Chicago Journal of International Law


A single dish cannot serve the tastes of a hundred people, says an ancient Chinese proverb. So it is with the rules for assessing whether practices engaged in by firms with significant market power are anticompetitive. More than one hundred countries have competition laws and most of them have government authorities entrusted with enforcing those laws in the first instance. Yet these jurisdictions are a varied lot. Some have emerged from decades of communist rule while others have only recently privatized companies responsible for substantial parts of the economy. Their legal institutions differ, as do perhaps their tastes for dominant firms. It would be remarkable if a single dish of antitrust rules could satisfy so many. This Article establishes the proposition that divergence is the norm for antitrust rules. It argues that the quest for convergence is quixotic and the disdain when another jurisdiction has a different rule than one's own is uncalled for. Along the way we consider two beacons of divergence that appeared on either side of the Atlantic at the end of 2008-the US Department of Justice's report on unilateral conduct and the European Commission's enforcement guidelines on abusive exclusionary conduct.