Friday, March 30, 2018
Hannah L. Buxbaum, Indiana University Bloomington Maurer School of Law describes Transnational Antitrust Law.
ABSTRACT: In beginning a discussion of transnational antitrust law, one immediately confronts multiple points on which there is no shared understanding across legal systems. First, to what body of substantive rules are we referring? “Antitrust law,” the term used primarily in the United States, is generally understood as the body of rules that address restraints on competition. “Competition law,” the term more frequently used elsewhere, is often used to refer to a broader set of norms — for instance, encompassing laws governing unfair business practices and consumer protection. Second, what purpose is antitrust law intended to serve? In many countries, the overarching objective would most commonly be identified as maximizing consumer welfare. In other countries, however, antitrust law may serve other economic objectives, such as promoting industrial development, protecting emerging industries, or improving the position of local firms in global markets. Third, what is the relationship between law and markets? In many parts of the world, governments, not markets, traditionally controlled economic production; in others, the market orientation eventually embodied in the Washington Consensus was dominant. The “market turn” that occurred in the 1990s has to some extent solidified a common foundation for the development and implementation of antitrust law, yet significant variability remains in the interplay between markets and law.
Against this backdrop, it is not surprising that efforts to develop a body of international antitrust law have failed. Instead, we rely on a diverse set of norms and transnational practices to regulate the increasingly globalized economy. This chapter discusses those practices, focusing on the actors and institutions involved. Part I addresses the production of substantive antitrust law at different levels (national, regional, and international) and discusses some of the ways in which these norms spread across legal systems. Part II turns to mechanisms for improving cooperation among legal systems in the enforcement of divergent regulatory norms, as well as to continuing sites of contestation among regimes. Part III concludes with an analysis of the prospects for increased convergence in the field of antitrust law and policy.