[Federal Register Volume 63, Number 203 (Wednesday, October 21, 1998)]
[Notices]
[Pages 56218-56220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28120]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
International Competition Policy Advisory Committee; Request for
Input
The International Competition Policy Advisory Committee (Advisory
Committee) is seeking input from the business community and other
interested parties on the important issues under its consideration. By
offering your perspectives as well as the experiences of your business,
if relevant, in matters involving trade and competition policy matters,
multijurisdictional mergers and enforcement cooperation, you can ensure
that your views on these important issues are considered by the
Advisory Committee. To this end, the Advisory Committee has prepared an
illustrative set of questions, set forth in Section E below.
A. Introduction to the Advisory Committee
In response to the increasingly international nature of antitrust
enforcement, the Advisory Committee was formed in late 1997 by Attorney
General Janet Reno and Assistant Attorney General for Antitrust Joel I.
Klein. It is the third U.S. committee on antitrust matters to the U.S.
Department of Justice and the first-ever on international antitrust
related matters. The Advisory Committee was established to help tackle
the international antitrust problems of the 21st century and thus to
provide a medium term policy vision to help guide the U.S. Department
of Justice in the years ahead.
The Advisory Committee's membership represents vast experience and
expertise from U.S. business, industrial relations, academic, economic
and legal communities. It is CoChaired by Dr. Paul Stern, President of
The Stern Group and former Chairwoman of the U.S. International Trade
Commission, and James F. Rill, Senior Partner at Collier, Shannon, Rill
& Scott and former Assistant Attorney General for Antitrust, U.S.
Department of Justice. Serving as Executive Director of the Advisory
Committee is Professor Merit E. Janow of Columbia University's
[[Page 56219]]
School of International and Public Affairs and former Deputy Assistant
U.S. Trade Representative for Japan and China.
On February 26, 1998, the Advisory Committee held its inaugural
meeting. Subsequently, in May 1998, some Advisory Committee members met
in working groups to consider specific issues and on September 11, 1998
the second full meeting of the Advisory Committee was held. Overall,
the Advisory Committee expects to hold three to four meetings a year of
its full membership. These meetings will be open to the general public
and notice of the meetings will be published in the Federal Register.
The Advisory Committee expects to complete its work in the fall of
1999.
For additional background on the Advisory Committee, including the
transcripts of full Advisory Committee meetings, please visit its
website at http://www.usdoj.gov/atr/ipac/icpac.htm.
B. Issues Under Consideration by the Advisory Committee
As noted above, the Advisory Committee's mandate is broad. It has
been asked to consider three distinct but related topics:
1. The Interface of International Trade and Competition Policy
As many formal barriers to trade have been reduced or eliminated
around the world, international policy attention is focusing
increasingly on the role of private anticompetitive practices of firms
that can foreclose access to markets, as well as governmental practices
that may have such effects. Indeed, economic globalization has come to
mean that competition problems increasingly transcend national
boundaries. And, perhaps not surprisingly, international organizations
such as the Organization for Economic Cooperation and Development
(OECD) and the World Trade Organization (WTO), as well as bilateral
intergovernmental groups, are engaging in active debate about the
extent to which private anticompetitive business practices are in fact
blocking access to markets around the world and the appropriate
national or international policy responses.
The Advisory Committee is considering the nature of the market
access problems that stem from foreign business practices, including
those that may be encouraged or in some way facilitated by foreign
governmental practices, and what policy actions might usefully be
undertaken, if any, to address those problems. In other words, how can
the U.S. government even more effectively address barriers to foreign
markets that stem from private restraints to trade and investment? A
review of domestic unfair trade remedies, such as antidumping measures,
is not on the Advisory Committee's agenda.
1. Multijurisdictional Merger Review
The recent boom in mergers, acquisitions, joint ventures and other
business transactions, coupled with the proliferation of foreign
countries with antitrust merger control laws, has greatly increased the
number of transactions being reviewed by several different
jurisdictions' antitrust authorities. Indeed, over 50 jurisdictional
now have antitrust merger control regulations, and it is not uncommon
for a major acquisitions to trigger notification in a dozen
jurisdictions. As a result, merging parties are often faced with
divergent merger control policies and procedures from jurisdiction to
jurisdiction. Business groups and lawyers have argued that this had
raised transaction costs and produced frictions among merging parties
and reviewing agencies.
The Advisory Committee is assessing the burden on merging parties
arising from multijurisdictional merger review. Further, the Advisory
Committee is considering the ways in which the United States and
foreign competition enforcement authorities might address their
procedural and substantive differences in order to minimize the burden
and avoid or resolve conflicts while ensuring that antitrust
authorities have the tools needed to identify and remedy
anticompetitive mergers.
3. Enforcement Cooperation
Recent years have brought both an increase in U.S. antitrust
enforcement actions against international cartels and new and expanded
bilateral and plurilateral cooperation arrangements between U.S. and
foreign competition authorities.
Questions concerning enforcement cooperation are integral to all
areas under consideration by the Advisory Committee. In this context,
the Advisory Committee is considering whether economic globalization
requires new or expanded national or international initiatives in the
area of enforcement cooperation. More particularly, it is examining
questions such as: How can the U.S. Government enhance international
cooperation between antitrust authorities to effectively deter and
prosecute cartel arrangements around the world? How might U.S. and
foreign enforcement authorities increase cooperation in the merger
context?
C. The Importance of Business and Other Input
A clear priority for the Advisory Committee is to reach out to U.S.
business and other interested parties to obtain information and
opinions regarding the core issues under consideration by the Advisory
Committee. The Advisory Committee shall do this in a variety of ways.
For example, the Advisory Committee will hold public hearings on
November 2-4, 1998, and has invited lawyers, investment bankers,
economists, labor representatives, and other experts to participate in
those proceedings as well as to provide written submissions.
As an additional step, the Advisory Committee is seeking input from
interested parties, including U.S. businesses and associations
comprised of firms that are active in international markets, among
others.
D. The Information and Opinion Sought at This Stage
Because the Advisory Committee wishes to ensure that its members
are well informed by the actual experiences of U.S. business, among
others, it welcomes information and opinion from executives and counsel
at U.S. firms and other interested parties who have direct operational
experience with issues under the Advisory Committee's consideration.
To this end, the Advisory Committee has prepared an illustrative
set of questions, set forth below. Responses to these questions could
take any number of alternative forms and, indeed, it is the Advisory
Committee's hope that respondents will think creatively to develop the
particular format that is most appropriate. Respondents are welcome to
raise and address questions on other matters that they believe are
related to the subjects raised below and which they believe that the
Advisory Committee should consider.
In terms of timing, we would very much like to have your views
before the Advisory Committee by March of 1999. Submissions made after
that date also will be considered. However, submissions made prior to
March 1999 would be especially timely.
E. Questions
Trade and Competition Policy Interface Issues
1. Based on your experience, have foreign anticompetitive business
practices caused market access problems for consumer goods, industrial
products or services? If so, please describe those practices with as
much detail as possible, e.g., their impact on
[[Page 56220]]
your firm's investments, or ability to export, sell, or distribute your
products or services, or on the prices that you could obtain for those
products. Please indicate whether such problem have been getting worse,
improving or staying the same. Did you seek intervention from the local
government? If so, please describe the results. If not, why not? Are
the foreign anticompetitive business practices undertaken by private
firms, state-owned enterprises or public monopolies or joint
government-private efforts?
2. Are there markets/market segments abroad that you have not
attempted to enter or expand in because of perceive restrictive private
practices? If so, please explain, with as much detail as possible.
3. Describe foreign governmental practices, if any, that you
believe are encouraging, tolerating or in some way facilitating
anticompetitive or exclusionary business practices on the part of local
firms. Or, for example, have you encountered joint government-private
efforts to restrict you from selling or distributing you products or to
limit the prices that you could obtain? Or, have you encountered
anticompetitive practices by state-owned enterprises acting in their
commercial capacity?
4. Does your firm bid for foreign government contracts? If so, have
you discovered that competitors engaged in anticompetitive practices,
such as bid rigging, to influence the decision process? If so, have you
ever sought intervention from the local government? With what results?
If not, why not?
5. Do you believe that your firm's products or services are unable
to penetrate foreign markets because of structural barriers--e.g.,
cross-ownership arrangements; constraints on foreign direct investment,
including through acquisitions; conglomerate grouping; etc.--that
represent problems accessing foreign markets that cannot be addressed
by existing international trade or competition policy instrument?
Please describe in detail.
Multijurisdictional Merger Review Issues
In the last five years, if your firm has contemplated or completed
an acquisition, merger or joint venture with a U.S. or foreign firm
which in turn required or would likely have required antitrust
notification to one or more foreign competition authorities, please
share your perspectives with respect with respect to the following
matters.
1. Describe the problems, if any, that arose because of underlying
differences in oversight by competition authorities at home and aboard.
Consider both procedural and substantive factors--e.g., divergent
timing and filing requirements, confidentiality concerns, transaction
costs, differences in substantive law, agency procedures,
politicization, and conflicts in law. If applicable, please also
describe how your approach to addressing these issues (in the content
of competition policy) differed from your approach to addressing
analogous issues caused by differences in oversight in other legal
contexts, i.e., securities laws, tax laws. etc.
2. Identify and policy measures that could be undertaken by U.S.
antitrust authorities, acting on their own or in cooperation with
foreign authorities, that you believe would help to reduce sources of
friction, conflict or burden that arise in the context of mergers,
joint ventures or acquisitions affecting or requiring antitrust merger
notification in more that one jurisdiction. What new arrangements, if
any, are desirable to facilitate resolution of conflicts between
reviewing authorities?
Enforcement Cooperation
1. Have you encountered international cartels that disadvantaged
your company at home or aboard? If so, how has your company been
harmed? Do you have suggestions on how the United States could more
effectively deter and prosecute international cartel arrangements?
2. Please comment on those substantive and procedural differences
between U.S. and foreign jurisdictions in their approach to the
enforcement of antitrust laws that you believe adversely affect your
business, or, more generally, the U.S. economy. Comments should address
situations including those with respect to actions against hard-core
cartels.
3. What benefits or detriments do you believe can be derived from
joint or cooperative antitrust investigations by U.S. and foreign
competition authorities? In your experience, have joint or cooperative
antitrust investigations resulted in noticeably more or less burdensome
investigations than in the absence of such cooperation? In responding,
please address concerns you may have had in either or both the
investigative or litigation contexts.
Questions or comments can be directed to Merit E. Janow, Executive
Director, at telephone number (212) 854-1724 or to ICPAC Counsel:
Andrew J. Shapiro (for Trade and Competition issues), at telephone
number (202) 353-0012; Cynthia R. Lewis (for Multijurisdictional Merger
issues), at telephone number (202) 514-8505; or Stephanie G. Victor
(for Enforcement Cooperation issues), at telephone number (202) 616-
9705.
Please send written replies to: ICPAC, U.S. Department of Justice,
Antitrust Division, Room 10011, 601 D Street, N.W., Washington, DC
20530, Facsimile: (202) 514-4508, Electronic Mail: icpac.atr@usdoj.gov.
Merit E. Janow,
Executive Director, International Competition Policy Advisory
Committee.
[FR Doc. 98-28120 Filed 10-20-98; 8:45 am]
BILLING CODE 4410-11-M
