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The Justice Department says a growing tariff dispute won’t derail its efforts to streamline and standardize global antitrust enforcement, but antitrust attorneys remain skeptical that the government can pull off such a feat even without a trade war.
A DOJ official told Bloomberg Law that its efforts to negotiate an international framework on procedural fairness in antitrust matters isn’t affected by the tariffs President Donald Trump imposed on China July 6.
In early June, DOJ antitrust chief Makan Delrahim unveiled a framework of best practices and procedures for antitrust investigations and enforcement. The goal, Delrahim said at the time, is to get all 140 competition authorities across the world to sign on to the framework, creating a global standard for transparency, timely resolution, confidentiality, conflicts of interest, proper notice, opportunity to defend, and judicial review.
Multinational corporations applauded. United States Council for International Business called it a “fresh initiative” and praised its “open multilateral nature.” More than 300 U.S. multinationals are members of the USCIB.
The antitrust talks are separate from trade negotiations. But it still might be difficult to isolate the Justice Department’s antitrust mission from the Trump administration’s aggressive global trade agenda, which has caused tensions with other countries.
“With all of these trade disputes going on, do foreign countries really want to strengthen the hand of the U.S. government for how its companies are being treated?” said Stephen Calkins, antitrust professor at Wayne State University’s law school.
M&A lawyers and DOJ officials don’t see the goal as bolstering U.S. power. They just want the world’s various regulators to proceed in a logical fashion. The current global antitrust enforcement landscape, composed of some 140 competition authorities, routinely slows down pre-merger talks as companies investigate all the possible antitrust violations, Kellie Lerner, an antitrust and trade regulation attorney at Robins Kaplan LLP in New York, told Bloomberg Law.
“From my perspective as an antitrust attorney, I want the process to be as streamlined and efficient as possible,” she said.
Corporations face uncertainty and a disjointed legal process across multiple jurisdictions and a global framework would help, she said. “It is a good idea to harmonize how the process will unfold when global businesses find themselves in the crosshairs of government antitrust investigations.”
Roger Alford, deputy assistant attorney general in the DOJ’s antitrust division, has made multiple trips to China and other countries to encourage competition regulators to cooperate in the effort. He told reporters in February that the negotiations with China were going well even as the Chinese competition authority is undergoing some restructuring.
Alford provided a brief update June 30 at a conference in Beijing, saying the antitrust division is working “diligently” with its Chinese counterparts.
Antitrust lawyers are still skeptical that the DOJ can actually pull off global harmonized enforcement even if the talks are shielded from a souring relationship between U.S. and other countries over trade.
“I’m very doubtful of the capacity to negotiate an agreement that receives unanimous consensus if it’s anything more than some general statements,” Tad Lipsky, a former Federal Trade Commission and DOJ antitrust official, told Bloomberg Law. Lipsky is now a professor at George Mason University’s law school.
Calkins told Bloomberg Law that the global antitrust community has already addressed the problem in a separate venue. The International Competition Network, a global group of competition enforcers of which the U.S. is a member, adopted 12 new principles for procedural fairness in antitrust matters in March. The principles are very general, however, and Delrahim is trying to build on them.
“It might seem reasonable to wait a bit and see how that effort works before trying something different,” said Calkins, a former general counsel at the FTC.
The ICN principles range from confidentiality protections to investigation timeliness and efficiency, addressing some of the same concerns the DOJ is tackling. Getting more specific will be difficult, Lipsky said. “Any established government agency has a kind of self-protective instinct, and proposals for significant institutional reform — even if well-reasoned and offered in constructive spirit — are often met with resistance that can be shocking to outsiders.”
Lipsky credited the DOJ for embarking on this mission even though the outcome may be less streamlined than what Delrahim is envisioning. “If he has very specific provisions and can get them accepted, I will be the first to stand up and applaud.”
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