International Antitrust at the Crossroads: The End of Antitrust History or the Clash of Competition Policy Civilizations?

Article excerpt

I. INTRODUCTION

The great question facing U.S. antitrust law in the next few years is how to respond to the European Union's (EU) increasing pressure for the inclusion of antitrust standards in the managed regime for world trade. (1) In this context, one must note the increasing aggressiveness of European competition policy enforcement with respect to primarily American transactions, such as the MCI-World Corn/Sprint, Boeing/ McDonnell Douglas, and GE/Honeywell mergers. Such cases either reflect mere policy differences between U.S. and EU antitrust specialism or a self-conscious EU strategy designed to advance EU trade interests and provoke international conflicts that will compel the United States to come to the table and negotiate global standards for antitrust enforcement. Less menacingly, one could see EU efforts to force the inclusion of competition policy in the next round of global trade talks as simply an effort to complicate those negotiations and thereby reduce the pressure on the European Union for major concessions on agricultural subsidies, (2) and, by parity of reasoning, see U.S. resistance as merely an effort to avoid a vehicle for imposing new limits on U.S. anti-dumping laws. (3) In any event, the recent Doha Declaration of the World Trade Organization (WTO) now seems to suggest that the door to including antitrust issues in the current WTO negotiating round has been opened, although the question whether the member states will walk through that door has not yet been answered. (4)

Now comes Mark Joelson's An International Antitrust Primer (5) to inform the coming debate about the inclusion of antitrust standards in the Millenium Round negotiating agenda. This book is largely a new book, although it purports to be a second edition of a volume Mr. Joelson wrote with Earl W. Kintner a quarter-century ago in what now seems a different world. It is now exclusively Mr. Joelson's handiwork, and it reflects his valuable decades-long experience as an antitrust practitioner. His thorough analysis of the complex structure of U.S. antitrust law, the laws of major U.S. trading partners, and U.S. law, policy and practices concerning the extraterritorial application of U.S. antitrust, intellectual property and fair trade law is leavened with a detailed account of the key judicial decisions and administrative policy changes that have shaped the current structure of international antitrust law, as seen from the perspective of an insider. Mr. Joelson discloses, for example, his own role as counsel for the Government of the United Kingdom (p. 43), which filed an amicus brief in perhaps the most important international antitrust case of the last generation, Hartford Fire Insurance Co. v. California. (6) The book's tone as an insider account is set, moreover, by a helpful foreword by Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, a former Deputy Assistant Attorney General at the Antitrust Division of the Department of Justice. In short, it is the view from a high priest of the American antitrust temple.

In my view, as a teacher of antitrust law and a former State Department lawyer, Mr. Joelson's book is an exemplar of the kind of close and perceptive analysis of the legal and policy dimensions of competition law regimes and how they interact at the international level that only a seasoned practitioner can provide. As a marker for the evolution of international antitrust cooperation over the last generation, this book will frame the issues for anyone genuinely interested in a realistic understanding of the debate that has already commenced at the WTO concerning the role of competition law harmonization and the mechanism for its extraterritorial enforcement through global trade law.

But it would be unfair to describe this comprehensive review of the issues as lacking a prescriptive argument. Indeed, the implicit message of this book is made explicit in Judge Wood's foreword, where she argues that antitrust cooperation can be separated from other policy agendas driving national policymaking, including the temptation to employ national antitrust policy for trade advantages (p. …