DRAM chips and the puzzling persistence of extraterritoriality

by David Zaring

Administrative lawyers think that international antitrust is a particularly interesting form of bureaucratic cooperation. We see a world where antitrust has changed from a focus of international dissention – see the anger over the US assertion of extraterritorial jurisdiction and the effects test after WWII; note that it is the most cited American case in international law – to one where competition regulators meet their foreign counterparts and arguably conform their conduct to international norms, devised, for better or worse, by the regulators themselves. The constraints created by the international regime are deemed to be high, the democratic and reviewability deficits are deemed to be large. Moreover, while Pascal Lamy notes that the EU and the US have only disagreed on one merger – Honeywell – antitrust, like trade, and unlike foreign policy, is an area where the EU has countermanded American regulatory decisions – or at least so some observers of Microsoft’s travails in Brussels believe.

Finally, Japan has a competition bureau and some observers think that it is now for real (though Harry First is unconvinced) – that also is arguably due to bureaucratic harmonization efforts.

So it’s all sweetness and light, right? Well, maybe, but only against the background of a still vigorously extraterritorial American antitrust regime. I give you the vitamins litigation as an example, and I also give you the latest US check on Mitsubishi, the DRAM chips investigation. Perhaps we should call antitrust incompletely harmonized. Or harmonized most notably by the assertion of the effects test by all of the world’s major regulators.


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