ARTICLE: ANTITRUST - CARTELS - INTERNATIONAL ENFORCEMENT - HARM - WORLD WELFARE

Antitrust and the clash of sovereigns - Bringing under one roof: Extraterritoriality, industrial policy, foreign sovereign compulsion, and (bad) applications of law against “my country’s” firms

Article to be published in Douglas Ginsburg Liber Amicorum, N. Charbit and al. (eds.), Concurrences, 2020.

When sovereign conflicts arise in the course of antitrust litigation, the traditional response is to retreat to “comity.” This article challenges the traditional response. It argues that we have been too quick to find sovereign clashes and too timid to recognize common ground that may counsel reaching out rather than reining in. This is especially true in the case of hard core cartels in view of the near-universal norm against them. The article proposes that world welfare should be relevant especially in the case off-shore hard core cartels, justifying jurisdiction where the cartel harms the enforcing nation but the harm is not literally direct. Further, it proposes principles of legitimacy and illegitimacy in cross-border enforcement.

1. In the presence of a global economy and in the absence of a global competition law, sovereigns clash. A system of global governance without a global regime would naturally consider norms for nations’ extended or restrained jurisdiction over acts abroad with local consequences. In fact, nations have developed their own rules, often haphazardly, and often traceable to older times when sovereign states were less economically porous and before the era of interdependence. This essay attempts to reexamine appropriate reach or restraint of national jurisdiction in an age of a global commons of competition. [1] 2. The essay is about extraterritoriality, but the canvas is larger. “Clash of sovereigns” is broadly conceived. The essay includes the problem of how to treat orders by foreign

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  • New York University

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Eleanor M. Fox, Antitrust and the clash of sovereigns - Bringing under one roof: Extraterritoriality, industrial policy, foreign sovereign compulsion, and (bad) applications of law against “my country’s” firms, November 2019, Concurrences Review N° 4-2019, Art. N° 92045, pp. 73-80

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