Fox Eleanor M - Global Issues in Antitrust and Competition Law

West Academic Publishings Law School Advisory Board

JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

Global Issues in
Antitrust and Competition Law

Second Edition

Eleanor M. Fox

Walter J. Derenberg Professor of Trade Regulation
New York University School of Law

Daniel A. Crane

Frederick Paul Furth Sr. Professor of Law
University of Michigan Law School

GLOBAL ISSUES SERIES

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ISBN: 978-1-63460-526-7

Acknowledgments

The authors thank Hiroaki Matsunaga, Gabriel Orazi, Kurt Rajpal, Felipe Serrano Pinilla, Holden A. Steinhauer, Yusuke Takamiya and Michael Watts for excellent research assistance and Cheri Fidh, Brendan L. Heldenfels and Linda Smalls for excellent assistance in preparing the manuscript. The Filomen DAgostino and Max E. Greenberg Foundation provided generous research support to Eleanor Fox.

Foreword to the First Edition

Eleanor Fox has frequently reminded us that while markets are global, antitrust lawsthe rules that undergird effectively functioning marketsare national. She would be first to recognise that each of the key elements of this insight require a degree of qualification. In fact, surprisingly few markets are seamlessly global. And increasingly the practice of antitrust law is already in the process of becoming international, although it is certainly true that the instruments of antitrust enforcement and merger regulation are overwhelmingly national, notwithstanding their extraterritorial reach.

This monumental volume is focused on the critical interplay between the national and the global elements of antitrust. It does so through the medium of national jurisprudence, through the reproduction of key speeches, through an analysis of commissions and treaties and the efforts of antitrust enforcers to align their practice, or, at the very least, to understand the bases of divergent national practices.

Few are better qualified to undertake this task than the two authors. Eleanor Fox is the scholar most closely associated with describing, understanding and analysing international antitrust, as evidenced by her truly massive output in this area alone, and by no means her only area of contribution to antitrust scholarship. But even more than her scholarship, for those of us whose work in antitrust started at its geographical marginsthat is to say, beyond the borders of the United States and the European UnionEleanor is distinguished by her empathy with and her deep interest in these efforts. She has been a voice of the new antitrust authorities and as they have grown in stature and importance, so has she expanded her already vast horizons by incorporating the work of these new agencies into the corpus of international antitrust law and practice. The range of experiences drawn upon to produce this volume is testament not only to the centrality of the international markets/national antitrust insight, but to Eleanors intellectual curiosity and willingness to embrace the experiences and insights of those who are not used to making an appearance in the scholarly antitrust tomes emanating from the US and Europe.

My introduction to Daniel Cranes work comes by way of his seminal historical accounts of the ups and downs, the ebbs and flows, of US antitrust. Just as I would insist that economic historians, rather than plain and simple economists, are best placed to understand contemporary economic phenomenon and even predict their future paths, so are legal historians best placed to understand the place to which decades of antitrust law has evolved and where it is likely to go. Historians are, per definition, sensitive to the often determinative force and power of contextpolitics, economics, stages of development, state-business relations, even wars all, as Daniels work reminds us, influence the character and course of antitrust. This is the canvas of history and Daniels regard for history permeates this volume.

We are at an important cusp in the development of international antitrust. Effective public international institutions are working precisely in those interstices between global markets and national antitrust that are the concern of this volume. The International Competition Network has brought together the vast majority of the worlds national antitrust authorities. The ICN has developed best practices, not only in antitrust rules and approaches, but also in the building of effective antitrust authorities. And at least, as important, it has, largely through the active participation of precisely those of its members who used to be on the antitrust margins, that the ICN is beginning to appreciate informed divergence, essentially an appreciation of why historical and other contexts may necessitate divergence rather than convergence. The OECD continues to produce applied scholarship of high quality and to embrace participation from way beyond its membership. UNCTAD continues to support those antitrust authorities from nations whose resource endowment and history most constrains their ability to develop into effective members of the international community of national antitrust authorities. And if the WTO is the avowed and self-proclaimed agent of a globalised world, for how long can antitrust remain on the periphery of its agenda.

Forewords traditionally extol the timeliness of the volumes that they are introducing. This volume is a majestic survey of an issue whose time has truly come. It will not only be a building block in the enterprise of aligning global markets and national antitrust, it is a veritable world tour of the rules and practices that already propel that world further and map out its future direction.

In their introduction to the volume the authors note that this volume on global antitrust issues may be used to supplement domestic antitrust casebooks. They then immediately identify the oddity implicit in treating a volume on global antitrust as a supplement to national antitrust scholarship precisely because marketsthe very stuff of antitrustare global. As markets become ever more globaland even that inexorable development will experience ebbs and flowsso will this volume come to occupy a central place on the bookshelves of antitrust scholars and in the reading lists of their students.