Reflections on Recent OECD Activities: Regulation of Multinational Corporate Conduct and Structure

In recent, years, the Organization for Economic Cooperation and Development (OECD) has repeatedly addressed, in a variety of forms, the problem of transnational corporate concentration. In the field of restrictive business practices, it has made suggestions on specific antitrust problems, issued council recommendations, and promulgated the 1976 Concil Guidelines for multinational enterprises. Not surprisingly for an organization that adheres to the principle of unanimity and, consequently, is governed by the law of the smallest common denominator, these efforts have thus far focused more on procedure than on substance. Even where quasisubstantive rules have been adopted, such as in competition guideline 1(a), the “rules” tend to be lenient compared with stricter national antitrust laws like those of the United States and Germany. A structural approach to the problem of concentration, similar to Section 7 of the Clayton Act and the German merger law, has not had a great chance of adoption in the OECD. The reason is simply that most member countries still feel that flexible, conduct-oriented solutions are more appropriate.