2. The issue
β’ Nearly all antitrust agencies have the power to apply remedies outside
their territory
β’ Qualified effects/sufficient connection
β’ Application of antitrust to foreign commerce βan essential componentβ
β’ DOJ/FTC Guidelines for Intβl Enforcement & Cooperation (2017)
β’ No agency is keen to rein in this power in a clear manner
β’ International comity
β’ No conflict βif a person subject to the laws of two sovereigns can comply with bothβ
β’ Foreign compulsion defence
β’ No bar if just a βstrong policy in favor of conduct in questionβ
β’ Foreign government statements have no conclusive effects (Animal Science Products v Hebei)
β’ Does foreign enforcement solve the domestic antitrust problem?
3. Agencies: significant discretion
β’ Federal Trade Commission
β’ Intel (2010) and Victrex (2016): prohibition of exclusionary conduct outside the US
β’ Does the remedy just affect the US market or does it generate global welfare when one
regulates a supply chain?
β’ whose business is global welfare?
β’ Polypore v FTC (11th Cir 2012): merger divestiture in Austria
β’ FTC has βbroad discretion to formulateβ remedies β no discussion of impact of divestiture on
EU market
β’ European Commission
β’ Standard & Poor's: βIn some circumstances remedies may have to be worldwide in
scope in order to ensure fair competition inside the EEA.β
β’ Gencor/Lonrho: relevance of βthe vital economic and/or commercial interests of the
Republic of South Africaβ β moot point
β’ Showa/Denko: cartel fines set irrespective of other agenciesβ fines
4. Solutions: what and where
Convergence
β’ ICN best placed to devise standards?
Comity (sounds good & does very little work, Fox)
β’ Negative comity (who interprets it?)
β’ Positive comity (bilateral agreements)
Collaboration
β’ In parallel cases (e.g. UTC/Goodrich β five agencies cooperate, divestitures in US,
Canada and UK)
β’ NB repeated agency interaction, parallel processes/similar enforcement priorities
β’ Notification, policy exchange (bilaterals, ICN, OECD)
Self-control
proportionality principle
