International Cooperation in Antitrust Enforcement

The Annual Conference of The American Corporate Counsel Association European Chapter, Conrad International Hotel

London, England

Date:
By: 
Roscoe B. Starek, III, Former Commissioner

I.
INTRODUCTION 

Good evening. I'm very pleased to have this opportunity to speak to your annual conference about some current international antitrust topics, including the relationship between United States antitrust authorities and their counterparts in Europe. I plan to touch briefly on some of the key elements of this relationship, including cooperation agreements among national antitrust enforcement authorities as well as America's nearly three-year-old International Antitrust Enforcement Assistance Act. Then I'll review some cases that illustrate how United States and European antitrust enforcers coordinate.(1)

We know that American firms engaged in more and more international transactions recognize that antitrust is a vital factor. But these days a firm must be carefully attuned not only to the antitrust laws of the United States but also to the competition policies and antitrust enforcement regimes of the other nations in which it operates. Many of the United States' trading partners have either enacted new antitrust laws or strengthened their old antitrust laws and enforcement programs over the last few years -- a trend that shows no sign of abating. For example, a new Swiss competition law went into effect last year, the Dutch have enacted a new Economic Competition Act (with a new merger control regulation set to go into effect next January 1), and the Germans have begun to consider significant amendments to their competition laws that may be enacted within the next year. So any firm engaged in international transactions ignores these developments at its peril.

And with agreements such as the General Agreement on Tariffs and Trade ("GATT") and the North American Free Trade Agreement ("NAFTA"), nations have taken steps toward removing traditional, government-imposed barriers to international trade such as tariffs, import quotas, and domestic product subsidies. These changes will benefit consumers by ensuring lower prices and a greater selection of goods and services. And certainly manufacturing firms have the potential to expand their markets to reach consumers they could not reach before.

As international business transactions come under scrutiny by multiple antitrust authorities, it is in the interests of business and consumers alike that these authorities cooperate with one another, coordinate their enforcement efforts where possible, and strive to achieve consistent results in enforcement. Happily, there is evidence of a willingness among the U.S. and its major trading partners to cooperate, and the result has been some convergence in the way different nations assess the competitive effects of international business transactions.

II.
COOPERATION AND CONVERGENCE IN PRACTICE

The United States has entered into bilateral cooperation agreements with Australia,(2) Canada,(3) Germany,(4) and the European Union.(5) The U.S. also adheres to a "Recommendation" of the Organization for Economic Cooperation and Development ("OECD") on cooperation among OECD members in the enforcement of their antitrust laws.(6) These bilateral agreements and the OECD Recommendation are based on respect for the sovereignty of nations and a commitment to work cooperatively to avoid conflicts of national interest in antitrust enforcement. When conflicts cannot be avoided, those agreements set out procedures that try to resolve them constructively.

Neither sensitivity over sovereignty nor differences in substantive antitrust standards have impeded cooperation among U.S. and foreign antitrust authorities. In some cases, substantive differences in laws have led to different results in cases examined by both the U.S. and other nations' antitrust authorities. In other cases, substantive differences were not a factor, but rather interpretation of the facts led to different outcomes. These differences cannot be entirely avoided: after all, even the five FTC Commissioners do not always come to the same conclusions. But the differences are manageable. Our experience has proven the value of close communication, cooperation, and, where possible, coordination of enforcement activities. There is no reason to paint these differences as vanguards of some sort of all-out trade war between the United States and the European Union, as some in the media did regarding the recent Boeing/McDonnell Douglas merger. In fact, the Boeing case was an aberration -- an antitrust case that was burdened by a 30-year history of trade conflict between the U.S. and the EC.

And the case was an aberration in the experience of the U.S. and the EC under the 1991 agreement. The only other EC antitrust case that raised anything close to the ruckus we saw over Boeing was the EC's case against IBM in the early 1980s. And with regard to the current tussle over the proposed British Airways/American Airlines alliance, it appears that there is far more conflict between Brussels and London than between Brussels and Washington -- at least as far as the antitrust agencies are concerned.

In spite of all the attention paid to Boeing's acquisition of McDonnell Douglas, the FTC's decision not to challenge the transaction was hardly surprising. Given that the EC Merger Regulation focuses on whether a proposed concentration will create or strengthen a dominant position, it was not unexpected that the EC would focus on whether Boeing's acquisition of McDonnell Douglas's military business would have this effect. Nor should the EC's conclusion have been a surprise. The de Havilland decision and even the German Cartel Office's 1989 decision to block Daimler Benz's acquisition of M-B-B (which was overturned by the German Economics Minister) provided antitrust precedent for the EC's position on Boeing.

On the other hand, the test under U.S. law is whether the merger may substantially lessen competition in a relevant market. The issue for the FTC was whether Douglas Aircraft (McDonnell Douglas's commercial aircraft division) would play a significant competitive role in the commercial aircraft market in the future. As the FTC majority pointed out, some 40 airlines told us that they would not consider acquiring Douglas-built commercial aircraft. Furthermore, the FTC's investigation failed to turn up any evidence that McDonnell Douglas would commit the resources necessary to re-establish itself in the market, nor did we find any other company willing to acquire Douglas with that goal in mind.

Although this case illustrated some of the substantive differences between U.S. and EC law, what really made it so controversial and confrontational was the underlying trade conflict -- a clash that was not resolved by the 1992 agreement on trade in civil aircraft.

Procedural differences and limits on the sharing of confidential information hinder U.S./EU cooperation far more than do any substantive disagreements. Procedural differences among nations include (1) variations in the timing of premerger notifications, (2) different statutory timetables for decisions, and (3) limits on the sharing of information. Proposals to lift information-sharing limitations are quite controversial.(7) Nevertheless, in spite of concerns over confidentiality, there are a number of recent cases that offer examples of productive international cooperation.

A. Shell/Montedison(8)

In 1994 a joint venture was announced involving Montedison and the Royal Dutch Shell Group, the world's largest producers of polypropylene, a plastic used in carpet fibers, apparel and industrial fabrics, automotive parts, toys, and a variety of other products. In addition to raising competitive implications at the polypropylene production level, the transaction placed under one roof the world's two leading polypropylene-making technologies, Unipol and Spheripol.

The FTC and the EC both took a global view of this transaction, with their investigative staffs continuously sharing views on market definition, competitive effects, and potential remedies. And the FTC staff responded to EC questions about U.S. law on jurisdiction, parent/subsidiary relations, contract rights, and intellectual property rights.

The FTC and the EC reached the same conclusions as to the relevant product and geographic markets(9) and the transaction's likelihood of eliminating competition between Montedison and Shell in polypropylene production and technology markets, increasing prices of polypropylene technology licenses and catalysts, and reducing innovation in technology. The discussions between FTC and EC staffs helped ensure that the Commission achieved an effective antitrust remedy -- primarily a divestiture to Union Carbide (or another approved purchaser) of Shell Oil's polypropylene assets located in the United States.(10)

Firms contemplating a merger face a choice between notifying United States antitrust authorities well before notification is required in the EC, or notifying the U.S. authorities only after the EC has issued its decision on the merger. Clearly, this decision requires a judgment by merging parties about how best to allocate resources to secure the required antitrust clearances. With regard to transactions that must be notified to both the EC and the United States, I would suggest that the parties at least consider approaching both authorities to see whether their investigations might be coordinated.

One other lesson from this case is that cooperation -- and coordination, if possible -- at the remedy stage is particularly important when U.S. and other authorities already agree on a transaction's competitive effects. A remedy prescribed by one authority may not adequately relieve the competitive effects in another jurisdiction (and, in fact, could even limit or foreclose an appropriate remedy in the other jurisdiction).

B. Pharmaceutical Industry Mergers

Although most recent mergers in the pharmaceutical industry have been subject to review by both the FTC and the EC, geographic market definitions have tended to reflect national requirements for new drug approval. Consequently, most overlaps of concern have also been national in scope.

The EC views each EU Member State as a separate relevant geographic market for pharmaceutical products. Although there has been a European agency for evaluating and approving medicinal products since 1995(11) -- and although the EC views pharmaceutical R&D as a world market -- the EC has not embraced a single European market for the sale of pharmaceutical products. The EC's position is based on differences among Member States' health care systems, their marketing and distribution systems, and their approaches to price regulation.

The FTC defines the U.S. as the relevant geographic market for the sale of drugs, based upon the need for FDA approval to sell drugs in this country. The relevant geographic market for pharmaceutical R&D may be worldwide, but in the later phases of development, the FTC considers the relevant market to be the territory covered by the regulatory authority that will approve a new drug.(12)

1. Glaxo/Wellcome

Glaxo's $15 billion acquisition of Wellcome in 1995 raised antitrust problems in both the U.S. and the EC markets for acute migraine headache treatments. EC and FTC staff members consulted to identify the product markets of mutual concern, the likely competitive effects, and the best available remedy.

The most effective migraine treatment currently approved for sale in the United States is an injectable drug, Sumatriptan, that is marketed and sold by Glaxo as Imitrex®. Both Glaxo and Wellcome had non-injectable migraine treatments under development.

Although the EC found a Wellcome product in Phase III clinical trials to be a potential competitor of Glaxo's Imitrex,(13) it also found other companies developing potentially competing products and concluded that Glaxo's acquisition of Wellcome would not significantly reduce potential competition in the market for antimigraine products. To allay doubts about the compatibility of the transaction with EC law, Glaxo offered to grant an exclusive license to a third party to develop and market independently either Wellcome's product or the next-generation Glaxo product (also in clinical trials).(14)

Shortly after the EC issued its decision, the FTC announced a consent agreement that required Glaxo to divest the worldwide research and development assets of Wellcome's non-injectable migraine treatment, in order to create a viable competitor to replace the competition allegedly lost in the acquisition.(15) The different outcomes between the FTC and the EC probably reflect differences in the application of potential competition doctrine and perhaps differences in approach to innovation markets.

2. Upjohn/Pharmacia

The FTC and the EC examined Upjohn's merger with Pharmacia of Sweden. Following its examination of fourteen product overlaps in various European nations as well as four compounds in the R&D stage, the EC cleared the merger last year.(16)

The FTC subsequently issued a consent order that requires the merged company to divest Pharmacia's U.S. assets relating to R&D for "9-AC," a colorectal cancer drug that Pharmacia is developing under a license from the National Cancer Institute.(17) Meanwhile, Upjohn's competing "CPT-11" compound is closer than 9-AC to receiving FDA approval.(18) The FTC's complaint and order address the desirability of keeping both compounds in the running to the marketplace.

In light of differences between the European and U.S. markets, it should not be surprising that the EC and the FTC came to different conclusions about the colorectal cancer drugs in development. Nor is it startling that the thinking about "innovation markets" is in flux on both sides of the Atlantic. This is best illustrated by the outcome of the Ciba-Geigy/Sandoz merger case in the area of gene therapy research.

3. Ciba-Geigy/Sandoz

U.S. and EC antitrust authorities held quite similar views on what markets would be affected by last year's $63 billion merger between the Swiss pharmaceutical firms Ciba-Geigy and Sandoz. For example, both the Federal Trade Commission and its European counterparts focused on the merger's expected impact on a world market for certain types of gene therapy research and development.

Nevertheless, the FTC and the EC reached different ultimate conclusions about competitive effects. The European authorities concluded that potential anticompetitive effects in this market were too speculative to warrant antitrust relief.(19) The FTC, on the other hand, determined that the merging firms were the leading commercial developers in a highly concentrated gene therapy market and that new entry was not expected to deter or counteract the merger's anticompetitive effects. An FTC consent order required the merged firm to license certain gene therapy patent rights and other technology to Rhône-Poulenc Rorer, Inc.(20)

C. Lockheed Martin/Loral

In the defense sector, Lockheed Martin Corporation's acquisition of Loral Corporation came under FTC and EC scrutiny last year. In March of 1996, the EC announced that it had cleared the transaction.(21) Half a year later, the FTC issued a consent order to settle charges that the acquisition would lessen competition in several markets, including air traffic control systems and certain commercial satellites.(22)

One aspect of this transaction that caught the attention of both the FTC and EC staff was the proposed spinoff of Loral's space and telecommunications businesses to a new entity, Loral Space & Communications, Ltd. This spinoff entailed the establishment of several links between Lockheed Martin and Loral Space.(23) Lockheed Martin and the new Loral Space entity would be competitors in certain commercial satellite markets in the U.S. and Europe, and so the EC and the FTC questioned whether these links would give Lockheed Martin control over Loral Space.

The FTC's order required Lockheed Martin to take steps to attenuate those links. After exchanging views with FTC staff about the potential effects of these links, the EC concluded that they were insufficient to give Lockheed Martin the means to exercise "decisive influence"(24) -- and thus control -- over Loral Space.

D. Continuing Cooperation

Although the cases I've described involved U.S.-EC cooperation, we have had good experiences with our enforcement counterparts in individual nations as well. We have collaborated with the German Federal Cartel Office and exchanged information with the U.K.'s Office of Fair Trading, with similarly fruitful results, in several cases over the past couple of years.

In several investigations involving concurrent jurisdiction with other nations, we have tried to adopt consistent approaches to such elements as market definition, competitive effects, and relief. In order to maximize transnational consistency, we plan to continue with procedures such as mutual notification as early as practically possible, followed by conference calls so that our staffs can identify relevant markets of mutual interest, potential competitive effects, possible remedies, and other key issues.

The U.S.-EU positive comity agreement is on track. It must be reviewed by the European Parliament before final action can be taken by the Council of Ministers. The proposed agreement clarifies the procedures that will be used in certain types of non-merger cases that lend themselves to positive comity treatment. These are cases in which the conduct in one party's territory principally affects consumers in the same territory but also affects consumers in the other party's territory, as well as cases in which conduct in one party's territory principally harms exporters in the other party's territory.

E. Expanding the Limits of Cooperation: The International Antitrust Enforcement Assistance Act of 1994

One shortcoming of bilateral agreements has been that they could not empower antitrust agencies to share confidential information with each other. Parties to transactions subject to antitrust review in more than one cooperating country could waive confidentiality, but that has been rare. Cartelists, operating in several countries, had the comfort of knowing that agencies investigating their activities could not share with each other the fruits of their separate investigations. The only exception to this situation was the cooperation possible between Canada and the United States in criminal matters under the two countries' Mutual Legal Assistance Treaty.

But things started to change in November 1994 with the enactment of the International Antitrust Enforcement Assistance Act ("IAEAA").(25) Agreements reached under that Act will make it unnecessary to rely on the parties to waive confidentiality. The Act is expected to foster the reciprocal sharing of investigative information among enforcement agencies under very strict terms.(26) The statute's effectiveness will depend in large part on the building of confidence among all the participants.

The IAEAA authorizes the FTC and the Justice Department to negotiate and conclude bilateral agreements with other governments providing that (1) confidential information can be shared and (2) nations can use compulsory process to obtain information for each other. Bilateral agreements must stipulate that the confidentiality of shared information can be assured.

There are three general principles to keep in mind with respect to this Act. The first is confidentiality: simply reading the Act is difficult because the Congress inserted complex, widely-scattered provisions to make sure that the confidentiality of competitively sensitive information would be maintained. The second principle is reciprocity, which does not require strict score-keeping or absolute parity, but instead means that the partners to an agreement are being comparably responsive to each other's requests. The third principle is the public interest, which means that neither party to an agreement is obligated to respond favorably to a request for assistance; in fact, the IAEAA recognizes that in some circumstances it would be contrary to the public interest to fulfill a request.(27)

The U.S. enforcement agencies have had preliminary discussions with a number of countries already and have reached provisional agreement with Australian authorities for the first IAEAA agreement, which we hope will go into effect sometime next year. Meanwhile, many nations are in the same position the U.S. was in before the IAEAA was passed: in order to enter into agreements to share confidential information, some laws may need to be amended, and the business community will need to be persuaded that this is a good idea.(28) Those are not tasks to be taken lightly. Nevertheless, this statute provides U.S. enforcers with the tools necessary to work with our foreign counterparts while assuring confidentiality for competitive information.

III.
PROSPECTS FOR BROADER INTERNATIONAL
AGREEMENT: SUBSTANCE AND PROCEDURE

Lots of people, especially international organizations -- and particularly the OECD -- have examined both substantive and procedural convergence among multiple nations' antitrust policies. Over nearly five decades, there have been proposals to take the ultimate step beyond convergence -- to develop an antitrust code of uniform global application, enforced through the World Trade Organization ("WTO"). The WTO's Singapore Ministerial Conference last December decided to establish a Working Group on Competition, which has met twice. The Working Group faces a daunting task.

A WTO code on competition policy could provide the mechanism for resolving disputes that arise out of a perceived failure to enforce national antitrust laws. The sticking point is whether agreement can be reached on a sufficiently stringent set of antitrust policies. Fear of a "lowest-common-denominator" antitrust code has made many U.S. policymakers skeptical about pursuing a world code.(29) The Boeing case prompted some to suggest it as an example of why a single set of worldwide rules is needed, although the question remains: What rules, "ours" or "theirs"?

I hope to see a growing consensus -- both within the United States government and internationally -- that the overall objectives of trade policy and competition policy should be the same. I also hope to see a lessening of the historic tensions between trade policy and competition policy and a recognition around the world that one nation's imposition of trade sanctions against another may benefit a domestic industry but will rarely benefit consumers.

Trade policy and competition policy should both aspire to remove obstacles to efficient markets. Of course, the ultimate goal should be to provide consumers with access to an array of competitively priced goods and services. Many have suggested supplanting the system of trade remedies with a more pro-consumer, antitrust-based system -- for instance, replacing antidumping proceedings with antitrust actions under more stringent predatory pricing standards. These fairly sweeping proposals reach far beyond the current consensus on competition policy and its enforcement. A more practical -- and more reachable -- goal may be working on convergence in competition policy through bilateral and multilateral cooperation in the enforcement of national antitrust laws.

Convergence holds out the long-run promise of making the law easier for multinational firms to understand and obey. But how far and fast the convergence process should go, and whether a single antitrust code should ultimately reign in most or all of the world's nations, are issues deservedly undergoing intense debate. My inclination is to support a cautious approach. The great variety among nations' stages of economic development, and the numerous political and policy considerations that make up some nations' competition policies, counsel in favor of gradualism. The way to build a consensus on antitrust policy and enforcement is through expanded bilateral and multilateral cooperation in the enforcement of existing laws. If cooperation is enhanced, mutual trust and understanding can be built, and someday we may have sufficient procedural and substantive harmonization to begin considering whether a consensus on an international agreement can be reached.

ENDNOTES

1. These remarks are my own and do not necessarily represent the views of the Federal Trade Commission or of any other Commissioner.

2. Agreement Between the Government of the United States of America and the Government of Australia Relating to Cooperation on Antitrust Matters (June 29, 1982), reprinted at 4 Trade Reg. Rep. (CCH) ¶ 13,502.

3. Agreement Between The Government of The United States of America and The Government of Canada Regarding The Application of Their Competition and Deceptive Marketing Practices Laws (Aug. 3, 1995), reprinted at 4 Trade Reg. Rep. (CCH) ¶ 13,503.

4. Agreement Between the Government of the United States of America and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices (June 23, 1976), reprinted at 4 Trade Reg. Rep. (CCH) ¶ 13,501.

5. Agreement Between The Government of the United States of America and The Commission of the European Communities Regarding the Application of Their Competition Laws (Sept. 23, 1991), reprinted at 4 Trade Reg. Rep. (CCH) ¶ 13,504; 61 Antitrust & Trade Reg. Rep. (BNA) 382-85 (Sept. 26, 1991); and OJ L 95/45 (27 Apr. 1995), corrected at OJ L 131/38 (15 June 1995).

6. The 1995 Recommendation of the OECD Council Concerning Cooperation Between Member Countries on Restrictive Business Practices Affecting International Trade, OECD Doc. C(95)130/FINAL (27-28 July 1995).

7. See, e.g., International Chamber of Commerce, "Competition Law: Business concerns about confidentiality of corporate information" (press release, Sept. 26, 1995); but see International Antitrust -- An FTC Perspective, remarks of FTC Chairman Robert Pitofsky before the Fordham Corporate Law Institute, 22nd Annual Conference on International Antitrust Law and Policy (Oct. 26, 1995) (addressing the concerns raised by the International Chamber of Commerce), 1995 Fordham Corp. L. Inst. 1, 9 (B. Hawk ed.).

Confidentiality received much attention during the 1995 review of the EU-U.S. Cooperation Agreement by the EU's Council of Ministers. That review culminated in the Council's conclusion of the Agreement on April 10, 1995, an Act required by the Treaty Establishing the European Community, Art. 228, as interpreted by the European Court of Justice in Case-327/91, French Republic v. Commission of the European Communities, decision of Aug. 9, 1994. Decision of the Council and Commission of 10 April 1995 (95/145/EC, ECSC), OJ L 95/45 (27 Apr. 1995), corrected at OJ L 131/38 (15 June 1995).

8. Shell/Montecatini, Commission Decision 94/811/EC of 8 June 1994, Case IV/M.0269, OJ L 332/48 (22 Nov. 1994); Montedison S.p.A. et al., FTC Docket No. C-3580 (consent order issued, May 25, 1995), 60 Fed. Reg. 31469 (June 15, 1995).

9. The relevant geographic markets for polypropylene and polypropylene-related production were western Europe and the U.S. plus Canada, while the relevant geographic market for polypropylene and polypropylene-related technology was found to be the world.

10. The Commission approved Union Carbide as the acquirer of the divested polypropylene assets in December 1995.

11. The European Agency for the Evaluation of Medicinal Products ("EMEA") -- established by Council Regulation (EEC) 2309/93 and located in London -- offers the possibility of EC-wide approval for the marketing of new drugs.

12. For a treatment of some of the antitrust issues involved in what are sometimes called "innovation markets," see U.S. Department of Justice and Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property (Apr. 6, 1995), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,132; FTC Hearings on Global and Innovation-Based Competition (transcripts and prepared statements),available at FTC Home Page on the World Wide Web, http://www.ftc.gov. See also Innovation Markets in Merger Review Analysis, prepared remarks of FTC Commissioner Roscoe B. Starek, III, before the Continuing Education Seminar, The Florida Bar (Orlando, Feb. 23, 1996), available at FTC Home Page on the World Wide Web, http://www.ftc.gov.

13. Glaxo/Wellcome, European Commission Decision of 28 Feb. 1995, Case No. IV/M.555 (public version).

14. Id. ¶ 29 (public version).

15. Glaxo plc, FTC Docket No. C-3586 (consent order issued, June 14, 1995), reported in 5 Trade Reg. Rep. (CCH) ¶ 23,784.

16. Upjohn/Pharmacia, European Commission Decision of 28 Sept. 1995, Case No. IV/M.631 (public version). In none of the markets examined did the EC find that the merger would lead to a dominant position that would hinder competition.

17. The Upjohn Co. and Pharmacia Aktiebolag, FTC Docket No. C-3638 (consent order issued, Feb. 8, 1996), reported in 5 Trade Reg. Rep. (CCH) ¶ 23,914.

18. The EC examined this R&D market but concluded that there was no overlap in Europe and that, in any event, Pharmacia's 9-AC faced several potentially strong competing products and was still subject to several years of clinical trials before its therapeutic profile could be ascertained. In the EC's view, experience suggested that 9-AC's final use is likely to be different from that for Upjohn's CPT-11.

19. Ciba-Geigy/Sandoz, European Commission Decision of 17 July 1996, Case No. IV/M.737 (public version), OJ L 201 (29 July 1997).

20. Ciba-Geigy Ltd., et al., FTC Docket No. C-3725 (consent order issued, Mar. 24, 1997), reported in 5 Trade Reg. Rep. (CCH) ¶ 24,182.

21. EC press release, IP/96/277 (28 Mar. 1996).

22. Lockheed Martin Corporation, FTC Docket No. C-3685 (consent order issued, Sept. 19, 1996), reported in 5 Trade Reg. Rep. (CCH) ¶ 24,016.

23. Specifically, the transaction contemplated that Lockheed Martin would acquire a 20 percent convertible preferred equity interest in Loral Space; Bernard Schwartz, the Chairman and CEO of Loral Space, would be appointed Vice Chairman of Lockheed Martin; and Lockheed Martin would provide certain technical services to Loral at cost.

24. "Decisive influence" is a critical test in the EC's Merger Regulation. Council Regulation (EEC) No. 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ L 395, 30 Dec. 1989; corrected at OJ L 257, 21 Sept. 1990), Article 3(3)-(4). The EC also stated, however, that the links between Lockheed Martin and Loral Space might infringe other EC competition rules, and the EC reserved its position on this question.

25. 15 U.S.C. § 6201 et seq. (added by Pub. L. No. 103-438, 108 Stat. 4597 (Nov. 2, 1994)).

26. The statute was based upon authority granted to the U.S. Securities and Exchange Commission in the late 1980s to share confidential information from its files with foreign authorities, to obtain and keep confidential information received from foreign authorities, and to obtain information in the U.S. on behalf of foreign enforcement agencies. See 15 U.S.C. § 78u.

27. This feature of the Act bears some similarity to Section 5 of the Federal Trade Commission Act, which requires a public interest determination by the Commission before it commences an enforcement action.

One noteworthy provision of the IAEAA is the authority granted to the Justice Department and the FTC to use their compulsory process tools to obtain evidence for a foreign enforcement authority even where the matter in question would not violate U.S. law. Another is that information obtained by criminal grand juries may be made available to foreign enforcement authorities. Finally, although information obtained through the U.S. premerger notification program may not be shared, the Act does allow the FTC and the Justice Department to use their compulsory processes to obtain information in merger cases that then can be shared with foreign authorities.

28. See note 7, supra.

29. See, e.g., Wood, The Internationalization of Antitrust Law: Options for the Future, address before the DePaul University Law Review Symposium (Chicago, Feb. 3, 1995).