The Local Law of Global Antitrust

Abstract

Antitrust is a brief for the uselessness of international law. Notwithstanding the apparent utility of international cooperation in accommodating global economic activity and reconciling the flourishing of national antitrust regimes, there is little by way of binding agreement or customary international law. Indeed, any "reasonableness" constraint on unilateral antitrust jurisdiction has largely been repudiated, in part because of the problematic role it describes for federal courts, and even beforehand was being held out as proof of the incoherence and irrelevance of custom. This article argues that existing doctrine, and its attempted repudiation, are both entirely misconceived. After examining the limits of existing international arrangements, I set out a new, general methodology for identifying what I term "local international law" - a process for evaluating potential custom that begins with the norm's potential application to particular members and subjects-matter within the international community, and its articulation, adaptation, and enforcement in domestic circumstances. Special custom, applicable through the interpretation of federal statutes in a fashion sensitive to local actors, permits us to overcome many of the universalist flaws that afflicted the reasonableness approach. Applying this theory to antitrust, I advocate recognizing antitrust comity, a principle requiring consideration of certain nations' legitimate interests, in particular the prospects for coordinated regulation of international antitrust matters among OECD members. This principle, and the underlying method, permit a fresh look at the diverse means of enforcing U.S. antitrust law. While antitrust comity binds the federal agencies, it does not directly constrain private enforcement; most controversially, it reflects constitutionally-premised limitations on the ability of state government enforcers to conduct the necessary intergovernmental relations, limits best mediated through a federal-state protocol that brings international antitrust comity home.