Rethinking International Antitrust Regulation : a Window On The Future Of International Trade Conflicts
Date of Award
Doctor of Juridical Science (SJD)
Multilateral corporations’ activities span across global markets. Yet antitrust laws regulating those activities remain national. The need to comply with multiple different domestic antitrust regimes exposes multinational corporations to additional transaction costs, delays, and uncertainty. A lack of international antitrust regulation may also lead to antitrust protectionism if states underenforce their antitrust laws on domestic corporations, while overenforcing those same laws on foreign corporations. These concerns have sparked demands to move away from decentralized antitrust enforcement toward supporting international antitrust regimes. However, no international antitrust regime has been established. Instead, states seek to mitigate the negative externalities embedded in decentralized antitrust enforcement primarily through bilateral cooperation and voluntary multilateral norms.
This dissertation reviews efforts to mitigate these problems through international cooperation. Two leading conflicts suggest that any meaningful progress will likely continue to rely on informal antitrust cooperation. This dissertation examines when this voluntary cooperation can address trade concerns arising from competition-related matters and when it fails to do so. It assesses the policy options available to the United States by exploring in detail the competition-related trade concerns that have been in the Japanese and Chinese contexts. These policy options include the extraterritorial application of U.S. antitrust law, the competition clause of Section 301 of the 1974 Trade Act, the WTO dispute settlement procedures, and bilateral cooperation mechanisms. It shows that no policy options offered complete solutions to effectively address private trade barriers that arise in the United States at the intersection between trade and competition policy. By examining how international trade affects the general level of antitrust standards, it disputes the widely held view that the current decentralized antitrust enforcement is feasible in all situations.
This dissertation also examines the emergence of global antitrust overregulation by exploring competition law and policy in the BRICS countries (referring to Brazil, Russia, India, and China). It exposes the dual problem underlying international antitrust law that all these states have voluntarily tightened their antitrust standards following the center of gravity for international business activity is increasingly shifting to these emerging markets. This leads to global overregulation. It challenges the belief that the existing decentralized antitrust regimes work in favor of developed countries. As the most aggressive antitrust enforcers are generally the jurisdictions with the largest consumer markets, escaping their jurisdiction is rarely feasible.
This dissertation therefore suggests that an optimal international antitrust regime should consider both informal and substantive aspects to avoid the downside of each. It also suggests that the United States should rejoin the world conversation on international antitrust cooperation with developing countries.
Chair and Committee
Melissa A. Waters, Supervising Professor
Shen, Weimin, "Rethinking International Antitrust Regulation : a Window On The Future Of International Trade Conflicts" (2022). School of Law Dissertations. 76.