An International Common Law of Antitrust

Abstract

There remains a broad conflict over the direction of future progress in international competition law. This conflict is exemplified by the very different tone and recommendation of expert commentators such as Judge Diane Wood and Eleanor Fox. This conflict is generally portrayed as a dichotomous choice between the position advocated by the European Union (EU) and its supporters in favor of a true international antitrust code, or at least an optional code enforced by the World Trade Organization (WTO) through its dispute resolution process, and the position of the United States in favor of a cautious approach emphasizing bilateral cooperation, slow harmonization, a search for consensus, as well as a preference for further study in lieu of action at this time.

Both positions are well described in a variety of academic policy and official publications. The EU position has been articulated by such notables as Leon Britten, ErnstUlrich Petersmann, and Karol von Miert.The recent United States champions include Joel Klein, Charles Stark, Douglas Melamed among others.

In this article I explore some of the serious objections that the United States has raised to the negotiation of an international set of antitrust rules and the delegation of their enforcement to the WTO. I will suggest some ways to take these objections into account, but still allow for progress, and a modest role for organizations like the WTO in promoting competition in global markets and resolving competition disputes, without having to create a full international antitrust code.

Keywords: antitrust, international antitrust, European Union, World Trade Organization, harmonization, competition law, antitrust cooperation

JEL Classification: F10, F15, F13, L40, K21, K33, K42