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Revisions to International Antitrust Guidelines Proposed

Thursday, November 03, 2016
Sandler, Travis & Rosenberg Trade Report

The Federal Trade Commission and the Department of Justice’s Antitrust Division are accepting comments through Dec. 1 on a proposal to update the Antitrust Guidelines for International Enforcement and Cooperation for the first time since 1995. These guidelines provide information to businesses concerning the two agencies’ antitrust enforcement policy with respect to international activities as well as their related investigative tools and cooperation with foreign authorities. A joint press release states that the proposed changes reflect the growing importance of antitrust enforcement in a globalized economy.

According to the press release, the proposed revisions restructure the guidelines to make them more useful and accessible by focusing on the questions of greatest significance to users. The proposed revisions also describe the current practices and methods of analysis the FTC and DOJ employ when determining whether to initiate and how to conduct investigations of, or enforcement actions against, conduct with an international dimension. Specific changes include the following.

- adding a chapter on international cooperation that addresses the agencies’ investigative tools, confidentiality safeguards, legal basis for cooperation, types of information exchanged and waivers of confidentiality, remedies, and special considerations in criminal investigations

- updating the discussion of the application of U.S. antitrust law to conduct involving foreign commerce, the Foreign Trade Antitrust Improvements Act, foreign sovereign immunity, foreign sovereign compulsion, the act of state doctrine, and petitioning of sovereigns in light of developments in both the law and the agencies’ practice

- providing revised illustrative examples focused on the types of issues most commonly encountered

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