Justice Department and Federal Trade Commission Seek Public Comment on Proposed Updates to International Antitrust Guidelines

The Department of Justice’s Antitrust Division and the Federal Trade Commission seek public comment on proposed Antitrust Guidelines for International Enforcement and Cooperation.  The proposed guidelines update the 1995 Antitrust Enforcement Guidelines for International Operations and provide guidance to businesses engaged in international activities on questions that concern the agencies’ international enforcement policy as well as the agencies’ related investigative tools and cooperation with foreign authorities.

The proposed guidelines reflect the growing importance of antitrust enforcement in a globalized economy and the agencies’ commitment to cooperating with foreign authorities on both policy and investigative matters. 

“The Antitrust Enforcement Guidelines for International Operations have long been an important reflection of the department’s application of the antitrust laws to businesses engaged in international operations,” said Acting Assistant Attorney General Renata Hesse, in charge of the Department of Justice’s Antitrust Division.  “Since the Guidelines were last updated in 1995, globalization has increased dramatically, as has international antitrust enforcement and the level of cooperation between the department and international counterparts.  Because of this evolution in practice and developments in the law over the intervening 21 years, this update is long overdue.” 

“With the continued expansion of cross-border commerce around the world, the agencies’ international antitrust enforcement policies and practices are becoming more and more important in protecting U.S. consumers and businesses,” said Chairwoman Edith Ramirez of the Federal Trade Commission.  “The revisions we are proposing are designed to ensure that the guidelines are up-to-date and transparent.”  

The proposed revisions restructure the previous guidelines in order to make the guidelines more useful and accessible by focusing on the questions of greatest significance to users.  The proposed revisions also describe the current practices and methods of analysis the agencies employ when determining whether to initiate and how to conduct investigations of, or enforcement actions against, conduct with an international dimension. 

In particular, the revisions:

•  Add a chapter on international cooperation, which addresses the agencies’ investigative tools, confidentiality safeguards, the legal basis for cooperation, types of information exchanged and waivers of confidentiality, remedies and special considerations in criminal investigations;  
• Update the discussion of the application of U.S. antitrust law to conduct involving foreign commerce, the Foreign Trade Antitrust Improvements Act, foreign sovereign immunity, foreign sovereign compulsion, the act of state doctrine and petitioning of sovereigns, in light of developments in both the law and the agencies’ practice; and
• Provide revised illustrative examples focused on the types of issues most commonly encountered.

The commission vote approving issuance of the proposed updated Antitrust Guidelines for International Enforcement and Cooperation for public comment was 3-0.  

The agencies are interested in receiving comments on the proposed update from interested parties, including attorneys, economists, academics, consumer groups and the business community.  Interested parties may submit public comments electronically to ATR.InternationalGuidelines@usdoj.gov until Thursday, Dec. 1.  Submitted comments will be made publicly available on the agencies’ websites.