Chicago Journal of International Law


The objective of this Article is to raise awareness of a particular problem: in a world where the conduct of a firm is subject to different antitrust regimes, the most restrictive antitrust regime always wins. In other words, the firm in question will be required to ensure that its conduct conforms to whichever regime is most restrictive. The result is global antitrust over-enforcement. As will be seen, this issue, which I refer to as the "strictest regime wins" problem, may lead to situations where the decision of an antitrust authority in one jurisdiction (for instance, taking a negative decision on conduct that is otherwise considered to be procompetitive) may deprive consumers in other jurisdictions of various efficiencies that are well-recognized by their own antitrust authorities. This Article also draws attention to a number of procedural issues, which may negatively impact the ability of corporations investigated in foreign jurisdictions to defend their case. Against this background, this Article is divided into five sections. Section II describes the process of decentralized globalization alluded to above. Section III discusses the various benefits brought about by the adoption of antitrust regimes in an increasingly large number of nations, as well as the challenges that this has created for multinational corporations. Section IV focuses on the problem of global antitrust over-enforcement described above. Finally, Section V provides a short conclusion.