Cooperation and Voluntary Implementation Key, Adkinson Says
WASHINGTON D.C. - Harmonization of international antitrust policy and enforcement- a key to business and trade expansion - can best be achieved if the U.S. and other governments pursue consensus and voluntary implementation. That is the view of Progress & Freedom Foundation legal and policy expert William F. Adkinson, Jr., who raises the U.S. experience with state "Illinois Brick repealers" as an example of why international policymakers must get both the substance and politics of antitrust right. He identifies the International Competition Network (ICN) as the most useful forum for the conduct of such activities.
In a new book published by the American Enterprise Institute, Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy, Adkinson traces the fate of "indirect purchaser" suits under federal antitrust law. The Supreme Court's 1977 Illinois Brick decision barred the suits in the interest of a coherent policy. But interests favoring broad private enforcement undid that ruling, through 'repealer' legislation that proliferated in the states and, despite Illinois Brick, ultimately gained the high court's blessing in 1989.
"Illinois Brick illustrates the danger of devising 'optimal' policies without adequately considering the potential for constituent jurisdictions to reject those policies in favor of preferred alternatives," Adkinson writes in his chapter of the AEI book. "It underscores the potential advantages, in the global antitrust context, of cooperative processes [and] serves as a warning sign on the road toward ambitious international cooperation efforts."
Adkinson believes "success will depend on the difficult task of convincing other jurisdictions of the soundness of antitrust analysis as it has evolved in the United States" through vehicles like the ICN. Our own system is "evolving," so it follows that "relatively new antitrust enforcement regimes will require considerable time to develop clear views of what antitrust should be, and longer still to reassess them in light of experience. The ICN has the twin virtues of allowing concrete progress on specific matters while laying the groundwork for broader convergence."
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