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Extraterritoriality of Antitrust Law in the Us and Abroad: a Hot Issue Washington, Dc I September 28, 2015

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Extraterritoriality of Antitrust Law in the Us and Abroad: a Hot Issue Washington, Dc I September 28, 2015 EXTRATERRITORIALITY OF ANTITRUST LAW IN THE US AND ABROAD: A HOT ISSUE WASHINGTON, DC I SEPTEMBER 28, 2015 3rd Annual Joint Conference - Concurrences Review & GW Law ATTENDEES A Turquoise Heenan Paris Airbus America Heritage Foundation Allen & Overy India Competition Apellate Tribunal American Antitrust Institute Inter-American Development Bank Axinn Veltrop & Harkrider Intesa Sanpaolo Baker & Miller Kim & Chang Baker Botts Kroll Ontrack Bates White Maersk Bird & Bird Marval, O’Farrell & Mairal Bloom Strategic Counsel Mlex Bloomberg BNA Morgan, Lewis & Bockius Brown Rudnick Morrison & Foerster Bryan Cave National University of Advanced Legal Studies Cadwalader, Wickersham & Taft O’Melveny & Myers Cleary Gottlieb Steen & Hamilton OECD Competition Commission Clifford Chance Paul Hastings Contribuyentes por Respeto Paul, Weiss, Rifkind, Wharton & Garrison Cornerstone Research PayPal Covington & Burling Policy & Regulatory Report Criterion Economics Qualcomm Davies Ward Phillips & Vineberg Ropes & Gray Davis Polk Rubin Delegation of the European Union to the USA Scott and Scott Deloitte Shell Oil Company Dunlap Bennett & Ludwig Shin & Kim / Kobre & Kim Economists Incorporated Sidley Austin Eimer Stahl SNCF Geodis eTERA EUROPE Souto Correa Advogados Eton Park Steptoe & Johnson Fedders Lloyd Corporation Limited The Chisholm Group Florida Evergreen The World Bank Group Fountain Court Chambers University of Illinois Freshfields Bruckhaus Deringer University of Pennsylvania Garrigues US Department of Justice George Mason University US Federal Trade Commission George Washington University White & Case Georgetown University Wilson Sonsini Goodrich & Rosati GeyerGorey Winston & Strawn Global Competition Review Yale School of Management Hausfeld Yulchon 2 - EXTRATERRITORIALITY OF ANTITRUST LAW IN THE US AND ABROAD: A HOT ISSUE PROGRAM 2:30 pm WELCOME REMARKS 4:15 pm NEW MEANINGS William E. KOVACIC I Professor, George Washington University Law School, Washington DC FOR DIRECT EFFECT AND CAUSATION 2:40 pm James FREDRICKS I Assistant Chief, Department OPENING KEYNOTE SPEECH of Justice, Antitrust Appellate Section, Washington DC WHAT’S THE ROLE OF COMITY Camilla HOLTSE I Chief Legal Counsel, Maersk, Copenhagen IN THE INTERNATIONAL ANTITRUST David RODI I Senior Antitrust Legal Counsel, ENFORCEMENT? Shell Oil Company, Houston Diane P. WOOD I Chief Judge, US Court of Appeals MJ MOLTENBREY I Partner, Paul Hastings, Washington DC for the Seventh Circuit, Chicago Michael SPAFFORD I Partner, Paul Hastings, Washington DC Moderator: Jeremy EVANS I Partner, Paul Hastings, Washington DC 3:00 pm CHALLENGES TO INTERNATIONAL COMITY? 5:15 pm GOOD VS. BAD Frédéric JENNY I Chairman, OECD Competition EXTRATERRITORIALLY: Committee, Paris WHAT IS THE DESIRABLE Joseph HARRINGTON I Professor, The Wharton School, University of Pennsylvania LEVEL OF GOVERNMENT James RILL I Senior Counsel, Baker Botts, Washington DC ENFORCEMENT? Donald BAKER I Partner, Baker & Miller, Washington DC Douglas H. GINSBURG I Judge, US Court of Appeals Daniel BITTON I Partner, Axinn, Veltrop & Harkrider, New York for the District of Columbia Circuit I Professor of Law, George Mason University School of Law Moderator: John DeQ. BRIGGS I Managing Partner, Axinn, Veltrop & Harkrider, Washington DC John TERZAKEN I Partner, Allen & Overy, Washington DC Mark POPOFSKY I Partner, Ropes & Gray, Washington DC Michael HAUSFELD I Chairman, Hausfeld, Washington DC Moderator: Ian SIMMONS I Partner & Co-Chairman of Antitrust Practice Group, O’Melveny & Myers, Washington DC EXTRATERRITORIALITY OF ANTITRUST LAW IN THE US AND ABROAD: A HOT ISSUE - 3 Concurrences Review and The Competition Law Center of GW Law organized, on September 28, 2015, the 3rd annual conference on «Extraterritoriality of Antitrust Law in the US and Abroad: A Hot Issue.» The event was supported by Axinn, Veltrop & Harkrider, O’Melveny & Myers LLP, and Paul Hastings. Chief Judge Diane P. Wood addressed the keynote speech. KEYNOTE SPEECH WHAT’S THE ROLE OF COMITY IN THE INTERNATIONAL ANTITRUST ENFORCEMENT? Chief Justice Diane P. WOOD Bill KOVACIC (Director of the George Wash- the way it sees the application of its antitrust of competition laws worldwide and its positive ington Competition Law Center) welcomed laws. In the views of chief Judge, in the early effects for consumer as long as such laws the audience and opened the conference by days, the US imposed self-restrictions to do not slide over businesses practices. remarking the importance of extraterritoriality questions such as the effect on US markets, In this international context, the allocation of in antitrust enforcement. Kovacic highlighted the compatibility or lack thereof with other responsibility for the regulation of anticom- the increase in number of existing competition regimes, as well as the role that comity should petitive activities is not solvable by a simple plus authorities (currently approximately 130) play. As a matter of example, the 9th circuit formula. As such, the resurgence of attention and the fact that some of them are becoming came up with the timberlane decision sugges- to comity is not surprising. Wood offered her very powerful in practice. Kovacic discussed ting a multifactor test on comity. positive opinion over cooperation as a strategy how the USA ‘monopoly’ relating to antitrust to enforce competition laws despite the fact enforcement became a US-EU duopoly when Chief Justice noted that the current thinking that it is difficult to find another system like the EC adopted its first merger regulations. is different. Since 2002, the Supreme Court the US that relies on private enforcement. In These days, an oligopoly is being developed, has been tightening up the vocabulary relating this regard, chief justice Wood argued that if particularly with China, South Africa, India, to the concept of jurisdiction in many areas of there is an 80% agreement it would be advi- and Brazil. law. Furthermore, chief justice raised the point sable to cooperate in such percentage and that there is a need to draw a line between a agree respectfully to the disagreement on the Consequently, international transactions as true jurisdictional rule and other type of rules. remainder of the 20%. well as monopoly cases are being structured The practical difference of making such distinc- differently. Kovacic anticipated that soon eight tion relies on the fact that subject matter juris- Finally, chief justice Wood concluded by arguing to ten gatekeepers will be key to the struc- dictions can be raised any time, whereas the in favor of comity to be administered by the turing of business transactions. Against this matter of the statute reach will be raised under executive and even by other social actors. background, Kovacic concluded that there a motion to dismiss. Chief justice determined Chief justice understands that it is extremely is disappointment as to comity not having that the FTAIA is not a question of subject difficult to ask a court to administer comity had a stronger role. matter jurisdiction and therefore falls under the as the courts hands are tight. In her view, timberlane was a good effort, but the seven Diane P. WOOD (Chief Judge, US Court of latter category, i.e., motion to dismiss. Then, factors included in such decision without Appeals for the Seventh Circuit, Chicago) upon discussing the split interpretations of the weighting what goes to each factor is not delivered the opening keynote speech on the FTAIA by the ninth and second circuits, Wood optimal. Further, she reminded the audience role of comity in the international antitrust predicted that eventually the Supreme Court that the Supreme Court has moved away enforcement scenario. will decide on the matter. from these types of balancing tests. Eventually, Speaking from her experience, Chief Judge In line with Kovacic’s opening remarks, chief she expressed her concerns relating to judicial understands that the USA has changed in justice commented on the increasing number comity becoming a reality. 4 - EXTRATERRITORIALITY OF ANTITRUST LAW IN THE US AND ABROAD: A HOT ISSUE PANEL 1 CHALLENGES TO INTERNATIONAL COMITY? John BRIGGS (Managing Partner, Axinn, Veltrop did not require the Commission to take into account James RILL (Senior Counsel, Baker Botts, Wash- & Harkrider, Washington DC) opened the first panel other penalties imposed on the same conduct abroad. ington DC) focused his remarks on his extended by pointing to the importance of understanding This judicial decision applies different principles than experience. He stressed how much the antitrust the different approaches taken by the EU and the Motorola decision in the US. With respect to enforcement landscape had changed and how other USA relating to comity. Then, he gave the floor mergers Mr Jenny observed that competition autho- jurisdictions’ decisions could impact American busi- to the panelist to discuss such different approaches rities are in the driver’s seat and that international nesses. Mr. Rill broadly agreed with the rest of the and to comment on convergence thereof. cooperation on mergers between competition autho- panelists and concluded that international comity rities has been developing very fast, with the result would be desirable albeit difficult to implement. Frédéric JENNY (Chairman, OECD Competition that that there are many fewer transnational conflicts Committee, Paris) began his remarks by clarifying Daniel BITTON (Partner, Axinn, Veltrop & Harkri- than they used to be in the 1990s. Mr. Jenny concluded that it is challenging
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