The Federal Trade Commission and the Justice Department have finalized guidelines regarding enforcement of U.S. antitrust laws in the international arena. First proposed last October, the final guidelines address when federal antitrust laws apply to entities and conduct outside the United States and what factors the agencies consider in deciding whether to exercise jurisdiction in international cases.
The guidelines reiterate the importance, in an increasingly global economy, of antitrust enforcement with respect to inter- national operations. They also make clear that the same substantive antitrust rules apply to domestic and international cases, except that the involvement of foreign governments may affect antitrust liability in some situations.
The final guidelines also contain expanded emphasis on the agencies' goal to cooperate wherever appropriate with foreign antitrust agencies. The enactment last fall of the International Antitrust Enforcement Assistance Act of 1994 increases the possibilities for such cooperation. The guidelines also provide greater detail in describing the international comity analysis the agencies use in deciding whether to bring a case that may affect the significant interests of a foreign sovereign.
The guidelines explain that anticompetitive conduct that affects U.S. domestic or foreign commerce may violate the U.S. antitrust laws regardless of where such conduct occurs or the nationality of the parties involved. The guides also describe how the agencies would assess whether they could assert jurisdiction over various kinds of foreign conduct, including:
- anticompetitive conduct by firms that import products into the United States;
- mergers of foreign firms that account for substantial U.S. sales, where there are effects on U.S. import or export commerce; and
- anticompetitive conduct by foreign firms that has effects on commerce within the United States or on U.S. firms' export business.
To illustrate these principles, the guidelines explain how the agencies would analyze a series of hypothetical situations. Some of the examples have been significantly revised to clarify the underlying analysis. For example, an example concerning a foreign cartel now has two variants, one in which the agencies could exercise jurisdiction to challenge the cartel and one in which they could not.
The Commission vote to approve the final guidelines was 4-0.
Copies of the "Antitrust Enforcement Guidelines for International Operations" are available from the FTC's Public Reference Branch, Room 130, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580.
(FTC Matter No. P859910)