The Next Frontier of International Cooperation in Competition Enforcement

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The time is ripe for the international competition community to reinvigorate approaches toward cooperation. The purpose of this paper is to canvass and assess ideas on how competition agencies may be able to engage in even deeper and closer cooperation and to develop these ideas by fleshing out the issues that need to be addressed if they are to be implemented. Before we know where we want to take cooperation, we need to be able to envision its possibilities.

Part 2 of this paper discusses joint investigative teams (JITs), with a focus on the EU framework. Part 3 examines the potential for a multilateral MOU based on the International Organization of Securities Commission’s (IOSCO’s) Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information (MMOU). Part 4 considers a common marker system inspired by the international patent filing system. Part 5 discusses enhanced extraterritorial application of competition laws based on the unique and innovative Australia–New Zealand model. Part 6 argues that competition agencies should renew their commitment to using comity, when appropriate, to dispose of multijurisdictional competition cases. Although not a new concept, the ever-increasing internationalisation of competition enforcement suggests comity may become more relevant. Lastly, Part 7 provides concluding remarks.

Before going further, an important point to keep in mind is that several of these proposals may require more robust international competition institutions. The ICN, OECD and UNCTAD play important roles but they have limited resources, tools and mandates. For instance, these institutions currently do not have the ability to settle disputes between competition agencies, issue rulings, or act as a central repository for fi lings and applications. The WTO has some of these powers but its participation in international competition policy discussions has greatly diminished.30 Thus, furthering international cooperation may require pushing existing institutions to do more or creating a new supranational body with greater powers.