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