미국 독점금지법의 역외적용

Abstract

Prior to adopting Article 2(2) of the Monopoly Regulation and Fair Trade Act (‘MRFTA’) in 2004, the Korea Fair Trade Commission (‘KFTC’) has acknowledged extraterritorial application of the MRFTA to international cartel cases based on the effects doctrine that was established in the U.S. through case law. Thereafter, the KFTC has applied the MRFTA to conduct that occurred outside of Korea based on Article 2(2) of the MRFTA. However, in a 2010 Supreme Court decision of an air cargo international cartel case, fearing that there may be unreasonable consequences due to excessively expansive extraterritorial application of the MRFTA, the Court ruled that the phrase “where a conduct has an effect on the domestic market” set forth in Article 2(2) of the MRFTA should be limited to cases where “the foreign conduct had a direct, substantial, and reasonably foreseeable effect on the domestic market.” The aforementioned doctrine appears to have been influenced by the extraterritoriality principle under the Foreign Trade Antitrust Improvements Act of 1982 (‘FTAIA’). Against this backdrop, the KFTC is expected to go to great lengths to explain what is exactly meant by “having a direct, substantial, and reasonably foreseeable effect on the domestic market,” or how to assess this requirement. During this process, the KFTC will have to find a rational balance between two conflicting values, i.e., protecting the competitive market in Korea and international comity. One of the practical methods that the KFTC may carry out is to study the “principle concerning the extraterritorial reach of the U.S. antitrust laws” that has been developed on the basis of the effects doctrine, which was founded on case law, and the principle limiting extraterritoriality set forth in the FTAIA, and to discover those that can be applied under the MRFTA. In addition, as a long-term goal, for purposes of providing legal safety to convicts and enhancing the effectiveness of the enforcement of the MRFTA, the KFTC may be well advised to adopt “guidelines on the extraterritorial application of the MRFTA” that conforms to the substance and the level of the “1995 Antitrust Enforcement Guidelines for International Operations.”