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Positive Comity

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“Positive comity” is a form of co-operation that has recently received wide attention because of its potential to improve the effectiveness and efficiency of competition law enforcement in international cases. This co-operation involves a requested country’s conducting a law enforcement proceeding into conduct in its territory that is allegedly harming the interests of some other country. Positive comity may be particularly useful in those cases in which illegal activity impedes “market access.” The term positive comity is relatively new, but it is not widely recognised that this concept of co-operation is decades old. Discussions of positive comity have often been marred by the use of unfounded and inconsistent definitions, as a result of which it has been incorrectly asserted, for example, that the WTO agreement contains positive comity provisions. The Report by the CLP Committee set forth below seeks to remedy this situation, principally be providing a sound and consistent framework for discussions of positive comity, and secondarily by briefly assessing positive comity’s potential benefits, limitations, and likely utility in particular types of cases. The Report has two parts. Part 1. discusses the policy context and historical background of positive comity, the relationship between positive and negative comity, the relationship between positive comity and other forms of co-operation, the development and use of positive comity, and positive comity’s potential contribution to improved competition enforcement and to the avoidance of jurisdictional disputes. Part 2. is intended as a “user-friendly” summary of the Report.

Page Count: 40
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Document Type: Review Article

Publication date: 1999-09-01

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