International law is difficult because it exists solely as a social construct between sovereign nations. No one nation must follow the laws of another nation. In order to do business in another country, however, an individual or company must follow the foreign country’s laws. Therefore, it is often in a country’s best interest to form agreements, such as treaties, to cooperate on various issues.
Antitrust is a perfect example of this. The U.S. will try to enforce U.S. antitrust laws with any business whose conduct affects U.S. commerce. Many countries also have laws aimed at preventing companies from stifling competition, but they may look different in each country. In today’s global marketplace, however, a common understanding of how companies should behave benefits all sides. That does not mean such agreements are easy to negotiate or enforce.
Government enforcement of antitrust policy
Both the Federal Trade Commission (FTC) and the Department of Justice (DOJ) have a role in enforcing antitrust policy at an international level. The FTC often works with governments from other countries to manage conflicts and promote cooperation regarding enforcement efforts of antitrust policies. Building bilateral, or even multilateral, agreements among nations is important for mutual cooperation and understanding of competition laws abroad. The DOJ assists with these efforts and brings enforcement actions against companies they allege violate U.S. antitrust laws.
Advancements in international cooperation and due process
In recent years, the DOJ has pushed for more international cooperation by regulators around the globe, including all major groups in the Americas. Over 70 agencies agreed to a regulatory framework known as the Competition Agency Procedures (CAP). The groups have committed to several principles meant to promote fundamental due process, such as:
- Legal and regulatory transparency
- Giving notice to parties in a timely manner
- Avoiding conflicts of interest in enforcement decisions
- Allowing legal representation
- Parties should have the ability to examine evidence and witnesses
- Written decisions
Although such procedural rights seem basic to U.S. citizens, they are not a given in every country.
Companies may encounter antitrust issues in situations such as pursuing a merger, applying for an intellectual property license or making a distribution arrangement. Such situations are bound to grow ever more complex as global trade expands.