Consideration of comity in antitrust cases is more important than ever. The global proliferation of competition law enforcement agencies has produced profound effects. Most are highly beneficial for consumers at a local level, but these many agencies create significant difficulties because they apply different legal standards, procedures and approaches to identifying and redressing perceived antitrust violations. One inescapable consequence is a much greater risk of conflict.
This conflict can take various forms. In the extreme case, it can mean that different jurisdictions impose conflicting remedies for the same conduct irrespective of the effect in another jurisdiction, making it impossible for a party to comply with both remedies. As an example, one jurisdiction might require the complete divestiture of intellectual property in order to gain merger clearance, while another jurisdiction might require the party to license that same intellectual property. But there are more subtle tensions, equally problematic, that can result in the regulation of a party’s conduct by one or more agencies that affect market conduct far beyond the enforcing agency’s own borders. These risks are particularly high when an agency applies the “effects” doctrine, which often results in remedies that necessarily have an effect beyond that jurisdiction’s own borders.
Agencies seeking to enforce their antitrust laws should recognize these risks and guard against interfering with the legitimate interests of other governments regulating conduct within their own borders and determining how their own domestic markets should function. This article examines some of the sources of tension in the competition ecosystem and the means the agencies now use to address those conflicts. The article identifies a gap that still exists between the need for and mechanisms of coordination and proposes an expanded use of traditional comity to ensure that international competition law enforcement produces benefits for consumers while minimizing unnecessary and inappropriate interference with the legitimate interests of foreign jurisdictions.