The Importance of Positive Incentives
The Advisory Committee has discussed the importance of providing specific positive incentives to extend and deepen cooperation between U.S. and foreign competition authorities. Positive incentives should aim to further develop a shared culture of sound competition policy around the world, instill greater public confidence in the value of interagency enforcement cooperation, and reduce tensions associated with U.S. enforcement. To this end, the Advisory Committee recommends that the U.S. government expand its ability to provide technical assistance designed to enhance international cooperation and promote sound competition policy regimes. While the Antitrust Division and Federal Trade Commission have built a record of technical assistance during the 1990s,(105) the Advisory Committee recommends that this work be expanded with support from more and consistent funding, and that its focus be enlarged. For instance, funds could be allocated in at least two directions. One would focus on traditional core functional areas, such as anticartel enforcement activities and premerger reviews; the other could be designed to fund new initiatives, including those considered in Chapters 5 and 6 herein. As part of the first emphasis, the United States should enhance its coordinated technical assistance efforts with programs organized by international organizations, such as the OECD, which provides a model for deepening programming through its use of seminars and the case study method.
The second category might extend to funding support to advance basic concerns, such as the operating needs and capabilities of authorities that are beginning to introduce or to enhance competition law and policy regimes. At a time of tight budgets and many worthwhile programs, funding is always an issue. One idea that the Advisory Committee has considered would allocate a small percentage of funds obtained through antitrust fines in cartel prosecutions to further these institution building objectives.(106) There are precedents under U.S. law for making such allocations,(107) including examples of alternative sentences of this nature being imposed on defendants in domestic cartel litigations.(108)
The Advisory Committee has also considered the positive role that bilateral antitrust enforcement agreements can play in fostering cooperation with antitrust authorities in other jurisdictions.(109) Such agreements create opportunities for the United States to encourage new competition agencies in their development. The 1999 agreement between the U.S. and Israel is a good case in point.(110) The U.S.-Brazil agreement is another recent example.(111) It was the first bilateral antitrust agreement to include provisions for technical cooperation and the second agreement, after the U.S.-Israel agreement, signed with a young antitrust authority. Technical assistance programs enable U.S. antitrust authorities to develop interagency relationships through which sister antitrust authorities can develop familiarity with the U.S. antitrust laws and enforcement system. While this process is time consuming and necessitates drawing upon the resources of U.S. antitrust agencies as they provide assistance to the developing antitrust agencies, it appears to act over time as a positive incentive to establishing necessary building blocks to deepen cooperation.(112) The Advisory Committee supports efforts of the U.S. Antitrust Division to expand the number of jurisdictions with which it has entered into bilateral cooperation agreements in order to include newer systems as well as jurisdictions with developed antitrust laws and policies. The Committee recommends that the Division continue to pursue the negotiation and implementation of modern antitrust agreements, including those that feature more detailed provisions regarding positive comity. Summary of Recommendations