A Critique of the U.S. and EU Proposals for Improving International Enforcement of Antitrust Law

8 Colum. J. Eur. L. 101 (2002)

Leyla Marrouk. J.D. candidate, class of 2002, Columbia University Law School.

An Alternative Route to Success: Sensitivity Towards Nation-Specific Factors, Such as Domestic Legal Structures, Political and Legal Heritage, and National Economic Needs, in the Structuring of an International Antitrust Law Enforcement Mechanism


It is well accepted in the world of antitrust scholars, politicians and businessmen that “globalization” has made a seamless web of international enforcement of antitrust law indispensable if we do, indeed, believe in the concept of antitrust law to begin with. Businesses are executing transactions that are crossing national borders every day and such national boundaries are disappearing in the economic world. Moving from one market to the other is no longer an extraordinary feat. However, enforcement authorities, be they administrative or judicial, are still hemmed in by territorial designations. National authorities are limited by a number of obstacles (sovereignty, resources, contacts, and legal reciprocity to name a few) and cannot easily, if at all, follow perpetrators of antitrust violations across those borders. The result is that some violations may go un-litigated, unpunished, and are unstoppable. Such a large gap in antitrust enforcement has been deemed unacceptable by both the United States (U.S.) and the European Union (EU). Although many proposals have been presented, by focusing on the few ideas that the U.S. and EU have backed, I intend to illustrate how both these powers have failed to take a comprehensive view of what will be necessary to make seamless international enforcement of antitrust law possible. At this time, it is unclear which direction the U.S. and EU will take in attempting to achieve their goal, but based on an analysis of their major positions on the subject, I wish to determine whether one path is preferable to the other, as well as what shifts in thinking may be necessary to put together a realistic compromise between the U.S. and the EU. My inquiry revolves around what type of structure or vehicles may be created or put to use to enforce whatever substantive antitrust law may be agreed upon (and why the proposals currently on the table may not be adequate for a realistic long-term solution), but I do not intend to explore the actual substantive issues facing the evolution of an international antitrust law.

The challenges facing the establishment of world-wide effective, efficient, and rigorous antitrust law enforcement, putting aside the question of content of that law for the moment, are rooted in the disparity in perceptions of the two major players: the U.S. and the EU. Academics have the luxury of being able to debate idealistic models and paradigms, as well as practical application – not so the policy makers and actors in the world economy. They must deal in the reality of compromise and pragmatism. In order to do that successfully, they need to recognize the obstacles in any course of action. It is no different in the field of antitrust law. Sovereignty, commonly referred to and used a as defense, is not the biggest obstacle in our path to finding a method of international enforcement of antitrust law, rather, the biggest obstacle is neglecting to give proper consideration to other factors such as domestic legal structures, political and legal heritage, and national economic needs from as unbiased a viewpoint as possible. Nothing that I could propose will satisfy the concerns arising from all of those factors; no solution so far presented portends to address all these topics; no one can claim to be truly unbiased in their analysis of the status quo and view on the future evolution of international antitrust enforcement. However, I would like to explore these factors to illustrate the pitfalls ahead of us. Sensitivity to the position of other countries and realistic expectations as to their contributions to the enforcement effort are indispensable to a successful policy compromise creating an effective method of international enforcement of antitrust law. I find that the EU paradigm and position in this debate display such sensitivity; though the EU solution proposed is not the ultimate answer. The U.S. position, on the other hand, does not meet the pragmatic and important issues raised by an analysis of the above factors. I contend that using the above factors in analyzing current proposals for the establishment of international antitrust enforcement reveals the necessity for the greater sensitivity I have referred to, and that the EU position is more likely to lead to a viable compromise based on these findings, than the U.S. position.