경쟁법 역외적용의 최근동향

Abstract

Since the start of World Trade Organization (WTO) regime of January 1995, the global economy has transferred into open market economy system. In particular, the issue of extraterritorial application in competition law, for protection of domestic market competition, has brought attention to competition lawyers and scholars. This article discusses about legislation and cases on extraterritorial application to foreign firms in Korea and its problems and prospects. The KFTC made a regulatory reform of extraterritorial application by legislation of the provision, Article 2-2 of the Monopoly Regulation and Fair Trade Act (the Act). This provision is meaningful since this legislation is not simple guidelines but regulation in order to reflect the KFTC’s approach to globalisation and also protection of domestic market competition. Furthermore, Article 53-3 of the Act (Delivery of Documents) was legislated in order to solve the procedural problem in extraterritorial jurisdiction and Article 36-2 of the Act (International Cooperation) was also legislated to cooperate with other competition authorities. In particular, the KFTC imposed fines and cease-and-desist orders on foreign firms in the cases, such as Graphite Electrodes Cartel and Vitamins Cartel in April 2002 and April 2003 respectively. Recently, the KFTC confirmed its vigorous extraterritorial approach in Carbon Paper Cartel in January 2009 and Marine Hose Cartel(May 2009). Nowadays, extraterritorial application in competition law and policy, as established by historical development in statutes and case law in the US and the EU, has been understood as international common law rather than a simple international practice. Nevertheless, extraterritorial enforcement in each competition regime does not seem to completely overcome the judicial problem although this approach is based on the purpose of protection of domestic competition and consumers. In particular, there is some confusion in implementation of extraterritorial application because of the absence of universal rule and diverse standards and criteria, and different enforcement procedure. In fact, there was no international merger case which would substantially lessening competition in the Korean market. However, since each competition regime has different merger control procedure and substantive laws, each regime’s enforcement may overlap each other. This may cause transaction costs of merging parties and also unsound conclusions on anti-competitiveness tests and international disputes. A large number of competition authorities including the KFTC develop extraterritorial application provisions, but this is only effective on enforcement procedure in the domestic market. Therefore, some may still argue whether there is any justifiable or sound ground under international law, on delivery of punitive documents, which impose cease-and-desist order and fines, where there is no agreement or treaty. In conclusion, nowadays, transnational transaction has increased under the open and free market regime and economic activities between countries have become inter-dependent. Therefore, each competition authority needs to find the point of compromise in its extraterritorial enforcement through mitigating mutually exclusive characteristic of jurisdiction under the traditional international law. In addition, competition regimes around the world should gradually cooperate each other in their competition law enforcement through multilateral or bilateral agreements, based on positive comity.