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Global economy attracts global anti-trust scrutiny

Tue 27 Nov 2007, 6:16 GMT
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By Diane Bartz

WASHINGTON (Reuters) - Economic globalisation is increasingly being matched by greater antitrust enforcement as more nations scrutinize mergers and fight price-fixing.

For corporations it can mean more paperwork to complete mergers, as in the case of Google, which filed with Australia, Brazil, Europe and the United States to buy DoubleClick. Australia and Brazil have approved the deal while Europe and the United States are still considering it.

And there are more venues to battle rivals. Advanced Micro Devices failed to convince Washington to probe Intel for allegedly offering discounts to computer makers to keep them from using AMD processor chips. But Japan, South Korea and European Union have opened investigations.

Another consequence is that firms caught fixing prices face prosecution in more jurisdictions.

While the United States has encouraged other countries to create competition watchdogs, there are also worries in U.S. antitrust circles as the number of agencies grows.

India's new Competition Act, which has not yet been implemented, has raised eyebrows in Washington because of its low threshold for claiming jurisdiction on mergers. Further, approval for even noncontroversial deals could take 210 days.

And there is some fear in the United States that China will use its new law, which is expected to go into force next year, to protect domestic industry. "They could enforce it in a perfectly professional and responsible way, or they could really play games with it," said Barry Hawk, director of the Fordham Competition Law Institute.

GLOBAL ANTITRUST ENFORCEMENT RELATIVELY NEW

The first U.S. federal legislation came in 1890, when the Congress got fearful of corporate power and passed the Sherman Act which was used to break up the Standard Oil trust in 1911.

By 1960, just Australia, Britain, Canada, Chile, Germany, Japan, Norway and the United States had antitrust legislation, and most failed to enforce their laws.

"The United States had the only robust antitrust enforcement for many years," said Eleanor Fox, who teaches at the New York University School of Law.

But the Berlin Wall came down in 1989, and former Russian satellites in the process of creating market economies adopted antitrust laws on the advice of Washington and western Europe.

"They often did it on faith. They adopted it without knowing how to apply it," said Fox. "(The laws were) to contain the greed that they thought would come with capitalism."

Today, about 100 nations monitor corporations to guard against monopolies and price-fixing, antitrust experts say.

While some antitrust agencies are hobbled by little enforcement clout, many are not. South Africa's Competition Tribunal took on steel giant ArcelorMittal SA, fining it $95 million dollars in September for "excessive prices."

Brazil, which passed its first antitrust law in 1938 but had no enforcement until 1994, refrains from scrutinizing mergers like Google's purchase of DoubleClick.

"If the U.S. or EU is handling a merger, Brazil will let it go," said Fabio Nusdeo, who teaches antitrust in Sao Paulo.

But the state oil company Petrobras has been sued for requiring distributors to buy more fuel than they can sell and for summarily dismissing them, said Nusdeo.

MULTIPLE MERGER FILINGS

More antitrust agencies means international scrutiny for mergers that was unheard of even 20 years ago. "Certainly I am not aware of any cases where you had merger review in other countries until the late 1980s and early 1990s," said Bill Kolasky, a former deputy assistant attorney general for international enforcement.

And antitrust agencies don't always agree. Europe blocked GE's purchase of Honeywell in 2001 after approval in the United States.

"Corporations are very unhappy about the proliferation of antitrust," said Doug Rosenthal, a partner at Constantine Cannon who once filed merger papers in 15 jurisdictions.

Accounting firms Ernst & Young and KPMG Peat Marwick were surprised to get notices from Canada and Australia seeking to examine their proposed merger. They abandoned their plans in 1998, citing lengthy regulatory reviews.

Rival auditors Price Waterhouse and Coopers & Lybrand also faced substantial reviews in the United States, Canada, Europe and Australia before merging that same year, said Kolasky.

"I think since then a lot of the other jurisdictions have become more active. You do have more substantive reviews. Japan is probably one of the best examples of that," he said.

South Korea has been accused of protecting domestic firms. But it has also actively fought price-fixing, as has Australia, Brazil, Canada, the European Union and Japan, said Scott Hammond, a U.S. deputy assistant attorney general, who backs a strategy of enticing firms to confess to price-fixing to avoid penalties.

Hammond said he had been told that Japanese companies would never implicate other firms, that it was culturally unthinkable. But, he said, it had been a success. "If you're talking about saving your own skin, you'd be surprised what compromises you'll make," he said.

 
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