By Jeffrey May, J.D.
Makan Delrahim, Assistant Attorney General in charge of the U.S. Department of Justice Antitrust Division, discussed developments in antitrust cooperation and convergence at the 45th annual Fordham Conference on International Law & Policy in New York City today. Delrahim, who has served as antitrust chief for a little less than a year, spoke of efforts at international engagement during his tenure at the Justice Department, as well as the progress in the international antitrust community over the longer term in remarks, entitled "‘Come Together’: Victories and New Challenges for the International Antitrust Community."
Although Delrahim often finds himself faced with the need to make quick decisions and meet immediate deadlines, including responding to press leaks, as an antitrust enforcer, he stressed the importance of enforcers focusing on the longer term. Looking back at the progress of international antitrust enforcement enables antitrust enforcers to understand what can be accomplished in the future, Delrahim suggested. While the possibility of antitrust cooperation and convergence had been questioned in years past, over time there has been significant progress, he noted. For example, today, there is consensus on the extraterritorial application of antitrust law, according to Delrahim. There also has been convergence with respect to cartel enforcement. In addition, to looking to the future, Delrahim noted the importance of drawing inspiration from others and the importance of celebrating victories.
Delrahim pointed to the International Competition Network (ICN) as an example of "just how much change is possible if we put our minds to it." Delrahim participated in one of the early ICN conferences and said that the founding of ICN was a huge accomplishment for the antitrust community.
Antitrust enforcers should never stop questioning the ability to change, Delrahim noted. He pointed to several initiatives aimed at reinventing U.S. antitrust policies. For instance, the Antitrust Division is working to terminate over 1,000 outdated consent decrees. In July, the government moved to terminate the first 19 of these "legacy" judgments. Last month, the Antitrust Division announced that it had taken another step towards ending these old judgments by seeking termination of U.S. consent decrees that have regulated how certain movie studios distribute films to movie theaters since the U.S. Supreme Court’s decision in United States v. Paramount, 334 U.S. 131 (1948).
In addition, the assistant attorney general pointed to the 2017 amendments to the joint FTC/Department of Justice antitrust guidelines for international enforcement and cooperation. In January 2017, the agencies released their revised "Antitrust Guidelines for International Enforcement and Cooperation." According to Delrahim, these guidelines "reflect a world in which case cooperation and policy discussions are almost everyday events."
Another component of constant improvement is to draw inspiration from others, according to Delrahim. According to the assistant attorney general, a "stable infrastructure" has been built that enables antitrust enforcers to learn from each other.
Delrahim also discussed efforts to establish a Multilateral Framework on Procedure (MFP) "that will encapsulate and allow its signatories to commit to each other to adhere to the fundamental procedural norms that many, if not all, of us already recognize." In remarks on June 1 at the Council on Foreign Relations in Washington, D.C., entitled "Fresh Thinking on Procedural Fairness: A Multilateral Framework on Procedures in Antitrust Enforcement," Delrahim discussed the MFP, which the Justice Department had been working on with the FTC, Department of State, and global colleagues. Today, Delrahim said that after recent discussions with foreign counterparts he was "happy to report that the areas of consensus far outweigh those that require additional discussion."
"Fair procedures are inextricably linked to good substantive outcomes," Delrahim said.
Examples of cooperation, convergence. Delrahim did not discuss specific enforcement efforts that have benefited from cooperation and convergence, but Johannes Laitenberger, Director-General of DG Competition, identified some examples for Fordham attendees. One example of cooperation at its best was the conditional clearance of Bayer AG’s proposed acquisition of Monsanto Company, according to Laitenberger. He noted that the European Commission actively cooperated with 10 authorities to ensure that the remedies were fully compatible. Another success story, according to Laitenberger, was the cooperative efforts to review the combination of China National Chemical Corporation and Swiss global agricultural company Syngenta AG.
Laitenberger noted that not all international cases involve the same degree of cooperation. This is particularly true when there are serious concerns in the European Union but not in the United States. Both Delrahim and Laitenberger recognized a lesser degree of convergence in the unilateral conduct area; however, they remained positive about antitrust cooperation and convergence in the years to come.
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