WORLD TRADE
ORGANIZATIONWT/WGTCP/W/131
13 July 1999
(99-2887)
Working Group on the Interaction
between Trade and Competition PolicyOriginal:  English
COMMUNICATION FROM THE UNITED STATES
The following communication, dated 4 June 1999, has been received from the Permanent
Mission of the United States with the request that it be circulated to Members.
_______________
Relevance of Fundamental WTO Principles to Competition Policy
I. INTRODUCTION
1. In the report that this Working Group transmitted to the General Council last December,
transparency, national treatment and most-favoured-nation treatment ("MFN") were noted as the
"fundamental principles" of the WTO.1  Further background on the meaning and application of these
principles in the context of WTO Agreements has been provided by the Secretariat in
WT/WGTCP/W/114.  These three principles apply broadly to all government activities that affect
trade in goods or services.  This paper will address each principle briefly and discuss the various
relationships which each has to antitrust law enforcement and competition policy.2
II. TRANSPARENCY
2. Transparency has long been a central tenet of the multilateral trading system, the importance
of which has steadily increased as that system has expanded in terms of coverage, membership andobligations.  Adherence to transparency principles is manifested in different ways and for different
purposes in the WTO system.  In implementing WTO obligations, transparency principles reflected in
national laws and practices help ensure the public knowledge and realization of commercial
                                                     
1 Report (1998) of the Working Group on the Interaction between Trade and Competition Policy to the
General Council (WT/WGTCP/2, 8 December, 1998), paragraph 154.
2 The WTO principles of national treatment an d MFN are sometimes collectively referred to as
principles of "non-discrimination", and the discussion of these principles in this paper is generally limited tohow such principles are respected and implemented through government measures (i.e., in the form ofmultilateral trade obligations of governments as well as their antitrust laws and policies).  In a much broader
sense, however, it may also be interesting to consider the concept of non-discrimination in the context of private
action and how that action is viewed from both the trade policy and the competition policy perspective.  From a
trade policy perspective, a trade problem can someti mes arise in circumstances where a foreign firm is
"discriminated" against as a result of actions by privat e firms (e.g., potential buyers or distributors), especially
where such  "discrimination" cannot be readily justif ied by customary commercial considerations (e.g., price,
quality, service) and/or is believed to be a vestige or indirect result of government measures, practices or
actions.  From a competition policy perspective, discrimination of this kind will not give rise to a competition
problem where there is no perceived injury or threat of injury to competition.  This can lead to divergencesbetween trade and competition policies, i.e., whether or in what circumstances the focus should concentrate onthe market process or on the ability of individual firms to compete, which go to the heart of the question ofwhether it is appropriate or feasible to seek a convergence between the policies.WT/WGTCP/W/131
Page 2
opportunities and the according of due process to interested parties, including competitors.  The
efforts currently under way to conclude an agreement on transparency in government procurement
testify to the very real trade (and public policy) benefits that can accrue to all from the simple
assurance of transparency in the publication and management of commercial opportunities.
Transparency is also crucial to the individual and collective surveillance by WTO Members of otherMembers' implementation of their obligations, e.g., in the notification of domestic legislation,
regulations and other measures of relevance to individual WTO Agreements.  Finally, transparency in
the operation of the WTO itself has become a critical factor in ensuring the long-term credibility of
the multilateral system and in strengthening public  understanding of and confidence in the value of
expanded trade, open markets and economic reform.
3. The essential WTO obligations relating to transparency are contained in GATT Article X and
GATS Articles III and III bis.  GATT Article X requires Members to "publish promptly in such a
manner as to allow governments and traders to become acquainted with them" all relevant "laws,
regulations, judicial decisions and administrative rulings of general application" pertaining to customs
and trade matters.  (Article X also requires Members to maintain judicial, arbitral or administrative
tribunals or procedures for reviewing such laws, measures and practices.)  GATS Article III -
completed 47 years later - requires Members to "publish promptly and, except in emergencysituations, at the latest by the time of their entry into force, all relevant measures of general
application which pertain to the operation of this Agreement".  GATT Article X and GATS
Article III  bis contain virtually identical language establishing a general confidentiality exception to
the general rule.  They state that nothing requires a Member "to disclose confidential information, the
disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, orwhich would prejudice legitimate commercial interests of particular enterprises, public or private.
3
Provisions reflecting the general transparency obligations of GATT Article X can also be found in thevarious subsidiary agreements, e.g., Article 12 of the Agreement on Customs Valuation
4 and Article 6
of the Agreement on Trade-Related Investment Measures ("TRIMs").
4. Elements of GATS Article VI, regarding "domestic regulation", may also be of interest,
though Article VI is not a "transparency" rule as such.  Article VI includes provisions that set out
minimum standards of "reasonable, objective and impartial" treatment for administrative decisions
affecting trade in services.  This includes the availability of some sort of appeals mechanism for such
decisions.  With regard to "transparency", the Article states that information is to be given to
applicants for licences to provide services concerning the status and outcome of their applications.
The Reference Paper on Regulatory Principles, concluded in association with the GATS Agreement
on Basic Telecommunications Services, is built upon Article VI.5
5. The WTO Anti-dumping Agreement6 contains detailed provisions on transparency, as do the
Agreements on Subsidies and Countervailing Measures ("SCM") and Safeguards.  In particular, the
Anti-dumping Agreement's Articles 6 (evidence) and 12 (public notice) establish a comprehensive
scheme for administratively collecting and analysing information and rendering determinations with
respect to whether imports have been sold at less than "normal value" and have caused or threatened
"material injury".  These provisions include very specific terms for according parties rights and means
of participation in the proceeding, for making pub lic the investigative authorities' reasonings and
conclusions, and for the administrative processing of commercially confidential evidence.
Article 17.7 of the Anti-dumping Agreement, in turn, addresses the treatment of confidential
information in the dispute settlement context.  Articles 12 and 22 of the SCM Agreement and Articles
                                                     
3 The quoted passage is from GATS Article III bis.
4 Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994.
5 See Communication from the United States,  "Pro-competitive Regulatory and other Measures for
Effective Market Access in Basic Telecommunications Services" (S/NGBT/W/5, 9 February 1995), and Note by
the Secretariat, "Review of Outstanding Issues" (TS/NGBT/W/2, 8 July 1994).
6 Agreement on Implementation of Article VI of the GATT 1994.WT/WGTCP/W/131
Page 3
3 and 4 of the Safeguards Agreement set forth analogous obligations for countervailing duty and
safeguards proceedings.  Furthermore, both th e Antidumping and the SCM Agreements contain
provisions (Articles 13 and 23 of the respective Agreements) requiring domestic judicial, arbitral or
administrative tribunals or procedures for the review of administrative actions relating to antidumping
and countervailing duty proceedings.  Finally, the SCM Agreement - like several other WTOAgreements
7 - contains extensive rules for notification to the WTO of certain practices (the giving of
subsidies, in this case), either by the Member engaging in the practice or by other Members.
6. The 1994 Dispute Settlement Understanding ("DSU") encompasses both transparency and
confidentiality aspects, addressing the matters of evidence and confidentiality in rather general terms
under Articles XIII and XIV.  The Rules of Conduct for the DSU contain Rule VII, which requires
"covered persons" to protect confidential information.8   Under existing rules, WTO disputes are
conducted in private, without observers from the public or public disclosure of working pleadings anddocuments, although the United States and other Members have advocated for some time in favour of
making dispute settlement submissions publicly available and permitting public observance of
proceedings as a means of enhancing transparency and strengthening public confidence in the
multilateral system.  Panel and Appellate Body decisions are made public according to a certain
schedule, and the submissions of the parties are summarized in those decisions in a fairly detailedway.  Disputing parties are also free to disclose their own briefs and pleadings, as does the
United States, with appropriate protection being given to any confidential information.
7. More than 80 countries (including most WTO Members) have antitrust laws.
9  From our
understanding, all of these laws (together with accompanying regulations) are published - if not
always readily available outside the country in question - and the agency charged with enforcing thelaws is identified.  In the case of the United States, there is a vast amount of information available to
the public about United States antitrust laws and procedures, published by government agencies,
academic journals, and private publishers.  Indeed, there are literally thousands of published judicial
and administrative decisions in antitrust cases, which explain the application of United States antitrust
law in a wide variety of factual circumstances.  Many antitrust agencies around the world, includingthe United States antitrust agencies - the Department of Justice (DOJ) and the Federal Trade
Commission (FTC) - maintain and frequently update websites that contain a wide array of information
about what the agencies are doing, including pleadings, decisions, press releases, speeches by
government officials, and the like.
10  In addition, the websites of th e United States antitrust agencies
and many of their counterparts elsewhere provide links to the websites of other antitrust agencies and
of relevant international organizations, such as the WTO, OECD and UNCTAD.  Finally, there is an
enormous body of literature on the many substantive and procedural aspects of United States antitrustlaw, and a growing literature on other countries' antit rust laws as well.  An increasing amount of this
literature is available on the Internet.
                                                     
7 Other WTO agreements with notification rules include the Understanding on the Interpretation of
Article XVII of the GATT 1994 ("State Trading"), the Agreement on the Application of Sanitary and
Phytosanitary Measures, the Agreement on Technical Barriers to Trade, the TRIMs Agreement and the (GATT)Agreement on Trade in Civil Aircraft.
8 "Covered Persons" include panelists, members of the Appellate Body, expert assistants and any
Secretariat personnel involved in the case.   Rule IV.
9 Many (perhaps most) of these laws have been adopted during the past ten years.  This is an ongoing
process: many countries that have not previously had competition laws are adopting them (Indonesia is a very
recent example), while other countries (e.g., South Africa and the United Kingdom) have enacted new antitrustlaws to replace existing ones.
10 The DOJ Antitrust Division website is located at "www.usdoj.gov/atr";  the FTC website is located at
"www.ftc.gov/ftc/antitrust.htm".WT/WGTCP/W/131
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8. There is also extensive experience with government-to-government notifications in the
antitrust and competition policy area.  An OECD Recommendation11 - agreed in its original form in
1967 - provides for OECD member countries to notify other member countries when undertaking any
antitrust enforcement activity that may affect such other members' important interests, and for
consultation, upon request, with regard to such activity.  The United States' various bilateral antitrustcooperation agreements also provide for such notifications, as do several bilateral cooperation
agreements to which the United States is not a party.
12  The two United States antitrust agencies made
roughly 130 such notifications in fiscal year 1998.13
9. Of course, as many aspects of competition policy entail the enforcement of laws, the manner
in which the transparency principle is given effect necessarily reflects the exigencies of the law
enforcement process.  In the United States and many other countries, much of the information
obtained in the course of antitrust enforcement pro ceedings is required by statute or regulation to be
kept strictly confidential.14  All antitrust law enforcement proceedings are likely to involve some
commercially sensitive information, informants and witnesses who must be protected, and/or other
communications and deliberations of a non-public nature.  This is especially true for the investigation
stage, though confidentiality obligations continue after that.  In the United States, special secrecy rules
apply to criminal investigations, and in many countries pre-merger notifications are done under strictnon-disclosure rules.  In the United States and numerous other countries, antitrust trials and appeals
occur almost entirely in public circumstances, as shown by the extensive press coverage of some
United States Government antitrust cases; however, the administrative and judicial procedures
employed by some WTO Members often do not occur in public.
10. With respect to competition advocacy, the FTC and DOJ often appear before or file written
comments with many different United States federal and State agencies as advocates for competition
in the regulatory process.  The DOJ's role in competition advocacy and the analytical model it uses are
explained in detail in DOJ's Antitrust Division Manual, which is available on DOJ's website
15 the
United States antitrust agencies' written comments to regulatory agencies are public, and available on
their respective websites.
11. Both the general WTO transparency rules and their general exceptions for confidential
information are relatively straightforward and clear.  Taken together, they are also well integrated into
the enforcement and advocacy activities of many antitrust authorities.  In our experience, antitrust
authorities usually enforce transparent laws, rules and policies, and public notice is given at
                                                     
11 Revised Recommendation of the OECD Council Concerning Cooperation between Member
Countries on Anticompetitive Practices Affecting Inte rnational Trade, OECD Document No. C(95)130/Final
(21 September 1995).
12 The OECD Recommendation and the United States ' bilateral antitrust cooperation agreements are
discussed in detail in two papers submitted by the United States to this Working Group, WT/WGTCP/W/48
(24 November 1997) and WT/WGTCP/W/116 (25 May 1999).
13 Interestingly, Article IX of GATS and Article 40 of the WTO Agreement on Trade-Related Aspects
of Intellectual Property Rights create mechanisms for inter-governmental consultations over certain businesspractices, including allegedly anti-competitive practices in intellectual property licensing.   To our knowledge,neither provision has ever been used.
14 In the United States, such laws include the Hart-Scott Rodino Pre-Merger Notification statute, 15
U.S.C. §18a, the Antitrust Civil Process Act, 15 U.S. C.§§1311-14, and Rule 6(e), Federal Rules of Criminal
Procedure.  See Note by the OECD Secretariat, "Su mmary of Responses to Questionnaire on National Laws
Governing Confidentiality", DAFFE/CLP/WP3(95)2/Rev2, listing the relevant confidentiality laws of  OECDMember countries.   Examples of other confidentiality requirements include: for the European Union,
Article 214 of the Treaty of Rome, Art. 20(2) of Regulation 17/62, Article 17 of the Merger Control Regulation
and Article 17 of Commission Staff Regulations; for Cana da, s. 29 of the Competition Act;  for Mexico, art. 31
of the Federal Competition Act; for Romania, art. 65 of the Competition Law; and for South Africa, s. 69 of theCompetition Act, 1998.
15 Chapter V of the Antitrust Division Manual is devoted entirely to competition advocacy; see the
FTC's website,  supra .WT/WGTCP/W/131
Page 5
appropriate stages in enforcement proceedings, with varying degrees of public access to the
proceedings themselves.  Judicial review almost always exists for enforcement decisions, with
publicly available decisions.  Where confidentiality concerns arise, they would appear to be readily
accommodated by the broad but sensible terms of GATT Article X:1.
III. NATIONAL TREATMENT
12. GATT Article III governs the application of internal measures, including taxes that may be
applied to imported goods after they pass Customs.  Generally speaking, it requires that imported
goods receive treatment "no less favourable" than "like" domestic products.  This language has been
construed to cover domestic measures discriminating against the producers of foreign goods as well as
such goods themselves.16  GATS Article XVII governs the application of measures that affect
"foreign" services and service suppliers (i.e., the services and service suppliers of other Members),
using any of the modes of delivery specified in GATS Article I (cross-border, commercial presence,etc.).  GATS Article XVII does not apply across the board, unlike the GATS provisions in Articles II,
III and III bis.  It only applies to the extent that Members have undertaken sector-specific
commitments to provide it.  It requires that foreig n services and service suppliers receive treatment no
less favourable than "like" domestic ones.
13. As an initial matter, it is the longstanding policy of the United States antitrust agencies that
they "do not discriminate in the enforcement of the antitrust laws on the basis of the nationality of the
parties.  Nor do those agencies employ their statutory authority to further non-antitrust goals".
17
Indeed, it is a basic tenet that United States antitrust law is intended to protect competition in themarket as a whole, not individual competitors.
18  Invidious discrimination against parties or firms on
any ground, including their nationality, would be fu ndamentally inconsistent with this principle.
14. Generally speaking, under both United States and foreign antitrust laws, foreign persons
(individual and corporate) may become involved with  antitrust laws as plaintiffs or complainants,
investigative targets or defendants, or simply as witnesses or sources of relevant information.  In
practice, it is hardly remarkable that the practical and procedural features of antitrust enforcement in
the United States and elsewhere may sometimes produce differing outcomes for foreign and domesticparties.  For example, United States pre-merger notification rules include certain limited exemptions
for foreign acquiring and/or acquired parties that are not available to United States parties
19 and, for a
variety of legal and practical reasons, it may be more difficult to obtain information from foreign
persons than from domestic ones.  Although there has been some speculation recently that the DOJ
has treated domestic firms less favourably than foreign ones with regard to criminal prosecution of
international cartels, the DOJ has publicly explained that this is not the case as a matter of either law
or policy.20  The DOJ has also explained that its criminal case amnesty programme and plea
                                                     
16 See, e.g., United States - Section 337 of the Tariff Act of 1930 (BISD36S/345, adopted 7 November
1989); Canada - Administration of the Foreign Investment Review Act (FIRA) (BISD30S/140, adopted2 July 1984).
17 DOJ & FTC, Antitrust Enforcement Guidelines for International Operations (April 1995), at 2.
Accord , DOJ, Antitrust Guide for International Operations (Jan. 1977), reprinted in 4 Trade Reg. Rep. (CCH)
¶13,110, at 20,646.
18 E.g., Northern Pacific Ry. v. United States, 356 U.S. 1 (1958).
19 16 C.F.R. §§802.51 and 52.
20 For example, in the recent U.S. prosecutions in the Vitamins cartel cases, a French firm that
participated in the conspiracy qualified for protection from prosecution, in return for its cooperation in the
investigation.  For additional discussion of this issue, see "Negotiating the Waters of International CartelProsecutions", a speech by Gary R. Spratling, Deputy Assistant Attorney General, Antitrust Division, USDepartment of Justice, before the Thirteenth Annual National Institute on White Collar Crime (San Francisco,
4 March 1999).WT/WGTCP/W/131
Page 6
agreements tend to favour whoever is willing to cooperate the soonest and the most thoroughly with
the government in its investigations, regardless of nationality.21
15. In contrast, in a particular case, the DOJ or FTC might also expect a foreign party to abide by
terms that are intended to address special procedural issues presented by the location of such a party.
For example, both a domestic and a foreign firm subject to an antitrust judicial decree might berequired to maintain key documents in the United States, in order to ensure compliance with the
decree.  Somewhat similarly, Article III.2 of the WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights recognizes the need for procedural devices necessary to secure
compliance with domestic intellectual property laws  that are not inconsistent with the Agreement,
including "the designation of an address for serv ice or the appointment of an agent within the
jurisdiction of a Member".
16. Transactions involving foreign firms may sometimes receive treatment that is different from
the treatment of similar transactions involving only United States firms to the extent that the two
transactions have different kinds of effects on United States markets.  United States and most other
antitrust laws have as their focus the economic welfare - especially the consumer welfare - of their
own citizens.
22  Thus, economic activities such as mergers and acquisitions, joint ventures and
licensing arrangements are reviewed - in the United States and elsewhere - with respect to theireconomic effects in each country's own markets, even if there are or might be other, perhaps different
effects in other markets.  If a merger of multinational firms, for example, might tend to harm
competition outside United States markets, but not in them, that would not be a matter for United
States antitrust authorities to remedy.  Conversely, if a merger had anti-competitive potential within
the United States, but might create efficiencies concentrated in some other countries, those externaleffects would not save the transaction under United States law.  These analytical approaches as well
as differences in substantive legal standards, th erefore, may account in certain instances for the
sometimes differing treatment of multinational mergers by antitrust authorities in different countries.
17. Foreign persons aggrieved by anti-competitive conduct occurring in a particular country may
wish to obtain relief from domestic authorities or courts.  The methods of doing so differ considerablyamong countries and legal systems.  In the United States, for example, there are well-developed
private rights of action available to persons who believe that they have been victimized by anti-
competitive conduct;  such rights either do not exist or are much more limited in most other countries.
However, a recent OECD study concluded that foreign persons generally have the same rights and
opportunities that domestic persons may have to invoke antitrust remedies under OECD members'
domestic laws.
23 Moreover, of course, if a foreign person is not an actual or potential participant in the
pertinent national market, or if its complaint does not relate to activities that affect the domesticmarket, it may lack an appropriate basis to obtain relief.
24
                                                     
21 Ibid , at 23-26.  "Amnesty" or "leniency" policies are being adopted by other antitrust agencies,
including those of Canada and the European Communities.
22 See DOJ and FTC, Antitrust Enforcement Guidelines for International Operations (April 1995); see
also Note by the OECD Secretariat, "Objectiv es of Competition Policy" (DAFFE/CLP(92)2/Rev1,
4 March 1992).
23 Note by the OECD Secretariat, "Right s of Foreign Firms under Competition Laws",
COM/DAFFE/CLP/TD(98)23, 3 February 1998.
24See, e.g . , Filetech, S.A. v. France Telecom, S.A., 157 F.3d 922 (2nd Cir. 1998).WT/WGTCP/W/131
Page 7
18. In brief, the United States' antitrust authorities do not discriminate against foreign enterprises,
nor do United States antitrust laws.  United States antitrust policy is firmly rooted in economic criteria
25and, indeed, places considerable emphasis on the competitive advantages of firms' - including
foreign firms' - participation in United States markets.26  Our experience thus far has been that other
countries' antitrust laws and policies generally are non-discriminatory too, both by design and in
practice.27
IV. MFN
19. MFN is perhaps the most sweeping and dynamic of the WTO obligations insofar as it is based
on what might be described as the concept of general (overall) reciprocity among Parties, rather than
specific ("mirror image") reciprocity, and is designed to have a ratchet-like effect in increasing each
Party's degree of trade liberalization.  GATT Article I(1) states that:
[A]ny advantage, favour, privilege or immun ity granted by any contracting party to any
product originating in or designed for any other country shall be accorded immediately and
unconditionally to the like product originating or destined for the territories of all other
contracting parties.
GATS Article II(1) declares that:
With respect to any measure covered by this Agreement, each Member shall accord
immediately and unconditionally to services and service suppliers of any other Member
treatment no less favourable than that it accords to like services and service suppliers of any
other country.
20. As discussed above, United States antitrust authorities generally do not discriminate between
and among foreign persons, but there are a variety of situations in which they may have valid reasons
for differentiating  between and among them.  For example, in terms of United States enforcement
procedures, the techniques used to obtain information from or about foreign persons necessarily willdepend upon the country in which they are located.  There are a variety of bilateral cooperation
agreements and bilateral Mutual Legal Assistance Treaties that the US authorities (and other
countries' antitrust authorities) use to obtain fo reign-located information for law enforcement
purposes.  Their terms, and our practice under them, necessarily differ from one agreement to another,
depending on the laws and policies of the countries in question, and the language of the agreements
themselves.  The United States continues to explore additional and improved antitrust cooperation
agreements with other countries and will readily consider improving its relationship with thosecountries willing and able to reciprocate.
                                                     
25 As the DOJ/FTC International Guidelines state (at p. 1), "Throughout the world, the importance of
antitrust law as a means to ensure open and free markets, protect consumers, and prevent conduct that impedescompetition is becoming more apparent".
26 The significance of imported goods to merger analysis is noted in ¶1.43 of the US Department of
Justice and Federal Trade Commission "Horizontal Merger Guidelines" (rev'd 1997).
27 The United States' National Cooperative Research and Production Act (NCRPA), 15 U.S.C. §§
4301-06, requires the DOJ to submit periodic reports to Congress on whether foreign governments providenon-discriminatory treatment under their antitrust laws to joint ventures involving US participants.  In its 1994and 1996 reports, the DOJ found no foreign governments to have discriminated in their antitrust treatment ofsuch ventures.WT/WGTCP/W/131
Page 8
21. On a purely domestic level, as was discussed in connection with national treatment, the mere
fact that differentiated results could emerge from the prosecution of firms involved in international
cartels should not be construed as a policy or practice of discriminatory treatment.  Rather, any such
differentiation would reflect not a party's nationality, but differences in the degree of culpability
among parties in a particular case, the differing evidence available with respect to them, or ofcooperation and assistance that parties are willing to offer.  To take one recent United States example,
in 1997 and 1998, the DOJ filed criminal charges (all involving guilty pleas) against participants in an
international cartel that fixed prices and allocated markets world wide for an industrial cleaner called
sodium gluconate.  The firms involved were Dutch, French, and Japanese;  they paid different
amounts of fines, depending on a number of case-specific factors, including (in no particular order)
their relative degree of culpability for the criminal  conduct involved, the impact of their conduct on
U.S. commerce, the nature of their cooperation with the DOJ's investigation, and, where appropriate,their ability to pay.  Like national treatment, MFN is not a "one-size-fits-all" legal "straitjacket"
imposed regardless of context or circumstances.
22. In substantive antitrust analysis, it may be appropriate to treat firms from different countries
differently (under either United States or foreign law) because of differing facts, including facts about
the regulatory context in which such enterprises pr ovide goods or services in international "relevant
markets".  The conduct and structural situation of a firm in a foreign location may be material to
determining whether that firm's conduct is likely to restrict competition in the United States,
especially if both the US and foreign territories are part of a single international economic market.
23. As an example, in recent years, the United States Federal Communications Commission and
DOJ have examined major telecommunications sector transactions to determine, inter alia , whether
the foreign telecom companies  enjoyed "bottleneck facilities" or unique regulatory advantages in
their home markets that might allow them to dominate telecom traffic between that market and the
United States.
28  Domestic telecom providers would be and are subject to investigations of similar
intensity, but with different facts relevant to their particular circumstances.  Country-by-country
differentiations similar to the telecommunications  example may occur when analysing and dealing
with international aviation and energy supply markets, among others.
24. As another, simpler illustration, one could compare hypothetical merger cases in which a firm
from Country A proposes to purchase one US firm, and a firm from Country B proposes to purchase
another United States firm in the same industry.  If the Country A firm had a 70% share in the
relevant market and its United States target had a 15% share, that proposed acquisition might well
have significant anti-competitive effects in United States markets and thus violate United States
antitrust laws;  in contrast, if the Country B firm had only a 5% market share and its proposed UnitedStates partner had a similar share, that transacti on would not raise antitrust concerns and, thus, would
not be challenged.  This sort of obvious differentiation based on objective differences in competitive
circumstances would be entirely consistent with MFN principles.
25. While antitrust proceedings take into account the differing regulatory and economic
circumstances in which enterprises, foreign and domestic, might find themselves, United Statesantitrust authorities and laws do not discriminate among or against foreign persons.  Thus, MFN
obligations, like those pertaining to national treatment, are consistent with antitrust enforcement
practices.
                                                     
28 See "In the Matter of Rules and Policies on Foreign Participation in the US Telecommunications
Market, Market Entry and Regulation of Foreign Affiliated Entities", Report and Order of the Federal
Communications Commission, FCC 97-398 (25 November 1997).  (It bears noting here that foreign antitrustauthorities have devoted similar attention to such questions in connection with mergers of United States'telecommunications firms, such as in the European Commission's required divestiture of certain Internetbackbone facilities by MCI-WorldCom to prevent the creation of a bottleneck.)WT/WGTCP/W/131
Page 9
V. CONCLUSION
26. The foregoing discussion suggests that antitrust law enforcement and competition policy in
the United States are fully consistent with fundamental WTO principles.  US antitrust authorities can
and ordinarily do respect general public notice rules, consistent with their individual legal systems and
confidentiality requirements.  They generally enforce laws that are not themselves discriminatory, butquite the opposite, and in a non-discriminatory manner.  The occasional differentiation between
domestic and foreign investigative subjects, or among foreign ones, is not discriminatory but a
necessary reflection of the factual differences that ar ise in all antitrust proceedings - indeed, in all law
enforcement proceedings.
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