On January 13, 2017, the U.S. Federal Trade Commission (“FTC”) and the Antitrust Division of the U.S. Department of Justice (“DOJ,” collectively the “U.S. Agencies”) issued an update to the 1995 Antitrust Enforcement Guidelines for International Operations (the “2017 Guidelines and the “1995 Guidelines,” respectively). The 1995 Guidelines set out for international businesses the U.S. Agencies’ international antitrust/competition law enforcement policy, including but not limited to how it cooperates with other antitrust/competition law authorities and how it utilizes its investigative tools.
The 2017 Guidelines reflect the first significant revision since the 1995 Guidelines, and it reflects a public comment period in November 2016 during which feedback was provided by practitioners, academics, economists, and other stakeholders. Former FTC Chairwoman Edith Ramirez stated “[t]he agencies’ enforcement of the U.S. antitrust laws now frequently involves activity outside the United States, increasingly requiring collaboration with international counterparts.” DOJ Acting Assistant Attorney General Renata Hesse stated “[a]nticompetitive conduct that crosses borders can adversely affect our commerce with foreign nations. The department’s antitrust enforcement is focused on ending that conduct in order to protect consumers and businesses in the United States. The [2017 Guidelines] released today provide important, up to date guidance to businesses engaged in international operations on our enforcement policies and priorities.”
There are three key revisions that are reflected in the 2017 Guidelines. First, there is a new section on international cooperation, which reflects how much the cross-border cooperation (on civil and criminal antitrust matters) has expanded amongst antitrust/competition enforcement agencies since the 1995 Guidelines. Second, the 2017 Guidelines reflect current U.S. antitrust especially with respect to the areas of foreign commerce, foreign trade, foreign sovereign immunity, foreign sovereign compulsion, the act of state doctrine and petitioning of sovereigns. Third, the 2017 Guidelines provide updated and relevant exemplars to help companies, and lawyers, understand the Guidelines’ applications.
Please follow this link to access the 2017 Guidelines.