An Analysis from the Rationalist and Constructivist Aproaches
Kim Them Do
II. The Theoretical Framework
1. The Rationalist Perspective
2. The Constructivist Perspective
The Strong Constructivist Theory
The Weak Constructivist Theory
3. The Relationship between Rationalist and Constructivist Perspective
III. Explaining the Creation of the International Antitrust Agreement
1. The Rationalist Explanations
Concerns Reducing Transaction Costs
2. The Constructivist Explanation
The Strong Constructivist Theory
International public good
Global consumer welfare standard
The antitrust regime as international public good
3. The Weakl constructivist theory
The Role of the International Competition Network
The Role of the International Business Community
The Role of International Consumer Protection Organiztions
The creation of an international antitrust agreement under the auspices of the World Trade Organization (WTO) remains unresolved, and its future has become a central topic in global competition governance.
Mainstream research on this issue can be classified as coming from purely legal and political economy approaches. International competition law scholarship highlights some basic particularities such as agreements on minimum standards, procedural convergence, the harmonization of substantial provisions and the centralization of enforcement practice.
Policymakers are calling for better coordination among competition authorities, while lawyers consider that best practice would be informal soft law and that the convergence of procedural laws would be politically feasible. Most importantly, they advocate plurilateral agreements as more practicable than multilateral treaties.
Competition economists have suggested various approaches and much of their work is descriptive in nature. Worse, political scientists ignore factors affecting the behavior of the participants and the prospects of this global strategy. Theorists of international relations and international law, although aware of the growing need for a global treaty, rarely examine this question as a category distinct from international politics, and fail to offer a theoretical framework in the light of international relations theory.
Although this policy debate is still active in contemporary scholarship, the fact is that its future remains uncertain at best because the WTO talks are now off the negotiating table and are most unlikely to be initiated as a deliberative process in the future.
For this reason, the re-conceptualization of this issue has become an interesting research question in the field of International Relations (IR). This approach can be used to enrich and re-orient our contemporary debate about this issue because such input, which could bring us closer to a comprehensive and coherent thinking model, is still lacking. The question is whether the IR approach can contribute to the study of the antitrust negotiations towards a new diplomacy and institutionalization. This article seeks to provoke discussion of this issue.
Unlike most present approaches in the literature, the aim of the following is to highlight the insights of the IR approach while exploring the prospects for its negotiation process. In doing this, the article seeks additional perspectives to enhance our understanding of the determinants of global competition governance, seeking potential explanations from two groups of theories in the rationalist and constructivist literature. It assesses how these different theories may be used as analytical tools to identify the relevant explanatory factors and how they can be combined for analytical purposes. Only by understanding these trade-offs we can start to design a normatively desirable international antitrust agreement.
This article proceeds as follows: Section 2 outlines the theoretical framework, introducing the rationalist and constructivist approaches to international antitrust negotiations. Section 3 explains how both theories can account for connections between the main features of future negotiations and complement each other. The conclusion summarizes the key findings and outlines some possible implications that follow from the discussion.
II. The Theoretical Framework
- The Rationalist Perspective
The Rationalist perspective theorists focus on the conditions under which international cooperation can be achieved and explore the significance of the nature of the problem, the structure of the solution, cost benefit analysis and states’ behavior. They advocate that cooperation between states resolves conflict and that the international system could benefit the countries participating as a public good. Rationalists claim that states are not homogenous actors in world politics but rather that their actions are driven by calculations of interest, the logic of consequences and game theory. They illustrate how cooperation could vary on a case-by-case basis and explain why states comply with the rules or defect from their obligations, and why their self-serving motivation may be strong or weak. To be effective, they stress, states would choose the best available means to maximize utility as the ultimate goal.
Furthermore, states would cooperate with others and comply with such a commitment because they expect more benefits than costs by binding themselves to an agreement. Various forms of rationalist approaches, namely the neoliberal institutionalism and neo-realism schools, have been influential in formulating the objectives of foreign policy.
Neoliberal institutionalism focuses on states’ calculations of self-interest in explaining collective action dilemmas, transaction costs and information asymmetries and deficits. Neoliberal scholars suggest that institutional design and some set of causal conjectures need to be considered. Mutual benefit and the reputation of the states involved are probably the variables that need to be explained. Efficiency would decide the outcome of the negotiation as well as the future implementation of any agreement. States may share common benefits and agree on a treaty, but the difficulty lies in ensuring the efficiency of its implementation.
Neoliberal scholars believe that for it to be effective, states should provide the information needed, reduce uncertainty and lower transaction costs. Furthermore, they emphasize that states’ behavior may change over time, and the coercive effects of formal restraints and the problem-solving capability of a centralized power for global enforcement cannot be always effective; they see a bilateral solution as best facilitating the coordination mechanism.
Neorealists, however, contend that market failure, welfare-enhancing mutual efficiency and other efficiency problems would not be truly problematic in international relations, and that the distribution of power is the decisive factor in explaining why countries agree to international cooperation.
Arguably most importantly, the anarchic nature of the international system is not much improved and economic profits are occasionally classified as military power.
Finally, the survival and independence of states in the chaos of current world politics is the most important strategic concern, with joint gains becoming relative because states would prevent each other from continuing to realize absolute gains.
Critics claim that the efficiency stressed by liberal institutionalists and the greater distribution of power emphasized by neo-realists are not convincing. Two reasons for this are relevant here.
First, it is impossible to examine all the variables of cooperation in detail or to evaluate the future because we can never possess the perfect information and skills needed to test them appropriately. Inevitably, we have to cope with the practical effects of our bounded rationality.
Second, it is impossible to determine how future gains could be distributed and the problem of enforcement and monitoring can be effectively implemented because negotiators cannot fully explore the bargaining chip before.
Applying this theoretical foundation more concretely to the field of international antitrust negotiation, we attempt to explain why states would cooperate on this issue and how they would structure the negotiation process. The two following explanandums are relevant: sovereignty costs and transaction costs.
Sovereign government should have supremacy and control over its territory and people. This concept has three constitutive factors: territories, people and government.
The term ‘sovereignty’ has never reached an absolute meaning because its original semantics have changed over time and across the context. Scholars have devoted much work to the question of the constitutive principles, use and relevance of the sovereign state in international politics.
Jean Bodin is one of the most cited theorists on this issue. In his Six Books of the Commonwealth, he suggests that state sovereignty should be qualified as an absolute authority that creates order in the tumult of the post-religious world. Sovereign rule must conform to the principle of divine and natural law. “All the princes of the earth are subject to them, and cannot contravene them without treason and rebellion against God. The absolute power of princes and sovereign lords do not extend to the laws of God and nature”; and: “The sovereign must do justice and give counsel, assistance, encouragement and protection to the subject”. This power must be exercised within a territory and independently of other sovereigns.
Thomas Hobbes argues that Bodin’s absolute rule of sovereign authority should be limited. In Leviathan, he contends that people contract with the state to protect them from the insecurity and brutality of nature. Not only the laws of God and nature but also civil law is important, and can be effective if the sovereign commits to taking responsibility for protecting the people entrusted to him/her.
These two traditional theories have the same central idea that the power of sovereign authority can be only justified on the basis of divine, moral and legal duties. In this respect, sovereign authority and responsibility are closely associated. As the concept of popular sovereignty has emerged in the revolutionary context of America and France its rationale has been reexamined.
Based on the revolutionary idea that the power of government comes from the consent of the governed, the American argument is that the fundamental issue in popular sovereignty is the protection of individual rights; the French stress that all sovereignty essentially resides in the nation and that no individual may exercise any authority which does not proceed directly from the nation. Consequently popular sovereignty is legitimated on the basis of the liberty and equality of individuals in the context of the struggle for national self-determination.
Legally, sovereignty can be seen as the right of the state to exclude from its territory the exercise of power by other states, and it is a question about sovereign authority within states. In this light, sovereignty means responsibility for the people and respect for the international community. The principle of national self-determination is closely associated with the right to non-intervention.
While the English School argues that this putative right can be seen as the natural and direct result of sovereignty, realist theory contends that sovereignty is based on the Westphalian model. Based on the post-Cold War context of humanitarian intervention, constructivist theory insists that the Westphalian model has been partly constitutive of national law and is not always useful in the contemporary debate; rather it can be disqualified as a case of organized hypocrisy.
The growth and influence of international institutions, corporations, civil societies, epistemic communities and issue networks has considerably weakened the authority of the state. The influence of non-state actors in politics today is truly profound as the decisional power of the sovereign state leaks away upwards, sideways and downwards; but rising expectations of the regulatory power of transnational sub-actors do not lead us to conclude that state actors are disappearing from the stage of world politics.
As a result, neorealists maintain that states still are the central and rational actors in the international system. Arguably, the state-centric view of politics should be modified and the traditional concept of sovereignty shifted from supremacy and control to responsibility for internal and external duties.
Allied with sovereignty costs, reducing transaction costs is the most striking element of negotiation issue. Some typical transaction costs include the costs of expertise, information, drafting, negotiations and compliance. In the face of unforeseen circumstances within the framework of ongoing negotiations, it is impossible for states to provide detailed commitments in relation to enforcement costs at the domestic level.
Many of the costs dealing with domestic pressure and are impossible to quantify and the outcome of persuasion must be weighed against the expected benefits. Each state has to face risk in analyzing its costs and trying to minimize or eliminate all the sources of these costs. However, transaction cost analysis is inevitably political and has its limitations. This examination of costs is entirely dependent on the particular situation and institution in which the decision of negotiation is made.
Can the global antitrust regime be identified in the framework of transaction costs, as rationalist theory expects? Of course, an agreement creates rights as well as costly obligations. Realists see states as always having egotistic motives and seeking to increase their wealth and power. In fact, they prefer to agree to legally nonbinding than to binding obligations because these may have lower transaction costs and more flexibility in the enforcement process.
As discussed above, the fundamental insight of neoliberal institutionalism is efficiency and transaction costs. Lower transaction costs would enhance the efficiency of agreement. Finally, if these costs are higher than the benefits, it is not worth states’ engaging further.
- The Constructivist Perspective
Constructivist theories emphasize the importance of ideas, knowledge and values in shaping policy objectives and seek to integrate these ideational factors in a rational choice framework. They argue that rationalist interpretations are incomplete with their exclusive focus on the cost-benefit analysis.
Importantly, these social structures foster shared understanding that would lead states to shape the identity and development of the structures themselves through a process of deliberation. In this light, cooperation needs to be better understood as a group of states sharing common ideas and pursuing coherent goals; material benefits are just one among other unquantifiable factors. Ideational factors have normative as well as instrumental dimensions. Two main constructivist approaches are relevant here.
The Strong Constructivist Theory
The first perspective, the so-called strong constructivist theory, maintains that the purpose and operation of international cooperation cannot be fully understood without referring to the normative structure of cooperation and the behavior of states. This view focuses on the constitutive and regulative norms of cooperation as a structural problem and seeks to explain this question by identifying it in an inter-subjective framework of meaning. It contends that rationalist thinking is flawed on the point of economic interests; because the economic outcome and behavior of states would not be defined as a primary objective; and strategic interaction between them would not only be driven by the logic of consequences.
By contrast, constructivists argue that states should not rely on the result of cost benefit analysis, even if the quantifiable difference could be measured by a calculus approach. Instead, they prefer to emphasize the ideational and cognitive dimensions of social life and suggest treating states as social entities and the international regime as a social institution. Importantly, this structure shapes the identities of states. While these actors are interacting mutually, they develop a shared understanding of their cooperation. Such action could form an inter-subjective framework of meaning and behavioral norms.
Can the global antitrust regime be identified as an inter-subjective framework of meaning, as constructivist theory would have it? Regimes can be defined as ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations’.
In this sense, the future global antitrust regime will consist of sets of shared expectations about how actors will and should behave in their relations with one another in dealing with the negotiation in question. Negotiators express it on the basis of collective intentions and shared understanding because they have the same language in the process of communication and interpretation.
In doing so, negotiators may apply the Habermasian theory of communicative action seeking a reasoned consensus through argumentative rationality and deliberative behaviors. A strategic calculation is just one part of this among others. Negotiating is applied to pursue not only a fixed preference but also goal-oriented interaction. The interaction has two forms that are closely associated: communicative and coordinative discourses, and leads negotiators to share ideas and access to policy-making.
Can the global antitrust regime be treated as a ‘framework of meaning’, as the constructivists believe? Constructivists argue that a global regime would consist not only of regulative but also of constitutive rules. The regulative rules would serve to maintain the effectiveness of the constitutive principles. Both principles belong together, and take effect only on condition that the participants understand and accept these meta-rules as laws of foundation and operation. Finally, law-making has two crucial characteristics, communicative and cognitive; these dimensions provide the constitutive function in the framework of meaning.
Assuming that interests are ideas, constructivists explore the impact of ideas and knowledge on how states define and redefine their interests, and see and pursue their objectives. In evaluating these leading ideas in the background of logic of appropriateness, they explain how we understand the state’s behavior in dealing with the outcome of the future regime.
The Weak Constructivist Theory
The second perspective, the so-called weak constructivist theory, looks at the constitutive effects of institutions on actors and asks who can best influence norm development.
They refer to the concept of norm internalization as an analytical framework that is an alternative to realism and liberal institutionalism for analyzing the emergence, diffusion and change of norm life cycles.
The main stages of norm development are generation, domestic diffusion through socialization and internationalization through peer review, international organization and or norm entrepreneurs. It is the process by which states and other actors internalize norms because they understand them to be correct or appropriate. Transnational advocacy networks are influential in redefining interest of states and persuading states in the course of negotiations and the policy-making process. Experts can initiate, develop, evaluate and strengthen the shared values, objectives and norms pursued.
Though they have no political mandate from their respective governments, they can work closely with each other as well as with other societal partners. The exchange of information, deliberation, good arguments and reasoned consensus is an invaluable tool and resource for policy research.
The process of social learning in the context of negotiation is certainly a new explanatory factor for competition lawyers and economists, because they often think how abuse of dominant position, mergers, vertical restraints and price discrimination may be prohibited. They argue that the main objective and determinant of the global governance of competition is material interests, whereas the conventional wisdom of competition law and policy would combat business firms’ restraint practices; both are wishful thinking and synonymous. The antitrust agreement is seen merely as a coordinating mechanism focusing solely on these material factors. By contrast, constructivism explains how and why negotiators come to terms with actual preferences and deliberative strategies (the contributory role of advocacy and education), as well as with the change in the normative orientations.
Are the two constructivism approaches mutually or exclusively relevant in explaining the international antitrust agreement perspective?
With regard to the creation of international antitrust norms, we might consider that the second perspective can explain this. The contributory role of global regulatory networks as norm entrepreneurs is increasingly important; their efforts towards the development of norms need to be explored. Moreover, we may find that history matters. The lessons to be learnt from past attempts help us to design a better institution for the future. The strong constructivist approach can be a useful tool for analysis of the different standpoints and can reveal how states understand their own and others’ antitrust policy and why fundamental disparities among them still exist.
However, without a shared basic understanding and common values, we cannot reach a common consensus or develop the shared objective of global competition governance.
As a result, both constructivism approaches are explanatory factors in this process and interrelated means of seeking further progress towards a future agreement; they are not competitive but complementary in nature.
3. The Relationship between the Rationalist and the Constructivist Perspectives
A rationalist approach helps us to estimate just the economic value but cannot identify the key and supporting actors in normative development or grasp the historical and cultural aspects of cooperation as reality. Constructivist theory makes up for these inherent shortcomings.
Obviously, the activities of international non-government organizations, networks of professionals, the business community, etc. can contribute to help negotiators to share the value of cooperation. The process of social learning and the inter-subjective framework of meaning raised by these actors influence the conceptual development of the negotiation, particularly with respect to indentifying states’ values, priorities, goals, norms and preferences.
Certainly, the difference between the two approaches matters if we look into their internal critiques in detail. In fact, overstating this diversity as an insurmountable problem is not necessary, because both approaches are means, not ends, and there is no point in testing them to see whether they are right or wrong. Rather by asking how appropriate they are to explaining the research question they may provide complementary alternatives, not exclusive explanations of an outcome. The question in this context is whether the rationalist hypotheses are clearly enough rather how this theory formulates falsifiable hypotheses. As a result, both dimensions are mutually complementary for our analytical purpose: they draw out new insights and achieve greater coherence in antitrust policy.
III. Explaining the Creation of the International Antitrust Agreement
1. The Rationalist Explanations
Sovereignty Cost Concerns
States that agree to cede their power of control over domestic antitrust issues are responsible for finding out how binding themselves to such an agreement will benefit them. What is at stake in future negotiations about sovereignty? Could sovereignty costs be unfavorable to global cooperation? How can the loss or erosion of sovereignty be examined in the light of various aspects of responsibility?
From this approach, however, it is impossible to determine the political interest of the US in this matter because a simple analytical framework cannot shed light on what US antitrust policy expects or seeks to achieve. US opposition to a global competition regime is not only historical but also political and cultural.
Although the US has been willing to acknowledge the benefits of international rulemaking on trade, it has repeated its objections to the internationalization of antitrust law in the past but has rarely referred to sovereignty costs. There are many reasons behind its antitrust policy.
First, the US can effectively respond to anticompetitive practice by applying antitrust law extraterritorially. Its main interest is in seeking a bilateral exchange of advantage to reach a balanced concession on a case-by case basis. For this reason, it sees promoting greater cooperation on substantive harmonization and centralization of the power of enforcement as unimportant.
Second, pressure is increasing to cooperate on a global basis, and the US position is softening with time as it sees that greater attention should be paid to antitrust matters in trade issues and that a solution to the antitrust dispute would be helpful in resolving trade disputes, as its experience in the Japanese Eastman Kodak case shows. It is coming to the conclusion that a globally-coordinated response is needed, and that it would benefit from this antitrust agreement.
Strategically, it suggests promoting voluntary cooperation on antitrust matters within the informal network of the International Competition Network (ICN), rather than that of the WTO as the EU has suggested. In doing so it may avoid the binding effect of the law-based approach. It also fears that the WTO approach is strongly influenced by the EU interventionist model. The US argues that conflicts among competition authorities have become rare, and its extraterritorial solution is feasible in current practice. Viewed from this perspective, its main concern is clearly not sovereignty costs.
Third, the EU and the US have divergent interests and more conflicting goals in general public policy than on sovereignty costs. The well-documented cases of Boeing/McDonell Douglas and General Electric/Honeywell highlight this disparity. The key theme is not concern about sovereignty costs but rather argumentation, evaluation and expectations regarding job creation and competitiveness. In other words, it is necessary to consider something rather more fundamental than the particularities of the particular case under review, and sovereignty costs is not as serious a matter as is generally presumed.
From this vantage point it can be argued that a politically powerful and economically advanced country might have heavy sovereignty costs due to its position, wealth and power. In practice, cooperation within the framework of EU competition law is evidence of this. The jurisdiction, enforcement procedures and institutional arrangements in the EU context does not significantly alter its member states’ competition laws and policies.
The modernization of European competition law would be a positive effort towards legal harmonization at the European level. Regulation 1/2003 extends the implementation of EU competition law and policy in light of decentralization, with the objective of increasing the effectiveness of EU competition law and enhancing its role in economic integration.
One of the most notable aspects of this reform is the promotion of active participation by member states’ competition authorities and civil courts in the application of competition law. Viewed from this perspective, sovereignty costs are not a matter for concern for EU member states, and the reason for this may be that the sovereignty costs of the EU states have been resolved in the background to the supranational institutional development of the EU.
Sovereignty costs are a multifaceted problem: states’ domestic interests are complicated and the causes of their vulnerability are diverse. This analysis, however, has not been subject to criticism in the case of the Australia New Zealand Closer Economic Relations Trade Agreement (ANZCERTA). Cooperation between New Zealand and Australia in the context of regional integration has led to the successful harmonization of national competition law and facilitated its enforcement.
Due to their geographical proximity and similarities in the countries’ legal, economic and social backgrounds, this is one of the most remarkable achievements in the process of the regionalization of national competition law to date. Each competition authority can control for the misuse of the other’s market power. If the engagement of states in this way is politically and economically efficient, sovereignty costs need not be seen as a particular concern. The fear of loss of sovereignty in this context of cooperation is completely unjustifiable.
Developing countries that would prefer to cooperate multilaterally rather than bilaterally might benefit and influence other states more if they used this cooperative mechanism efficiently. This may be wishful thinking, yet they may be more interested in entering into bilateral than multilateral arrangements because the bilateral mechanism would give them a better bargaining position and gain them particular benefit provisions. Could a global antitrust agreement also serve as a protectionist rationale for developing countries?
Looking back at postwar history, it may be said that developing countries were highly susceptible to the sensible call in politics for change to the hierarchy and patterns of power in the international system. In initiating the New International Economic Order during the 1970s, they attacked economically powerful firms’ anticompetitive business practices, claiming that the world needed an effective instrument by which to advance political and moral values for global justice and the redistribution of wealth. This initiative failed to win the support of most developed countries because the ethical considerations were not strong enough. As a result, developing countries have paid less attention to the sovereignty costs in this regard.
During the following years, developing countries requested that developed countries keep their markets open and larger firms reduce their anticompetitive business practices. They initiated this at the international level under the auspices of the United Nations Conference on Trade and Development (UNCTAD).
Finally the UN General Assembly adopted Resolution 35/63, Set of Multilaterally Agreed Equitable Principles and Rules for Controls of Restrictive Business Practices, in 1980. Although both developing and developed countries recognized the importance of competition law norms worldwide they could not agree on their content, and as a result of these conflicting views the developed countries pressed UNCTAD to keep the Set as soft law only. Interestingly, sovereignty costs have not been the controversial issue on the table.
Some particular issues arose as negotiations on these antitrust matters continued in the WTO forum. Two of the reasons for developing country opposition are most relevant here:
First, due to the level of liberalization of trade in agricultural products in the course of world trade development, some African countries would be willing to attend negotiations on condition that they could have an access of cotton to the US market. India, the strongest voice within this group, has 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 extending negotiations to regulation Singapore issues within the WTO.
Second, developing countries are concerned about the compliance costs of their legal obligations. They blocked the WTO talks on the grounds that they would not be able to meet the regulatory burdens and compliance costs.
if this normative agreement were to be implemented. Consequently sovereignty costs are not a highly sensitive issue for developing countries. By linking sovereignty costs to insights about future antitrust negotiations, it can be argued that the explanatory power of the theoretical arguments, as discussed above, is mixed. There are many reasons for this
First, uncertainty and power asymmetries have played a role in past negotiations, but in practice these controversial issues did not touch upon the hallmarks of sovereignty as realists had expected. The realist argument cannot explain why states disregard sovereignty costs – the reason is that states do not take the underlying responsibility seriously. Evidently there was no relevant point at which to start discussing the questions of responsibility to the people, respect for the international community, the principle of national self-determination and the right to non-intervention.
Second, it is useful to trace the connection between the rationale of neoliberalist institutionalists and the antitrust negotiations, although the level of the institutionalists’ attention to arguments for the WTO solution and their political and scholarly salience has greatly decreased. No contemporary agreement can be reached without referring to the principle of efficiency. Lower transaction costs matter. Understandably, states should be well-equipped to deal with the efficiency objective. The longer they fail to pursue it, the greater the risk. The neoliberal institutionalists’ emphasis on efficiency is inevitably used to explain the outcome of the negotiations as well as the future implementation of an agreement.
Third, neorealists argue that survival and independence in the chaos of world politics is states’ most important strategic concern. The contemporary view is that the most pressing political priorities of the time are the global recession, global counterterrorism, global warming and the sovereignty debt crisis. We should be disccussing how we can develop core theoretical arguments about the new global governance. All of the above external shocks and internal changes, including competition issues, together lead the leadership to a new paradigm of global governance. .
However, competition issues have been and are only one of the factors contributing to shaping the new global governance. Concern about the recovery of the world economy continues to mount. For the first time in modern diplomacy, world economic governance lies in the hands of emerging countries and the survival of states and regions will become more uncertain in the future.
On the one hand, the neorealist argument is useful to explain government responsibility for contributing to the stability of an international economic order and the protection of country and people in the face of the prevailing and palpable sense of uncertainty in world politics. On the other hand, faced with this reality different countries will clearly opt for different options, but sovereigty costs will not be pressing in the competition policy debate as the neorealists believe. The global competition regime lacks leadership because the US and EU can no longer afford to lead, and Brazil, China, India, Russia and South Africa lack the intellectual resources to do so.
Given that the US would give up any pretense of global leadership on competition matters, it is hard to imagine that it would disregard the special interest lobbies of business firms dealing with international cartel. This is exactly what the EU is doing with developing countries. The main objective of Free Trade Agreements (FTAs) is to serve the interests of the US and the EU. More specifically, thirty-five African, Caribbean and Pacific (ACP) countries have accepted to the Economic Partnership Agreements (EPA) with the EU. The CARIFORUM text contains provisions regarding the liberalization of trade in services. EU FTAs must contain binding commitments to put in place and implement competition policy that follows the European model. The major emerging countries and like-minded developed countries have also been willing to back such FTAs, which explain why it is most unlikely that they will bring back the global approach. As a result, a neorealist rationale would only partly illuminate arguments about sovereignty costs in antitrust matters.
Reducing Transaction Costs
Negotiating is technically difficult, time-consuming and costly. Its direct costs are often high and can exceed the expected benefits. Obviously, not only the direct costs of the negotiations but also adjustment and implementation costs matter. It is hard for states to know the efficiency gains and adjustment and implementation costs from the outset of negotiations. If this could be proved negatively, the attempt would not be worth pursuing.
From the business perspective, the conflicting decisions of competition authorities in merger review practice causes frustration for the merging firms, which encounter enormous difficulties meeting the multiple requirements and compliances, particularly with the contradictory remedies and prohibitions.
More dramatically, a heavy bureaucratic burden and legal uncertainty are still extremely bad for them. An aluminum merger project between Canadian Alcan and French Pechinery illustrates this: 35 international law firms have to deal with 16 various administrative procedures in 40 different jurisdictions. Experts estimate the transaction costs to be about USD 10 million. A study of the International Bar Association reveals that the typical international merger is worth 3.9 billion euros and generates on average 3.3 million Euros in external merger review costs. Mergers would be a more attractive undertaking if states would improve the national antitrust landscape and the future agreement paid more attention to the question of coherence and compatibility in the formal requirements. Legal certainty and the lowering of costs may inspire firms with confidence to do more business globally.
From the developed country perspective, a single investigation in a multijurisdictional file in merger review practice would usually cost more than a joint action and its outcome would certainly be ineffective. If a joint action were conducted in the background of a cooperation agreement, costs could be high, but they would be fully justified because this might avoid the duplication of effort and conflicting decisions. Furthermore, the participants could save considerably on the cost of human resources. The US and EU signed an agreement of cooperation in competition law policy in 1991, and have since avoided inconsistent results and saved on costs in most cases.
From the developing country perspective, the implementation costs of entering into such an agreement are, of course, extraordinarily high. They are not in a position to determine the multiple sources of costs themselves and need to focus on how to verify the source of costs incurred. Without collecting of data system and determining of costs, they cannot produce satisfactory results. These problems can be resolved only with the support of developed countries and donor agencies. For economic development reasons, developing countries are willing to enter into the agreement expecting to gain the benefit of technical assistance, institutional improvement and consultancy. That means that even if they had the political will to enter the negotiations, the complexity of determining the transaction costs persists. The coordination costs of building a coalition and the rising costs of parallel regional and bilateral talks would be the most difficult issues.
After all, from a neoliberal institutionalist viewpoint, reaching an international antitrust agreement is in the interests of all developed and developing countries, regardless of their level of development and their diverse objectives regarding competition law; its net effect would certainly be positive for both. While this argument may substantially help to explain its desirability, reduced transaction costs are, if achievable, just one of many factors. In other words, cost-saving cannot wholly resolve the conflict.
In sum, reduced transaction costs are the main benefit to states and sovereignty costs are not a serious concern. Inevitably the outcome of cost-benefit analysis will vary greatly because it depends primarily on the level of legal, economic and social development and the domestic interests of the state concerned.
2 The Constructivist Explanations
The core premise in this discussion is that if this global antitrust regime could benefit all states, it would constitute international public goods. How convincing is this argument?
The Strong Constructivist Theory
International Public Good
The concept of international public good is attractive to economists working to resolve the problems of developing countries and much has been written from this perspective. Pure public good is defined as a commodity or activity whose benefits are non-rival and non-excludable. Non-rival means that one entity benefiting from it does not diminish the benefit to another; non-excludable means that no entity can be denied from the benefit.
This concept is closely related to spillover effects and externalities between countries. The state has exclusive jurisdictional authority and control over different policy instruments within its own boundaries; however in practice there are inevitable spillover effects of the events or policies of one country on other countries. The most commonly-cited examples are carbon dioxide emissions, water supply systems, infectious diseases and financial contagion across capital markets. Global Consumer Welfare Standards
By and large, economists contend that the competition law regime, irrespective of whether it has a national or international effect, is principally concerned with the economic aim of maximizing social welfare. They suggest using the concept of economic welfare (total surplus) to measure how well an economy really performs because a market is a concept that describes the range of transactions between producers and consumers. While producers seek to recover their production costs by maximizing their profits, consumers seek to maximize their utility by purchasing the best possible quality at the lowest price. Importantly, economic welfare is the sum of consumer surplus and producer surplus.
By contrast, the Chicago School argues that the objective of competition law is the maximization of consumer welfare (consumer surplus); its purpose is primarily to protect the interests of the consumer, not the process of competition itself. It emphasizes that there are many effects of favoring this objective. First, competition keeps price down and quality up, and preventing anti-competitive conduct leads to increased competition. In doing so, it prevents welfare losses associated with the excessive market power of the producer. Second, this is a significant way of creating a competitive environment in the market by initiating processes such as deregulation and creating incentives for innovation and investment.
Although the tension between consumer and economic welfare matters is not clear, in fact there is a strong interrelationship between them for the following reasons:
First, total welfare in the pure economic sense is hypothetical. Empirical evidence of global economic welfare is often difficult to obtain and the available evidence is only relatively meaningful. Second, experts cannot quantify the distributional disparity of benefits to consumers and producers. The tension between the objectives of economic efficiency and distributional fairness remains highly contested. It is not possible for economists to determine what price would be set for particular goods or services in the competitive market in the long run. It is perhaps easier for policymakers to follow the consumer interest´s rather than economic welfare standards and to quantify economic efficiency rather than the distributional objective.
In the developing country context we have reason to doubt these arguments due to the four following limitations: first, developing countries cannot perceive the emerging interests of consumers accurately in the short term, as the neoclassical theory of price shows. They cannot restrict this issue only to economic interests.
Beyond this, safety, health and information matter in the long term interests of society. In this light, information, education and the empowerment of consumer awareness would help to protect consumers effectively. There are various consumer groups in society and their interests are hetegeronous. The global competition regime is aiming to enhance economic efficiency and the wealth of society generally, not therefore trying to address the aims of each consumer group in a society.
Second, in this time of global recession, the picture is not different from the past: developing countries cannot prioritise consumer protection in their trade, competition and consumer policy.
Third, due to the rising impact of modern cross-border deceptive practices in e-commerce, the need to protect consumer interests in the virtual world is becoming self-evident, and could lead to countries cooperating with this aim. For political reasons, developed and developing countries are most likely to engage in this to gain political support from domestic stakeholders. In fact, the consumer protection system is inherently domestic and is based on the direct transaction between direct seller and final consumer. For this reason developing countries prefer to implement an arbitration mechanism and or alternative dispute resolution (ARD) mechanism to referring a international code.
Fourth, efforts are being made across the globe to protect consumer welfare. The 1985 UN Guidelines for Consumer Protection (expanded in 1999 to cover sustainable consumption) is a case in point. This soft-law instrument sets global norms for governments to protect their citizens as consumers, sets targets for businesses, and encourages consumer groups to take an active role in pursuing their objectives.
In addition, two UN conventions, the UN Convention on the International Sales of Goods 1980 and the UN Convention on the Use of Electronic Communication in International Contracts 2005 have excluded consumer contracts from their scope because consumer law is subject to national jurisdiction. The OECD Committee on Consumer Policy, UNCTAD’s Intergovernmental Group of Experts, the WTO, the International Organization for Standardization (ISO) and the Codex Alimentarius Commission play a major role in setting global standards for consumer protection.
Such standards do not have the force of law but are often adopted by governments or recognized as best practice. The main challenge is that there is no systematic understanding of how a coordinated global approach could work. Inevitably, duplication and conflicting in practice are the most difficult obstacles to this ongoing effort. It is too early to assess their impacts on existing practice but there is one possible explanation: no crucial progress has been made in this respect to date.
In short, consumer interest protection will not become a goal of the global competition regime, nor of developing countries, which, due to capacity constraints, have no incentive to take it on.
Finally, and perhaps most importantly, the question that needs to be addressed in the global context is to what extent all consumers around the world would derive a net benefit from this proposed global regime. Conceptually, its application does not depend on a particular case on a particular market; rather, it plays the general role of guide in the development of antitrust rule and the competition process is presumed to be in the consumer’s interests. We may conceive that both approaches are cumulative instruments embracing the central aim for economic development purposes.
In other words, consumer welfare needs to be understood as another term for the wealth of the nation and the world. The interrelationship between these two aims is understandable, because the end objective of both is the same: consumer welfare standards are essentially a final objective and free competition is not an end in itself, but a means to an end. It may be said that every consumer around the world would be relatively better off under this regime and that global consumer welfare could be seen as the aim of global competition policy.
Finally, this prospective regime would not make consumers in developing countries worse off, and it will make those in developed countries better off. This regime can serve the interests of consumer protection policy and there is no strong evidence to justify that it would do any harm at all.
The Antitrust Regime as an International Public Good
How can states agree upon the consumer protection objective and provide this public good against the background of an international cooperation mechanism?
It may be argued that in terms of non-rivalry, more countries joining this regime would not reduce the benefits to existing members. In terms of non-excludability, this regime would potentially be open to all of countries; access and inclusion of state members is politically desirable in the context of a globally-connected market. As a result, the regime would benefit both its members and its citizens.
Although these arguments may have some merit, one objection can be made from the viewpoint of developing countries. First, not all states would benefit equally; second, not all developing countries would benefit as much as they may expect. Empirical evidence is not sufficient to support the assumption of distributional fairness. Capacity restraints make it difficult for developing countries to bring competition policy and consumer protection policy under an integrated framework.
Faced with political pressure from aid donors, most developing countries have enacted a competition law but not a consumer protection law. Some countries lack a consumer protection regime due to insufficient internal pressure. Developing countries recognize that the antitrust regime supports economic growth and increases social welfare, at least in a limited sense.
The discussion offered above is just a theoretical justification. The fact is there is a common understanding among strong economies about the importance of competition law and policy, but most of these countries do not recognize the significance of consumer welfare objective as an international public good in the context of the international antitrust agreement.
Although the UN officially recognizes that global consumer welfare should be universally promoted, further advocacy efforts in this direction should be continued; however this undertaking is still outside the WTO context today. Most importantly, the discursive contradictions posed by developed and developing countries (in communication, interpretation, cognition, interaction and so on) continue, and crystallization of these norms in the social context is still needed.
As strong constructivist theory suggests, the discursive process of learning, persuasion and deliberation in the social context can help participants to understand how they pursue this project; the internalization of consumer welfare objective can be interpreted and adapted as an antitrust norm.
In the process of the crystallization of this standard, the identities and interests of states can be reconstituted. Most relevantly, society may be able to prepare to change the competition paradigm both domestically and internationally.
This interactive dimension of discourse has two forms: communicative and coordinative. The stakeholders create, argue, bargain and reach agreement on consumer welfare objectives by presenting, contesting, deliberating and legitimating such idea. If they perceive that this normative vision needs to be introduced, they can suggest it as the norm. In this way they shape the identities of states and choose their preferences accordingly.
Such processes of advocacy and interaction do not proceed only in the normative space; they need a social environment. The contributory role of education and cultural change is evidence of this. As long as the social community reaches a fundamental consensus on these benefits, further efforts to incorporate these issues into cooperation in antitrust matters can be seen as worth pursuing. In this way patterns of thinking may profoundly change, and such changes in values and perceptions will have constitutive effects on stakeholders.
In short, the objective of global consumer welfare may be qualified as an international public good in the social context; and with the political support of domestic stakeholders, policymakers may come back to discussing it.
Competition Culture 
Experience tells us that detailed codes and technical rules on enforcement practice simply cannot help, and that practitioners cannot resolve the diversities of competition culture. What is the relevance of culture? How do we create and maintain the concept of a single competition culture for the world market?
Competition culture reflects the legal traditions and the political and economic interests of every state. Trying to bring them into a common line is ultimately illusory; satisfying the need for ideality is not necessary and the presumption of global homogeneity in competition culture is a denial of empirical reality.
Contrary to the widely-held opinion of cultural scholars, some practitioners are optimistic in arguing that leading competition law systems have already founded a common competition culture. Close cooperation in transatlantic merger review practice is strong evidence of this: the conflicting problem among competition authorities has become rare. Thanks to regular meetings, regulators, practitioners and legal scholars on both sides are beginning to think about, discuss and assess all the issues of competition policy in the same language. This is contributing to a healthy competition culture. Can this transatlantic hallmark of a common competition culture be the paradigm for the internationalization of antitrust?
In fact there are differences between some leading competition law systems in respect of competition culture. US antitrust law promotes the free market economy, consumer welfare and non-political intervention in the market process. In contrast, the protection of economic freedom and SMEs, market integration, regional economic development and the promotion of social justice have been the most important goals of past EU competition law and policy.
Obviously the adoption of the consumer welfare approach is one of the most fundamental changes in current EU competition law discourse; the EU’s market integration imperative is no longer a goal in itself and the notion of the Common Market has been replaced by the term ‘internal market‘. However, this change has not had a substantive effect on the debate about consumer welfare. Whether the EU focuses on welfare maximization or still insists on its ordeliberal goals is a matter of controversy.
Based firmly on Ordoliberalism, German competition law bolsters market efficiency while protecting small firms and promoting the importance of distributive justice in economic and social life.
Japan stresses fair trading more than consumer welfare in its competition law: its contemporary reform is strongly influenced by US antitrust policy and brings about change from a producer-oriented to a consumer-conscious approach.
Due to international and domestic pressure, economies in transition demonstrate more or less trust in a free market economy by changing their market structure.
Politically they still have an interest in strengthening the economic role of state-owned firms and open their markets reluctantly, partially and strategically. Competition culture in this context does not mean economic and political freedom in the best sense, as experience in emerging China and Vietnam today show. Chile, China, Peru, South Korea, Taiwan and Vietnam argue that economic reform works effectively with their authoritarian structure. Hong Kong and Singapore argue that competition law is not neceessary because the market is sufficiently competitive.
Even though there is some fundamental understanding of the competition paradigm, it is clear that negotiators cannot identify all of the cultural factors in various countries when drafting a cooperation agreement to avoid this divergent outcome. What does an awareness of competition culture add to something new in this respect?
A globally-connected culture would be a preparatory step towards further understanding of cooperation in antitrust matters. It would provide participants with a range of principles of shared vision.
Participants may seek an interpretative framework appropriate to their cultural particularities while still allowing them flexibility with regard to interpretative strategy.
In cultural terms, an acceptable degree of interpretation and implementation of normative issues can reasonably be expected. These endeavors would help to reduce the dangers of different interpretations and perceptions of global reasoning on antitrust law.
The strong constructivist theory may explain this crystallization effect as follows: a shared vision of competition culture may emerge on the basis of a fundamental consensus on the understanding of the objective pursued: taking measures to seriously maximize consumer welfare objective is the right thing to do for the common good. These soft pressures on shared values could operate in more than a regulatory way and lead the actors to constitute, create or revise their interests and establish cooperative behavioral patterns. Each state follows its own consumer protection objectives. Without intending it, each increasingly pulls all of the others into the same cooperative system because it expects them to come together.
Over time, these expectations create a new core in each country, with all other states adjusting accordingly. These transformational effects cannot be based on administrative measures and legal provisions, but rather on acknowledging the consumer protection objective as a real social value. Yet again, the role of advocacy and education is of significance to the normative vision. The creation of local, regional and national interests in this objective may be gradually generalized on a global scale, and the social community could strongly commit to developing this strategy globally. More than anything else in the world, transatlantic competition culture shows that this primary step is possible. This trend may explain how competition culture would emerge in the global context.
The strong constructivist perspective can help to understand the competition paradigm in making it better in pragmatic and practical terms. In doing so, it illustrates how both the constitutive and regulative rules about how a global antitrust regime can be produced can change. This discussion reveals the significance of the formation of states’ preferences, negotiating styles and other interaction strategies.
3.The Weak Constructivist Theory
The interest of sub-state actors and representatives of business communities and issue networks in antitrust matters is increasing. They have resources and know-how and can support state actors in pushing the normative vision for further progress; they may persuade them to adopt or reject new norms. How can these actors do this, and to what extent?
The Role of the International Competition Network 
The creation of the ICN was a milestone in the development of cooperation on international competition law and policy. In a relatively short time, its performance has been universally appreciated. It has had a positive transformational effect on international and domestic competition law and policy in many ways, and has improved the efficiency of competition agencies across the world to deliver better results; and its impact on informal convergences related to the procedural merger review is growing rapidly.
For example, the OECD, US, EU, Brazil, Ireland, Korea, Mexico, Romania and Russia have all implemented legislative or regulatory changes to conform to certain practices recommended by the ICN, and there are growing calls from regulators and scholars in the competition community to adopt its best practice. It is impossible to illustrate all the aspects of this success story here, but a brief summary of the results of the Merger Working Group is not out of place.
The main mission of the Merger Working Group is to promote best practice in the design and operation of the merger review regime in order to enhance the effectiveness of each jurisdiction’s merger review mechanism, facilitate procedural and substantive convergence and reduce the time and cost involved in dealing with multijurisdictional merger review practice.
In order to reach this objective the Guiding Principle for Merger Notification and Review subgroup sets out eight principles for dealing with the matter in question: sovereignty; transparency; non-discrimination on the basis of nationality; procedural fairness; efficient, timely and effective review; coordination; convergence, and protection of confidential information.
The working products of the ICN are reports, recommendations and handbooks. To date, the Working Group has developed six recommended practices for merger analysis covering the legal framework; the use of market shares, thresholds and presumptions; entry expansion; the analysis of competitive effects in horizontal merger reviews; unilateral effects, and coordinated effects.
Presently the Working Group is preparing a report on information requirements for merger review practice. Its objective is to promote greater understanding by simplifying the investigation and assessment procedures. The Working Group is also planning a series of workshops covering practical merger analysis issues and techniques to help competition agency practitioners to identify solutions to the problems of diverging merger review practice.
In sum, promoting the convergence of procedural merger law is the right track, and the contribution of the ICN provides strong evidence of norm development process. Its impact on the regulatory aspects of the future treaty will certainly be significant.
The Role of the International Business Community 
The political instrument traditionally used by the business community is the lobbying campaign. How can firms deal with global antitrust norms while the conflicting problem in merger review practice causes them frustration?
Lobbying is a strategically selective decision of the firms involved. In contrast to the effort to protect intellectual property rights at the global level, business firms focus on lobbying about the handling of special cases more than formulating the general objectives of competition policy. It depends on the particularities of the case in point. Most businesses expect that the competition authority will facilitate the procedure in clearing it with lower costs and shorter waiting periods. In practice, merging firms strongly advocate their positions in facilitating the clearance process at national level and ensuring smooth interaction with national competition authorities. Faced with limited resources and expertise, and most importantly with the burden of cost, business pressure may not be powerful enough to push the norm development process in global antitrust matters.
Looking back at the history of the development of the EC Merger Control Regulation, we can argue that the business community welcomed the effectiveness of its ‘one-stop shop’ principle. Presently EU firms are not active participants in regional and global regulatory networks; they pay less attention to a global antitrust norm than to the EU norm.
US industry lobbying campaigns focus more on change at the domestic level than on international law as US businesses were involved in the adoption of the Telecommunications Act in 1996. This effort was costly but successful. The adopted Act became a legal tool to help US firms enter the competitive market easily and had an indirect positive influence on the development of the merger wave afterwards. The major effect of US business pressure in this regard is important neither as domestic nor as international norm entrepreneurship but rather because it was an occasional strategy.
Considering this constellation of political and business interests, it appears that the influence of business in the norm-making process in antitrust matters is not essential, as generally presumed.
The Role of International Consumer Protection Organizations 
One of the international networks of governmental organizations is the International Consumer and Enforcement Network (ICPEN), which has 36 member states and whose main mission is to share information on consumer protection issues and best practice in legislative and enforcement approaches. Furthermore, it promotes cooperation with other organizations. More recently, the Enforcement Network for Consumer Protection Cooperation (ENCPC) was established by Regulation 2006/2004. This EU-wide network of national enforcement authorities aims to coordinate the application of consumer protection law. It is too early to assess the impact of these two networks on the rule-making process.
As part of global civil society, international consumer groups not only have a clear and critical voice in looking after consumers’ interests but may also assist in the rule-making process. One of the most notable international networks is Consumer International (CI), which has 220 member organizations in 115 countries and helps to protect and empower consumers.
In 1995, CI released its Consumer Charter for Global Business to encouraging ethical behavior and a consumer-based approach. Recently, it has paid more attention to firms’ anti-competitive practices by identifying such behavior and seeking its elimination. Because of its limited resources and expertise, CI concentrates on providing consumer organizations with legal advice and advocacy measures at the national level, with less direct involvement in the area of international competition law.
The effects of international non-government consumer protection organizations on the norm-making process are not yet clear.
The global approach to antitrust matters with all of the legal, economic and socio-cultural aspects involved has been proving a most difficult project. We should be discussing how this undertaking is most likely to be initiated in the future. The exploration suggested above is an innovative approach for IR theorists who are interested in international competition law and policy, its normative force and its future negotiation. This analysis could contribute by tracing out the broad contours of IR theories and identifying their relevance to a better understanding of the structure of antitrust negotiations.
This article has explained why negotiators may address the most relevant issues from the rationalist and constructivist approaches. These perspectives connect with the socio-legal aspect of this research question, imbuing it with a new interpretative framework.
The two rationalist arguments are insightful. First, states have an incentive to follow this strategy on the grounds that it would lower transaction costs and foster welfare-enhancing cooperation. Second, sovereignty costs may not be as problematic as generally presumed. The constructivist perspective can explain how states come to perceive the shared value of the consumer welfare objective and common competition culture as an international public good; it also illustrates how emerging transnational sub-actors will play a supporting role as norm entrepreneurs in the negotiation and implementation processes.
Both theories provide a cumulative explanation of a possible outcome, but have the same shortcomings: their weighting factors are highly subjective and their key findings remain nebulously speculative and need to be empirically verified. The reason for these inevitable limitations is that it is impossible to know the domestic interests of states and stakeholders in practice: states‘ levels developments are extremely varied and this question deserves much more country profile analysis.
Two theoretical challenges remain; one for rationalism and the other for constructivism, two schools of thoughts may explain how the collective identity and understanding of this framework may be changed at the domestic level. In this light, constructivist and rationalist insights are helpful in generating theoretical propositions. There is no doubt that further study is required before a clearer picture of this desirable agreement emerges.
This working paper is a written contribution to the twelfth session of the Intergovernmental Group of Experts (IGE) on Competition Law and Policy, UNCTAD, Geneva, 9-11 July 2012. Views expressed are personal.
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