WORLD TRADE
ORGANIZATIONWT/WGTCP/W/204
15 August 2002
(02-4459)
Working Group on the Interaction
between Trade and Competition PolicyOriginal: English
COMMUNICATION FROM THE UNITED STATES
The following is the final text of a paper re ceived from the Permanent Mission of the United
States which was circulated as an advance copy for the Working Group's meeting of
1-2 July 2002.
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MODALITIES FOR VOLUNTARY COOPERATION
Paragraph 25 of the Doha Ministerial Declaration provides that in the period until the Fifth
Ministerial Session, the Working Group on the Interaction Between Trade and Competition Policy
shall undertake further work to clarify, among other things, "modalities for voluntary cooperation".The Working Group has, in previous meetings, addressed antitrust cooperation in the general sense of
the benefits, costs, and issues that such cooperation can raise, and the United States has contributed
papers conveying its experience with such cooperation
1.  The Doha Ministerial Declaration focuses
our work on the potential ramifications of incorporating commitments on cooperation into a possible
multilateral framework.  Thus, in this paper, we briefly review the benefits and goals of cooperation2
summarize the United States' experience with antitrust cooperation, and then raise several issues onwhich the Working Group might focus as it considers the role and modalities of voluntary cooperationin a possible multilateral framework.
I. GOALS AND BENEFITS OF ANTITRUST COOPERATION
1. An early function of antitrust cooperation was to minimize conflicts that sometimes arose
when one jurisdiction's application of its antitrust laws implicated interests of other jurisdictions.  Forexample, seeking evidence abroad or taking enfo rcement action against anti-competitive conduct that
took place outside the jurisdiction sometimes raised comity and sovereignty concerns on the part of
the foreign jurisdiction.  Thus, conflict avoidance was a primary motivation for some of the early
bilateral antitrust cooperation agreements entered into by the United States
3.
                                                     
1 See "US Experience with Antitrust Cooperation Agreements", Submission of the United States,
WT/WGTCP/W/48 (97-5158), 24 November 1997 and "Approaches to Promoting Cooperation and
Communication among Members including in the Field of Technical Cooperation", Communication from theUnited States, WT/WGTCP/W/116 (99-2099), 25 May 1999.
2 "Cooperation" is sometimes used to include technical assistance, but we use the term herein to refer
only to enforcement-related assistance.  For further information on the technical assistance andcapacity-building experience of the United States, see "National Experience in Antitrust Law Technical
Assistance:  a Ten Year Perspective", Communication from the United States WT/WGTCP/W/185 (02/2277),
22 April 2002.
3 The antitrust cooperation agreements of the United States are available at
http://www.usdoj.gov/atr/public/international/int_arrangements.htm.WT/WGTCP/W/204
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2. As business practices have increasingly involved conduct with cross-border or even global
effects, it has become correspondingly important for antitrust agencies reviewing cross-border
conduct to cooperate with their counterparts abroad.  Hence, the more recent bilateral cooperation
agreements into which the United States has entered reflect the goal of enhancing mutual enforcement
effectiveness, as well as conflict minimization.  A third benefit of cooperation is that working togetheron issues of mutual concern fosters substantive analytical convergence among the jurisdictions
involved.  Even when the laws and procedures of the cooperating jurisdictions differ, sharing
information and ideas on concrete matters can move one or both of the agencies toward a common
approach to the case at hand, which can in turn influence the agencies' general policy direction toward
"best practices" in antitrust enforcement.
3. For example, the United States and Canada have cooperated in a wide range of criminal cartel
investigations, including the plastic dinnerware, graphite electrodes, and vitamins investigations,which resulted in US fines exceeding US$1.3 billion and commensurate Canadian fines of more than
CDN$115 million.  This cooperation has included simultaneously executed search warrants, as well as
searches by one authority on behalf of the other.  In many of these investigations, the United States
and its Canadian counterparts would have found it far more difficult, if not impossible, to conclude
such investigations successfully without the other's assistance.  In addition, cooperation between theUnited States antitrust agencies and the European Commission's Directorate General for Competition
has generally led to consistent analyses of proposed mergers subject to review in the United States
and the EC, and the development of compatible remedies in both jurisdictions
4.
II. SUMMARY OF THE UNITED STATES' EXPERIENCE WITH ANTITRUST
COOPERATION
4. The United States has had extensive experience with voluntary cooperation among antitrust
agencies in bilateral and multilateral contexts.
Bilateral Arrangements
5. Most antitrust cooperation by the United States occurs pursuant to legal frameworks set forth
in bilateral cooperation agreements.  These agreements tend to be with the jurisdictions with whichthe United States has significant economic relationships, which give rise to the most frequent
instances of conduct that raises antitrust issues in both jurisdictions.
6. The United States has entered into several type s of bilateral antitrust agreements.  The United
States has entered into eight "soft" or "first-generat ion" agreements providing for, among other things,
notification of enforcement actions implicating the other party's important interests, provision of
investigative assistance, coordination of enforcement activities, consideration of comity, and a
consultation mechanism
5.  Pursuant to these agreements, the United States antitrust agencies share
                                                     
4 See e.g.,  In the Matter of Novartis AG;  AstraZeneca, PLC;  and Syngenta AG ;  see FTC Press
Release (1 Nov. 2000), FTC's Complaint, Consent Agreement, Order, and Analysis to Aid Public Comment,available at <http://www.ftc.gov/opa/2000/11/astrazeneca.htm>;  AstraZeneca/Novartis , Case No
COMP/M.1806, European Commission Decision, available at
http://europa.eu.int/comm/ competitio n/mergers/cases/decisions/m1806_en.pdf ;  MCI WorldCom/Sprint, Case
No. COMP/M.1741, Commission Decision of 28 June 2000;  United States v. WorldCom, Inc. and Sprint Corp.
(D.D.C. filed 27 June 2000), Complaint available at http://www.usdoj.gov/atr/cases/f5000/5051.htm .
5 Agreement between the Government of the United States of America and the Government of
Australia Relating to Cooperation on Antitrust Matters, 29 June 1982;  Agreement between the Government ofthe United States of America and the Government of the Federative Republic of Brazil Regarding Cooperation
Between Their Competition Authorities in the Enforcement of Their Competition Laws, 26 October 1999;
Agreement between the Government of the United States of America and the Government of Canada Regardingthe Application of Their Competition and Deceptive Marketing Practices Laws, August 1995;  Agreementbetween the Government of the United States of America and the Government of the Federal Republic ofWT/WGTCP/W/204
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public information and what is known as "agency confidential" information, meaning information that
the agencies do not normally disclose but the sharing of which is not prohibited – for example, the
identity of investigation targets or the analysis of relevant markets in merger cases.  The United States
has entered into one agreement devoted specifically  to elaborating a framework for "positive comity,"
although it has not yet been invoked.  The United States is a party to roughly forty Mutual LegalAssistance Treaties that provide for sharing info rmation, including confidential information, in
criminal matters, often including criminal antitrust cases.  The United States currently has one
agreement, pursuant to specific authorizing legislation, enabling the sharing of confidential
information in civil as well as criminal antitrust ca ses.  Given the sensitivity of the information that
may be exchanged pursuant to all of these types of agreements, each such agreement is subject to
safeguards committing the recipient of such informa tion to protect its confidentiality.  None of the
agreements is subject to dispute settlement.
7. In the United States' experience, formal agreements have proven useful in providing a legal
framework for cooperation.  An additional benefit to these agreements is that they have acted as a
catalyst to encourage contact between the antitrust agencies of different countries, fostering closer
relationships among the agencies and facilitating analytical convergence.  Some cooperation also
takes place in the absence of agreements.  This most often takes the form of sharing publicly availableinformation, which can be useful to agencies that may find this easier than locating the information
themselves.
Multilateral and Regional Arrangements
8. Antitrust cooperation has also been facilitated by the work of several regional and multilateral
fora.  The OECD's Recommendation on antitrust enforcement cooperation
6 provides a framework for
its thirty members to engage in cooperation, including notification, provision of non-confidential
information, coordination, and consultation.  The OECD's Cartel Recommendation7 has facilitated
cooperation in the prosecution and punishment of international cartel arrangements.  Discussions in
other regional and multilateral fora, such as the WTO, UNCTAD, NAFTA, APEC, and FTAA have
facilitated cooperation by highlighting issues of mutual concern and the benefits of cooperation inaddressing anti-competitive practices with an international dimension.
9. The discussions in these bodies also make clear the diversity of experience that jurisdictions
have with antitrust laws and enforcement, ranging from an absence of an antitrust regime, to new
regimes established as part of economic reform programs, to older regimes that are being modified in
view of new learning and globalization, to well-established, sophisticated enforcement systems.  The
types of cooperation in which jurisdictions engage is significantly affected by the nature of the
national regime, the relationship between the cooperatin g parties, and the nature of the specific matter
in which cooperation is being undertaken.  Thus, cooperation has many forms and meanings, and its
nature, use, and value are highly context-specific.
                                                                                                                                                                    
Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices, 23 June 1976;  Agreement
between the Government of the United States of America and the Commission of the European CommunitiesRegarding the Application of Their Competition Laws, 23 Sept. 1991;  Agreement Regarding The Application
of Their Competition Laws Between The Government of the United States of America and the Government of
The State of Israel, 15 March 1999;  Agreement between the Government of the United States of America and
the Government of Japan Concerning Cooperation on Anti-competitive Activities, 7 Oct. 1999;  and, Agreementbetween the Government of the United States of America and the Government of The United Mexican StatesRegarding the Application of Their Competition Laws, 11 July 2000.
6 OECD, Revised Recommendation of the Council Concerning Co-operation Between Member
Countries on Anti-competitive Practices Affecting International Trade adopted on 27 and 28 July 1995,
C(95)130/Final.
7 OECD, Recommendation of the Council Concerning  Effective Action Against Hard Core Cartels,
C(98)35/Final.WT/WGTCP/W/204
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III. ISSUES RAISED BY INCORPORATING VOLUNTARY COOPERATION IN A
MULTILATERAL WTO FRAMEWORK
10. As indicated above, the United States' experience, which appears to be shared by many other
jurisdictions, is that antitrust cooperation can be very beneficial in minimizing conflict, enhancing
enforcement effectiveness, and promoting analytical convergence.  Cooperation has been successfullypromoted by bilateral agreements and by non-binding multilateral instruments.  One task the Doha
Ministerial Declaration has assigned to this Working Group is to consider how modalities of
voluntary cooperation might work in a possible multilateral WTO framework.  Translating the
experience of antitrust cooperation from bilateral agreements and non-binding multilateral
instruments to a prospective WTO instrument among a very large number of jurisdictions raises a
variety of issues and questions.  We raise some of these issues below in the interest of stimulating a
discussion that we hope will crystallize the potential benefits, costs, and open questions that amultilateral cooperation discipline may entail.
What is meant by "cooperation"?
11. The term "cooperation" does not have a fixed meaning when applied to the antitrust
enforcement context.  Various agreements and other instruments provide for several different
arrangements that can be characterized as cooperation.  The Report of the Working Group'sdiscussions of this subject in its 2001 meetings notes that many Members arrived at a common
understanding on the basic outline of a possible framework of voluntary cooperation on competition
matters, which could include, inter alia :  (i) case-specific cooperation, (ii) provision of technical
cooperation and assistance with institution building, (iii) sharing of information and experiences and
discussions of common areas of interest, and (iv) cooperation regarding notification and coordination,
though dissenting views have been and are likely to continue to be expressed in relation to these
individual framework elements
8.  These forms of cooperation obviously encompass a wide range of
conduct and potential obligations.  The Working Group may want to focus on exactly what
"cooperation" means in the context of a multilateral agreement.
What is meant by "voluntary"?
12. A WTO multilateral framework is generally perceived as imposing legal obligations.  Yet, the
Working Group discussions have emphasized that mean ingful cooperation is an inherently voluntary
activity, i.e., there is little point to trying to coerce one  jurisdiction to cooperate with another, given
possible concerns over, inter alia , confidentiality of shared information, resource allocation, and
commonality of prohibitions and sanctions.
13. There have been references in the Working Group's prior discussions of cooperation to the
possibility of requiring jurisdictions receiving cooperation requests to give such requests "sympatheticconsideration" and of requiring jurisdictions that decline a request to provide reasons for doing so.
Such requirements could detract from the "voluntariness" of the cooperation mechanism.  Yet if
cooperation can be freely given or withheld, it is  not clear how this concept would fit into a WTO
framework.  Thus, the Working Group may want to consider the meaning of voluntariness as applied
to a potential WTO antitrust cooperation provision.
How, if at all, would MFN apply to voluntary cooperative arrangements?
14. A related issue is the potential application of the WTO principle of MFN treatment to
voluntary cooperation arrangements.  It has been argued that a jurisdiction' s entry into a cooperative
relationship with one party could raise MFN issues if the relationship provides benefits not available
to a third party – for example, providing for a notification, coordination, or consultation mechanism
                                                     
8 Id. at para. 55.WT/WGTCP/W/204
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not available to all others.  Applying MFN could potentially require jurisdictions to engage in a level
of cooperation with other jurisdictions that they did not intend or desire, and where the mutual
knowledge and trust so necessary to a sound cooperative relationship is absent.  Alternatively,
applying MFN could chill jurisdictions from entering into mutually beneficial bilateral relationships
for fear that this will require them to extend the same terms to jurisdictions as to which they do notfeel such terms are appropriate.  Conversely, it has also been argued that MFN is inapplicable to this
scenario because each bilateral relationship is different, i.e., the circumstances as to another
jurisdiction would not be "like" and MFN would not apply.  The Working Group may want to
consider how MFN might apply or not apply to  a voluntary cooperation mechanism in the WTO.
What would a notification obligation entail?
15. As mentioned previously, many cooperation instruments provide for notification to the other
party or parties of antitrust enforcement activities that affect the other's interests.  In an agreementpotentially among 140 or more participants, it is important to consider the ramifications of such an
obligation.  One question is what would trigger a notification obligation.  Existing agreements often
specify the type of conduct subject to notification.  These are often phrased in terms of activities that
affect the other party's "interests" or "important interests."  While the agreements often specify
examples of such activities, the circumstances triggering notification are typically notcomprehensively defined.  The specific examples of covered enforcement activities can include, for
example, those: that are relevant to the othe r party's enforcement activities;  that involve
anti-competitive activities carried out in the other party's territory;  that pertain to mergers involving a
party organized under the other party's laws;  that involve conduct encouraged, required, or approved
by the other party;  or that involve remedies that would require or prohibit conduct in the other party'sterritory.
16. In considering a cooperation provision that included notification, the Working Group may
want to examine when such an obligation would apply.  It may also want to consider how the
notification would be carried out – e.g., through bilateral diplomatic channels, informally between
competition agencies, or through a WTO mechanism.
What resource implications would a cooperation instrument entail?
17. Assuming that a workable and beneficial cooperation instrument could be devised, it is still
necessary to consider the costs associated with  implementing its provisions.  Each aspect of
cooperation involves the expenditure of resources - for example, responding to requests for
investigative assistance, coordinating enforcement with another jurisdiction, consulting as to whether
cooperation is appropriate, determining whether notification is required, providing such notifications,
handling incoming notifications, and responding to requests for public information.  Resources forthese activities must come either from existing funds allocated to antitrust enforcement and other
agency functions or from new funds allocated by governments.  In either case, the resources needed to
implement cooperation activities would compete with and ultimately displace resources that would
have gone elsewhere, e.g., for direct law enforcement activity, infrastructure for the antitrust agency,
higher salaries, or other, non-antitrust priorities of the government.
18. The experience of the United States has been that enforcement cooperation can be resource
intensive, even in a context of formal cooperation relationships with a relatively small number of
jurisdictions.  For example, the United States antitrust agencies submit roughly 150 notifications per
year to other antitrust agencies pursuant to such relationships.  As mentioned, the US agencies derive
significant benefits from international cooperation.  However, given the number of jurisdictions thatmight participate in a WTO antitrust cooperation framework and the potentially significant costs to
each jurisdiction of undertaking cooperation responsibilities, the Working Group may want to
consider how the possible benefits of a cooperation regime compare to the likely costs – direct,
indirect, and opportunity – that it would entail.WT/WGTCP/W/204
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IV. CONCLUSION
19. Cooperation with other antitrust enforcement agencies has yielded significant benefits to the
United States and others in enforcing their antitrust laws.  Bilateral cooperation agreements and
non-binding multilateral instruments have played an important role in promoting such cooperation.
Translating this experience into a prospective multilateral framework raises new and significantissues.  In this paper, we have attempted to raise some of the questions that the Working Group may
want to consider in greater depth in fulfilling the Doha Ministerial mandate as it applies to voluntary
cooperation.  We look forward to examining these issues in the Working Group to determine the
potential nature and suitability of antitrust cooperation disciplines in a possible WTO framework.
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