The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec

By Daniel L. M. Kennedy; James D. Southwick | Go to book overview

COMMENT
Harmonizing global merger standards*
E. THOMAS SULLIVAN

In their interesting essay on competing merger standards and the prospects for international cooperation, my colleagues Professors Dan Gifford and Robert Kudrle argue that there should be one global antitrust standard for merger enforcement throughout the world and that ultimately should be an efficiency standard based on total surplus.1 I agree.2 But I am not optimistic that many of the nation-states that enforce competition policy today will soon move toward a harmonized global competition standard, given the dynamic political differences and customs that exist in the sixty countries that currently conduct their own antitrust investigations.3

Since the League of Nations after the First World War and the Havana Charter after the Second World War, there has been an effort to fashion a unified competition standard.4 The reasons vary why international efforts have failed, but, to be sure, they center around different political and cultural values and where, on the continuum of development, each country finds itself. For example, the United States promotes, through its merger laws, consumer protection by objecting to mergers that increase concentration, promote cartel activity, facilitate collusion, or increase higher prices to consumers.5 On the other hand, the European Union is concerned with leveraging by dominant firms that will injure medium and small firms.6 Less developed countries are concerned that they will be left out completely from the new, emerging global competition.7

Although the Gifford and Kudrle essay envisions an efficiency standard on a global scale, it rests on subjective information as to the underlying political

____________________
*
Appreciation is extended to Janelle Ibeling for her research assistance.
1
Daniel J. Gifford and Robert T. Kudrle, this volume supra at pp. 208–247. (The authors note, however, that in the shorter term a consumer surplus standard has greater political appeal.) See generally Rebel Oil Co. v. Atlantic Richfield Co., 51 F. 3d 1421 (9th Cir. 1995).
2
Daniel J. Gifford & E. Thomas Sullivan, Can International Antitrust Be Saved for the Post-Boeing Merger World?, 45 Antitrust Bull. 55 (2000).
3
Wall Street J., Oct. 27, 2000, atA17.
4
Russell J. Weintraub, Competing Competition Laws:Do We Need a Global Standard?, 34 New Eng. L. Rev. 27 (1999).
5
See generally IV Phillip Areeda & Donald F. Turner, Antitrust Law ¶ 907 at 25–26 (1980).
6
Aerospatiale-Alenia/de Havilland, 1991 O. J. (L 334) 42.
7
Weintraub, supra note 4, at 34.

-248-

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