Moving Towards a Template for Bilateral Antitrust Agreements

Abstract

Bilateral antitrust co-operation agreements are gradually becoming more prevalent in international antitrust. These agreements arguably constitute the principal tool for avoiding conflict in international antitrust given the absence of international antitrust rules. The same motivation that drives countries to conclude bilateral antitrust agreements, such as efficient and effective enforcement, could also provide the stimulus for multilateral antitrust initiatives yet does not. Countries have consistently placed greater emphasis on bilateral agreements than on multilateral initiatives such as the OECD Recommendations; often arguing that bilateral agreements reflect the specific relationship between signatories and thereby facilitate greater co-operation than a multilateral agreement could. This article engages in a comparative analysis of the principal antitrust co-operation agreements to assess whether bilateral agreements do reflect specific relationships; i.e. whether there is such a justification for not pursuing multilateral initiatives. Immediately apparent is that most bilateral antitrust agreements implement key principles, i.e. notification; enforcement co-operation and co-ordination; and primacy of domestic law. The article assesses whether the substance of these principles varies between the agreements, and concludes that a large amount of convergence has already taken place. Indeed, the article argues that the convergence achieved suggests that international antitrust has moved very close to a template for co-operation in international antitrust, and questions the rationale for the lengthy negotiation periods and the reluctance to pursue multilateral initiatives.