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International cartels and the geographic limits to the application of the n...

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ANU College of Law

Phillipa Weeks Staff Library

5 Fellows Road

Acton, ACT 2601

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The more trade or commerce is increasingly global and competitive in world-wide, the more the application of the national law is problematic. The same applies to the international cartel cases, which often have competitive harm beyond one country and may cause a multi-jurisdictional tension for the application of the national laws. In competition law cases that require proof of competitive harm the agency or court generally identifies market in which the competitive harm can be inferred.

The Australian Competition Law art defines a market as a market in Australia. It explicitly requires the geographic limits to the application of the national competition law but whether a market should be wholly within Australia, partly within Australia, or needs to have certain territorial nexus to Australia is not clear. The Japanese Anti-Monopoly Act does not have any requirement of geographic limits in its provisions. It is a question of how we interpret the related provisions.

In 2017, the highest courts both in Australia and Japan concluded in each case that the national competition law could reach the conduct taken place geographically outside Australia or Japan on the basis of defining a market as a domestic market where the customers of the cartelized goods or services were located without utilizing the extraterritorial application of the national law. Geographical limits based on the customers location ruled by both highest courts will clarify whose interest the national competition law is ought to protect but raises the tension between States because the international reach of the national competition law highly depends on the case-by-case analysis of the customers identification under each national competition law.

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ANU College of Law

Phillipa Weeks Staff Library

5 Fellows Road

Acton, ACT 2601

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