The use of discretion
Antitrust authorities and public authorities more generally enjoy discretion in the way they may regulate conditions of competition in the market, and in the way they implement and enforce antitrust policy. The use of discretion is quite common to most legal systems in the world. Some commentators have argued that various policies and their instruments should be viewed within a framework to be wielded by administrative institutions with a high level of discretion.1 In the field of antitrust policy, the fact that antitrust law tends normally to be vague in terminology makes the use of discretion by antitrust authorities quite inevitable. However, this use of discretion can be an issue of concern in antitrust policy, in general, and in the internationalisation thereof, in particular. The concern in this instance mainly arises from the way in which similar antitrust laws in different jurisdictions may be radically different when enforced - a situation that often leads to a divergence in the legal standards amongst those jurisdictions.2 This divergence in some cases, may be facilitated by natural factors, such as culture, experience and other structural issues, which are special to those jurisdictions individually;3 although, in other cases, the divergence can be the pure result of the use of discretion by antitrust authorities. Hence, it is important to inquire to what extent this use of discretion, in general, and the resulting divergence, in particular, affect the internationalisation of antitrust policy. Apart from having such an effect, it seems that divergence between different systems of antitrust is also problematic when it comes to comparing these systems.4
1 See K. Davis, Discretionary Justice (Louisiana State University Press, Louisiana, 1969), pp. 216-17.
2 A. Guzman, ‘Is International Antitrust Possible?’ (1998) 73 New York University Law Review 1501, 1545.
3 See L. Haucher and M. Moran, Capitalism, Culture and Economic Regulation (Oxford University Press, Oxford, 1989), p. 3. Also, see pp. 56-7 above.
4 See C. Doern and S. Wilks, Comparative Competition Policy (Oxford University Press, Oxford, 1996), p. 20.