미국 경쟁법 역외적용 법리의 최근 동향과 그 실무적 함의: 2010년 이후 판례를 중심으로

To the extent that our international society finds that international cartel conduct is strictly deemed to be illegal per se, relevant prescriptive and enforcement jurisdictions of antitrust laws have been expanded and strengthened as of now. On the other hand, as a legal tool to offset the reinforced jurisdictions of the world’s competition authorities, the principle of “international comity” is increasing its presence theoretically and practically. In the year 2014 international cartel case of air cargoes, the Korean Supreme Court seems to have indirectly recognized the principle of international comity by explicitly limiting the scope of Article 2-2 of the Monopoly Regulation and Fair Trade Act (“MRFTA”). For purposes of application of the MRFTA to certain foreign conduct, with respect to the effect that foreign conduct may have on the domestic market and the antitrust injury resulting therefrom, the current substantive laws and the practical criteria for burden of proof should be enacted and enforced more strictly and restrictively. This article took the example of the U.S.’ antitrust laws considered one of the most active enforcer of its domestic laws extraterritorially, discussing the Foreign Trade Antitrust Improvements Act (“FTAIA”) together with the Sherman Act, and the practical implications that may be observed from the discussions. In the future, if Article 2-2 of MRFTA is amended by limiting the cases where foreign conduct may have an effect on the domestic market to those where foreign conduct may have a direct, substantial, and reasonably foreseeable effect on the domestic market, the U.S.’ FTAIA should be of help to Korea in terms of legislation and legal practice of antitrust laws. The Fair Trade Commission (“FTC”) and courts should establish internationally accepted proper and reasonably legal standards, and interpret and apply Article 2-2 of MRFTA within the standards. Further technical analysis is required in handling the burden of proof for the causation between a foreign conduct in question, its direct, substantial, and reasonably foreseeable effect on the domestic market, and the resultant antitrust injury. In particular, when the FTC is to impose fines against price-fixing conduct among international cartel activities, solid and systematic standards for application and legal reasoning should be developed, whereas although there is a hurdle to enforcement of antitrust laws, as for criminal prosecution or injunctive actions, it appears necessary to consider whether to apply our domestic laws positively with the good cause for protecting domestic consumers. As a practical matter, starting from the U.S. Supreme Court’s finding in the 2006 Arbaugh case and in particular after the 2010 Morrison case, the U.S. federal courts have a strong tendency to hold that the FTAIA is not for jurisdictional issues but for elements for the Sherman Act based claims. Therefore, domestic market players who have business places in the U.S. or have the intention to export goods into the U.S. are required to take proper countermeasures taking into consideration transaction costs resulting from the rapid change in the U.S. federal courts’ findings for the FTAIA.