WASHINGTON -- Last summer, the threat of a trade war hung heavier
over the Atlantic than the humidity. The U.S. warned European
officials: think twice before derailing Boeing's $15 billion
acquisition of rival airplane maker McDonnell Douglas.
The confrontation, ultimately resolved without embargoes and
tariffs, is symptomatic of a growing phenomenon in today's global
economy, antitrust and trade experts say. As U.S. companies expand
overseas, they are encountering more red tape as nations big and
small step up enforcement of antitrust rules and try to protect
on their home soil.
That leaves American firms to deal with a myriad of countries
whose laws and cultures are at odds with the U.S. That likely will
mean mounting legal bills to overcome new bureaucratic hurdles in
countries with few traditional guideposts.
"It's a nightmare just knowing every place in the world where
you've got to file," said Washington antitrust attorney Marc
Schildkraut. "Some of these countries have antitrust statutes and
they don't even know what they mean."
Countries most people couldn't find quickly on a map -- Moldova,
Latvia, Gabon -- now have antitrust or competition laws, and U.S.
companies must adhere to them. About 70 countries have such laws,
with more than half requiring mandatory review of acquisitions and
"And there are at least another 15 to 20 countries actively
considering laws themselves," said William Kovacic, a law professor
at George Mason University. He was interviewed recently by telephone
from Benin where he was helping the government craft its own
The irony is not lost on U.S. officials. American antitrust laws
are the world's second oldest -- Canada beat the 1890 Sherman
Antitrust Act by one year -- and U.S. enforcers are by far the most
aggressive antitrust cops on the global beat. They've targeted
foreign companies for years and have badgered other countries to be
Many of the new foreign laws follow the European model, adding to
the confusing hassles for U.S. firms, antitrust attorneys said.
Policies in the U.S. and Europe have different goals.
In the U.S., antitrust officials can't file an antitrust suit
simply because an acquisition would hurt a company's competitor.
There must be some direct impact on American consumers that can be
proven in court.
"The U.S. jurisdictional thrust is consumer welfare, and in Europe
the focus also is on producer welfare," said James Rill, a
lawyer and former head of the Justice Department's antitrust
That certainly was the case with Boeing-McDonnell Douglas.
European officials fought to protect Airbus Industrie, a European
aircraft manufacturer, by forcing Boeing to scrap exclusive 20-year
supplier agreements with three airlines unrelated to the purchase of
Even after U.S. President Bill Clinton dispatched Justice
Department antitrust chief Joel Klein to press U.S. concerns,
European antitrust officials in Brussels wouldn't yield. Boeing,
they argued, would dominate the world's aircraft market and have
one rival, Airbus.
When Boeing eventually conceded, the Europeans claimed victory.
"It will protect the interests of airlines purchasing aircraft in
international markets and will thus be good for consumers," said
European Commission President Jacques Santer at the time. …