INTRODUCTION

Antitrust law at the beginning of the twenty-first century is characterized by a dilemma. The forces of globalization cause markets to integrate on a worldwide scale. Economic activities become ever more international and are less and less bound to national borders. Value chains are “sliced up,” which means that products are not produced at one location but at various sites spread around the globe. Competition law, though, remains fundamentally in the hands of national legislators, courts, and authorities. Although international rules abound in other areas of economic law, they are only of marginal importance in antitrust. There is no international merger regime and there is no comprehensive set of multilateral rules to combat globally operating cartels that fix prices and allocate territories to the detriment of consumers. As a consequence, competition problems, which are the result of growing transborder economic activity, are dealt with, primarily, on the national, state level.

The recent Empagran affair is a case in point. It started with the global vitamins cartel that had operated from 1989 until 1999 and had caused massive economic losses. There are currently no binding international rules, including customary international law, prohibiting the formation of cartels. Thus, charges against the cartel's participants had to be pursued under national law. Some of these charges led to the imposition of record-breaking fines by competition authorities in the United States, the European Union, Australia, Canada, and Korea.