Antitrust in a World of Interrelated Economies: The Interplay Between Antitrust and Trade Policies in the US and the EEC.

AuthorGrikscheit, Alyssa A.

In Antitrust in a World of Interrelated Economies, Mario Marques Mendes(1) provides an insightful account of the conflict between antitrust and trade policy objectives in both the United States and the European Community (EC).(2) His main contention is simple indeed: antitrust, which aims to promote competition, and trade policy, which aims to protect domestic industry, operate at cross-purposes. Mendes skillfully elaborates this thesis throughout his book, showing the reader how the two policies conflict and how the enforcers of trade policy might better recognize the concerns behind antitrust policy. His book is full of insights into policymaking and decisionmaking at all levels. Mendes traces the history of antitrust and trade enforcement in the General Agreement on Tariffs and Trade (GATT), Organization for Economic Cooperation and Development (OECD), and United Nations Conference on Trade and Development (UNCTAD) as adroitly as he discusses infighting between the Department of Justice and the International Trade Commission. His remarkable ability to discuss two major policies in two legal systems at once is ultimately the real strength of this book.

Mendes divides the text into three parts. The first, "International Trade and International Antitrust: An Overview," summarizes the history of trade liberalization in the GATT and trade protection despite the GATT (pp. 19-26). It then reviews the history of antitrust enforcement, noting that despite its mainly economic bases, one early political motivation for enforcement stemmed from an association of cartels with Naziism (p. 34). Mendes points up the limitations of purely domestic antitrust enforcement and decries the lack of regulation of restrictive business practices on the international level.(3) His discussion of the lack of international antitrust enforcement is slightly out of date in that it fails to mention the 1991 agreement between the EC and the United States to coordinate antitrust enforcement.(4) While currently in force, France is presently challenging the validity of the agreement in front of the European Court of Justice.(5)

The second part of the book, "The U.S. and EEC Antitrust Systems," completes the foundation for the intricate arguments of Part III. Mendes' taxonomy of the interrelationships relevant to his inquiry begins in this part. He skillfully addresses the practical aspects of enforcement in the U.S. and the EC before finding that "all these aspects of antitrust enforcement cannot be looked at separately. They are all interrelated" (p. 68). Mendes further notes that, especially in the U.S., antitrust is not only complex in itself but also constitutes part of a broader economic policy (p. 65). The importance of economic criteria in American antitrust evaluations cannot be underestimated, while economics plays a lesser role in Community decisionmaking.(6) Mendes goes too far, however, when he characterizes the role of economics in the EC as "minor."(7) In support of his contention, Mendes cites to the Sixth, Ninth, Thirteenth, and Sixteenth Reports on Competition Policy, but he neglects to examine more recent reports that place a greater emphasis on economic efficiency in the EC.(8)

Having found the goals of antitrust to be superior to those of trade policy by virtue of their promotion of competition and free trade, Mendes defines the useful limits of domestic antitrust policy by commencing a detailed investigation of the vagaries of international subject matter jurisdiction (pp. 86-101). The foreign sovereign immunity, act-of-state, foreign sovereign compulsion, and other defenses may prevent a domestic antitrust policy from functioning effectively in the international arena (pp. 94-101). Mendes notes that where an industry can choose between bringing an antitrust suit or an import relief proceeding, it will invariably choose the latter because the antitrust defenses will not apply (p. 166).

Both legal systems tend to downplay international comity considerations.(9) Moreover, both the U.S. and the EC tend to encourage or approve antitrust violations abroad, as the U.S. statute exempting export cartels from antitrust suits illustrates.(10) A fuller discussion of the statutory exemptions to the U.S. and EC antitrust laws would have been appreciated, especially as the U.S. exemption for export cartels(11) and the EC exemption for crisis cartels(12) seem to accommodate trade policy objectives.

At this point, Mendes attempts a preliminary comparison between the U.S. and EC antitrust systems that rings true in most respects but becomes deeply problematic when he explores it further in Part III. He asserts that "[t]he concentration one finds in the Common Market is in striking opposition to the decentralized U.S. institutional and enforcement structure" (p. 82). This is surely correct. The United States has a greater arsenal of antitrust enforcement agencies and instruments, while in the EC the Commission has greater powers than the Justice Department and the F.T.C. combined.(13) Moreover, the American approach to antitrust is more deeply rooted in concerns of economic efficiency than that of the Community, with its "objective of market...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT