Assessing the Strategic Situation Underlying International Antitrust Cooperation

This Article disputes the widely held view that the strategic situations underlying antitrust cooperation among developed antitrust regimes and developing antitrust regimes are similar, particularly the conclusion that the current set of policy options to address private and hybrid public-private restraints of trade is feasible in all situations. This Article utilizes an empirical inquiry into trade flows that affect the general level of antitrust regulations in open economies (here, Japan and China). Based on this empirical foundation, the current set of policy options are explored, including the extraterritoriality of U.S. antitrust law, Section 301’s competition-related clause, the World Trade Organization dispute settlement, and bilateral cooperation mechanisms. This Article contends that each policy option is feasible only to address competition-related trade concerns in developed antitrust regimes, but is ill-equipped to address competition-related trade concerns in emerging market economies that are in the process of developing antitrust regimes. Thus, when one compares the successful cooperation and convergence in developed antitrust regimes with the failed attempts to increase cooperation and convergence in emerging market economies, it indicates that the existing paradigm in antitrust cooperation is less likely to preempt the need to resort to a multilateral framework. The comparison further suggests that the optimal antitrust regime for a global integrated economy is to strengthen a network of bilateral agreements, supplemented by efforts toward a multilateral agreement