Edited by David Lewis
Chapter 6: The past and future of international antitrust: gaps, overlaps and the institutional challenge
International antitrust has expanded rapidly since the third quarter of the twentieth century. The need to fit national laws to the reality of global markets has led not only to nations looking beyond their borders but also to the contemplation of international modalities and instruments. We do not have world competition law and are unlikely to get it in the foreseeable future. We ask in this chapter: what level of protection do we have against global restraints; what trans-border problems remain un- attended; and, in the absence of world competition law, what initiatives (if any) might the existing institutions take to fill the gaps in the web? In the first part of this chapter we describe the evolution of international antitrust. In answering the policy questions in the second half of this chapter, we focus in particular on the International Competition Network. Finally, we make some suggestions for modalities to address the problems that currently have no ‘home’. The story of antitrust begins in the late nineteenth century. Antitrust was national.1 Intimations of world antitrust came during World War II. Cartels organised from Germany threatened US defence. US Assistant Attorney General Thurman Arnold began the first campaign against international cartels, linking them to their totalitarian sponsors. In this era of war, the United States law expanded to reach offshore actors. It did so in the notorious Alcoa case (148 F.2d 416, 2d Cir. 1945), in which the court held that US law reaches an offshore cartel when the actors intend to affect and do affect the US market.
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