Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Acting antitrust chief offers views on international convergence, (Jun 24, 2016)

By Jeffrey May, J.D.

Renata B. Hesse, Principal Deputy Assistant Attorney General at the Department of Justice Antitrust Division, discussed international convergence at the annual Chatham House Competition Policy conference yesterday in London. The acting head of the Antitrust Division also touched on the important differences among jurisdictions in some areas of competition law enforcement.

Hesse predicted further convergence in antitrust enforcement, despite divergent approaches to common competition issues in a keynote address. In her prepared remarks—entitled “Can There Be a ‘One-World Approach’ to Competition Law?”—the acting antitrust chief said that progress on convergence was being made in hard-core cartel enforcement, as well as merger review procedures and substantive analysis. However, some significant differences remain with respect to unilateral conduct, criminal treatment of cartels, and transparency and procedural fairness.

“Today there is near unanimity around the world about the importance of discovering and prosecuting price fixing, bid rigging, and market allocation,” Hesse said. She noted that in the past decade, a majority of the fines levied against international cartels have been imposed by competition authorities outside the United States.

In the merger area, Hesse pointed to consensus among competition agencies to limit merger reviews to those deals where the country has some nexus to the transaction. Moreover, more and more jurisdictions are applying essentially the same substantive assessment of likely competitive effects from proposed mergers.

But Hesse noted the inconsistencies. “Firms that would not even be at risk of violating unilateral conduct laws prohibiting exclusionary conduct in the U.S. are subject to such laws elsewhere for the same behavior,” Hesse said. “A firm controlling half the market almost certainly is subject to such laws in Europe, and somewhat smaller firms are apt to be subject to such laws as well.”

According to the acting antitrust chief, the divergence is most apparent with respect to conduct related to intellectual property. “No US court decision has found that a unilateral, unconditional refusal to license intellectual property was unlawful, but European courts have done so,” she remarked.

“Convergence should not be seen as a goal in itself,” Hesse noted. “Our focus should always first be on articulating, practicing, and protecting fair, effective, and sound competition policy, using transparent process and informed by continued learning and experience.”

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