Table Of Contents

Table of Contents

Executive Summary

Chapter 1

Globalization and its Implications for Antitrust Cooperation and Enforcement

• The Mandate of the International Competition Policy Advisory Committee
• The Global Economy and Competition Policy
• Structure of the Report

Chapter 2

Multijurisdictional Mergers: Facilitating Substantive Convergence and Minimizing Conflict

• Internationalization of Antitrust Merger Control Law
  • Globalization and the Merger Wave
  • Overview of Substantive Approaches to Merger Analysis
  • Challenges Presented by Diverse Policy Goals and Approaches
    • Potential for Divergence in Analyses and Results
    • Friction Among Jurisdictions
• Strategies for Facilitating Substantive Convergence and Minimizing Conflict
  • Facilitate Greater Transparency
  • Develop Disciplines for Merger Review
  • Continue to Enhance Cross-Border Cooperation
  • Develop a Framework for Cooperation and the Exchange of Confidential Business Information
    • Protocol for Cooperation in Merger Investigations
    • Model Waivers of Confidentiality
    • Policy Statement
    • Notice of Information Exchange
  • Develop Work-Sharing Arrangements
    • Work Sharing in the Remedy Stage
    • Work Sharing in the Review Stage
    • Potential for Advanced Work Sharing
• Summary of Recommendations

Chapter 3

Multijurisdictional Mergers: Rationalizing the Merger Review Process Through Targeted Reform

• Benefits of Antitrust Merger Notification
• Challenges Presented by the Proliferation of Merger Regimes
• Rationalizing the Merger Review Process in Light of Globalization
• Targeted Reform: Casting the Merger Review Net Appropriately
  • Using Notification Thresholds to Screen Out Mergers That Are Unlikely to Have Appreciable Anticompetitive Effects Within the Reviewing Jurisdiction
    • Nexus to the Jurisdiction
    • Appreciable Anticompetitive Effects within the Reviewing Jurisdiction
  • Reducing Uncertainty and Unnecessary Burden Imposed by Notification Thresholds
    • Objectively Based Notification Thresholds
    • Transparency
• Targeted Reform: Reducing Burdens on Transactions in the Merger Review Net
  • Setting Reasonable Deadlines and Time Frames for Review
    • Triggering Events
    • Initial Review Periods
    • Second-Stage Review Periods
  • Refining Information Requests
    • Initial Filing Requirements
    • Second-Stage Investigations
• Advisory Committee Recommendations for Targeted Reform in the United States
  • Recommendations on Threshold Requirements
    • Nexus to the Jurisdiction
    • Appreciable Anticompetitive Effects
  • Recommendations on Deadlines and Time Frames for Review
  • Recommendations on Focused Information Requirements
    • Initial Filing and "One and a Half" Requests
    • The Second-Request Process
  • Multiple Review of Mergers by Antitrust and Sectoral Regulators
    • The U.S. Competition Policy System in Merger Review
    • Impact of Multiplicity
    • The Magnitude of the Problem
    • Possible Approaches to Reducing Costs and Achieving Domestic Policy Harmonization
    • Recommendations and Issues for Further Study
• Summary of Recommendations

Chapter 4

International Anticartel Enforcement and Interagency Enforcement Cooperation

• The U.S. Enforcement Record
  • Surge in U.S. International Cartel Prosecutions
  • Examples of Recent International Cartels
    • Citric Acid and Lysine Cartels (Food and Feed Additives Cartels)
    • Graphite Electrodes Cartel
    • Vitamins Cartel
• Key Issues Before the Advisory Committee
  • An Increase in Cartels or in Detection?
  • Changes in U.S. Enforcement Policy
  • Interagency Anticartel Enforcement Cooperation
    • U.S. Antitrust Enforcement Cooperation Through MLATs
    • Antitrust Enforcement Assistance Through Traditional International Law Mechanisms
  • Anticartel Enforcement in Other Countries
    • Assessment of Recent Trends
  • Greater Cooperation Through Increased Awareness
• The Use and Management of Confidential Information
  • Agency Accountability in Safeguarding Information
  • Transparency
  • Notice
  • Transparency and Notice Issues in Civil Nonmerger Matters
  • Other Confidentiality Proposals Considered
• The Importance of Positive Incentives
• Summary of Recommendations

Chapter 5

Where Trade and Competition Intersect

• The Advisory Committee's Definition of Relevant Practices
  • Private Anticompetitive or Exclusionary Restraints
  • Governmental Practices
  • Not All Competition Problems are Trade Problems
• The Scope of the Problem
  • Anecdotal Evidence
    • U.S. Complaints about Japanese Business Practices
    • U.S. Complaints about Japanese Competition Law
    • U.S.-European Conflicts
    • Complaints about Latin American Practices
    • Anticompetitive and Exclusionary Practices Alleged to Exist in Other Countries
  • Complaints Raised before the WTO Working Group
  • Evidence from Business Associations
  • The Advisory Committee's Assessment of the Evidence
• Positive Comity
  • Evolution of Positive Comity
    • 1991 U.S.-EC Agreement
    • 1998 Supplemental Agreement
  • Positive Comity in Practice
    • Formal Use: Computer Reservation Systems
    • Informal Applications
  • Assessments of Positive Comity
  • The Advisory Committee's Assessment of Positive Comity
  • The Advisory Committee's Recommendations for Strengthening Positive Comity
• U.S. Enforcement to Gain Market Access
  • The U.S. Government's Extraterritorial Enforcement Policy
    • The Government Case Record
  • Private Enforcement Record
  • Reactions from Abroad to Extraterritorial Enforcement
  • Consideration of Proposals for Dealing with Anticompetitive Practices Abroad
  • The Advisory Committee's Approach for Applying U.S. Extraterritorial Enforcement
    • Consider Foreign Enforcement
    • Using Extraterritorial Enforcement When Necessary
    • Develop a Base of Evidence on Export Restraints
• The Role for International Organizations
  • The Organization for Economic Cooperation and Development
  • The World Trade Organization
    • Competition Policy Features of Existing WTO Agreements
    • The Working Group on the Interaction Between Trade and Competition Policy
  • Views on the Appropriate Role for the WTO
    • Views of Governments
    • Business and Labor Viewpoints
    • Other Expert Views
  • The Seattle Ministerial and Its Treatment of Competition Policy
  • The Advisory Committee's Assessment on a Role for the WTO
    • Private Restraints
    • Mixed Governmental and Private Restraints
• Summary of Recommendations

Chapter 6

Preparing for the Future

• Expanding the Dialogue: A Global Competition Initiative
  • Why This Global Competition Initiative Is Needed and What It Would Do
  • The Mission and Activities of the Initiative
• International Mediation of Competition Policy Disputes
• Electronic Commerce and Competition Policy: A New Frontier
  • Traditional Antitrust Problems
  • Network Effects
  • Hidden Mercantilism
  • Alternative Approaches for Policymakers to Consider
• The Role of Competition Policy in U.S. Foreign Economic Policy
  • Expanding the U.S. Profile in International Competition Policy
• Summary of Recommendations

Annexes

Annex 1-A                    Separate Statement of Advisory Committee Member Eleanor M. Fox

Annex 1-B                    Biography of Members
                                    List of Advisory Committee Public Meetings and Hearings
                                    Advisory Committee Hearings Programs

Annex 1-C                    U.S. Experience With International Antitrust Enforcement Cooperation

Annex 2-A                    HSR Filing and Enforcement Statistics

Annex 2-B                    Transactions Reported Under HSR Involving a Foreign
                                       Acquiring Person or a Foreign Acquired Entity

Annex 2-C                    Worldwide Antitrust Merger Notification Systems

Annex 2-D                    Model Waivers of Confidentiality Protections

Annex 2-E                    Model Framework for Policy Statements

Annex 3-A                    Filing Fees of Selected Jurisdictions

Annex 3-B                    The Relationship Between Antitrust Agencies and Sectoral Regulators

Annex 4-A                    U.S. International Cartel Prosecutions During the 1990s

Annex 4-B                    U.S. Corporate Leniency Program and Antitrust
                                      Penalties in Select Jurisdictions

Annex 4-C                    Anticartel Enforcement in Canada and Japan

Annex 5-A                    Summary of Outbound Restraint Cases

Annex 6-A                    U.S. Antitrust Technical Assistant Programs