Rethinking Decentralized Antitrust Regimes: A Window on the Future of Protectionism and Overregulation

Abstract

Over 100 jurisdictions have a domestic competition law, making competition law one of the most widespread forms of economic regulation around the world. The existing decentralized antitrust regimes have increased transaction costs and uncertainties, enforcement conflicts, antitrust protectionism, and global overenforcement of antitrust laws. Yet international coordination has received little attention. Why? Two interest-based explanations suggest that the European Union and the United States have adopted different approaches to regulating competition, making the two leading regulators race to spread their regulatory models. Moreover, the balance of benefits under existing international legal rules continues to favor major corporations in both developed and developing countries. As a result, the developed world, particularly the United States, has viewed attempts at multilateral coordination as against its interests. This Article challenges this conventional wisdom. It argues that the increasing heterogeneity among decentralized antitrust regimes poses a larger long-term threat to the US than is commonly believed. A closer examination of the proliferation of antitrust laws demonstrates why antitrust protectionism and overregulation are not temporary and not destined to level off. In addition, as more developing countries have the capacity to prosecute multinationals and as the strictest jurisdiction has the power to set the de facto world standard, today’s positive balance of benefits will disappear tomorrow. This Article argues that the United States should reverse its hands-off approach to international antitrust coordination and instead enact proposals that place greater convergence among national antitrust regimes. It highlights why the present moment is an opportune time to initiate, but notes that the window for initiation is likely to close as developing countries acquire increased economic strength and enforcement capacity.