[Federal Register Volume 63, Number 203 (Wednesday, October 21, 1998)]
[Notices]
[Pages 56218-56220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28120]


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DEPARTMENT OF JUSTICE

Antitrust Division


International Competition Policy Advisory Committee; Request for 
Input

    The International Competition Policy Advisory Committee (Advisory 
Committee) is seeking input from the business community and other 
interested parties on the important issues under its consideration. By 
offering your perspectives as well as the experiences of your business, 
if relevant, in matters involving trade and competition policy matters, 
multijurisdictional mergers and enforcement cooperation, you can ensure 
that your views on these important issues are considered by the 
Advisory Committee. To this end, the Advisory Committee has prepared an 
illustrative set of questions, set forth in Section E below.

A. Introduction to the Advisory Committee

    In response to the increasingly international nature of antitrust 
enforcement, the Advisory Committee was formed in late 1997 by Attorney 
General Janet Reno and Assistant Attorney General for Antitrust Joel I. 
Klein. It is the third U.S. committee on antitrust matters to the U.S. 
Department of Justice and the first-ever on international antitrust 
related matters. The Advisory Committee was established to help tackle 
the international antitrust problems of the 21st century and thus to 
provide a medium term policy vision to help guide the U.S. Department 
of Justice in the years ahead.
    The Advisory Committee's membership represents vast experience and 
expertise from U.S. business, industrial relations, academic, economic 
and legal communities. It is CoChaired by Dr. Paul Stern, President of 
The Stern Group and former Chairwoman of the U.S. International Trade 
Commission, and James F. Rill, Senior Partner at Collier, Shannon, Rill 
& Scott and former Assistant Attorney General for Antitrust, U.S. 
Department of Justice. Serving as Executive Director of the Advisory 
Committee is Professor Merit E. Janow of Columbia University's

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School of International and Public Affairs and former Deputy Assistant 
U.S. Trade Representative for Japan and China.
    On February 26, 1998, the Advisory Committee held its inaugural 
meeting. Subsequently, in May 1998, some Advisory Committee members met 
in working groups to consider specific issues and on September 11, 1998 
the second full meeting of the Advisory Committee was held. Overall, 
the Advisory Committee expects to hold three to four meetings a year of 
its full membership. These meetings will be open to the general public 
and notice of the meetings will be published in the Federal Register. 
The Advisory Committee expects to complete its work in the fall of 
1999.
    For additional background on the Advisory Committee, including the 
transcripts of full Advisory Committee meetings, please visit its 
website at http://www.usdoj.gov/atr/ipac/icpac.htm.

B. Issues Under Consideration by the Advisory Committee

    As noted above, the Advisory Committee's mandate is broad. It has 
been asked to consider three distinct but related topics:

1. The Interface of International Trade and Competition Policy

    As many formal barriers to trade have been reduced or eliminated 
around the world, international policy attention is focusing 
increasingly on the role of private anticompetitive practices of firms 
that can foreclose access to markets, as well as governmental practices 
that may have such effects. Indeed, economic globalization has come to 
mean that competition problems increasingly transcend national 
boundaries. And, perhaps not surprisingly, international organizations 
such as the Organization for Economic Cooperation and Development 
(OECD) and the World Trade Organization (WTO), as well as bilateral 
intergovernmental groups, are engaging in active debate about the 
extent to which private anticompetitive business practices are in fact 
blocking access to markets around the world and the appropriate 
national or international policy responses.
    The Advisory Committee is considering the nature of the market 
access problems that stem from foreign business practices, including 
those that may be encouraged or in some way facilitated by foreign 
governmental practices, and what policy actions might usefully be 
undertaken, if any, to address those problems. In other words, how can 
the U.S. government even more effectively address barriers to foreign 
markets that stem from private restraints to trade and investment? A 
review of domestic unfair trade remedies, such as antidumping measures, 
is not on the Advisory Committee's agenda.

1. Multijurisdictional Merger Review

    The recent boom in mergers, acquisitions, joint ventures and other 
business transactions, coupled with the proliferation of foreign 
countries with antitrust merger control laws, has greatly increased the 
number of transactions being reviewed by several different 
jurisdictions' antitrust authorities. Indeed, over 50 jurisdictional 
now have antitrust merger control regulations, and it is not uncommon 
for a major acquisitions to trigger notification in a dozen 
jurisdictions. As a result, merging parties are often faced with 
divergent merger control policies and procedures from jurisdiction to 
jurisdiction. Business groups and lawyers have argued that this had 
raised transaction costs and produced frictions among merging parties 
and reviewing agencies.
    The Advisory Committee is assessing the burden on merging parties 
arising from multijurisdictional merger review. Further, the Advisory 
Committee is considering the ways in which the United States and 
foreign competition enforcement authorities might address their 
procedural and substantive differences in order to minimize the burden 
and avoid or resolve conflicts while ensuring that antitrust 
authorities have the tools needed to identify and remedy 
anticompetitive mergers.

3. Enforcement Cooperation

    Recent years have brought both an increase in U.S. antitrust 
enforcement actions against international cartels and new and expanded 
bilateral and plurilateral cooperation arrangements between U.S. and 
foreign competition authorities.
    Questions concerning enforcement cooperation are integral to all 
areas under consideration by the Advisory Committee. In this context, 
the Advisory Committee is considering whether economic globalization 
requires new or expanded national or international initiatives in the 
area of enforcement cooperation. More particularly, it is examining 
questions such as: How can the U.S. Government enhance international 
cooperation between antitrust authorities to effectively deter and 
prosecute cartel arrangements around the world? How might U.S. and 
foreign enforcement authorities increase cooperation in the merger 
context?

C. The Importance of Business and Other Input

    A clear priority for the Advisory Committee is to reach out to U.S. 
business and other interested parties to obtain information and 
opinions regarding the core issues under consideration by the Advisory 
Committee. The Advisory Committee shall do this in a variety of ways. 
For example, the Advisory Committee will hold public hearings on 
November 2-4, 1998, and has invited lawyers, investment bankers, 
economists, labor representatives, and other experts to participate in 
those proceedings as well as to provide written submissions.
    As an additional step, the Advisory Committee is seeking input from 
interested parties, including U.S. businesses and associations 
comprised of firms that are active in international markets, among 
others.

D. The Information and Opinion Sought at This Stage

    Because the Advisory Committee wishes to ensure that its members 
are well informed by the actual experiences of U.S. business, among 
others, it welcomes information and opinion from executives and counsel 
at U.S. firms and other interested parties who have direct operational 
experience with issues under the Advisory Committee's consideration.
    To this end, the Advisory Committee has prepared an illustrative 
set of questions, set forth below. Responses to these questions could 
take any number of alternative forms and, indeed, it is the Advisory 
Committee's hope that respondents will think creatively to develop the 
particular format that is most appropriate. Respondents are welcome to 
raise and address questions on other matters that they believe are 
related to the subjects raised below and which they believe that the 
Advisory Committee should consider.
    In terms of timing, we would very much like to have your views 
before the Advisory Committee by March of 1999. Submissions made after 
that date also will be considered. However, submissions made prior to 
March 1999 would be especially timely.

E. Questions

Trade and Competition Policy Interface Issues

    1. Based on your experience, have foreign anticompetitive business 
practices caused market access problems for consumer goods, industrial 
products or services? If so, please describe those practices with as 
much detail as possible, e.g., their impact on

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your firm's investments, or ability to export, sell, or distribute your 
products or services, or on the prices that you could obtain for those 
products. Please indicate whether such problem have been getting worse, 
improving or staying the same. Did you seek intervention from the local 
government? If so, please describe the results. If not, why not? Are 
the foreign anticompetitive business practices undertaken by private 
firms, state-owned enterprises or public monopolies or joint 
government-private efforts?
    2. Are there markets/market segments abroad that you have not 
attempted to enter or expand in because of perceive restrictive private 
practices? If so, please explain, with as much detail as possible.
    3. Describe foreign governmental practices, if any, that you 
believe are encouraging, tolerating or in some way facilitating 
anticompetitive or exclusionary business practices on the part of local 
firms. Or, for example, have you encountered joint government-private 
efforts to restrict you from selling or distributing you products or to 
limit the prices that you could obtain? Or, have you encountered 
anticompetitive practices by state-owned enterprises acting in their 
commercial capacity?
    4. Does your firm bid for foreign government contracts? If so, have 
you discovered that competitors engaged in anticompetitive practices, 
such as bid rigging, to influence the decision process? If so, have you 
ever sought intervention from the local government? With what results? 
If not, why not?
    5. Do you believe that your firm's products or services are unable 
to penetrate foreign markets because of structural barriers--e.g., 
cross-ownership arrangements; constraints on foreign direct investment, 
including through acquisitions; conglomerate grouping; etc.--that 
represent problems accessing foreign markets that cannot be addressed 
by existing international trade or competition policy instrument? 
Please describe in detail.

Multijurisdictional Merger Review Issues

    In the last five years, if your firm has contemplated or completed 
an acquisition, merger or joint venture with a U.S. or foreign firm 
which in turn required or would likely have required antitrust 
notification to one or more foreign competition authorities, please 
share your perspectives with respect with respect to the following 
matters.
    1. Describe the problems, if any, that arose because of underlying 
differences in oversight by competition authorities at home and aboard. 
Consider both procedural and substantive factors--e.g., divergent 
timing and filing requirements, confidentiality concerns, transaction 
costs, differences in substantive law, agency procedures, 
politicization, and conflicts in law. If applicable, please also 
describe how your approach to addressing these issues (in the content 
of competition policy) differed from your approach to addressing 
analogous issues caused by differences in oversight in other legal 
contexts, i.e., securities laws, tax laws. etc.
    2. Identify and policy measures that could be undertaken by U.S. 
antitrust authorities, acting on their own or in cooperation with 
foreign authorities, that you believe would help to reduce sources of 
friction, conflict or burden that arise in the context of mergers, 
joint ventures or acquisitions affecting or requiring antitrust merger 
notification in more that one jurisdiction. What new arrangements, if 
any, are desirable to facilitate resolution of conflicts between 
reviewing authorities?

Enforcement Cooperation

    1. Have you encountered international cartels that disadvantaged 
your company at home or aboard? If so, how has your company been 
harmed? Do you have suggestions on how the United States could more 
effectively deter and prosecute international cartel arrangements?
    2. Please comment on those substantive and procedural differences 
between U.S. and foreign jurisdictions in their approach to the 
enforcement of antitrust laws that you believe adversely affect your 
business, or, more generally, the U.S. economy. Comments should address 
situations including those with respect to actions against hard-core 
cartels.
    3. What benefits or detriments do you believe can be derived from 
joint or cooperative antitrust investigations by U.S. and foreign 
competition authorities? In your experience, have joint or cooperative 
antitrust investigations resulted in noticeably more or less burdensome 
investigations than in the absence of such cooperation? In responding, 
please address concerns you may have had in either or both the 
investigative or litigation contexts.
    Questions or comments can be directed to Merit E. Janow, Executive 
Director, at telephone number (212) 854-1724 or to ICPAC Counsel: 
Andrew J. Shapiro (for Trade and Competition issues), at telephone 
number (202) 353-0012; Cynthia R. Lewis (for Multijurisdictional Merger 
issues), at telephone number (202) 514-8505; or Stephanie G. Victor 
(for Enforcement Cooperation issues), at telephone number (202) 616-
9705.
    Please send written replies to: ICPAC, U.S. Department of Justice, 
Antitrust Division, Room 10011, 601 D Street, N.W., Washington, DC 
20530, Facsimile: (202) 514-4508, Electronic Mail: [email protected].
Merit E. Janow,
Executive Director, International Competition Policy Advisory 
Committee.
[FR Doc. 98-28120 Filed 10-20-98; 8:45 am]
BILLING CODE 4410-11-M