Foreign State’s Entanglement in Anticompetitive Conduct

Marek Martyniszyn (Queen's University Belfast School of Law) analyzes Foreign State’s Entanglement in Anticompetitive Conduct

ABSTRACT: Transnational competition cases pose numerous challenges – from accessing foreign-based evidence to effectively enforcing decisions or judgments in their aftermath. Some of such cases are quite special in that the underlying conduct involves or implicates a foreign State. This article makes an original contribution to the scholarship by filling the existing gap and developing a typology of State’s entanglement in conduct causing competitive harm abroad. It also examines the way in which foreign State’s involvement or implication can be addressed in the adversely affected forum. Moreover, the key broader considerations which need to inform policies and approaches towards such cases are identified and evaluated. It is argued that competitive harm resulting from commercial dealings should be pursued under competition laws regardless of the character of the parties involved, unless there are overriding reasons justifying abstention. States should not enjoy immunity for competitive harm resulting from their commercial dealings. Agencies and courts in the affected fora should strive to clarify this matter. A clear State’s policy on dealing with inbound competitive harm may also make foreign partners more receptive to concerns about policies which facilitate competitive harm which they may be pursuing.