On February 8, 2017, the American Antitrust Institute (AAI) held its first International Antitrust Roundtable, entitled Critical Issues in Global Antitrust: Comity, Intellectual Property, and Due Process. The interactive, full-day program brought together more than 50 diverse experts from business, government, academia, private practice, and the public interest community. Guest speakers, panelists and audience members discussed important legal, economic, and political developments affecting international competition policy. Key topics included (1)the extraterritoriality rules, comity principles, and cooperation practices reflected in recently revised Federal Trade Commission and Antitrust Division Antitrust Guidelines for International Enforcement and Cooperation;(2)varying international approaches to the antitrust treatment of intellectual property rights, including with respect to standard essential patents (SEPs) and non-practicing entities (NPEs); and (3) concerns over foreign jurisdictions’ due process standards and pathways to reform.
Year in Review （年度回顾）
AAI的主席Diana Moss通过阐述AAI在国际舞台的目标和介绍当天的程序开始了一天的会议。韦恩州立大学法学院的Stephen Calkins教授随后上台，发表了一份题为“国际反垄断年度观察”的演讲。他的演讲介绍了美国和外国竞争体制之间的分歧和趋同的指标，并得出最近的事态发展已混合的结论。一方面，有意义的私人和刑事执法制度（历史上主要是美国现象），已经出现在世界各地。此外，各地竞争当局表示尽管存在各种竞争理论，他们依然关注主要跨国企业如英特尔、谷歌和高通的行为。世界各地的竞争制度在延期支付和制药行业过度定价的做法方面也发现了类似的做法。
Diana Moss, President of AAI, began the day by describing AAI’s goals in the international arena and providing a brief overview of the program. Professor Stephen Calkins, Wayne State University Law School, then took the stage to deliver a slide presentation entitled Observations on the Year in International Antitrust. His remarks examined the indicators of divergence and convergence among U.S. and foreign competition regimes and concluded that recent developments have been mixed. On the one hand, meaningful private and criminal enforcement regimes, which historically were primarily U.S. phenomena, have been emerging around the world. Moreover, various competition authorities have expressed shared concerns about the behavior of major multinationals like Intel, Google, and Qualcomm, albeit under a variety of anticompetitive theories. Competition regimes around the world also have found common cause in concern over pay-for-delay settlements and excessive pricing practices in the pharmaceutical industry.
On the other hand, divergence is evident in the world’s treatment of resale price maintenance and cartel facilitating practices. The U.S. has liberalized its treatment of these practices while other countries have cracked down. Divergence is also apparent in variations among countries’ abuse of dominance standards, as well as certain countries’ willingness to intervene in markets to actively promote competition without a finding of infringement, as has occurred in the UK, Netherlands, and Greece. Finally, competition authorities have diverged in their comparative embrace of privacy and big data as competition concerns, with authorities in the EU, Germany, and the Netherlands being more active.
Professor Calkins also examined the American Bar Association’s recent transition report recommendations on international antitrust, including the controversial suggestion that U.S. agencies should directly intervene in foreign proceedings to promote due process standards. Among other things, he raised questions about how America will conduct itself in foreign affairs during the Trump Administration, and what effect this might have on American credibility in the international competition community.
Antitrust and the Golden Rule: Assessing the Revisions to the FTC/DOJ International Guidelines
当天的第一个讨论版块集中在反垄断法和竞争法的跨境应用问题上。小组成员包括Axinn管理合伙人John Briggs，律师Veltrop和Harkrider，纽约大学法学院贸易法规教授Eleanor Fox和Walter J. Derenberg，美国司法部反垄断部门上诉科长Kristen Limarzi，以及哈佛大学Weatherhead国际事务中心和欧盟委员会DG竞争并购控制处的前任领导Henri Piffaut。
The first panel of the day focused on the cross-border application of antitrust and competition law. Panelists included John Briggs, Managing Partner at Axinn, Veltrop and Harkrider, LLP, Eleanor Fox, the Walter J. Derenberg Professor of Trade Regulation at NYU Law School, Kristen Limarzi, the Appellate Section Chief of the Antitrust Division of the U.S. Department of Justice, and Henri Piffaut, a Fellow at Harvard’s Weatherhead Center for International Affairs and former Head of Unit for Merger Control at DG Competition in the European Commission.
In introductory remarks, the panel moderator, Randy Stutz, Associate General Counsel of the AAI, explained that countries are increasingly being called upon to determine the applicability of their competition laws beyond their territorial borders. This forces the world’s competition authorities into “a mutual line drawing exercise, which often has to be done using relatively clumsy instruments.” The panel focused on three of those instruments, namely extraterritoriality rules, comity principles, and cooperation practices.
The discussion began with the extraterritorial reach of the Sherman Act under the Foreign Trade Antitrust Improvements Act (FTAIA). The panelists examined what conduct is reachable under the Sherman Act on grounds that it “involves import commerce” or has a “direct” effect on U.S. commerce that “gives rise to a claim” under the FTAIA’s statutory language. Among other things, the panelists discussed whether the agencies’ international guidelines go too far, or not far enough, in defining conduct beyond direct sales into the United States that may “involve” import commerce. They also discussed whether a domestic effect from foreign conduct should be deemed “direct” under a proximate cause standard or an immediate consequence standard, with one panelist arguing that the immediate consequence standard improperly introduces a temporal aspect to the determination rather than focusing on the closeness of the connection between the two.
Other Panelists focused on the standing of private parties under the FTAIA. One panelist spoke out against the Supreme Court decision in Empagran, arguing that the FTAIA was not meant to distinguish between public and private claims but rather only to establish jurisdiction.
Panelists also discussed the reach of the American legal system from a comity perspective. One panelist explained that many foreigners see the American system as overreaching and presumptuous. They are dumbstruck at having to defend themselves in U.S. court for foreign conduct. Another countered that the U.S. approach is becoming more common in the globalized world.
Professor Fox presented slides proposing criteria for establishing best practices for extraterritoriality rules that would hopefully lead to convergence. Another panelist was skeptical that convergence could ever succeed. Even where competition laws across jurisdictions are ostensibly similar, the panelist argued, different governments may have fundamentally different priorities and attitudes, including with respect to prioritizing risks of Type 1 and Type 2 error.
Finally, the panel discussed the role of cooperation among international enforcers as a form of “practical comity” or “practical extraterritoriality.” Among other things, panelists evaluated the U.S. international guidelines approach to cooperation relative to the European approach and discussed the impact of foreign trade policy, including the Trump Administration’s “America First” pronouncements, on international cooperation.
The discussion was then opened to the room. One attendee rose in defense of U.S. courts, noting that many EU citizens love the American court system because of its fairness. The panelist who had spoken previously of foreign distaste for American courts maintained that even foreign parties who like the fairness of American courts nonetheless dislike the way they exercise their powers overseas.
Another attendee raised a question as to what conduct affects “national competition interests.” In a world with intermediate and component goods, many cartels can raise the prices of a country’s goods without harming competition around goods sold in that country. Panelists generally agreed that the locus of competitive injury in one country does not preclude downstream anticompetitive effects in another and should not render those effects unremediable in the downstream country.
In response to questions from both attendees and the moderator, the panel also discussed the risks of over-deterrence caused by overlapping and duplicative fines and remedies, as well as the risk of under-deterrence caused by the denial of standing to private plaintiffs based on the FTAIA and the Illinois Brick indirect purchaser rule.