Overdeterrence, Non-Competition Policy Goals, and Inadequate Defense Rights—Identifying (and Fixing) Antitrust Constraints on International Trade

ABSTRACT:

In the last several decades both international trade and international antitrust enforcement have grown dramatically. With the increased significance of multinational enterprise, and with over 130 jurisdictions enforcing antitrust law, the effect of any flaw in antitrust enforcement is magnified in ways that impede the growth of trade through operation of a dynamic and competitive international economy. Such flaws include the use of unnecessarily strict substantive rules, policy objectives in tension with competitive growth, and procedures that fail to recognize sufficient rights of defense. These flaws have been recognized and addressed in a variety of ways – bilateral and multilateral collaboration among enforcement agencies, including the ICN and OECD, as well as antitrust provisions contained in recent trade agreements – but all such efforts to date have produced little in terms of real improvement. New and unique international arrangements may be required to achieve real progress in assuring that antitrust enforcement functions in the interest of continuing increases in global living standards.