Canada-United States Memorandum of Understanding Regarding Application of National Antitrust Law: New Guidelines for Resolution of Multinational Antitrust Enforcement Disputes

Dyal, Gary E. | January 1, 1985

This Comment will first examine the fundamental policy differences and opposing perspectives underlying the conflict between Canada and the United States regarding extraterritorial antitrust enforcement. Par- ticular conflict areas will then be discussed. Second, this Comment will explore the reasons underlying the failure of the Fulton-Rogers Under- standing to prevent instances of serious disagreement concerning particu- lar antitrust enforcement measures taken by the United States during the 1970’s. Third, this Comment will analyze the 1984 Understanding, fo- cusing on its departure from the weaknesses of the Fulton-Rogers Under- standing, its specific provisions addressing concerns within the major categories of previous conflict, and its likely successes and failures in eliminating future conflict in light of the difficulties encountered in previ- ous cases. Finally, this Comment will conclude that, while the 1984 Un- derstanding is of great value as an expression of renewed interest in mitigating future conflict between the two nations, and while its detailed procedures for early identification, recognition, and evaluation of diverging national interests involved in transnational antitrust proceed- ings represent a vastly improved dispute settlement regime, it contains few meaningful substantive provisions which might serve as guarantors that the interests brought to light through implementation of the proce- dural guidelines will be fairly reconciled. The 1984 Understanding thus constitutes but one step toward the ultimate goal of establishing broadly applicable substantive provisions for resolution of multinational antitrust enforcement disputes.