What's Old Is New Again: Limits to Antitrust's International Evolution

Codified antitrust law is, of course, a U.S. invention, and for decades after passage of the Sherman Act in 1890 it primarily applied to U.S. companies and their actions in this country. Over the last 20 years, however, the increasingly international spillover of antitrust has become self-evident to the point of cliché.¹ We have written about specific aspects of this evolution on numerous occasions. For example, we have described the U.S. Department of Justice’s efforts to extradite a foreign executive on obstruction of justice charges arising from his alleged participation in a worldwide price-fixing conspiracy.² More recently, then-Assistant Attorney General Christine Varney trumpeted the signing of an antitrust cooperation agreement with Chinese competition authorities.³ And just last month, U.S. and European antitrust agencies announced an agreement to increase their cooperation on merger and cartel investigations with the issuance of the agencies’ “best practices” for companies facing a transatlantic merger review.⁴

The continuing trend toward global antitrust enforcement is so widespread that it is often taken for granted. However, it is important for antitrust practitioners to recognize the limitations placed upon the reach of U.S. antitrust law that arise from exogenous legal doctrines.