Extraterritoriality, the effects doctrine and enforcement cooperation through bilateral agreements with regards to antitrust law

LL.M.Modern competition occurs in a global market and straddles various state borders. This international dimension of competition law (antitrust law) subsequently raises concerns whether one state can apply its competition rules extraterritorially against an undertaking in another country, when the latter behaves in an anti-competitive manner that, for example, have adverse effects in the territory of the former. In the context of such extraterritorial enforcement, the concept of the Effects doctrine as created and developed in the antitrust jurisprudence of the United States plays an important role. In this dissertation the issue of extraterritorial antitrust jurisdiction is investigated in an attempt to suggest a suitable basis for assertion of such jurisdiction. The evolution of the Effects doctrine in the United States and its further development and qualification in American Antitrust jurisprudence is addressed as well as its interrelation with the concept of international comity. Thereafter the basis for assertion of extraterritorial antitrust jurisdiction by the European Community is investigated. In this regard the long favoured Single Economic Entity Theory is addressed as well as the development of a form of Effects doctrine by the European Commission which eventually culminated in acceptance of an “Effects/Implementa-tion doctrine” by the European Court of Justice in the Wood Pulp case. It should however be noted that the scope of the extraterritorial application of the competition rules of the European Community is extended by the EC Merger Control Regulation 139/2004. Thus, the jurisdictional range of the Merger Control Regulation is considered in chapter 4. It is submitted that although the Effects doctrine is competent as sole basis for exercising extraterritorial antitrust jurisdiction, it has various disadvantages, inter alia that it evokes conflict between states due to differences in competition law and policy and various states interests. Consequently co-operation on a bilateral level is investigated in chapter 5 as a possible solution. Finally, the South African stance on the extraterritorial enforcement of its Competition Act 89 of 1998 is investigated in chapter 6 and certain observations and suggestions are made for future exercise of extraterritorial antitrust jurisdiction