Global Antitrust: Does It Have Limits?

Posted by D. Daniel Sokol

Tad Lipsky (Latham) asks Global Antitrust: Does It Have Limits?

ABSTRACT: Before 1985 there was only one mandatory suspensive premerger notification scheme of general applicability in the world—Hart-Scott-Rodino review in the United States ; now there are scores.

Similarly, antitrust challenges to monopolization were almost exclusively American until at least the early 1970s (about the time the European Commission first squared off against IBM Corp.), but“abuse of dominance” claims are now increasingly common not only in Europe but also in Australia, Canada, Japan, Mexico, South Africa, South Korea, and elsewhere, and they are a realistic threat to companies operating in almost any economically significant jurisdiction. Finally, aggressive prosecution of price fixing and analogous covert cartel behavior—long a hallmark of U.S. antitrust enforcement—now appears in waves of coordinated “dawn raids” upon suspected wrongdoers in Brazil, Canada, the European Union and its Member States, Japan, South Korea, Switzerland, and a steadily increasing number of other jurisdictions in addition to the United States. This spectacular global expansion of antitrust enforcement has never received much commentary outside the confines of the antitrust community—the antitrust bar, enforcement agency officials, the economists who assist in advocacy on behalf of parties engaged in antitrust disputes, as well as academics interested in antitrust issues and policies. Major antitrust matters do attain some higher visibility in the financial press and, more rarely, even in the mass media. Examples include EU and U.S. investigations of Google, the EU’s initial objections to the acquisition of McDonnell Douglas by Boeing (later resolved), and the clear conflict between the U.S. and EU over General Electric’s proposed acquisition of Honeywell International (which the parties ultimately abandoned). The main U.S. case against Microsoft was followed closely in the popular media, although years of drama ended with only a mild behavioral consent decree. A recent EU investigation of alleged abuse of dominance by Russian energy utility Gazprom led to front-page global coverage of powerful figures on both sides of the underlying dispute (over natural-gas prices)—Russian President Putin and EU Vice President and Competition Commissioner Joaquin Almunia.

On the whole, however, antitrust’s transition from an American sport to a global one has occurred well beneath the threshold of public attention and without media-worthy controversy.