Developing Countries and the Possible Future WTO Framework on Competition Law and Policy

Another Look at a Current Controversy

Kim Them Do

ZWeR Online

Contents

I. Introduction

II. The negative impacts of business firms’ anticompetitive practices on the economies of developing countries

International cartel

Export cartels

International mergers and acquisitions (M&As)

Intellectual property rights (IPRs)

III. Rethinking institutional perspectives

Developing country interests and the global framework on competition law and policy

UNCTAD

WTO

The problem-solving capacity of the WTO framework on competition

Theory of complementarity

Theory of contestable markets

The practical relevance of existing WTO agreements

IV. Future options for developing countries from the perspective of their ability

Restarting formal negotiations

Negotiated-oriented coalitions

The US

The EU

The OECD

The UNCTAD

The ICN

V Conclusion

***

1. Introduction

Since the Ministerial Meeting in Geneva in 2004 there has been no hope that that a multilateral framework on competition law and policy will be created under the auspices of the World Trade Organization (WTO),[1] as most scholars and policymakers of developed countries have advocated,[2] because the majority of developing countries have blocked initiatives for further negotiations.[3] The latter argue that the detrimental effects of international cartels are not their chief concern and that they would not be able to overcome the regulatory burden and compliance costs if agreement on these issues were to be implemented. Consequently, the legal solutions to these global conflicts are politically unacceptable and technically unfeasible.

It is worth emphasizing that the level of attention to and political and scholarly salience of arguments about the significant role of WTO on the competition agreement have greatly decreased in recent years,[4] and there is no common trend in contemporary discourse on these issues. At present, international competition law scholars are devoting greater attention to developing countries’ interests[5] and focusing on the role of international property rights and human rights.[6]

While future negotiations on the potential WTO framework are still uncertain, developing countries are pursuing active domestic competition law and policy because they have come to recognize their substantial significance as a tool that can help them to reach their economic development goals. In this light they are introducing this legislation as a means of achieving a better macroeconomic outcome. Their highly visible efforts to enact this legislation in their reform processes are evidence of this.

Based on the idea that the existing hands-off approach of developing countries is not a fruitful long-term strategy, this article takes another look at a current controversy and argues that a WTO competition agreement could support developing countries in promoting economic development effectively. Beyond that, only by understanding its expediency and practicability can they identify their interests, frame their preferences and find incentives to design such a global discipline. Three major questions that arise in this connection are the subject of the following discussion.

First, what matters most to developing countries from a competition point of view? Second, why do they need a WTO competition agreement? Could they benefit from this instrument? Third, how they can push forward the conclusion of such an agreement? What potential temporary and optimal solution exists for them at the most basic level?

To explore these issues, this article proceeds as follows: section 2 identifies some anticompetitive practices by business firms that might have adverse impacts on the economies of developing countries. From the institutional perspective, section 3 reconsiders why developing countries need a WTO competition framework, why they are currently against its conclusion, and whether the negative effects of anticompetitive practices can be best addressed only through a WTO solution mechanism.

From the perspective of the contemporary capability of developing countries, section 4 suggests how they might enhance their ability to prepare to participate in the shaping of understandings and priorities. The conclusion summarizes the key findings and outlines some of the implications of the discussion.

II. The negative impacts of business firms’ anticompetitive practices on the economies of developing countries

Competition law scholars tells us that the global trend of the introduction of the domestic competition law  is continuing in developing countries and that this effort would be seen as very necessary to promoting further economic development. However, this desirable action is not sufficient for developing countries because economies today are globally connected and they are not in a position to deal with the spillover effects of cross-border business activities effectively. The anticompetitive practices of business firms in international cartels, export cartels and mergers and the ac-quisitions and business associated with intellectual property rights are commonly-cited examples of these undertakings in the current literature. It is clear that their national law regime cannot unilaterally resolve these effects: international[7], regional[8] and bilateral[9] cooperation between competition authorities would instead be helpful to deal with this.

Before appreciating why and how developing countries can best face these challenges, this section identifies what kind of impacts of business firms’ behavior they are confronting in their economies.

1. International cartels[10]

Research shows that between 1990 and 2008 there were 526 official investigations of suspected international cartels, with total affected sales estimated at US$16 trillion nominal.[11] Sales affected by detected Asian-region cartels amounted to about US$1.1 trillion in 1990-2007 with the losses imposed on Asian consumers at least $500 billion;[12] sales affected by Latin American cartels exceeded $20 billion and Latin American consumers were overcharged by least 35 billion in 1990 -2007.[13]

If these calculations of harm are reliable, the extent of this serious problem may be seen as the starting point for critical discussion of how international cartels come into existence, how they harm the economy and how developing countries currently deal with them.

Cartels are international if the participants are located in various countries and their activities affect more than one national market. The joint business operations of cartel members are often described as hardcore cartels. Their four typical behaviors are price fixing, output restriction, market allocation and big-rigging, all of which are condemned by all national competition law systems[14] due to the three following considerations.[15]

First, when consumers purchase something they believe that they are benefiting from an innovative, inexpensive, good-quality product in a very competitive market. However, this is not the casewhere there is a cartel conspiracy. This collusive arrangement has a serious effect on consumer welfare because consumers purchase fewer products at the price fixed by the cartel and pay more for what they buy.

Second, one crucial aspect of this particular concern is the developmental prospects of importing countries. They always need to import a substantial quantity of the goods and services sold by cartels; as buyers, the importing countries make a loss on account of being overcharged, and this loss may be calculated on the basis of the total value of such cartel-affected imports. Consequently, cartels seriously harm economic welfare.

Third, after becoming established in the market cartel members prefer to reduce their business risk and have no incentive to improve the quality of their products. They see any innovation expenditure on quashing the competition as unnecessary. In this way cartels diminish consumer welfare, hurt the market disproportionately in the long term and affects efficiency gains in the economy as a whole.

Thus international cartels present a global competition problem with serious effects on the economic welfare of developing countries, although it is impossible to detail the losses of developing countries here and the method of study and the critics in the current literature may be worthy of further attention.[16]

The global effects of the graphite electrode, bromine, citric acid, steel pipe and vitamin cartels are some of the most commonly-cited cases in the literature. Experts estimate that 16 products were subject to the operation of cartels in 2001 and that the total value of such cartel-affected imports to developing countries was around US$81 billion, with a total estimated overcharge of US$10-24 billion annually.[17] The huge losses are certainly greater than these estimates because the developing countries concerned could not provide the necessary information for further calculation. Worse still, the estimated losses are only one effect of hardcore cartels, and do not include others, particularly those incurred by bid rigging, domestic cartels and other practices.[18] 

To remedy this, developing countries focus on all kinds of cartels that seriously hamper their economies. However, nationally-based solutions are not effective enough to limit the spillover effects of international cartels, and greater cross-border cooperation is needed.[19] Admittedly, fighting international cartels is diplomatically troublesome and technically difficult. The typical difficulties that developing countries face are the limits of their jurisdictional reach, expertise and skills, and the lack of necessary confidential information. The greatest difficulty in convicting cartel members lies in determining how they come into existence and how much harm they do. There are various ways of considering this; methods of calculation of harm vary greatly from country to country and accurate measurement is often impossible to standardize. 

Consequently the remedy only becomes possible when participants in the investigative action share the same conception of a problem-solving mechanism and are ready to cooperate. Research shows that there is a noticeable trend towards effective cooperation against international cartels among the OECD countries, which have responded to this challenge in a variety of fruitful ways.[20]

However, there is no best way to force cartel members out of the world market successfully. It is not surprising that hardcore cartels are increasingly becoming internationalized, a trend especially widespread in developing countries. Most negatively, the vitamin cartel case[21] shows that efforts to cooperate urgently needs to be addressed, as omission leads to further consequences: developing countries offer a safe haven for such arrangements as they have no legislation against them or if what legislation they have is unenforceable.[22]

In short, as developing countries are unable to test the utility what they need in international cartels, they are highly unlikely to achieve what they seek a remedy.  More dramatically, the informational input is the most troublesome not only regarding international cartels, but also export cartels, and a functional analysis of this business operation in the current context of global trade is also required. 

2. Export Cartels [23]

The question that needs to be considered here is whether only developing countries can benefit from export cartel activities.

At first sight, the answer is undoubtedly affirmative. Export cartels are cooperative arrangements among a country’s exporters to act collusively in respect of export strategies. Their business scope may be various and depends on the objective pursued. Some of the cartels’ activities are joint production, joint marketing, price fixing and market allocation.

It is not hard to see why promoting export cartel strategy is politically desirable in developing countries, because it appears to be the best tool by which they can realize their export-oriented policy. Among others, it is vital to them to stimulate their sluggish economies.

One of the main points in favor of this reasoning is that small and medium-sized enterprises (SMEs) in developing countries have no resources to promote their export businesses individually. Their export cartel strategy offers their SMEs greater opportunity to increase the value of their exports by reducing costs, sharing risk and improving product quality; they can expect the competitiveness of domestic business in the foreign market to be considerably improved. 

In general terms, developing countries are the greatest beneficiaries of export cartel activities because not only do the cartel members enjoy greater efficiency gains but also the developing countries benefit from better economic growth and social welfare.[24]

In contrast to the negative effects of international cartels discussed above, it may be said that single-country export cartels have no chilling effect on their domestic market and present no global competition problems. Looking further, one closely-related question needs to be addressed in the context of the global justice in world trade development: the internal markets of importing countries may be negatively affected by the export cartels. This may be a point for discussion.[25]

Loss of welfare in foreign markets is a subject of contemporary discourse on trade philosophy but it is certainly not a serious political issue that needs to be discussed in the context of exporting countries. While export industries flourish and have an impact on the macroeconomic outcomes of the exporting (developing) countries, possible harm to foreign and global markets caused by this action cannot be thought of as politically incorrect. Therefore the pursuit of global justice is not a serious matter and considering how to remedy this effect is not in the interest of the exporting country.[26]

Export cartels are not always made up only for the sake of SMEs in developing countries, as discussed above. This point may seem deceptively simple because the international management literature tells us otherwise: larger producers of developed countries have been engaging in export cartel activities over time; export cartels are a business tradition and a priority for highly concentrated industries in developed countries; their members are the most powerful trading firms in the export industries and have considerable negative effects on importing (developing) countries.

The spillover effects of developed countries’ export cartels are still causing problems for the emerging markets of importing countries. The crucial question, then, is how to characterize export cartels in legal terms: are they lawful or unlawful?

This issue is highly controversial in the scholarly literature and policy debate.[27]  On the one hand, based on the principle of trade liberalization it has been argued that export cartels distort trade and should be strictly banned. The powerful argument for this is that they cause welfare losses in importing countries. On the other hand, there is another line of reasoning: export cartels may generally be seen as unlawful, but they should be tolerable in practice as an exception. This view depends most on the legal culture and business tradition.

Country analysis shows that over 16 leading countries explicitly or implicitly exclude export cartels and, most remarkably, the US, the EU and Japan have a tradition of promoting or tolerating export cartels.[28] Export cartels may be exempted from prohibition by law, explicitly or implicitly, because, as in developing countries the exporting firms of even developed countries have no market power in their domestic market and hope that this joint action will bring them greater efficiency gains.[29] How do developing countries address this emerging threat to their economies?

The answer is certainly negative because it is well acknowledged in the development literature that developing countries have neither the resources nor the skills to conduct an effective test to convict export cartel participants. Four of the biggest deficiencies in their problem-solving capacity are outlined below.[30]

First, most export cartel members are located in developed countries and so are outside the jurisdiction of developing countries. But the essential point is that they do not cause problems for their home markets and their business is lawful, or can be tolerated.

Second, developing countries may unilaterally escalate tariffs on imports to resolve the problem. This strategy appears to be counterproductive because it is counter to the interests of their trading partners. In the era of trade liberalization, tariffs have gradually been reducedand/or totally eliminated. Developing countries cannot rebuild these barriers based on the reasoning that it would best serve their own public interests.

Third, it is not easy for developing countries to balance the interests of local consumers and industrial producers appropriately. The conflict between these groups would be a social and political matter of controversy. Worse still, export cartel members may exit the market, which could lead to shortage of delivery in the economy of importing countries. If a cartel member pulls out, another is not ready to step in because the emerging market is not always perfectly competitive or sufficiently dynamic.

Fourth, the enforcement of competition law in developing countries is truly problematic. The reasons for its ineffectiveness are too numerous to mention: such countries have no resources to treat cases individually; the evidence and confidential business information needed are not always available and may be provided by developed countries only on a voluntary basis of cooperation. More negatively, the cartel members have no assets in their territory. For any further action they need cooperation, which inevitably takes time, technical understanding and diplomatic skills. Developed countries often turn down any requests of cooperation because they are not willing to harm their businesses, as discussed above.

To remedy this problem, many developing countries suggest treating export cartels as hardcore cartels. It is unclear how this proposal could be universally accepted as a solution in the near future.[31] Even if this solution were feasible, developing countries have no way to ensure how they have an effective enforcement system.

Besides export cartels, the operation of international business mergers and acquisitions is a major concern preoccupying competition law scholars. Some of the main problems here are briefly discussed in the next section.

3. International Mergers and Acquisitions (M&As) 

M&As are a business strategy by which large firms strengthen their position to gain market advantage at home and abroad. How much can developing countries benefit from such transactions in the contemporary landscape of the economic downturn?

Surprisingly enough, the global financial crisis did not have a perceptible damping effect on M&A activities. On the contrary, they continued their upward trend, as recent evidence illustrates: M&A activity in 2008 reached record-breaking levels. The total number of M&A deals was 38,000 transactions to a value of US$3.28 trillion.[32] It may seem that this is not a matter of concern for developing countries because their ongoing efforts at structural adjustment can continue to profit from M&As. 

Viewed from the perspective of the policymakers in developing countries, M&As may bring more benefits than risks to the whole of their economy, although in practice most developing countries have no M&A review regulations. Two of the most notable benefits are as follows.[33]

First, they are concerned about national competitiveness which they would like to achieve by opening up their emerging market rather than making merger law. Even more importantly, their SMEs need to be politically supported to enable them to compete with those from developed countries better.

Second, as a result of localizing the production of the M&As, developing countries benefit from employment, tax yields and improved consumer welfare. Assessing these impacts of M&As on the future economy, policy-makers argue that decisions should be made on a case-by-case basis rather than being subject to a law review; perhaps most controversially, the possible negative effects depend on circumstances in practice and vary greatly from one industry to another. Finally, ex ante intervention seems an adequate and effective remedy.[34]

Business firms in developing countries have a similar reason for this policy consideration; they argue that they enjoy more benefits when engaging with a partner in an M&A business operation.[35] 

The argument is that M&As have a significant impact on the business development of SMEs as they provide more opportunity than before. They need more foreign capital and technology transfers, and one of the best ways to access both is to promote not only foreign direct investment (FDI) but also M&A activities. Structural change in merged firms creates pro-competitive effects, especially in economies of scale in research and development (R&D), production and marketing. These synergy effects may promote substantial cost savings and increase market power. Most specifically, the huge costs of R&D activities in high-tech industries such as biochemistry and pharmacy are unaffordable, and the payoff from R&D only emerges in the long term.[36]

However, research tells us otherwise: there is no way to ensure that only the positive effects will be realized by developing countries because there have been many negative implications in M&As.[37] Four typical problems are briefly recapitulated below.

First, research into firms’ post-merger integration illustrates that a foreign merged firm tends to reduce its R&D activities abroad in favor of at home and firms in developing countries make no efficiency gains.[38]

Second, transfer pricing among merged firms is one of the most difficult and complex issues not only for developing but also for developed countries.[39] Perhaps more negatively, large firms are trying to raise profits gained out of the jurisdiction of developing countries; this action has severe effects on pricing and taxation in developing countries, remedying this is not easy task because the costs of planning and documentation are extraordinarily high and they cannot find a way of dealing with these effectively and therefore suffer these losses. [40]

Third, M&As produce more negative than positive effects on economic growth: a concentration of industries can lead to the abuse of dominance, predatory competition and mass unemployment. One of the most typical concerns is that social welfare is greatly reduced.[41]

Fourth, the anti-globalist rhetoric in developing countries fears the worst of the merger effects: the ability of government to attack anticompetitive business practice is decreasing while the political power of newly-merged firms is dramatically growing, as confirmed by international political discourse.[42]

In sum, M&A activities have many negative impacts on developing countries’ markets and their policymakers cannot test the harm as they would like. Ways and means of resolving such impossibility need to be extensively explored.

Beyond that, there is a further concern: the interface of IPRs and competition law and policy. The benefits of innovation are closely associated with the costs of monopolization, and the dangers of monopolist in a developing country context are greater than initially expected because they can easily quash rivals and reduce the incentive for small domestic firms to carry out research. Developing countries are at a distinct disadvantage regarding protecting their emerging IPR regime. How they can deal with this is discussed below.

4. Intellectual property rights(IPRs) [43]

The most important academic and official opinions admit that there is a strong link between the level of competition and the extent of innovation in developing countries’ economies, and their mutual effects impact significantly on their macroeconomic outcomes.

Some typical forms of IPRs are patents, copyright, know-how and trade mark design. The essential characteristic of IPRs is that the right-holder has a limited duration of right (patent), is not protected against parallel creation by others (copyright) and loses his claim to rights once IPRs become public (know-how). In general terms, the main objective of IPRs is to protect right-holders by allowing them to exclude others and profit from their own innovations.[44]

In the past, policymakers in developing countries tended to ignore the central significance of the IPRs in the context of the operation of their emerging market. Most notably, they have had no political will to build an operational infrastructure to enforce this legislation appropriately. Four of the much-discussed reasons for this omission are as follows.

First, the promotion of technological innovation and the transfer and the dissemination of foreign technology in emerging economies are politically desirable. It is inevitable that patenting and copyrighting give foreign firm’s market power in their own markets, and this dominant position could discourage local producers from developing their local innovations.

Second, introducing modern knowledge and information in developing countries, whose absorptive capacity is still underdeveloped, is costly and requires substantial domestic effort. It takes time, skills and resources to create such an environment. This strategy may be partly applied by a few innovative industries, but it is not practiced in the economy as a whole.[45]

Third, combating counterfeiting and piracy is not a policy priority in developing countries. Most right-holders are technologically powerful firms located in developed countries which derive direct benefit from strong IPR enforcement practice while the public authorities (courts, police force, custom offices etc.) of developing countries are poorly equipped to respond to such complaints. Finally, the cost of litigation is always extraordinary high for the latter and the decisional practice of courts is often advantageous to foreign firms.

Fourth, consumers in developing countries prefer to buy private rather than licensed products because they are much cheaper, even though they are perfectly aware that they are purchasing fake products. Of the software sold in the Chinese market, 90 percent is pirated, but Chinese buyers do not complain about the quality and the Chinese authorities take no action to enforce the IPR regime. In economic terms, domestic consumer welfare may not be seen to be harmed as expected. This win-win situation for pirate and end-user and the negligence of those responsible for enforcing the legislation illustrate how the prospect of enforcing IPRs in developing countries is not bright. 

One the one hand, developing countries have come to recognize the importance of protection and enforcement of this regime. Encouragingly, the overarching similarity among their policies lies in the shared recognition of the need for change because of its own interest. Country analysis reveals that recently there has been great improvement at the domestic level.

For example, Brazil has established a National Council against Piracy; India has introduced an Interministerial Coordination Committee; Malaysia and Thailand have created court divisions dedicated to their enforcement; in China arrests related to intellectual property enforcement crimes increased by 36% and prosecutions by 75% from 2000 to 2004. South Africa, Thailand, Brazil and Rwanda are actively negotiating public health issues and will improve and better enforce their IPRs.[46]

On the other hand, there is a chilling vision of future international cooperation. At present, IPR protection is addressed by the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which sets out some minimum standards of protection and rules regarding their enforcement.[47] This agreement is a triumph of the interests of US and EU firms over those in developing countries. The opinions of both businesses and officials in developed countries are similar: public and business interests need to be best protected.[48] Generally, developing countries have no bargaining power to reach a mutually satisfactory agreement with developed countries. The mutual cooperation framework is unsatisfactory, as discussed regarding export cartels. 

Because of their different levels of development, developing countries have some flexibility in applying TRIPS.[49] They may take an appropriate measure to limit or qualify IPRs; in particular, they are free to determine the grounds upon which compulsory licenses are granted and to permit parallel imports. In particular, they may take measures to prevent right-holders’ anticompetitive abuse of IPRs.[50] In addition, they may seek consultation other in considering action against an IPR holder.[51] Some typical behaviors are abuse of IPRs, practices to restrict trade and practices to affect technological transfer. As in the investigative case of the cartel discussed above, the difficulties in sharing relevant information seem insurmountable because the requested (developed) countries have no incentives to provide IPR-related information to the requesting (developing) countries for further action.

Recently there has been growing pressure from developed countries because they need to see a stronger IPR regime enforced more effectively in developing countries.[52] To illustrate, the much-discussed initiative is to negotiate a new international treaty on anti-counterfeiting – known as the Anti-Counterfeiting Trade Agreement (ACTA)[53] – with major trading partners. In practice, licensing and cooperation arrangements would be helpful not only for innovating firms in developed countries but also for developing countries. It has been argued that tinkering with IPR rules would produce more pro-competitive effects for developing countries.  How developing countries can deal with the adverse effects of IPR-related anti-competitive practices?

There is no simple answer to this complex question because the economic effects of IPR violations in developing countries depend on the type of IPR involved and underlying market characteristics.[54] The most pressing task is to prove that such practices areanticompetitive and that consumer welfare may be harmed. To respond to this concern, the two following problems need to be resolved: first, the provisions relating to flexibility for developing countries in TRIPS are too general, with further practical guidance urgently needed; the WTO must provide answer with them.  Second, cooperation with developed countries is essential because developing countries are dependent on foreign sources of information for further action. The challenges facing developing countries are similar in nature, as discussed above.[55]

The discussion above has identified some cross-border impacts caused by international cartels, export cartels, M&As and IPRs in the markets of developing countries, whose policymakers know that they cannot resolve such problems by themselves. Together the arguments above suggest that it is most unlikely that they would be in a position to respond adequately to these pressing challenges in the near future. Comparison of the advantages and disadvantages of these effects must be given a central role in such future engagement. These ongoing difficulties are insurmountable because of informational limitations and impossibilities, namely, the complexity of cross-border transactions is increasing, the resource constraints are not decreasing, the gap between the knowledge of developed and developing countries is broadening, lack of confidence between them is still widespread and there is still no political willingness among countries to cooperate.

Under such circumstances there is an important need for developing countries to overcome these difficulties because their legitimate interests in competition issues should be appropriately protected and the question of how to bring about a change in favor of their interests needs to be explored: most notably, a confrontational strategy is the most trouble-some and far from helpful in the long run. To reduce the existing obstacles, what they need more immediately is reason to value the significance of this issue, whatever form of competition law regime may be proposed.

In this light, the next section suggests that the institutional approach could be used as a basis for discussion. This approach concentrates on valuing and comparing opportunities rather than illuminating a political rhetoric strategy and specific design for this legal instrument. How would developing countries take advantage of a possible future WTO competition agreement, and how are they preparing for this possibility now? These questions are discussed below.

III. Rethinking institutional perspectives [56]

At present, it may be said that developing countries should not be working to prepare to pursue this law project because they argue that since the setback that occurred with the last negotiations there is no longer a legal basis on which to do so.

On the contrary, the following part suggests that a future chance to talk should not be seen as impossible because there is hope of a possible breakthrough: it is not without foundation, and past positive experience tells us that the temporary deadlock in international negotiation should be seen as ‘business as usual’ in the history of diplomacy. The three following explanations are relevant to this expectation.   

First, the developing countries opposed negotiations about competition issues at the Cancun Ministerial Conference 2003 and the subsequent WTO General Council’s 2004 ‘July Package’ which was based primarily on the Doha Development Agenda (DDA). The negotiators blocked only those further negotiations about competition issues that would not take place within the DDA; this setback does not mean that these issues will be definitively dropped from the WTO work program in the future, and their past failure does not mean total failure. There is no reason to predict that an attempt to include it on a future agenda will fail.[57]

In addition, there is strong evidence for this argument. At the 1986 GATT talks the US and the EC proposed launching an ambitious new round dealing with trade in services. Brazil, India and eight other partners opposed this project and further negotiations were impossible. Instead, Columbia and Uruguay organized an informal meeting to help overcome the different positions of the participants. As a result, all the trading partners agreed to launch the Uruguay Round.[58]

The 1978 UN Conference on the Law of the Sea involved a similar experience. Developed and developing countries have different positions on the issue of the deep sea bed, and negotiations were deadlocked. All the negotiators appointed Singapore’s Ambassador Tommy Koh to manage the conflict, but they did not believe that progress could be made. Two years later, Tommy Koh found a way forward and all the negotiators moved at the table and agreed on the solution.[59]

Perhaps most remarkably, the global political arena has been reshaped; current international trade development is different to how it was in the past and offers grounds for new expectations. Most significantly, the balance of political power among the trading partners has shifted dramatically so that the US and EU no longer apply diplomatic pressure to achieve their preferred objectives, as before.

The fact is that 40% of world trade now falls in the ‘Others’ category: the US’ relative share has dropped to 16%, whereas the EU (25) represents ‘only’ 17%. China and Japan’s shares, in contrast, have grown tremendously, China now representing close to 10%.[60] China, India and Brazil are emerging as politically powerful partners in world business, and other developing countries in coalition (e.g. the G-20) may be in a position to block progress in trade negotiations. While the trend toward a multipolar world is beginning, developing countries can be persuaded to take a positive role in the WTO context; they would be the most credible stakeholders to push this regulatory endeavor forward.

In view of the above it is worth reconsidering the institutional perspective, and specifically asking two crucial questions: why developing countries do not share interests with developed countries regarding international competition negotiations within the WTO, and whether the negative effects of business firms’ cross-border transactions can only be best addressed within the WTO framework on competition. These questions are discussed below.

1 Developing country interests and the global framework on competition law and policy

In opposing negotiations on future competition discipline in the WTO system, developing countries are fundamentally motivated by self-interest. Why do they have no interest in engaging in this project when they strongly supported similar action within the framework of the United Nations Conference on Trade and Development (UNCTAD)?[61] What are the most striking differences between the WTO and UNCTAD?

UNCTAD

UNCTAD offers developing countries a platform from which to express their interests regarding not only economic development but also social justice and political stability. One of developing countries’ most notable rhetorical strategies in this forum is that they accuse developed countries of always being politically incorrect in doing business with them. Of course, these political disagreements, especially in highly-specialized issues as competition, have had a negative effect on the creation mutual trust which would pave the way for cooperation. While the developing countries felt at home with UNCTAD, they are still lacking confidence and fear the legal consequences of the WTO negotiations.[62] Four of the fears inherent in these prospects seem central to the WTO forum.

WTO

First, with its rule-based approach the WTO performs better than other international soft law institutions, with which there is a dramatic contrast in legal terms. The WTO more or less sets its standards and rules in a “one size fits all” manner which does not suit the needs of developing countries, which claim that the application of a generalized standard of conduct is inappropriate for developing countries, whose legal infra-structure is still underdeveloped. They are not prepared to accept such a threat to their legitimate interests because, they maintain, only large firms in developed countries would be able to take advantage of the effects of standardized competition law.

Given the diversity of the objectives and different levels of developmental dimension, its policy-makers advocate that it would be effective for them if they could be free to design their legislation. The global rules on competition, at least under current circumstances, are unlikely to be technically feasible as well as politically desirable.[63]

Second, the WTO principle of equal treatment is most desirable, but developing countries are currently not in a position to enjoy this privilege fully. The WTO facilitates market access for all its members; future WTO competition law should apply equally to all participants. In practice, developing countries fear that these dynamics would impact on their prospective development negatively.[64]

They claim that the putative WTO competition law will serve primarily to increase developed countries’ access to developing countries’ markets as it will make it easier for firms in the former to dominate and quash competition in the markets of the latter. They charge that developed countries have an interest in securing access to their markets rather than controlling the anticompetitive business practices of big firms in their own markets. As a result, they assume that nondiscrimination towards foreign firms would mean discrimination against local firms while their market needs to be better protected. Finally, in any event developed countries would gain more benefit than developing countries from the WTO system.[65]

Third, the past practice of the WTO has been dominated by political pressure from developed countries and economic lobbying by larger firms. The TRIPS are a commonly-cited example of the dominance of Western interests. As discussed above, the past performance of the TRIPS shows that the WTO failed to recognize the critical voice of developing countries. In the meantime, they have recognized that the TRIPS are of positive value to them. 

Finally, policymakers in developing countries are preoccupied with the functioning of the extensive dispute resolution mechanism in the WTO system. When member countries do not comply with the recommendations of WTO law, the WTO’s remedy is to permit the aggrieved member to suspend equivalent tariff concessions. More negatively, an obligation to enforce the decision of the WTO’s adjudicative body would produce more unfavorable impacts on developing than developed countries.

One of the most cited examples of this is a provision for cross-sanction, as Article 22 of Dispute Settlement Understanding (DSU) stipulates: a violation in one area may be penalized in another by the complaining country. In practice, WTO adjudication has approved cross-retaliation in two cases where the aggrieved state is a developing country (Ecuador/EC[66] and Antigua/US)[67]; this remedy was proven inefficient because the US and the EU are not likely to be harmed by a suspension of trade imposed by Ecuador and Antigua. Therefore they may not be able to derive benefit from the stronger DSU system because litigation costs, mutual mistrust and future substantial damages produce more uncertainty than safety. With these risks they have no incentive and no confidence to join the WTO system. 

In sum, the key problem with the framing of the utility tests is that developing countries do not have adequate skills to determine how they could gain more benefit from this engagement at lower cost. Certainly they could not deploy to enhance their ability at present. How they can most effectively generate understanding and opportunities for creative strategy remains debatable. An analysis of the basic value of the cooperative strategy is required.

It is clear that a full analysis with all of the particularities in the procedure, the substantive, the institution, enforcement and cooperation involved in this WTO law project is beyond this section.[68] At present, we remain uncertain about its numerous aspects but at least we have shown that several factors are likely to play a crucial role in its foundation and operation.[69] For analytical purposes, the following section centers on the institutional perspective only and the question is whether the WTO offers a suitable platform for developing countries to tackle all of the cross border effects of business firms’ anticompetitive practices.

2. The problem-solving capacity of the WTO framework on competition

In response to the above concern, the following argues that the WTO is not exclusively confined to the liberalization of trade and that it escapes regulating the competition law regime and ignores the benefits of fair competition for developing countries. If developing countries would comprehensively value their theoretical arguments and powerfully argue that these reasoning are inescapably relevant to this effort, this would shed more light on the desirability of WTO negotiation in competition law and policy. Some crucial points are briefly discussed below for renewed reflection.

2.1 Theory of Complementarity [70]

Conceptually, policymakers in developing countries may suggest that the theory of complementarity is a relevant basis from which to reexamine the way to move forward. Trade scholars and the WTO Working Group have extensively discussed the interface of trade and competition law and policy,[71] and this will not be examined further here, but the following reasoning is crucially important for developing countries to support the WTO solution.

It is widely admitted that the ultimate goals and benefits of trade and competition law and policy have similar objectives – to promote economic efficiency and consumer welfare by making markets more competitive – and both focus on national and global welfare. When reconsidering an alternative policy approach it is necessary for developing countries to take a broader view rather than being limited purely by the goals of fair trade and tariff liberalization, because these two fields by themselves cannot provide a perfect solution to cross-border anticompetitive effects on their emerging markets.[72]

The theory of complementarity tells us that the possible benefits of trade liberalization cannot be achieved if anticompetitive practices by firms are prevalent in the market. To reach this objective, developing countries need to focus on the reciprocal effects of both policies, three of whose typically interrelated effects are illustrated below.

First, the complementary nature of trade liberalization and fair competition can be seen in the effects of the market power of business firms. The ability of firms to sustain prices above the competitive level is termed “market power” in competition law terminology. Although it has been created by trade policy measures, market power has a negative effect on consumer welfare because of the higher prices and the reduction in the quantity of commodities on the emerging market. To illustrate, a newly-merged firm can easily eliminate competitors by pursuing a predatory pricing policy. In the short run, the consumer benefits from this strategy, enjoying the cheaper products. Once local competitors are forced out of the market, however, the predator can increase the price to secure its profits in the long run. This action injures both consumers and competitors in the developing market.[73]

Second, the market structure, competitiveness and trade development of developing countries can be negatively affected in several ways. On the one hand, developed countries’ policymakers can block access to their domestic market through anticompetitive practices, as current EU trade practice shows. If a group of EU firms with market power agree to boycott the products of developing countries, this horizontal cartel agreement can keep competitive firms out of their market. Vertical restraints or control by powerful groups of firms in the developing market have the same effect. There are various such types of controls, but their final effect closes the market to the would-be foreign entrant.

Finally, local firms in developing countries cannot rely on their governments to take corrective action. They cannot expect their governments to remove restraints at their request because governments of developed countries may encourage, tolerate or support their firms’ anticompetitive practices and tend to ignore developing countries’ requests for cooperation for protectionist reasons, and most importantly cross-border effects on both trade and competition transactions in developing markets are increasing dramatically.[74] 

In brief, the theory of complementarity maintains that international trade policy and competition policy are so closely related that the WTO cannot serve only to promote trade liberalization, ignoring the benefits of fair competition of developing countries.[75]

How can developing countries support the WTO solution while the overlap of these policies still exists? How they can reconcile these issues? Economics scholars propose that the theory of contestable markets may be relevant here as a starting point from which to consider the degree of such possible reconciliation.[76]

2.2 Theory of contestable markets[77]

The basic concept here is that it is impossible for policymakers in developing countries to promote as perfect competitiveness in their emerging market as they would like. In practice, it may be possible for them to create a perfect contestable market with no or low barriers to market entry and exit. Its fundamental features are that it is fairly easy for firms to enter the market without incurring sunk costs and to leave without loss; the mere threat of market entry by potential rivals is a decisive factor in protecting consumer welfare; and importantly, a highly concentrated or monopoly market does not mean that the firms involved are harming consumers by earning supernormal profits. In a perfect contestable market, an economically efficient outcome can be achieved with only a few competitors.

Policymakers in developing countries can never finalize a perfectly contestable market successfully, but this central idea of ease of market entry is particularly significant in a discussion of the market power of firms. The theory of contestable markets states that a firm is unlikely to exercise such market power if it faces potential competitors that could quickly enter the market.

Consequently, the threat of market entry may reduce or constrain the market power of dominant firms, and this may have implications for designing competition policy. Policymakers seeking to identify barriers to the market need to ask themselves whether such barriers are a natural part of the market structure or a product of government regulations. Ease of market entry is supposed to be absolute, totally displacing the incumbents. If this theory could be applicable in the domestic market of developing countries it would have implications for the design of competition law and policy, and policymakers should concentrate on removing certain types of restrictive regulations ranging from those on competition policy, etc. How can theorists carry the concept of contestable domestic markets into the international context today?[78]

In broad terms, the international contestability of markets could be a new objective to reconcile international trade and competition law and policy. A market may seem internationally contestable when conditions of global competitiveness allow unimpaired market access to potential rivals. Ease of market entry not only promotes maximum market access by removing governmental and private barriers to market access but also maximizes potential competition by allowing competitors to enter the market quickly and to quit it painlessly.

In pursuing this objective it may be argued that competition and trade are complementary means of international con-testable market too. From the viewpoint of global market performance, contestability theory would have implications on examining the mutual interdependence of international competition policy and international trade policy and could be used as a prominent policy tool, in particular in support of the WTO solution.[79]

In summary, the arguments deriving from the theories of complementarity and of contestable markets suggest that the WTO offers an appropriate institutional framework for international competition law and policy.

2.3 The practical relevance of existing WTO agreements[80]

Even if there is a lack of project reform momentum, protectionist flare-ups and greater divergences between developed and developing countries interests in the contemporary background, it may be hard to retain that the WTO is no longer suitable to cover all of the problems illustrated above. Is the WTO institutional framework becoming a best suitable solution for developing countries? How and under what practical conditions[81] could developing countries intervene in order to make this project possible?

The reasons for a pro-WTO solution are too numerous to mention, and it is helpful to briefly illustrate some of its basic advantages here. The WTO’s effective functioning in facilitating the global trade development, as the GATT achieved in the past, is widely celebrated. Importantly, the WTO has universal membership, transparent procedures, and experience in managing the negotiation and implementation of international agreements, and a dispute settlement mechanism.

In addition, the WTO Working Group is experienced in the interaction between trade and competition policy and the successful incorporation of IPRs into the WTO in the agreement on TRIPs.[82] Perhaps most relevantly, the competition-related provisions are already in some existing WTO Agreements and the member countries have experience in this respect.[83]

Under such circumstances, developing countries have reason to suggest that the current practice of WTO is an inescapably relevant point that needs to be reconsidered because it would be relevant to further policy development and its problem-solving mechanism should not be relocated elsewhere.

The following highlights some current practice of the WTO that may be useful in promoting positive interest in the subject and wider under-standing of competition policy concepts and tools. Some of the typical competition related provisions in the existing WTO agreements are as follows:[84]   

• GAT Art. VIII:  Members must ensure that state monopolies do not act in a manner inconsistent with their obligations and commitments;
• GAT Art. 9 sets out some consultation arrangements for service suppliers;
• TRIPS Art. 40 is about the control of anticompetitive practices in contractual licenses;
• TRIPS Art. 22 (2) b on unfair competition;   
• TRIPS Art. 5 (5) on measures to avoid disturbing the conditions of competition;
• Textile Agreement Art. 6 (16) regulates restraints on segmentation of the market for competing products;
• The Agreement on Safeguards Art. 11 (3) states that members should not support measures equivalent to voluntary export restraints or other marketing arrangements prohibited under Art. 11 (1) of the same Agreement;
• Reference Paper on Regulatory Principles in the Basic Telecom Negotiation imposes the obligation on member countries to commit to preventing anticompetitive practices by major suppliers.

The strongest argument for this is not political but practical in nature because these competition-related provisions of the existing WTO Agreements are inescapably involved in rethinking an alternative approach to a future solution,[85] and in this respect the WTO would offer them more advantages than they would have without these provisions. The question dealt with the issues of not only policy consideration but also with the judicial interpretation of the existing agreements. It is worth their reconsidering that the WTO should be working towards adapting itself to house a competition agreement. That is here a case of the WTO dispute panel practice.

While the practice of the WTO dispute panel has long been acknowledged, the Telmex case[86] has dramatically changed the critical voices of developed as well as developing countries in recent time. As a first decision in the international competition law the WTO adjudicative body pointed out that Mexico has not done enough to prevent anticompetitive practices in its market.

These results have been based on the WTO’s Reference Paper on Regulatory Principles, the most important competition-related trade commitment in the WTO framework, because 57 WTO members have already committed to apply these principles, while other members are debating how best to adopt it in the near future.[87] Equally importantly, it could be used as a point of reference for other branches such as air transport and energy services. Like the TRIPS, this paper is fairly basic and vague, obliging signatories to enact appropriate measures to prevent anticompetitive practices by major suppliers.[88]

The Telmex decision is fundamentally flawed because the WTO panel’s interpretation is inadequate, as competition lawyers initially expected, and nor could this section further any commentary to identify its weakness.[89] With the result of the Telmex case, developing countries have further grounds for dissatisfaction with WTO and for doubt on the better future practice of the WTO in favor of developing countries’ interests.

However, viewed from the institutional perspective the future practice of the WTO dispute panel is not a matter of particular concern according to the following arguments.

It is hard to see how critics rely on the bad experience of the Telmex case in order to totally oppose future international negotiations, and this adjudicative body is not responsible for clarifying and interpreting these commitments. It is quite true that there are pressing challenges regarding the proper functioning of a better future WTO dispute panel but there is no reason to argue that the institutional framework for the litigation of competition-related provisions would be changed and other institutions could assume the function of interpreting existing WTO Agreements. Member countries are less likely to accept this solution as cost effective. More specifically, this case bound only Mexico.[90]

Like the vagueness of the TRIPS, this Paper needs to be improved for further application. How to get the WTO to operate better is still a question that needs to be explored,[91] but there are no grounds for arguing that further action on WTO rule-making on competition policy should be halted.[92]

In this light, the question needs to be asked in this context is what the WTO member countries would have agreed to improve the practice of TRIPs. TRIPs are not a perfect agreement: it is troubling in itself because greater precision and more guidance are needed for their further application. Beyond that, developing countries need further technical gui-dance regarding international cooperation and capacity building, but at least there is a reliable mechanism for cooperation at the most basic level.

Viewed from an institutional perspective, it is most unlikely that the WTO member countries are ready for another forum to negotiate and find an appropriate standard to govern all the practices that have been already imposed by the current WTO Agreement. In any event, considering cost factors it seems likely that these issues should be exclusively addressed in the WTO forum.    

Finally, and perhaps most relevantly, the WTO is considerably experienced in competition law and policy. Past discussion on the Working Group on the Interface between Trade and Competition Policy is one of the best resources for developing countries in the future.[93]

After the 1996 Ministerial Conference in Singapore, the above Working Group was established to study the interaction between trade and competition policy and to examine the possibility of integrating these areas into the WTO framework. The Working Group issued reports in 1997, 1998, 1999, 2000 and 2001. It is impossible to examine the findings of all these reports in detail, but scholars, practitioners and policymakers recognize the importance of this valuable resource t.[94] Now the biggest challenge for developing countries is valuing this reference source accordingly and to hardness interests for further action.[95]  What predictions can be derived from the discussion above regarding developing countries’ interest in a possible future WTO agreement on competition?

The theoretical discussions above are adequate response to the actual difficulties and expectations of developing countries, but it is difficult to estimate how they can defend their rights and interests by relying on this reasoning because the struggle over the theoretical interpretation will be academically discursive, the political rhetoric surroundings are certainly various and no empirical study of this puzzle has been undertaken so far. Although more academic attention is needed to explore it systematically, at least at present there are many positive reasons for developing countries to advance their interest in improving current WTO practice. The practical merit of such reform is easy to understand and support.   

The basic premise of this discussion is that the potential benefits of a WTO competition agreement would facilitate domestic economic development of developing countries in addressing the cross-border effects of anti-competitive practices by business firms and that the WTO institutional framework is becoming a political imperative for developing countries.[96] They need to frame their conception, clarify their priorities and coordinate their strategies within the WTO mechanism in order to effectively advance their interests in the future. It is time to reflect on how they can increase their participatory power for the next strategic step from the perspective of their ability.

IV. Future options for developing countries from the perspective of their ability

In the present environment, developing countries have two options: restarting formal negotiations and negotiated-oriented coalitions.

1 Restarting formal negotiations

The question is whether developing countries would gain stronger leadership by calling for the resumption of formal negotiations. Is this desirable proposal likely to be feasible? The current situation is trouble-some and several factors obstruct these perspectives, four of which are set out below.

First, the present opportunity to renegotiate the DDA in the midst of the global financial crisis is an urgent issue in international trade talks.[97] Due to the prioritization of global financial stability there is plenty of work yet to be done: Developed countries are calling for greater regulation of global finance and developing countries are showing greater courage and resilience in fighting the competitive pressure.  Consequently it is hard for negotiators to see whether the WTO may now be in a stronger position than in the past, and whether the benefits of possible future cooperation with the WTO will suffice or radical thinking about the need for the renegotiation of competition matters is necessary.

Second, the US and the EU, as the strongest jurisdictions in the world are relying on the application of effects doctrine,[98] an approach that they believe can be used as an effective tool to serve their interests in resolving conflict, and presumably they will never give up their own uni-lateral approach. Allied with this, other developed countries are resisting further global cooperation because existing bilateral mechanisms are still relatively useful [99] and promote problem-solving in the context of regional free trade agreements (RTAs). Presently over 457 such agreements have been concluded.[100] The real benefits of existing solutions limit the potential usefulness of a global approach.

Third, developing countries’ policymakers currently strongly see opening the market as more important than other public policies in the trade liberalization process. To that end, they maintain that market access, which is not a competition matter, should be a priority on the agenda.

Fourth, developed countries are mainly concerned with the current implications of the global financial market crisis, which have not fully disappeared from their domestic economies. Although there is growing optimism that the recovery is becoming self-sustaining, it is not surprising that they are focusing on how domestic market development can best be protected. As long as they are skeptical about the virtues of the global competitive market they have no incentive to change their deeply-rooted preferences in competition policy in favor of a globally-oriented approach.

At present this comprehensive world trade development background is not conductive to renegotiating an international competition agreement. At least in the near future, developing countries may not be able to gain stronger leadership to call for renegotiation.

What is to be done in this situation? Under such circumstances the most obvious avenue for developing countries is to prepare for the next step by clarifying their priorities and coordinating their strategies in order to advance their interests in the future. In other words, for the time being they should find their best leverage in the prospective negotiations; they need to frame their perceptions and work with strategic partners to share common negotiation objectives and create incentives for collective action. Although it is too early to lay down any blueprint for how to deal with this in detail, the only efficient and practical way for them to act today is to improve their existing capacity building and information-starved decisional mechanisms.

More specifically, introducing a system of data collection, reporting and monitoring and a process for determining harm are urgently needed. Inevitably, without being helped by developed countries and international institutions developing countries cannot go on to prepare the next step. They may form a coalition based on shared interests that is likely to push them to participate in and access possible future negotiations. The question here is what this would be worth to whom. These pressing questions are the subject matter of possible coalition and are discussed briefly below.

2 Negotiated-oriented coalitions[101]

How can developing countries find appropriate partners to share the participation to enhance their leverage at the international level? The quest for strategic partnership is more complicated than a conventional request for technical assistance and capacity building.

2.1 The US

Much skepticism has been voiced about the future contributory role of the US because its past relationship with developing countries regarding competition issues has been ambivalent. Some of the factors involved are discussed below.  

The US provides technical assistance to developing countries and shares the experience that it has accumulated over a century of enforcement practices. Since 1991 the US Agency for International Development (USAID) has partnered more than 50 developing countries and been one of the best providers of effective methods to competition authorities in developing countries; it will be actively assisting developing countries in the background of bilateral or regional agreements.[102]

Most notably, based on the specific characteristics of their level of development, developing country policymakers contend that the pro-market rules of the Chicago School do not provide the best model for improving the functioning of developing country markets.[103] In addition, the economically-based analysis of market dominance and the maximization of consumer welfare promoted by the US Antitrust are not suitable tools for their needs.[104] However, they may occasionally adapt USAID best practices to their own needs.

The US argues that developing countries may not be able to become its strategic partners for many reasons: US-EU and US-China trade relations remain important in world trade development, and in any event M&A transactions are taking place in developed country markets only. More relevantly, conflicts among competition authorities have become rare,[105] the US extraterritorial solution is feasible in current practice[106] and the US fears that a harmonized model in the WTO system would be strongly influenced by the EU competition law and policy interventionist model.[107]

Perhaps most practically from the viewpoint of American realism, providing evidence of cartel behavior by US-based firms is certainly counter-produtive to promoting US business in abroad. The US is not ready to support the investigative action of developing countries seeking to convict US firms; it is most unlikely that the US has the political will to support the WTO approach and to form a negotiation-oriented coalition in the future.

2.2 The EU

Although most developing countries find the EU model more compatible with their law systems than the US model,[108] trade relationships between the EU and developing countries is always a matter of political controversy for two main reasons.

First, from the developing country perspective, EU countries use WTO competition law to serve their trade interests only.[109] The EU has proposed a binding international competition law against the background of DSU but has practically no political support for enforcing WTO adjudication in favor of developing countries. How can the latter begin enforcement action without the support of the EU providing evidence of EU-based firms’ behavior? Like the US, the EU is able to collect evidence but has no incentive to do so.

Second, there is criticism of a longstanding contradictory practice in EU foreign trade policy. [110] On the one hand the EU promotes its own trade development abroad and limits internal market access in order to protect the EU industry’s competitiveness.[111] The current financial crisis offers grounds for concern because EU market protectionism still exists. For this reason there is no hope that developing countries can gather sufficient support from the EU to form a negotiation-oriented coalition.

In practice, the EU may occasionally align with the interests of emerging trade partners such as China, India, Brazil and South Africa, and is continuing to extend external cooperation to developing countries.[112]

It is most unlikely that the EU will agree to become a coalition partner with developing countries in this desirable undertaking.

2.3 The OECD[113]

The Organization for Economic Cooperation and Development (OECD) addresses global competition issues through its Competition Law and Policy Committee (CLPC), whose main purpose is to facilitate informal convergences through the sharing of experiences between members only. Most notably, the OECD has proved remarkably successful in under-standing and fighting hardcore cartels. It has produced many recommended practices for enforcers of members in the past. [114]

In recent years one of the most significant changes in the OECD’s objective is its move towards recognizing the increased role of non-members in further cooperation to increase its outreach to developing countries. It has created a global and regional competition center, organizes yearly conferences, conducts peer reviews, offers technical assistance, helps to build capacity and produces various recommendations and reports for developing countries. [115]In the peer review process an OECD member with strong jurisdiction is responsible for analyzing some of the basic issues of a developing country’s development of competition law. This measure aims to create compliance with best practice by the inexperienced partner, for example Mexico and Brazil. As a result of this increased cooperation the OECD gains the power to set the agenda for formal cooperation between members and non-members. 

Based on its current rapprochement with developing countries it can be argued that the OECD/CLPC could be a partner in refining the conceptualization of developing countries’ interests. But reality defies expectations: there are two reasons for this not to work.

First, the strength of the peer review is the benchmarking of the experience and development of common standards. The OECD’s best practices are often not adaptable to the situation of the countries concerned; it is sometimes criticized for being too technically demanding and labeled as a regulatory imperialist.

Second, contrary to the expectations of developing countries, the OECD is not issue-driven. Through its deliberative process the OECD/CLPC may gain increased importance by offering advanced training and technical support within the framework of its outreach programs and could certainly act as an information center and think tank for developing countries. This does not mean that it will be prepared to change its original position protecting the business interests of developed countries in order to create common objectives with developing countries.

In short, due to the differences in the objectives pursued, the OECD does not see a possible coalition as developing countries do.

2.4 UNCTAD

UNCTAD could generate a new opportunity for developing countries to create a strategy to protect their interests through a coalition because it is a central actor in the promotion of economic development in developing countries’ interests. In addition the UN Set remains the only universal model for international competition law and policy today, and provides a fascinating case for further study. Model Law on Competition and the Handbook on Competition Legislation are the most important working products of the UNCTAD for further reference in developing countries.[116] Significantly, developing countries feel at home in this forum and may be best able to mobilize their resources to move forward in this setting.

Developing countries need US and EU support to measure possible economic harm from a potential merger, weigh up the potential spillover effects of cartel members and provide evidence of anticompetitive conduct imposed by US and EU firms as discussed above. This need is growing dramatically, and such obstacles seem surmountable only on the basis of voluntary cooperation by the US and EU.

It is difficult to see UNCTAD designing a coherent cooperation mechanism in order to elicit the support of the US and the EU because as a forum with an overt political agenda UNCTAD is politicizing competition issues and blames developed countries for providing developing countries with a politically incorrect solution. There is no hope that the US and the EU will share their wide experience in these highly specialized matters of conflict.

As a result, a future coalition between UNCTAD and developing countries may be unattainable.

2.5 The ICN[117]

The last alternative for a future coalition presented in this discussion is the International Competition Network (ICN). 

The creation of the ICN was a milestone in the development of cooperation in international competition law and policy. Its concept has led to a rich and lively scholarly debate and its impact on informal convergence related to the procedural merger review is growing rapidly. In a relatively short period its performance has been universally appreciated. The OECD, US, EU, Brazil, Ireland, Korea, Mexico, Romania and Russia have implemented legislative or regulatory changes to conform to certain ICN-recommended practices, and there are growing calls from regulators and scholars of the competition community to adopt its best practice. [118]

Could this highly visible evidence suggest that a negotiation-oriented coalition between the ICN and developing countries would respond to the situation? Might these assumptions produce a dynamic model with an innovative outcome?

Developing countries are actively engaging in the norm-creating process and enjoying a leading position in the ICN. The participatory power of Mexico, Brazil, Chile and Estonia in some Working Groups illustrates how power asymmetries favoring strong jurisdictions have been relatively reduced. Other developing countries have come to recognize the importance of the ICN as a forum in which to establish personal networking and enhance understanding and coordination while they participate in Working Groups and attend the annual conferences. The participants may find it useful and comfortable as a forum for the discussion of highly-specialized competition issues. The practical discourse in this modern forum allows all the participants to work in a friendly atmosphere; at least it presents no confrontational rhetoric of political slogans in the virtual world of participation.

The ICN is beginning to address some developing country concerns, as the special ICN Zürich research project illustrates. [119]It focuses on the needs of its members in terms of outreach, advocacy, implementation and cooperation with other institutions. For example, the ICN is cooperating with the World Bank to assess competition issues in the East African Community; Zambia, Kenya. At present, developing countries are the main users of the ICN’s training materials.[120] In pursuing further regional cooperation policy, the ICN will support APEC’s organization of a round table on merger issues.[121]

Viewed from the perspective of capacity it is generally expected that the ICN will assist developing countries in dealing with informal convergence on competition issues. 

This last point suggests that a strategic partnership between the ICN and developing countries would be most promising way of finding common ground for a coalition. But this is not as straightforward as it appears, because there are four obstacles on the part of developing countries.

First, the interests of developing countries in competition issues are heterogeneous; they are to promote national champions or protect inefficient small producers. Most importantly, they have no political will to form a negotiation-based coalition on global competition issues.

Second, at present one of the most notable developing country coalition strategies in the WTO is the G-20, which focuses on three crucial negotiation issues: market access, domestic support and export competition.[122]

China, Brazil, India and South Africa are key G-20 players promoting their export interests, but they do not have extensive experience in competition issues and therefore have no incentive to assume leadership of global cooperation on competition matters. Brazil is the leading regional power and has the strongest jurisdiction among them, but will continue to play a marginal role in the international cooperation system.

More recently, Brazil, Russia, India and China (BRIC) affirm to strengthen the cooperation and assistance in the field of competition law and policy in the BRIC International Competition Conference 2009.[123] They are paying more attention to formation of effective anti-cartel system and the significance of cooperation between competition authorities of the BRIC countries. It is still early to assess the impact of the dialogue and cooperation of the BRIC countries on antitrust enforcement, counseling and litigation because this initiative is just beginning.

Third, other regional groupings face the same serious hurdles. The Association of Southeast Asian Nations (ASEAN) has little experience in competition law, and the Central and Eastern European Countries (CEECs) is going to adjust its geographically-based position in line with EU integration. The political futures of the North American Free Trade Agreement (NAFTA), the Comunidad Andina de Naciones (Andean Community, AC), the Mercado Comun del Sur (MERCOSUR) and the Asian Pacific Economic Cooperation (APEC) are uncertain, as these regional groupings are having difficulties with their institutional reforms.[124]

Fourth, few leading developing countries (e.g. Brazil and Mexico) are likely to take a bigger leadership role and to be in a position to identify a common objective and concerns about competition issues in order to create incentives for informal collective action. The problem is how they perceive this need within the developing country context, and this is crucial in exploring the preparation of this possibility; these cognitive aspects are beyond the scope of this section.

V. Conclusion

The purpose of this paper has been to provide an explanation of what matters to developing countries most from a competition point of view regarding dealing with the cross-border effects of business firms’ anticompetitive practices, why they still need a WTO competition agreement and how they can push the conclusion of such an agreement forward. The crucial question in this analysis is how the debate might be skewed in favor of developing country interests. It is suggested that the basic rationale for the global competition law regime might be re-evaluated from developing countries’ institutional and capability perspectives. Most importantly, developing countries need to frame their perceptions of how to deal with these issues effectively.

This paper demonstrates some impacts of international cartels, export cartels, M&As and IPRs on developing country markets and concludes that developing countries can only achieve progress via the WTO approach. In any event, the WTO institutional framework on competition should be a political imperative for further framing their policy considerations. Perhaps most immediately, they need to overcome the informational limitations and the impossibility of improving their information-starved decisional systems and testing the benefits and risks of this global law project for further action.

Introducing a system of data collection, reporting and monitoring and a process for determining harm is the most pressing challenge for developing countries and should be seen as an informal collective action among  them. They will inevitably need to cooperate with a strategic partner against the background of negotiation-oriented coalition. This preparatory step could help them to gain a common interest and bargaining power to generate such a cooperation strategy. In exploring the potential roles of most of the strong jurisdictions and institutions concerned, this paper has found just one best option for them to follow: the ICN is the most suitable partner for informal collective action.

However, the increasing heterogeneity and diverging interests of deve-loping countries make this option difficult, because there is no pressure to bring together leading thinkers and practitioners from both sides to consider this possibility, either generally or in more specific contexts. This option could be developed towards a promising outcome and needs more systematic attention. There is hope that a new discourse will begin and that further cogently and empirically backed research will support this hypothesis. 

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This paper has been previously published in Zeitschrift für Wettbewerbs-recht (ZWeR), Journal of Competition Law, H.2 Juni 2011, S. 133-160.

[1] see  www.wto.org/english/tratop_e/draft_text_ge_dg_31july04_e.htm

[2]  Marsden, ‘A Competition Policy for the WTO’, (Cameron: May, 2003)

[3] The reason for opposition of developing countries is the level of trade liberalization in the agricultural products in the course of the world trade development. Some Africans countries agreed to negotiations on these issues provided that they would have an access of cotton to the US market. India has had  a strongest voice within this group and had formed a coalition with Bangladesh, Cuba, Ghana, Indonesia, Kenya, Malaysia, Mauritius, Tanzania, Thailand, Venezuela, and Zimbabwe, (with Pakistan and Sri Lanka, joining informally) to resist the extensions of negotiations to regulation of Singapore Issues within the WTO, see ‘Communication from India’ , WT/WGTCP/W216/, 26 September 2002.

[4] The most comprehensive survey of international competition law and policy in the current literature is provided by Noonan, ‘The Emerging Principles of International Competition Law’ (Oxford: Oxford University Press, 2008).

[5] There is a vast literature on this subject, see for example Cook & Fabella & Lee, ‘Competitive Advantage and Competition Policy in Developing Countries’ (Cheltenham: Edward Elgar, 2007); Cernat & Holmes (eds.), ‘Competition, Competitiveness and Development: Lessons from Developing Countries’, Geneva, UNCTAD, 2004; Davidson, ‘Creating Effective Competition Institutions: Ideas for Transitional Economies’ in Asian-Pacific Law & Policy Journal Vol. 6 Issue 1 2005 , p. 71; Do, ‘Competition Law and Policy and Economic Development in Developing Countries’ in Manchester Journal of International Economic Law, in Forthcoming 2011; Drexl‚ Gestaltungsansätze für eine internationale Wettbewerbspolitik – Handlungsanregungen für das weitere Vorgehen in: Oberender (Eds.): Internationale Wettbewerbspolitik. Berlin, Duncker & Humblot, 2006, p. 41 – 72; Evans & Jenny, ‘Trustbusters: Competition Policy Authorities Speak Out, Competition Policy International’, 2009 available at http://ssrn.com/abstract_id=1430659;  Gal, ‘Competition Policy in Small Market Economies’, (Cambridge: Harvard University Press, 2003); Hoekman & Mavroidis‚ ‘Economic Development, Competition Policy and World Trade Organization’, Journal of World Trade 37(1) 1.27, 2003; Mateus, ‘Competition and Development- Towards an Institutional Foundation for Competition Enforcement, World Competition 33, 2, 275-300, 2010;Stewart & Clarke & Joekes, ‘Competition Law in Action: Experience from Developing Countries’ (Ottawa: International Development Research Center, 2007); UNCTAD, ‘The Relationship between Competition, Competitiveness and Development’, TD/B/COM2/CLP/30 23 May 2002; UNCTAD, ‘The Relationship between Competition and Industrial Policies in Promoting Economic Development’, TD/B/CI/CLP/3 27 April 2009

[6] Anderson & Wager, ’Human rights, Development, and the WTO: the Cases of Intellectual Property and Competition Policy’ in: Journal of International Economic Law 9(3), 2006 p. 707 –747.

[7] See for example Bercero & Amarasinha ‘Moving the Trade and Competition Debate Forward‘ in Journal of International Economic Law 48(11) 2001, p. 506, Bradford, ‘International Antitrust Negotiations and the False Hope of the WTO’ 48 Harvard International Law Journal, 2007 p.383; Budzinski, ‘The Governance of Competition, Competence Allocation in International Competition Policy’, (Cheltenham: Edward Elgar, 2008); Calvani, ‘Conflict, Cooperation, and Convergence in International Competition’, 72 Antitrust Law Journal p.1127, 2005; Do, ’The Perspectives of International Cooperation in Competition Law and Policy’, Zeitschrift für Wettbewebsrecht Band 3, 2009 p. 289; Drexl, ‘International Competition Policy after Cancun: Placing a Singapore Issue on the WTO Development Agenda’, World Competition, 27(3): 2004 p.419; Fullerton, Larry and Mazard & Camelia: ‘International Antitrust Co-operation Agreements’ in: World Competition (24)3, 2001 p.405-423, Jenny ’International co-operation on competition: myth, reality and perspective’ in: Antitrust Bulletin 2003, p. 973; Schoneveld, ‘Cartel Sanctions and International Competition Policy Cross Border Cooperation and Appropriate Forums for Cooperation‘ in World Competition 26 (3) 2003 435 471; Hwang and  Chen (eds.), ‘The Future Development of Competition Framework’, (The Hague: Kluwer, 2004); Sokol, ‘Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age’, Research Paper, available at http://ssrn.com/abstract=988381; Taylor, ‘International Competition Law: A New Dimension for the WTO’, (Cambridge: Cambridge University Press: 2009); Utton, ‘International Competition Policy-Maintaining Open Markets in the Global Economy’, (Cheltenham: Edward Elgar, 2006).

[8] Do ‘A Bad Problem Getting Worse: Regional Trade Agreements and the Future of the Multilateral Framework on Competition Policy and Law’ in Zeitschrift  für Wettbewerbsrecht (ZWeR), 4. December 2010, p. 353 arguing that the effects of the inclusion of competition provisions in RTAs cannot be seen as a building block because of their ineffectiveness and unenforceability, nor can they be seen as a stumbling block because their practical relevance is minimal. The proposed multilateral framework on competition law and policy should go further than the competition-related provisions of RTAs.

[9] Galloway, ‘Moving To a Template for Bilateral Antitrust Agreements’ in: World Competition 28 (4) 2005 p.589-614.

[10] Bhattacharjea, ‘The Case for a Multilateral Agreement on Competition Policy: A Developing Country Perspective’, Journal of International Economic Law 9 (2) 2006, p.293-323; Brusick &  Evenett , ‘Should Developing Countries Worry About Abuse of Dominant Power?’, Wisconsin Law Review, 2008, pp. 269 -294, Evenett & Levenstein &. Suslow, ‘International Cartel Enforcement: Lessons from the 1990s’, the World Economy 24 (9) 2001 p. 1221–45.

[11]Connor, ‘Cartel and Antitrust Portrayed: Numbers, Size, and Location: Private International Cartels’, Working Paper 2009, available at http://ssrn.com/abstract=167843.

[12]Connor, ‘Global Antitrust Prosecutions of International Cartels Focus on Asia’, Working Paper 2008, available at http://ssrn.com/abstract=1027949.

[13] Connor, ‘Latin American and Control of International Cartels’, Working Paper 2008, available at http://ssrn.com/abstract=115601.

[14] See for example, Antitrust:Consumer welfare at the heart of Commission fight against abuses by dominant undertakings, Brussels, Commission Press Release, IP/08/1877 3 December 2008

[15] Utton (footnote 7), p. 31.

[16] Bhattacharjea (footnote10 ), p. 306. 

[17] Evenett & Levenstein& Suslow, (footnote 10) 

[18] Eventt & Brusick (footnote 10), p. 269.

[19] International cartels are harming consumers substantially throughout the world and present a global competition problem with serious effects. Recently an expert in the field estimated that the US cartels overcharge by 15–37% on average and the EU cartels by 28-54%, see Evenett & Levenstein, & Suslow (footnote 10).

[20] Hammond, ‘Recent development, Trends, and Milestones in The Antitrust Division’s Criminal Enforcement Program’ (Wash. D. C: 56^th ABA Antitrust Section Meeting 2008); for the EU anti-cartel enforcement activities see http://ec.europa.eu/competition/cartels/statistics.pdf.                                                 

[21] Decision 2003/2 COMP/E-1/37.512- Vitamins 2003 OJL6/1.

[22] Evenett & Levenstein & Suslow (footnote 10).

[23]Bhattacharjea, ‘Export Cartels: A Developing Country Perspective’, 38 Journal of World Trade 331 2004; Sweeney, ‘Export Cartels: Is there a Need for Global Rules?’ Journal of International Economic Law 10(1) 2007 87–115.

[24] Bhattacharjea (footnote 23), p. 349.

[25] Sweeney (footnote 23), p. 89.

[26] Sweeney (footnote 23),  p. 91

[27] Bhattacharjea (foonote 23), p. 336.           

[28] Bhattacharjea (footnote 23), p. 338.

[29] Sweeney (footnote23), p.91-94.

[30] Sweeney (footnote 23), p. 91-94; Bhattacharjea (footnote 23), p. 349-355.

[31] Sweeney (footnote 23), p. 102-103.

[32] For the latest development see http://www.financethomson.com.

[33] Stiglitz, ‚Making Globalization Work‘ Penguin Books 2006; Do, ‘Globale Netzwerke als Gestaltungschance für international Politik’, Peter Lange, 2008

[34]The expectations have been reversed; the most notable example here has been the explosion at the Union Carbide plant in Bhopal, India: more than 20.000 people were killed and some 100.000 more bear lifelong health damage, see Stiglitz (footnote 33) p. 194.

[35]Do (footnote 33), p. 73.

[36] World Bank (2008) Global Economic Prospects 2008: Technology Diffusion in the Developing World, available at http://econ.worldbank.org.

[37] Do (footnote 33), p. 75.

[38]Cassiman & Colombo & Garrone & Vergeulers, ’The Impact of M&A on the R&D process – An Empirical Analysis of the Role of Technological and Market Relatedness’, IESE Working Paper, available at http://www.ssrn.com/abstract=462626.

[39] Schiller & Göx, ‘An Economic Perspective on Transfer Pricing’ in Chapman & Hopwood & Shield (eds.) Handbook of Management Accounting Research, (Oxford: Elsevier Science, 2007) , p. 673-693.

[40] Do (footnote 33), p. 77

[41] For example, one of the Wal-Mart successes is based on its ability to squeeze its suppliers and its workers. SMEs are often the backbone of a community, as Wal-Mart squelches its competitiors, it breaks that backbone, see Stiglitz(footnote 33),  p. 192.

[42] In Thailand, firms threatened to move elsewhere if environmental regulations were enforced; in Peru, mining firms pressed the government not to test health hazards for children living near their operations, see Stiglitz  (footnote 33), p. 195.

[43] Stiglitz(footnote 33), p. 103; Anderson & Wagner, (footnote 6),  UNCTAD, ‘Competition Policy and the Exercise of International Property Rights’ TD/B/COM-2/CLP/68 15 May 2008.

[44] UNCTAD (footnote 43)  p. 3-4.

[45] Intellectual property is-only a part of a country’s innovation system. In the past, Switzerland and the Netherland were highly innovative without having intellectual property rights systems, see Stiglitz (footnote 33), p. 111. 

[46] UNCTAD (footnote 43),  p. 6.

[47] UNCTAD (footnote 43), p.5.

[48]Stiglitz (footnote 33), p. 116.

[49] While developing countries are calling for greater flexibility in this context, on the contrary, they are forced to sign the strengthening of protection of IPRs, a TRIPs plus, in its bilateral trade agreement with developed countries There has been a case of the trade agreement between the US with Thailand and Morocco.

[50] UNCTAD (footnote 43), p.5.

[51] Anderson, & Wagner (footnote 6), p. 741.

[52] United States Department of Justice and Federal Trade Commission ‘Antitrust enforcement and intellectual property rights: promoting innovation and competition’2007 available at: www.ftc.gov/reports/index.shtm.

[53] ACTA would be creating its own governing body outside the WTO, the WIPO or the UN. Its main objective is to response to the increase in global trade of counterfeit goods and pirated copyright protected works. The scope of ACTA includes counterfeit goods, generic medicines and copyright infringement on the Internet. The final text was released on 15 November 2010. See  http://ec.europa.eu/trade/creating-opportunities/trade-topics/intellectual-property/anti-counterfeiting/

[54]Stiglitz (footnote 33) p. 118.

[55] Anderson, Wagner (footnote 6), p. 742; UNCTAD (footnote 43), p. 15.

[56] Gerber, ‘Competition Law and the WTO: Rethinking the Relationship’, Journal of International Economic Law, 10 (3) 2007 p.707-724 arguing that there are two reasons for the current obstacles: lack of confidence of the community and uncertainty of the future norms. As a result, the WTO needs to develop a confidence building measures among member countries and the basic concept of global competition law.

[57]Gerber (footnote 56), p. 713

[58]Narlikar, ‘International Trade and Developing Countries, Coalitions in the GATT and the WTO‘(London: Routledge, 2003) p. 94 -96. 

[59]Anstrim &. Sebinius, ‘Formal Individual Mediation and Negotiators’ Dilemma: Tommy Koh at the Law of the Sea Conference’ in Becovitch & Rubin (eds.) Mediation in International Relations (London: Macmillan, 1992) p. 97-130.

[60] Steger, ‘The Culture of the WTO: Why it Needs to Change’, 10 Journal of International Economic Law 483 (2007) p. 484.

[61] Do (footnote 7), p. 292, Sokol (footnote 7), p. 44; Taylor (foot note 7), p. 223.

[62] Do (footnote 8), p.294; Gerber (footnote 50), p. 709.

[63]Gerber (footnote 56), p..713.

[64] Gerber (footnote 56), p.713.

[65] Nooman(footnote 4), p. 85, Gerber (footnote 50), p.712, 716.

[66] WTO (2000) EC-Bananas III    

[67] WTO (2007) US- Gambling

[68] Do (footnote 8), p. 314 arguing that the convergence of procedural laws would be politically feasible; plurilateral agreements would be more practicable than multilateral treaties; soft law effects would be useful in forming hard law norms. More specifically, the cooperation between the WTO and the ICN would be the first and best step towards preparing this strategy option.

[69] Gerber (footnote 56 ) p. 719 -722; Bercero & Amarasinha (footnote 8),  p. 485.

[70] Do (footnote 8), p. 299.

[71] For the full text, available at: www.wto.org/english/tratop_e/com_e/wgtcp_docs_e.htm.

[72] Do (footnote 8), p.300.

[73] Do (footnote 8), p.300.

[74] Do (footnote 8), p. 300.

[75] Do (footnote 8), p.301.

[76] Baumol.& Panzar & Willig: ‘Contestable Markets and the Theory of Industrial Structure’ (New York: Hartcourt, Brace, Javanovich 1982)

[77] Do (footnote 8), p. 301.

[78]Schoebaum: ‘The theory of contestable markets in international trade: a rationale for justifiable unilateralism to combat restrictive business practice?’ in: Journal of World Trade 30(3) 1996, p.161

[79] Do (footnote 8), p.302.

[80] Bercero & Amarasinha as note 8 above p. 485; Schoneveld (footnote 8) p. 467.

[81] Gerber(foot note 56) p. 727.

[82] Guzman ‘International Antitrust and the WTO, The Lesson from Intellectual Property’,43 Virginia Journal of International Law 2003, 933, 951, 956 argues that  the TRIPs could be used as a model for competition issues; see an opposing  view Bradford (footnote 8), p. 383, 423 and 425. He explained why the dynamics of antitrust negotiations would be unlikely to resemble the negotiations of the TRIPs Agreement.

[83] Schoneveld (footnote 8),  p. 467.

[84] Schoneveld (foot note 8) p. 466.

[85] Gerber(footnote 56)

[86] Marsden, ‘WTO decides its first competition case, with disappointing results, Competition Law Insight, May 2004, Fox, ‘The WTO’s first antitrust case – Mexican Telecom: a sleeping victory for trade and competition’ Journal of International Economic Law 9(2),2006  271–292.

[87] Marsden (footnote 86), p. 4

[88] Marsden (footnote 86),  p. 3; Fox (footnote 86), p. 277

[89] Marsden (footnote 86), p. 3

[90] Fox (footnote 86) p.292 arguing that a world competition regime is not closer because of Mexico telecom and the significance of this case, then, is limited. The strongest argument for this commentary is that a positive reading of the antitrust clause is a step forward on intertwined issues of trade and competition.

[91] Marsden (footnote 8), p. 9 arguing that WTO members should provide guidance that panel can use.

[92] Marsden (footnote 86), p. 9.

[93] Bercero & Amarasinha (footnote 8),  p. 485; Gerber (footnote 56), p.724.

[94] Gerber (footnote 56), p. 724.

[95] Anderson & Wagner (foontote 6),  p. 738 arguing that the work of the WTO WGTCP led to a debate of the merits a possible ‘multilateral framework on competition policy’.

[96] Gerber (footnote56), p. 714.

[97] Lamy argued that the re-negotiations on the DDA would be one of the most appropriate collective stimulus packages and the way to safeguard the multilateral trading system against the threat of the outbreak of protectionism, see at: www.wto.org/englishnews_e/news09_e/trdiv_14.apr.e.htm..

[98] Whish, ‘Competition Law’ 2009 p. 485 providing an overview of an application of extraterritoriality in the US and EU competition law

[99] For example in the case of  Mutual Legal Assistance Treaties (MLATs)  and Antitrust Mutual Assistance Agreements (AMAAs) , see Antitrust Modernization Commission,  ‘Report and Recommendations’ April 2007 p. 218.

[100]‘Report 2009 of the Committee of Regional Trade Agreements to the General Council’ WT/RG/20 16 October 2009, 09-5105 available at http://www.wto.org/english/tratop_e/region_e/region_e.htm

[101]Rolland, ‘Developing Countries Coalition at the WTO: In Search of Legal Support‘ 48 Harvard International Law Journal, 2007 p.483.

[102]‘US Federal Trade Commission and Department of Justice’s Experience with Technical Assistance for the effective Application of Competition Laws’, February 2008 available at www.ftc.gov/oia/ftcdojtechnicalassist.pdf.

[103] Gerber (footnote 56) p. 711.

[104] Among others are: criminal enforcement, private treble claiming awards, class actions, liberal pre-trial discovery and contingency fee.

[105] Calvani (footnote 7) p.1146.

[106] For example, see F. Hoffmann-La Roche v Empagran 542 US 155/165 (2004); Hartford Fire v California 509 US 764/795f (1993); US v Nippon Paper 109 F3d 1/3f (1st Cir 1997); In re Uranium Antitr Lit 617 F2d 1248/1253ff (7th Cir 1980); Timberlane Lumber v Bank of America 549 F2d 597/608ff (9th Cir 1976).

[107] Drexl (footnote 7), p. 434.

[108] To date, twenty-three Latin American countries now are conformed their competition laws to EU norms, see Davidow & Shapiro, ‘The Feasibility and Worth of a World Trade Organization Competition Agreement’, Journal of World Trade 31(1) p. 57.

[109] Drexl (footnote 7), p. 436.

[110] In 2006, the European Commission confirms to follow a more aggressive approach to expanding EU overseas markets, especially in major emerging economies, see European Commission, ‘Global Europe: Competing in the World – A Contribution to the EU’s Growth and Jobs Strategy’ (2006). See also European Commission Staff Working Document COM (2006) 567 final, 4 October 2006.

[111] The EU has concluded several bilateral free trade agreements which include a competition chapter, including with Mediterranean countries, South Africa, Mexico and Chile. EU FTAs must contain binding commitments to put in place and implement competition policy that follows the European model. In 2007, thirty-five African, Caribbean and Pacific (ACP) countries have accepted to initial Economic Partnership Agreements (EPA), with the EU. The CARIFORUM text contains provisions regarding the liberalization of trade in services, competition, intellectual property and other disciplines, see  http://ec.europa.eu/competition/elojade/international/; see also, Krawjewski, “Wettbewerbsvorschriften in regionalen Handelsabkommen am Beispiel des EG-CARIFORUM –Wirtschaftspartnerschaftsabkommens” in: EWS 2010,  Heft 5, 161- 166.

[112] For example, the EU has recently signed the Memorandum of Understanding with Brazil, see Lagares, ‘International Agreements Regarding Cooperation in the Field of Competition: The New Strategy of the European Commission’, Journal of European Competition Law & Practice, 2010, p. 1-3.

[113] Sokol (footnote 7), p. 58.

[114] For the full text see http://www.oecd.org/document/59/0,3343,en_2649_34715_4599739_1_1_1_37463,00.html

[115] OECD, ’Global Forum on Competition: Competition Policy Implementation in Transition Economies: An Empirical Assessment’ OECD-Doc CCNM/GF/COMP/WD (2002)13; OECD, ‘Global Forum on Competition: Optimal Design of Competition Forum’ OECD-Doc, see: <http://www.oecd.org/pdf/M00038000/M00038298.pdf>.

[116] UNCTAD, ‘Model Law on Competition – Substantive Possible Elements for a competition law, commentaries and alternative approaches in existing legislations’ v 1.5.2007, TD/RBP/ CONF. 5/7/Rev.

[117] Do (footnote 7), p. 296; Sokol (footnote 7)  p. 66.

[118] Do (footnote 7), p. 296; Sokol (footnote 7), p. 66.

[119] www.icn-zurich.org/SpecialProgram.aspx.

[120] http://internationalcompetitionnetwork.org/uploads/vc_a&i_activity_report_2009-2010.pdf.

[121] http://internationalcompetitionnetwork.org/uploads/icn_vice_ chair_ work_ plans- 2009-2010.pdf.

[122] Among others are the G-33; NAMA 11; the African Group; the Least-developed Countries Group; the ACP and the ASEAN Group. Coalitions of developing countries are currently used as a means of managing multilateral trade negotiations and building consensus, see Roland supra note 101.

[123] http://www..bric-competition.com/news.php?od=15

[124] Do (footnote 8)