Chapter 9 - Global Competition Implications for Enforcement

This paper proceeds from the perspective that the engines of vigorous competition promote development and provide economic and social benefits to consumers and firms and, if markets are subverted by private cartels, law enforcement is necessary to protect consumer welfare. For consumers and corporations alike, much modern trade is conducted with little regard for national borders. The ease of communication, commerce and travel that facilitates international business, however, also increases the risk that anticompetitive behavior will cause harm to consumers and competition in more than one jurisdiction. Thus, modern competition lawyers must counsel their clients in an environment where business is conducted across borders and restraints of trade cause harm internationally and national competition laws can be enforced extraterritorially. Whilst purely domestic commercial activity is plausible, its effect on the global market is arguably virtually de minimis. Since commercial activity in one jurisdiction likely affects other states, legal actors and systems must communicate effectively with each other when adopting and enforcing laws that have multi-national impact. Importantly, legislators and law enforcement officials are already cooperating and competition law is undergoing a process of consolidation and harmonization. On one level, the issues raised by global competition enforcement are purely instrumental: a function of ascertaining whether are there differences in substance or procedure that matter, identifying these areas of divergence, evaluating their significance, and deciding whether and how they should they be resolved and by whom. On a non-utilitarian, non-pragmatic level, it is also important to identify the theoretical bases for any divergences among competition laws and enforcement regimes and to inquire whether such laws and enforcement priorities should be harmonized, and evaluate the justifications for harmonization. There is real value, but also a real cost, in the existence of multiple enforcement agencies. Even though most substantive provisions of competition laws are largely consistent, there have been examples of conflicts, most problematic in major merger cases because the costs of divergence are most acute. However, the potential costs are significant and should be minimized to the greatest extent possible to facilitate global competition while protecting consumers and competition from multinational cartels, restrictive agreements, and monopolies. Vigorous competition is a powerful route to improving the economic and social condition of citizens by allowing them to participate in a fair market economy. The current 90 jurisdictions that have adopted and are enforcing their own competition laws offer the benefits of competition for their citizens and firms doing business in these states. However, since these numerous competition laws may have differing underlying goals, substantive standards, and procedures, there are inefficiencies and costs to firms seeking to compete in multiple jurisdictions. This paper articulates a standard to evaluate whether a particular resolution to inconsistent global enforcement is recommended. Any such model for minimizing conflicts must further the values of competition law and enforcement and reserve sufficient discretion for individual sovereign states to effectuate their own legitimate competitive goals and evaluate the effect of cartels on their own consumers and competitive processes. I argue that the characteristics of such a model system include the following: competition law or laws, and their enforcement regimes, should be predictable, transparent, efficient, non-discriminatory in application, and legitimate or credible. At this time, a supra-national enforcement agency that pre-empts state competition laws and enforcement not is not likely to achieve these goals. Whilst substantive uniformity on core issues is plausible, agreement on non-core issues and underlying norms unlikely to be achieved. Moreover, differences in enforcement priorities and expertise make a uniform law an unappealing option. Voluntary cooperation, consultation and soft harmonization among state competition agencies offers the most promise. Harmonization, especially if the consultative process includes representatives of diverse interests including consumers, is efficient, transparent and credible. To the extent that agreement on core principles and processes is achieved, enforcement will be more predictable and fair.