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International Cartels

International Cartels. Cooperation Among International Antitrust Agencies. Formal Agreements. Over 100 jurisdictions with antitrust laws US has 8 bilateral antitrust cooperation agreements (Australia/Brazil/Canada/EU/Germany/Israel/Japan/Mexico) and 2 positive comity agreements (Canada/EC)

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International Cartels

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  1. International Cartels Cooperation Among International Antitrust Agencies

  2. Formal Agreements • Over 100 jurisdictions with antitrust laws • US has 8 bilateral antitrust cooperation agreements (Australia/Brazil/Canada/EU/Germany/Israel/Japan/Mexico) and 2 positive comity agreements (Canada/EC) • Mutual Legal Assistance Treaties (MLATs) • Apply to criminal matters generally and are not antitrust specific

  3. Formal Agreements • Agreements do not allow sharing of confidential information • International Antitrust Enforcement Assistance Act (IAEAA) • Intended to facilitate negotiation of bilateral and multilateral cooperation agreements that permit sharing of confidential information • Only one agreement entered into so far – with Australia

  4. Informal Cooperation • International Competition Network • 85 participating jurisdictions • Cartel Working Group organized by US and other countries to share enforcement strategies and develop best practices • OECD – 30 participating jurisdictions

  5. Cooperation Techniques • Effective cooperation even with limitations on the sharing of confidential information - • Coordinated dawn raids, searches, service of grand jury subpoenas • Interpol “Red Notice” list – antitrust fugitives placed on “most wanted” list • Assistance of foreign courts and enforcement officials

  6. Cooperation Techniques • Extradition a more serious threat • Pending UK case • Cartel conduct criminalized in more countries • Dual criminality requirement in extradition treaties may be satisfied if same conduct is a crime in both jurisdictions – even if conduct is not an “antitrust” violation in one jurisdiction

  7. Recent Developments • Empagran decision • Supported by EU, Canada and other jurisdictions concerned about effect of overbroad interpretation of FTAIA on immunity applications • AMC to consider whether statutory changes should be made to FTAIA in light of Empagran

  8. Recent Developments • Harmonization of immunity policies • More jurisdictions following US approach • Impact on number of immunity applications • Impact on US discovery rules • De-trebling of damage claims for amnesty applicants • Effect on immunity applications

  9. Open Issues • Whether Antitrust Modernization Commission will recommend revisions to FTAIA and IAEAA • Whether US and EU will negotiate a formal arrangement specifically allowing sharing of confidential information • Application of US discovery rules to submissions to foreign antitrust authorities

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