Appendix J. 1995 Department of Justice and Federal Trade Commission Antitrust Enforcement Guidelines for International Operations

• Pages: 579-624

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APPENDIX J

1995 DEPARTMENT OF JUSTICE AND

FEDERAL TRADE COMMISSION ANTITRUST

ENFORCEMENT GUIDELINES FOR

INTERNATIONAL OPERATIONS

April 1995

1. Introduction

2. Antitrust Laws Enforced by the Agencies

2.1 Sherman Act

2.2 Clayton Act

2.3 Federal Trade Commission Act

2.4 Hart-Scott-Rodino Antitrust Improvements Act of 1976

2.5 National Cooperative Research and Production Act

2.6 Webb-Pomerene Act

2.7 Export Trading Company Act of 1982

2.8 Other Pertinent Legislation

2.81 Wilson Tariff Act

2.82 Antidumping Act of 1916

2.83 Tariff Act of 1930

2.831 Countervailing Duties

2.832 Antidumping Duties

2.833 Section 337

2.84 Trade Act of 1974

2.841 Section 201

2.842 Section 301

2.9 Relevant International Agreements

2.91 Bilateral Cooperation Agreements

2.92 International Guidelines and Recommendations

3. Threshold International Enforcement Issues

3.1 Jurisdiction

3.11 Jurisdiction Over Conduct Involving Import Commerce

-Illustrative Example A

3.12 Jurisdiction Over Conduct Involving Other Foreign

Commerce

580 MERGERS AND ACQUISITIONS

3.121 Jurisdiction in Cases under Subsection 1(A) of the

FTAIA

-Illustrative Example B

-Illustrative Example C

3.122 Jurisdiction in Cases under Subsection 1(B) of the

FTAIA

-Illustrative Example D

-Illustrative Example E

3.13 Jurisdiction When U.S. Government Finances or Purchases

-Illustrative Example F

-Illustrative Example G

3.14 Jurisdiction Under Section 7 of the Clayton Act

-Illustrative Example H

3.2 Comity -Illustrative Example I

-Illustrative Example J

3.3 Effects of Foreign Government Involvement

3.31 Foreign Sovereign Immunity

3.32 Foreign Sovereign Compulsion

-Illustrative Example K

3.33 Acts of State

3.34 Petitioning of Sovereigns

-Illustrative Example L

3.4 Antitrust Enforcement and International Trade Regulation

-Illustrative Example M

-Illustrative Example N

4. Personal Jurisdiction and Procedural Rules

4.1 Personal Jurisdiction and Venue

4.2 Investigatory Practice Relating to Foreign Nations

4.22 Hart-Scott-Rodino: Special Foreign Commerce Rules

1. Introduction

For more than a century, the U.S. antitrust laws have stood as the

ultimate protector of the competitive process that underlies our free

market economy. Through this process, which enhances consumer choice

and promotes competitive prices, society as a whole benefits from the

best possible allocation of resources.

Although the federal antitrust laws have always applied to foreign

commerce, that application is particularly important today. Throughout

the world, the importance of antitrust law as a means to ensure open and

Appendix J 581

free markets, protect consumers, and prevent conduct that impedes

competition is becoming more apparent. The Department of Justice (“the

Department”) and the Federal Trade Commission (“the Commission” or

“FTC”) (when referred to collectively, “the Agencies”), as the federal

agencies charged with the responsibility of enforcing the antitrust laws,

thus have made it a high priority to enforce the antitrust laws with

respect to international operations and to cooperate wherever appropriate

with foreign authorities regarding such enforcement. In furtherance of

this priority, the Agencies have revised and updated the Department’s

1988 Antitrust Enforcement Guidelines for International Operations,

which are hereby withdrawn.1

The 1995 Antitrust Enforcement Guidelines for International

Operations (hereinafter “Guidelines”) are intended to provide antitrust

guidance to businesses engaged in international operations on questions

that relate specifically to the Agencies’ international enforcement

policy.2 They do not, therefore, provide a complete statement of the

Agencies’ general enforcement policies. The topics covered include the

Agencies’ subject matter jurisdiction over conduct and entities outside

the United States and the considerations, issues, policies, and processes

that govern their decision to exercise that jurisdiction; comity; mutual

assistance in international antitrust enforcement; and the effects of

foreign governmental involvement on the antitrust liability of private

entities. In addition, the Guidelines discuss the relationship between

antitrust and international trade initiatives. Finally, to illustrate how these

principles may operate in certain contexts, the Guidelines include a

number of examples.

1.The U.S. Department of Justice and Federal Trade Commission Antitrust

Guidelines for the Licensing of Intellectual Property (1995), the U.S.

Department of Justice and Federal Trade Commission Horizontal Merger

Guidelines (1992), and the Statements of Antitrust Enforcement Policy

and Analytical Principles Relating to Health Care and Antitrust, Jointly

Issued by the U.S. Department of Justice and Federal Trade Commission

(1994), are not qualified, modified, or otherwise amended by the issuance

of these Guidelines.

2.Readers should separately evaluate the risk of private litigation by

competitors, consumers and suppliers, as well as the risk of enforcement

by state prosecutors under state and federal antitrust laws.