FTC and DOJ Seek Public Comment on Proposed Revisions to International Antitrust Guidelines

The Federal Trade Commission and the Department of Justice’s Antitrust Division seek public comment on proposed Antitrust Guidelines for International Enforcement and Cooperation, which update guidelines issued by the Agencies in 1995. The guidelines provide information to businesses concerning the Agencies’ antitrust enforcement policy with respect to international activities as well as their related investigative tools and cooperation with foreign authorities.

The proposed guidelines, which would replace the 1995 Antitrust Enforcement Guidelines for International Operations, reflect the growing importance of antitrust enforcement in a globalized economy and the Agencies’ commitment to cooperating with foreign authorities on both policy and investigative matters.

“With the continued expansion of global commerce, the enforcement of U.S. antitrust laws frequently involves conduct, entities, or individuals located outside of the United States. The antitrust agencies’ policies and practices related to international enforcement and cooperation have therefore taken on increased importance in protecting U.S. consumers and markets from anticompetitive conduct and transactions,” said FTC Chairwoman Edith Ramirez. “The proposed revisions are designed to ensure that the guidelines identify and reflect the agencies’ current approaches to fundamental issues in this arena.” 

“The Antitrust Enforcement Guidelines for International Operations have long been an important reflection of the department’s application of the antitrust laws to businesses engaged in international operations,” said Acting Assistant Attorney General Renata Hesse, in charge of the Department of Justice’s Antitrust Division. “Since the Guidelines were last updated in 1995, globalization has increased dramatically, as has international antitrust enforcement and the level of cooperation between the department and international counterparts. Because of this evolution in practice and developments in the law over the intervening 21 years, this update is long overdue.”

The proposed revisions restructure the previous guidelines in order to make them more useful and accessible by focusing on the questions of greatest significance to users. The proposed revisions also describe the current practices and methods of analysis the Agencies employ when determining whether to initiate and how to conduct investigations of, or enforcement actions against, conduct with an international dimension.

In particular, the revisions:

• Add a chapter on international cooperation, which addresses the Agencies’ investigative tools, confidentiality safeguards, the legal basis for cooperation, types of information exchanged and waivers of confidentiality, remedies, and special considerations in criminal investigations; 
• Update the discussion of the application of U.S. antitrust law to conduct involving foreign commerce, the Foreign Trade Antitrust Improvements Act, foreign sovereign immunity, foreign sovereign compulsion, the act of state doctrine, and petitioning of sovereigns, in light of developments in both the law and the Agencies’ practice; and
• Provide revised illustrative examples focused on the types of issues most commonly encountered.

The Commission vote approving issuance of the proposed updated Antitrust Guidelines for International Enforcement and Cooperation for public comment was 3-0.

The Agencies welcome comments on the proposed update from interested parties, including attorneys, economists, academics, consumer groups, and the business community. Interested parties may submit comments electronically at ATR.InternationalGuidelines@usdoj.gov until Thursday Dec. 1, 2016.  Submitted comments will be made publicly available on the Agencies’ websites.

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