Article by Eleanor M. Fox
This Article attempts to expose a soft underbelly of antitrust law and antitrust remedies in the era of globalization. Globalization creates incentives for more far-flung anticompetitive restraints. In perverse response, the interplay of jurisdictions is producing retrenchment in remedies. The United States Supreme Court's decision in F. Hoffmann-La Roche Ltd. v. Empagran S.A. has fed the retrenchment by announcing a new ethic of restraint.
This Article argues against bad compromises and pressured retreat. It argues for autonomy of enforcers and courts, not to maximize nations' autonomy, but to achieve and preserve competition across the whole market. Enforcers should exercise their judgment and not defer to parochial national interests. However, this Article argues that in situations of overlapping jurisdiction, national authorities and courts constrain themselves in three ways.
First, they should be sensitive to the perspectives of other enforcing nations and, where consistent with their law and goals, integrate them into their thinking and analysis. Second, they should recognize existing relief as contextual background and strive to avoid unnecessary regulation. Finally, when a second jurisdiction regulates conduct or structure roughly within the purview of the first, they should directly engage with the first nation's perspective. This Article argues that, when so constrained, national authorities must exercise the courage of their convictions to preserve competition in a globalizing economy.
About the Author
Eleanor M. Fox. Eleanor Fox is the Walter J. Derenberg Professor of Trade Regulation at New York University School of Law.
Citation
80 Tul. L. Rev. 571 (2005)