International Harmonization of Antitrust Law: The Tortoise or the Hare?

Harmonization is something to which only a curmudgeon would take exception. After all, the word conjures up images of musicality, pleasing relations, accord, and orderly combinations.1 To "harmonize" one country's laws with those of another must be a Good Thing. That type of harmonization suggests the structuring of both sets of laws in a way that will facilitate smooth, joint, or simultaneous application, without the cacophony of disagreements or opposing purposes. Yet it is a plain fact that in a world with 190 sovereign nations,2 diversity among legal systems abounds. It is also logical to assume that sometimes this diversity creates frictions for actors who seek to operate in more than one country. The hard question, posed not only in the area of antitrust law, but in many other fields, is whether these frictions are serious enough that the international community should strive to reduce or eliminate them. The alternative is to tolerate the difficulties inherent in national differences, either because of respect for the right of each people to govern themselves, or because no acceptable measures are available to address the problem. Antitrust law, or competition law as it is more commonly called outside the United States, lies at the center of the network of laws and regulations that cumulatively support the free market system that has served the United States so well. As such, it rests and depends upon the broader American democratic system of government: a system in which people are free to form companies, to enter professions or lines of business, to move from place to place as whim and economic opportunity dictate, to raise money in established capital markets, and to resort to courts that are reliable and free of corruption when problems arise. The United States is certainly not IMAGE FORMULA4 the only country in the world with this kind of legal and economic system and this mobility of persons, capital, and goods, but-even during a time like the present when the stock market has taken a turn for the worse-most would agree that the United States enjoys these benefits to a high degree. It is against that broad backdrop that I propose to consider the question of international harmonization of competition law. The desire on the part of the United States and like-minded countries to spread the antitrust gospel has been around for at least sixty years, and to a lesser degree longer.3 Nevertheless, the adoption of domestic competition laws in other countries did not pick up serious momentum until at least the 1960s. By this time, the European Union had put in place the necessary tools for enforcing the competition provisions of the Treaty of Rome,4 competition laws had been enacted by most member nations of the Organisation for Economic Co-operation and Development ("OECD"), and the developing countries had undertaken serious consideration of the topic of restrictive business practices under the auspices of the United Nations Conference on Trade and Development.5 Today, according to US Department of Justice spokespersons, there are over ninety countries with competition laws, and those countries collectively account for nearly 80 percent of world production.6 Those numbers furnish some evidence that the philosophy of competition law has indeed spread to all corners of the globe, and that the first step toward international harmonization has already been accomplished. Yet the picture is not quite as rosy as this might suggest: these laws differ from one another, sometimes subtly, sometimes unabashedly so. That fact raises a number of questions that are the topic of this article: How different, as of 2002, are the various competition laws in reality? Are these differences anything we should be worried about, and if so, why? Finally, assuming that the case for harmonization has been made, what models are available to accomplish this goal, and which one should we adopt? …