Transnational Antitrust Law

Like many other forms of economic regulation, the regulation of competition takes place, for the most part, at the national level. It’s no great surprise that efforts to develop international law in this area have been largely unsuccessful. States diverge on some very fundamental questions, including the objectives of regulating competition and the appropriate relationship between law, governments, and markets. As a result, we rely on a diverse set of national norms and transnational practices to regulate the increasingly globalized economy. In a chapter written for the forthcoming Oxford Handbook of Transnational Law, edited by Peer Zumbansen, I discuss those practices, focusing on the actors and institutions involved.

The chapter examines some of the different ways in which antitrust rules produced by national legislatures spread to other legal systems—for instance, through extraterritorial application by agencies as well as courts, through technical assistance programs, and through the work of various multilateral organizations and regulatory networks that develop sets of guidelines and best practices. It also reviews the creation of formal and informal mechanisms for cooperation between states as they apply their own laws to cross-border activity. Although such cooperation has increased significantly in recent decades, some areas of conflict in cross-border enforcement remain, and the chapter analyzes these as well.  In particular, it looks at the difficulties that arise in the contexts of private enforcement and merger regulation.

It’s clear that economic globalization, and the focus in particular on trade liberalization, has promoted greater uniformity in antitrust regulation. But there remains significant debate about both the desirability and the feasibility of broad-scale harmonization. Different countries remain differently situated in terms of their own economic objectives, market conditions, and institutional capacity to implement and enforce antitrust laws. Partly for this reason, it is at the regional level that much transnational regulatory activity occurs—another trend reviewed in the chapter. Indeed, although the chapter doesn’t make any real predictions about the future of transnational antitrust regulation, it suggests that at least pending any shift toward a goal of “world welfare,” the settling of shared regulatory norms across multiple legal systems may remain largely at the regional level—or may focus on a limited set of substantive areas.

Hannah L. Buxbaum is the John E. Schiller Chair at Indiana University Maurer School of Law.