Japan Federation of Economic Organizations Comment on
U.S. Antitrust Enforcement Guidelines for
International Operations 1994
(Draft)
December 19, 1994
Keidanren (Japan Federation of Economic Organizations)
- We are afraid that the extraterritorial enforcement of a country's
competition laws causes a conflict with foreign sovereign and produces a
serious confusion to the business activities within or outside a country.
We consider, therefore, that its application must be treated with special care.
Especially, in relation with developed countries having their own established
competition laws and their enforcement system, a country must abstain from
the enforcement of its competition laws to the anticompetitive practice
outside its territory and leave it to other countries' enforcement authority
with appropriate jurisdiction.
Further, we believe the issue of extraterritorial enforcement of a country's
competition laws should be resolved, through multilateral negotiations, such
as OECD or WTO.
- The Competition policies taken by a country as to the desirable state of
enforcement and difference in the level of the penalty should be honored by
other countries. In a case where a country's competition authority decides a
conduct in question, as long as the competition laws of a country may be
compatible with the U.S.antitrust laws in contents, regardless the result of
enforcement of such competition laws of a country, the U.S. Agencies should
refrain from the enforcement of its own antitrust laws to the matter.
- We consider that Antitrust Enforcement Guidelines for International
Operations of 1994 (hereinafter "1994 Guidelines") are intended to serve for
the expansion of jurisdiction of the U.S. antitrust laws in order to promote
U.S. export commerce and protect its companies in export trade. However,
there are no precedents that any countries, including the United States itself,
have gone this far as to the enforcement of their own competition laws, and
such interpretation of jurisdiction to prescribe is not acceptable as it
presents the serious fear of significant deviation from the scope of
jurisdiction of a nation.
- The 1994 Guidelines do not provide clear standard for the enforcement of
the U.S.antitrust laws, and therefore, are insufficient as the practical
guidelines for international business transactions. The 1994 Guidelines
should be, like the Antitrust Enforcement Guidelines for International
Operations of 1988 (hereinafter "1988 Guidelines"), clear as practical policy
indications, providing a general analysis of jurisdiction and comity, together
with the comprehensible examples showing under what circumstances a certain
practice is deemed as a violation of the U.S. antitrust laws, and under what
circumstances it is not. Among others, some of Illustrative Examples in the
1994 Guidelines presume subject matter jurisdiction even in a case where the
exercise of personal jurisdiction is impossible in effect, giving coercive
impression on foreign companies.
We, hereby, ask for the reconsideration of the above issues, together with the
practical requests and questions on the 1994 Guidelines referred to us from
our member companies as attached.
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