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Cover Jones & Sufrin's EU Competition Law

17. International Aspects  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter examines the issue of jurisdictional problems in competition law, the ‘internationalisation’ of competition law, and the efforts to deal with competition issues at a global level to match the global operations of undertakings on world markets. It looks first at the question of extraterritoriality in public international law, particularly the concept of objective territoriality. It considers the distinction between prescriptive jurisdiction and enforcement jurisdiction and how these might apply to competition law. It then looks at the development of the effects doctrine in US law and the concept of comity, and at the position of foreign plaintiffs in US courts. It considers how the EU takes jurisdiction by the application of the single economic entity doctrine, the implementation doctrine, and the qualified effects doctrine. The chapter concludes by examining international cooperation in competition law and how competition law must be sensitive to the huge global economic inequalities of the twenty-first century. It looks at the bilateral agreements into which the EU has entered, and the multilateral cooperation to which the EU is party, including cooperation within UNCTAD, the OECD, the WTO, and the International Competition Network (ICN).

Chapter

Cover Jones & Sufrin's EU Competition Law

16. International Aspects  

This chapter examines the issue of jurisdictional problems in competition law, at the ‘internationalisation’ of competition law and the efforts to deal with competition issues at a global level to match the global operations of undertakings on world markets.. It looks first at the question of extraterritoriality in public international law, particularly the concept of objective territoriality. It considers the distinction between prescriptive jurisdiction and enforcement jurisdiction and how these might apply to competition law. It then looks at the development of the effects doctrine in US law and the concept of comity, and at the position of foreign plaintiffs in US courts. It considers how the EU takes jurisdiction by the application of the single economic entity doctrine and by the development of the implementation doctrine and the qualified effects doctrine. The chapter concludes by examining how international cooperation seeks to help solve jurisdictional problems. It looks at the bilateral agreements into which the EU has entered, and the multilateral cooperation to which the EU is party, including cooperation within UNCTAD, the OECD, the WTO and the International Competition Network (ICN).

Chapter

Cover Competition Law

12. The international dimension of competition law  

This chapter explores the international dimension of competition law. Along with the introduction of the theory of extraterritoriality, sections 2 to 6 are concerned with two questions. The first issue is whether an offended country could apply its competition rules extraterritorially against an undertaking or undertakings in another country behaving anti-competitively. The second issue is whether there should be laws or so-called ‘blocking statutes’ to prevent the ‘excessive’ assertion of extraterritorial jurisdiction. However, the international dimension of competition law has undoubtedly evolved beyond these somewhat parochial concerns: the final section describes the work of international organisations, such as the International Competition Network (‘the ICN’), which encourages cooperation between competition authorities, and more importantly fosters convergence between competition policies, procedures and substantive analysis.

Chapter

Cover Competition Law of the EU and UK

4. International issues and the globalization of competition law  

This chapter draws a distinction between public, institutional enforcement of competition law, which may raise issues of public international law, and private actions before national courts. The coexistence of competition law regimes around the world means that companies that trade internationally may find themselves subject to the law of a ‘foreign’ state. While in the US the effects doctrine is relied on to assert jurisdiction, in the EU there has been no explicit adoption of the effects doctrine. Instead, the EU relies upon an ‘implementation’ doctrine. Under principles of comity a state may recognize the interests of another state when applying its competition law. Multilateral initiatives have been taken to try to resolve difficulties, but there is at present no single global agreement on competition law.

Chapter

Cover International Law Concentrate

6. Sovereignty and jurisdiction  

This chapter briefly looks at the nature of sovereignty and its parameters in international law, but essentially focuses on the function and nature of jurisdiction. It first examines the breadth of the space in which sovereignty is exercised; namely, land, sea, and air. Thereafter, it assesses territorial jurisdiction (in both its objective and subjective dimensions) and examines the practice of the four extraterritorial principles of jurisdiction; namely, nationality-based, the protective principle, passive personality, and universal jurisdiction. The chapter then considers instances where national courts refuse to exercise their ordinary jurisdiction, namely, instances where the accused is covered by the privilege of immunity or because his or her arrest was illegal. Finally, it looks at the US practice of extraterritorial jurisdiction, whereby sometimes the sovereignty of other nations has been breached.

Chapter

Cover Competition Law

12. The international dimension of competition law  

This chapter explores the international dimension of competition law from two perspectives. It begins by describing the growth of international institutions involved in the development of competition law and policy, with particular reference to the International Competition Network (the ‘ICN’), the Organisation for Economic Cooperation and Development (the ‘OECD’) and the United Nations Conference on Trade and Development (‘UNCTAD’). It then looks at a more technical issue, which is the extent to which a sovereign state (or the European Union) can apply its competition law extraterritorially to conduct beyond its borders that has a harmful effect within it: this will briefly be considered from a theoretical perspective, after which the positions in the US, EU and UK will be examined in turn. The chapter concludes by briefly examining the extent to which a state may wish to block the application of a foreign competition law to its businesses.