The InternationalCompetition Policy Advisory Committee (Advisory Committee) is seeking input from the business community and other interested parties on the important issues under its consideration. By offering your perspectives as well as the experiences of your business, if relevant, in matters involving trade and competition policy matters, multijurisdictional mergers and enforcement cooperation, you can ensure that your views on these important issues are considered by the Advisory Committee. To this end, the Advisory Committee has prepared an illustrative set of questions, set forth in Section E below.
- Introduction to the Advisory Committee
In response to the increasingly international nature of antitrust enforcement, the Advisory Committee was formed in late 1997 by Attorney General Janet Reno and Assistant Attorney General for Antitrust Joel I. Klein. It is the third U.S. committee on antitrust matters to the U.S. Department of Justice and the first-ever on international antitrust related matters. The Advisory Committee was established to help tackle the international antitrust problems of the 21st century and thus to provide a medium term policy vision to help guide the U.S. Department of Justice in the years ahead.
The Advisory Committee's membership represents vast experience and expertise from U.S. business, industrial relations, academic, economic and legal communities. It is Co- Chaired by Dr. Paula Stern, President of The Stern Group and former Chairwoman of the U.S. International Trade Commission, and James F. Rill, Senior Partner at Collier, Shannon, Rill & Scott and former Assistant Attorney General for Antitrust, U.S. Department of Justice. Serving as Executive Director of the Advisory Committee is Professor Merit E. Janow of Columbia University's School of International and Public Affairs and former Deputy Assistant U.S. Trade Representative for Japan and China.
On February 26, 1998, the Advisory Committee held its inaugural meeting. Subsequently, in May 1998, some Advisory Committee members met in working groups to consider specific issues and on September 11, 1998 the second full meeting of the Advisory Committee was held. Overall, the Advisory Committee expects to hold three to four meetings a year of its full membership. These meetings will be open to the general public and notice of the meetings will be published in the Federal Register. The Advisory Committee expects to complete its work in the fall of 1999.
For additional background on the Advisory Committee, including the transcripts of full Advisory Committee meetings, please visit its website at: http://www.usdoj.gov/atr/icpac/icpac.htm.
- Issues under Consideration by the Advisory Committee
As noted above, the Advisory Committee's mandate is broad. It has been asked to consider three distinct but related topics:
- The Interface of International Trade and Competition Policy
As many formal barriers to trade have been reduced or eliminated around the world, international policy attention is focusing increasingly on the role of private anticompetitive practices of firms that can foreclose access to markets, as well as governmental practices that may have such effects. Indeed, economic globalization has come to mean that competition problems increasingly transcend national boundaries. And, perhaps not surprisingly, international organizations such as the Organisation for Economic Cooperation and Development (OECD) and the World Trade Organization (WTO), as well as bilateral intergovernmental groups, are engaging in active debate about the extent to which private anticompetitive business practices are in fact blocking access to markets around the world and the appropriate national or international policy responses.
The Advisory Committee is considering the nature of the market access problems that stem from foreign business practices, including those that may be encouraged or in some way facilitated by foreign governmental practices, and what policy actions might usefully be undertaken, if any, to address those problems. In other words, how can the U.S. government even more effectively address barriers to foreign markets that stem from private restraints to trade and investment? A review of domestic unfair trade remedies, such as antidumping measures, is not on the Advisory Committee's agenda.
- Multijurisdictional Merger Review
The recent boom in mergers, acquisitions, joint ventures and other business transactions, coupled with the proliferation of foreign countries with antitrust merger control laws, has greatly increased the number of transactions being reviewed by several different jurisdictions' antitrust authorities. Indeed, over 50 jurisdictions now have antitrust merger control regulations, and it is not uncommon for a major acquisition to trigger notification requirements in a dozen jurisdictions. As a result, merging parties are often faced with divergent merger control policies and procedures from jurisdiction to jurisdiction. Business groups and lawyers have argued that this has raised transaction costs and produced frictions among merging parties and reviewing agencies.
The Advisory Committee is assessing the burden on merging parties arising from multijurisdictional merger review. Further, the Advisory Committee is considering the ways in which the United States and foreign competition enforcement authorities might address their procedural and substantive differences in order to minimize the burden and avoid or resolve conflicts while ensuring that antitrust authorities have the tools needed to identify and remedy anticompetitive mergers.
- Enforcement Cooperation
Recent years have brought both an increase in U.S. antitrust enforcement actions against international cartels and new and expanded bilateral and plurilateral cooperation arrangements between U.S. and foreign competition authorities.
Questions concerning enforcement cooperation are integral to all areas under consideration by the Advisory Committee. In this context, the Advisory Committee is considering whether economic globalization requires new or expanded national or international initiatives in the area of enforcement cooperation. More particularly, it is examining questions such as: How can the U.S. government enhance international cooperation between antitrust authorities to effectively deter and prosecute cartel arrangements around the world? How might U.S. and foreign enforcement authorities increase cooperation in the merger context?
- The Importance of Business and Other Input
A clear priority for the Advisory Committee is to reach out to U.S. business and other interested parties to obtain information and opinions regarding the core issues under consideration by the Advisory Committee. The Advisory Committee shall do this in a variety of ways. For example, the Advisory Committee will hold public hearings on November 2 - 4, 1998, and has invited lawyers, investment bankers, economists, labor representatives, and other experts to participate in those proceedings as well as to provide written submissions.
As an additional step, the Advisory Committee is seeking input from interested parties, including U.S. businesses and associations comprised of firms that are active in international markets, among others.
- The Information and Opinion Sought at this Stage
Because the Advisory Committee wishes to ensure that its members are well informed by the actual experiences of U.S. business, among others, it welcomes information and opinion from executives and counsel at U.S. firms and other interested parties who have direct operational experience with issues under the Advisory Committee's consideration.
To this end, the Advisory Committee has prepared an illustrative set of questions, set forth below. Responses to these questions could take any number of alternative forms and, indeed, it is the Advisory Committee's hope that respondents will think creatively to develop the particular format that is most appropriate to the interests of their membership. Respondents are welcome to raise and address questions on other matters that they believe are related to the subjects raised below and which they believe that the Advisory Committee should consider.
In terms of timing, we would very much like to have your views before the Advisory Committee by March of 1999. Submissions made after that date also will be considered. However, submissions made prior to March 1999 would be especially timely.
Trade and Competition Policy Interface Issues
- Based on your experience, have foreign anticompetitive business practices caused market access problems for consumer goods, industrial products or services? Ifso, please describe those practices with as much detail as possible, e.g., their impact on your firm's investments, or ability to export, sell, or distribute your products or services, or on the prices that you could obtain for those products. Please indicate whether such problems have been getting worse, improving or staying the same. Did you seek intervention from the local government? If so, please describe the results. If not, why not? Are the foreign anticompetitive business practices undertaken by private firms, state-owned enterprises or public monopolies or joint government-private efforts?
- Are there markets/market segments abroad that you have not attempted to enter or expand in because of perceived restrictive private practices? If so, please explain, with as much detail as possible.
- Describe foreign governmental practices, if any, that you believe are encouraging, tolerating or in some way facilitating anticompetitive or exclusionary business practices on the part of local firms. Or, for example, have you encountered joint governmental-private efforts to restrict you from selling or distributing your products or to limit the prices that you could obtain? Or, have you encountered anticompetitive practices by state-owned enterprises acting in their commercial capacity?
- Does your firm bid for foreign government contracts? If so, have you discovered that competitors engaged in anticompetitive practices, such as bid rigging, to influence the decision process? If so, have you ever sought intervention from the local government? With what results? If not, why not?
- Do you believe that your firm's products or services are unable to penetrate foreign markets because of structural barriers -- e.g., cross-ownership arrangements; constraints on foreign direct investment, including through acquisitions; conglomerate grouping; etc.-- that represent problems accessing foreign markets that cannot be addressed by existing international trade or competition policy instruments? Please describe in detail.
Multijurisdictional Merger Review Issues
In the last five years, if your firm has contemplated or completed an acquisition, merger or joint venture with a U.S. or foreign firm which in turn required or would likely have required antitrust notification to one or more foreign competition authorities, please share your perspectives with respect to the following matters.
- Describe the problems, if any, that arose because of underlying differences in oversight by competition authorities at home and abroad. Consider both procedural and substantive factors -- e.g., divergent timing and filing requirements, confidentiality concerns, transaction costs, differences in substantive law, agency procedures, politicization, and conflicts in law. If applicable, please also describe how your approach to addressing these issues (in the context of competition policy) differed from your approach to addressing analogous issues caused by differences in oversight in other legal contexts, i.e. securities laws, tax laws, etc.
- Identify any policy measures that could be undertaken by U.S. antitrust authorities, acting on their own or in cooperation with foreign authorities, that you believe would help to reduce sources of friction, conflict or burden that arise in the context of mergers, joint ventures or acquisitions affecting or requiring antitrust merger notification in more than one jurisdiction. What new arrangements, if any, are desirable to facilitate resolution of conflicts between reviewing authorities?
- Have you encountered international cartels that disadvantaged your company at home or abroad? If so, how has your company been harmed? Do you have suggestions on how the United States could more effectively deter and prosecute international cartel arrangements?
- Please comment on those substantive and procedural differences between U.S. and foreign jurisdictions in their approach to the enforcement of antitrust laws that you believe adversely affect your business, or, more generally, the U.S. economy. Comments should address situations including those with respect to actions against hard-core cartels.
- What benefits or detriments do you believe can be derived from joint or cooperative antitrust investigations by U.S. and foreign competition authorities? In your experience, have joint or cooperative antitrust investigations resulted in noticeably more or less burdensome investigations than in the absence of such cooperation? In responding, please address concerns you may have had in either or both the investigative or litigation contexts.
Questions or comments can be directed to Merit E. Janow, Executive Director, at telephone number (212) 854-1724 or to ICPAC Counsel: Andrew J. Shapiro (for Trade and Competition issues), at telephone number (202) 353-0012; Cynthia R. Lewis (for Multijurisdictional Merger issues), at telephone number (202) 514-8505; or Stephanie G. Victor (for Enforcement Cooperation issues), at telephone number (202) 616-9705.
Please send written replies to:
U.S. Department of Justice
Antitrust Division - Rm. 10011
601 D Street, N.W.
Washington, DC 20530
Facsimile: (202) 514-4508
Electronic Mail: email@example.com