U.S. Broadens Rules on International Antitrust Enforcement

The Justice Department and the Federal Trade Commission are broadening their enforcement of antitrust laws over international activity.

The two agencies, which share enforcement of the laws, issued guidelines Wednesday for international enforcement.

“Anti-competitive conduct that affects U.S. domestic or foreign commerce may violate the U.S. antitrust laws regardless of where such conduct occurs or the nationality of the parties involved,” the new guidelines state.

The guidelines take a broader view of antitrust jurisdiction over imports than the 1988 guidelines they replace and reflect a 1993 Supreme Court decision in Hartford Fire Insurance Co. vs. California.

The Supreme Court ruled that the Sherman Antitrust Act, which prohibits price fixing, restraint of trade and monopolies, applies to any foreign conduct intended to produce a substantial effect in the United States.

The new guidelines state that imports by their very nature affect the U.S. domestic market and will almost invariably meet the intent requirement of the Supreme Court’s decision. Whether the conduct produces a substantial effect will depend on the facts of each case, the guidelines say.

The guidelines also spell out details of a 1992 policy under which the Justice Department will take enforcement action against anti-competitive foreign restraints on U.S. exports. The department said it will challenge foreign business conduct that harms U.S. exports when the conduct would have violated U.S. antitrust laws if it occurred in this country.

Deputy Assistant Atty. Gen. Diane P. Wood, who chaired the group that drafted the guidelines, said public comments on the guidelines, as proposed last October, prompted the addition of language to make clear “we don’t use antitrust laws as a trade weapon or to further non-antitrust goals.”

The guidelines also spell out how the department and the FTC will seek evidence in foreign countries under the International Antitrust Enforcement Assistance Act passed by Congress last fall at the Clinton Administration’s request.

Assistant Atty. Gen. Anne K. Bingaman, head of the department’s antitrust division, said: “We will vigorously enforce our antitrust laws in matters that fall within our jurisdiction, whether purely domestic or international in nature. The guidelines also reaffirm our commitment to cooperation with foreign antitrust agencies.”

The joint statement makes clear that “U.S. antitrust agencies speak with one voice about international antitrust policies,” Bingaman said.

Previous guidelines were issued in 1977 and 1988 by the Justice Department.