum price below which a product or service cannot be sold by a retailer, wholesaler, or distributor violates the Act.

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