This Article analyzes the economic incentives countries face in selecting an antitrust policy. It demonstrates that, in the presence of international trade, antitrust policies chosen by national governments will generally not lead to an outcome that is desirable from an international perspective. Professor Guzman identifies the reasons why national policies are different from the optimal global policy and shows how the direction of the deviation from the optimal policy depends on trade patterns and the extent to which national laws are applied extraterritorially. The author concludes that; although international agreement is not impossible, the prospects for substantive cooperation on international antitrust policy are slight. Unlike trade policy, an international agreement on antitrust policy would benefit some countries at the expense of others. The Article identifies tie potential winners and losers from such an agreement and points out that because international compensatory transfer payments are unlikely, an agreement will be difficult to achieve. Recognizing that agreement is nevertheless desirable to avoid welfare losses associated with a noncooperative approach to international antitrust policy Professor Guzman analyzes the fora in which antitrust agreements are most likely to be negotiated and assesses tire likelihood of success in each forum. Because concessions in other areas of negotiation may be necessary to compensate countries that will suffer a loss under a cooperative antitrust policy, the analysis suggests that negotiations on antitrust policy should be combined with the negotiations of other issues.
Andrew T. Guzman
In this Essay, Andrew Guzman proposes internationalization of antitrust law to supplant current methods of antitrust regulation across national borders. Specifically, instead of relying on local regulation, bilateral agreements between states, or a choice-of-law rule for antitrust enforcement, countries should adopt universal substantive standards. Moreover, Guzman recommends the World Trade Organization (WTO), which already employs a dispute resolution mechanism, as the governing forum for international antitrust issues. There, states can negotiate transfer payments in one international transaction to achieve agreement in another. Upon evaluating Professor Eleanor Fox’s proposal of a stand-alone World Competition Forum that would specialize exclusively in international antitrust negotiations, Guzman concludes that the WTO is the preferred forum. Its dispute resolution system would facilitate substantive cooperation among countries by allowing for concessions exchanged in antitrust as well as in other areas of international relations.