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International Antitrust Law & Policy: Fordham Corporate Law 2003 - Hardcover
International Antitrust Law & Policy: Fordham Corporate Law 2003 - PDF
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Chapter 5
YOU CAN’T LEGISLATE PERFECTION:
THE VIRTUES OF EXPERIMENTATION IN
THE DESIGN OF ANTITRUST
ENFORCEMENT REGIMES
D. Stuart Meiklejohn†
I. INTRODUCTION
For many years, there has been a great deal of thought and energy
directed toward the question of how to adapt competition law to the
reality of the increasing globalization of business. It probably is no
understatement to say that this remains one of the most significant issues
in contemporary competition law. The erosion of formal and informal
barriers to trade, the transnational growth and integration of business
enterprises, and the advent of global communication and information
technologies have largely eroded the notion that production or demand
can be defined by national boundaries. As a result, international
businesses increasingly engage in international mergers, joint ventures and
consolidations. These undertakings can have anticompetitive effects, and
therefore need to be regulated. However, competition law is enacted and
enforced at the national level. As A. Douglas Melamed summarizes it,
“we live in a global economy, [but] we do not live in a global state.”1 This
incongruity between the scope of the regulated activity and the regulatory
activity can create unnecessary friction and confusion and may end up
preventing some socially desirable business activity.
Discussion of how competition law ought to respond to this
challenge isn’t exactly new. Efforts to globalize antitrust date back almost
75 years,2 and there has been a periodic series of failed attempts to achieve
international harmonization of competition law that generate bursts of
About the Editor:
Barry Hawk is Director of the Fordham Competition (formerly Corporate) Law Institute and Partner with Skadden Arps (New York and Brussels). He is former Vice Chair of the ABA Antitrust Section and former Chair of the New York State Bar Association Antitrust Section, as well as Professor at Fordham Law School and Visiting Professor at Michigan Law School, Monash University Law School, New York University Law School and the University of Paris.