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A Study on Different Methods of Antitrust Regulations Regarding International Business Transactions That Have Anti-competitive Effects

  • DONG-A LAW REVIEW
  • 2012, (54), pp.799-850
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Kong Young John 1

1Chungnam National University

Accredited

ABSTRACT

Since the cross-border mergers, acquisitions or joint ventures are not infrequently taking place in today's global economy, the interests of many countries are involved due to the transnational nature of these transactions. Controversies may arise especially because such transnational transactions implicate the antitrust issues among the countries involved. The important issues that arise from these cross-border transactions are how international antitrust matters should be regulated and who should have the authority and power to regulate it. First of all, the unilateral application of antitrust law by a country into the practices of a foreign company can be challenged as a violation of sovereign right of the foreign country that the foreign company is located. The assertion of antitrust law through a unilateral and extraterritorial approach is likely to cause the resentment to other foreign countries and to face the risk of provoking them to retaliate against the country that takes a unilateral approach. An alternative to unilateral approach would be bilateral cooperation agreement which means an agreement entered into between two countries with the purposes of promoting cooperation and coordination and lessening the possibility of conflicts due to the differences between the parties in the regulation of their competition laws. The avoidance and management of jurisdictional disputes between the national antitrust enforcement authorities is the main objective of bilateral agreement. Among several advantages in utilizing bilateral agreements, it would be easier for two countries to negotiate and reach an agreement than many countries that have various interests and objectives. However, bilateral agreement may be feasible only between the countries with similar, if not equal, economic powers. Bilateral agreement between the countries with unequal economic powers would be difficult to negotiate and to be implemented. More importantly, even two countries with equal or similar economic powers may have different interests or policies in some antitrust issues. In that context, a bilateral agreement would not be successful if a country decides to enforce its antitrust laws in contravention of the existing bilateral agreement as had happened between the US and the EU. There are several reasons for promoting international harmonization of antitrust laws which is another option for international regulation of antitrust laws. First, today's international business transactions are becoming more transnational. Traditionally, domestic antitrust rules are based on the territorial scope. Such a territorial scope is not sufficient to deal with the cross-border and transnational nature of today's global business transactions and related antitrust matter. Second, not every country has the same national interest or antitrust backgrounds. The developing countries or countries in economic or political transition whose antitrust laws are still evolving may have different interests and antitrust policies. Trying to reach a balanced and equitable bilateral agreement between the developed and developing countries would be a difficult task which makes the option of harmonizing antitrust laws more palatable. One of the possible venues for harmonizing antitrust laws is to use the WTO under which member countries would agree to a harmonization by enacting national competition laws or amending their existing laws pursuant to the agreed minimum standards (*Currently, antitrust issue has been removed from the topics for discussion in the current round of WTO. However, future resumption of WTO negotiations on antitrust policy remains to be seen). Harmonization of substantive antitrust laws should be supplemented with a binding WTO dispute settlement mechanism. However, since antitrust law seeks to regulate the conducts of private companies, not those of governments, the WTO, which is set up to regulate trade flows among countries, may not be well equipped to regulate the conduct of private corporations. The Organization for Economic Co-operation and Development (“OECD”) can be considered as an alternative of WTO as a possible venue for harmonizing antitrust laws because it has been the leading institution for the promotion of multilateral cooperation in competition law and policy. However, its limitation lies in that its program is limited to the making of “soft laws” because its recommendations and guidelines are non-binding in nature. The Korea-US FTA has been recently ratified. The two significant aspects of the Korea-US FTA regarding antitrust and competition matters are promotion of competitive process and increased transparency. The antitrust matters under the Korea-US FTA is mainly to be regulated under the principle of cooperation and consultation. Although the Korea-US FTA calls for cooperation between the enforcement authorities of both countries, important gaps still exist in international enforcement due to the differences between Korea and the US in terms of their legal structures and procedures of each country's enforcement authorities. Also, the Korea-US FTA does not provide the parties with a power to settle antitrust disputes and to enforce their rights in a binding way. It seems that there are several reasons for that setting. First, formal mechanism may not be necessary when informal mechanisms are adequate to ensure compliance of antitrust provisions. Second, informal mechanism is sufficient to ensure compliance due to the existence of reputational effect factor. Third, formal adjudicative methods may not be necessary because there is a strong relationship between the parties involved. Despite the existence of intrinsic limitations of bilateral cooperation agreement in dealing with antitrust disputes, the Korea-US FTA seems to be in the right track because of the strong traditional bond between the two countries and their economic stakes for the success of this particular FTA. Despite the substantial reasons and necessities for harmonizing antitrust laws, there are many obstacles in achieving international harmonization of antitrust laws ultimately. Antitrust law is a set of values, not a set of neutral principles that all countries can share and agree to be bound by. Each country's antitrust law is reflection of its own value system, cultural heritage and historical background. Therefore, one country's antitrust law cannot be easily transferred to and adopted by another country. In conclusion, the successful international harmonization of antitrust laws would depend on the fundamental agreements on the value of antitrust law linked with national self-interest. The necessities for the harmonized antitrust law have been strongly recognized over the years, but the prospect of achieving this goal does not seem to be so promising at this time. On the other hand, bilateral or regional cooperation agreements should be more utilized because they have a better chance of success due to the existence of mutual interest in avoiding jurisdictional disputes between the national antitrust enforcement authorities and adequately managing antitrust regulations between them.

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