Evolving Toward What? The Development of International Antitrust
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Description
The antitrust world was about to change in 1982, but we did not realize it. The occasion was a trip that William Baxter, then head of the Department of Justice Antitrust Division, made to Paris, during which he met with the head of the EC's Directorate-General for Competition. The reason for the meeting was a potential conflict between Europe and the United States with regard to the European Commission's pending investigation of IBM. Baxter had just dismissed the Justice Department's long-running monopolization litigation against IBM, viewing the case as being without merit and rejecting the imposition of any antitrust relief at all. His concern was that the Commission might order IBM to disclose computer interface specifications, a remedy that Baxter thought unwarranted. The IBM case showed where antitrust was heading. Computers and telecommunications links were soon to make the world more connected. IBM was an important global competitor, in the United States, in Europe, and in Japan, but the U.S. Department of Justice could no longer presume that it could control the antitrust environment in which U.S. business operated. Not only did the European Commission have a different view of antitrust law than did the United States at the time, but it was increasingly willing to assert that view to enforce antitrust law in ways that the United States might not. As Baxter said, “IBM operates in their markets, and they are entitled to have such substantive rules about competition as seem appropriate to them. And if they could localize the effects of what they do, I would regard that as a matter of appropriate sovereign action. But they can't localize the effects of these remedies. They are worldwide, and they are very damaging.” Antitrust was internationalizing. IBM may have shown where the antitrust world was heading, but we still do not know where it will end up. What we see today is a great deal of ferment, with various strands of substantive antitrust law intertwining in an effort to craft new institutional approaches to international antitrust, approaches that deal not only with possible conflicts but also with possible ways to improve the effectiveness of international antitrust enforcement. Today's ferment may seem somewhat chaotic, but that is not necessarily a bad characteristic. Indeed, efficient rules and institutions may very well emerge out of this chaos. As the institutions of international antitrust enforcement take shape, a critical question will be the extent to which these institutions should be centralized. My overall view is that for a system of antitrust enforcement to remain dynamic, overcentralization must be avoided and some degree of chaos tolerated. Preferable to centralization would be a common law of international antitrust, with rules subject to reasoned analysis and with diverse institutions of antitrust enforcement to provide different enforcement perspectives. The paper proceeds as follows. The first part (II) attempts to map the current institutions of antitrust enforcement. The second part (III) describes recent efforts to put together new international antitrust enforcement networks. The third part (IV) discusses the evolving system of international enforcement against international cartels. The conclusion makes a modest prediction: the greatest problem for future international enforcement will likely be its very success.
Source Publication
The Future of Transnational Antitrust—From Comparative to Common Competition Law
Source Editors/Authors
Josef Drexl
Publication Date
2003
Recommended Citation
First, Harry, "Evolving Toward What? The Development of International Antitrust" (2003). Faculty Chapters. 617.
https://gretchen.law.nyu.edu/fac-chapt/617
