Kim Them Do
Contents
I. Introduction
II. Competition paradox at a tough time
1. Ideological repercussion
2. Normative repercussions
III. US and EU competition law discourse
1. US consumer welfare
2. EU consumer welfare
3. The EU ordoliberal objective
4. German competition law discourse
IV. The global competition regime from the perspective of
developing countries
1. Consumer welfare
2. The more economic approach
3. Protection of economic freedom
V. A negotiable approach for the future?
1. Protection of economic freedom
2. Efficency
3. The developmental perspective
VI. Conclusion
***
I. Introduction
Many consumers do not trust the business conduct of multinational corporations (MNCs) with good reason: consumers can neither identify the wrongdoer in E commerce for furthering their legal action nor exercise their sovereignty in the case of unsafe toys made in developing countries.
These examples show that consumer welfare has a social objective and its comprehensive protection is significant. While MNCs’ modern cross-border restraint practices harm their interests, governments have no robust regulations to deal with this effectively.[1] Yet, the cooperative option seems to promise to enable participating countries to implement their domestic law effectively.
MNCs are playing an ever-larger role in the world economy and a regulatory response to the need for a global competition regime would be beneficial for consumers. All attempts to generate formal negotiations about creating such a regime with binding norms and standards for MNCs’ business conduct have ended in failure and no international consumer law has yet been enacted.[2] In the pursuit of an international competition law and policy there has been much discussion by the scholarship of these issues.[3]
The policy debate highlights some basic particularities such as agreements on minimum standards, procedural convergence, the harmonization of substantive 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. Going beyond discussion of technical convergence, this article argues that the future global framework on competition issues seems somewhat precarious because most if not all leading participants are failing to meet the objectives of pursuing and providing political support.
Given the diversity of the objectives of competition law around the world, this article argues that it is time to reflect on the purpose and normative underpinning of this proposed regime and to identify how valid it would be. This debate is of great importance because it provides not only a new subject of inquiry but is also movement toward its new ontology and will finally enable us to further an acceptable theory. If the participants come to share its common paradigm, then a talk about this project can make sense. But exactly: what kind of normative values do we need? What objectives ought we to pursue? How can we establish them? Which of these desirable values are most important, which should be preferred, and in which circumstances?
In fact these questions have been extensively examined in US and EU jurisdiction. By and large, economists have advocated the use of the efficiency principle and lawyers have contended that freedom in economic action, legal certainty and effective enforcement practice are flawed. While competition scholars are going to effort to develop more sophisticated concepts for US and EU competition law and policy goals[4], the level of attention to, and political and scholarly salience of arguments for the WTO approach have greatly decreased in recent years because the talk is now off the negotiating table and is most unlikely to be initiated as a deliberative process in the future. In the current environment some scholars[5] continue to use this discourse in rethinking the problem and the debate about a normative foundation for competition at the global level in contemporary scholarship is continuing, although it is not as intensive as for Doha Round.[6]
Viewed from this perspective, this paper suggests reasoning the value of competition in constructing its normative conception at the project level. Specifically, why value competition, when capitalism is presumed to have failed, intervention is urgently needed and protection seems eminently reasonable? What is distinctively good or bad about the protection of consumer welfare and the competition process objective? Are the disputes about normative issues in US and EU jurisdiction likely to be a point of reference for this policy research? How do developing countries view this prospect? To what extent and how should this future regime serve? These questions are the crucial concerns of this paper.
To explore these issues, this article proceeds as follows: section II revalues competition since the global financial crisis. Section III reexamines the development of US and EU competition law discourse to find a point of relevance to our discussion. Section IV assesses this reasoning from the perspective of developing countries to shape a broader set of goals for the global competition regime. Section V suggests how, to what extent and what kind of goals should be designed. Section VI summarizes some of the key findings and outlines some implications for further discussion.
II Competition paradox at a tough time
The financial crisis in 2008 undermined faith in the free market economy mechanism and the function of the Sherman Act or Magna Carta of Free Enterprise. Much of the blame for this disaster has rightly fallen on the US economy, but this kind of mistrust expands globally because we were all shocked as most of the markets around the world were battered. Apart from this failure, now it is an unsettling time for us to engage further in the global competition project while political thinking in this regard has inevitably been affected by the economic downturn. The lessons to be drawn from this market meltdown regarding competition are too various to mention, but the ideological and normative repercussions are worth exploring.
- Ideological repercussions [7]
Scholars working on political theory claim that the US’ response to the current decline does not appear to be strong enough, because if the risk is systemic our response should also be systemic and intellectual vision is needed to push for a new paradigm. Policymakers of most leading countries are also calling for a review of global economic philosophy because we are living in a profoundly unsafe, interdependent and uncertain world.[8] It is a politically imperative that we radically reconsider the capitalist economy in order to prevent the next catastrophe. Some self-contradictory questions are relevant to this section: Has capitalism failed? Why do we value competition when calling for interventionist and protectionist measures? Have our policy debates been misplaced?
The US housing market’s unexpected meltdown has a lot of scenarios: a large housing bubble, consumers’ overindedtedness, massive losses through vulnerable asset-backed securities, the insolvency of lending institutions and the nationalization of banking. Finally the markets have reached the point where they can no longer survive without help and the economy is in recession with global consequences. This collapse should compel goverments to inject liquidity into the banking industry while the rest of economy remains free to do business as usual. The global picture is murky: while there is no longer competition in the banking industry, the whole economy is still alive. These aspects suggests that a new form of captalism is needed.
Before looking further at the deeply-rooted issues of the ideological dispute, we address the political, economic and regulatory context of the banking industry.[9] Obviously the banking industry has been vulnerable for many reasons, but the two following aspects which led up to the turbulence are central.
First, based on Chicago School theory in the 1970s and 1980s, US and UK politics strongly advocate neoliberalism in the hope of bringing about the prosperity. The basic premise is to let markets work alone and let market forces decide prices and efficiency. Monopolies in some key industries (e.g. airlines, electricity and telecommunications) are no longer effective because monopoly prices harm consumers. Greater efficiency can be achieved, neoliberalists suggest, if some industries are left regulated while others are opened up.[10] Whereas some industries would be deregulated on the basis of natural monopoly conditions, the banking industry would be deregulated on another basis: the prevention of excessive leverage, ensuring capitalization and supplying reliable information.[11] The industries have different fates: the survival of traditional industries is independent of the rest of the economy, while the risks of the banking industry are systemic within the economy.
Second, knowledge of regulators, bankers and bank customers is a crucial point here. Most of the decisions have been mistaken, leading to regulatory, political and market failures. While the US Congress imposed banking regulations in response to the economic slowdown in the financial home market industry, it failed to give the regulators of goverment-sponsored banking[12] power to supervise the business operations of commercial banks. Lawmakers allowed them to take on unlimited risks with an implicit goverment guarantee. It was a regulatory failure. Then the Clinton Administration changed the law and quotas for commercial banks to provide credit to underreserved areas.[13] Banks were allowed to use risky lending policies: this was a political failure. Finally, it was a market failure as the banks were not paying strict attention to the mortgage standard when checking credit. More seriously still, bank customers naively assume that derivative and securetized subprime mortgages are an innovative means of exploiting the market. All of these factors together led to the disaster, and it turned out that the market is neither rational nor self-correcting. The mistake was systemic, and even the experts may not be able to suggest how the risks can be eliminated, or even controlled.[14]
Overall, the perverse application of the regulation on subprime lending and securitirization is the cause of the catastrophe and new regulation is urgently needed, The past deregulatory move is not closely related to the implementation of financial intruments today.[15] The crisis is a regulatory, political and market failure in nature, but the thrust of the argument so far has been largely negative, with critics charging that it was an ideological failure and that a big idea is needed instead.
We need an understanding of the nature of capitalism today. Historically, captialism has been well established in the academic discourse and self-interest, economic rationality and the ‘invisible hand’ are still the most basic requirements for economic transactions, as Adam Smith suggests. The motive of people seeking to trade is the same for a baker, an butcher or a brewer. Of course, market participants may be disappointed by an undesirable outcome because economic life is permeated by constant uncertainty.[16]
It has long been clear that the free market mechanism has been expanding in the global economy and that there is no real place for a pure market mechanism around the world because the sociopolitical features of a country determine the business environment for which its capitalist economy works. US, European and Asian capitalism provide the varieties in this pattern[17]; many have reasoned in support of the introduction of the market-based economy, but the three following lines of argumentation are worthiest of debate.
First, one of the most cited references to the market economy literature is closely related to the 1990s Washington Consensus model.[18] It was originally designed for South American economies with the vision that the market works alone and effectively. Its consequences were the move towards greater trade liberalization, stronger protection of property rights, and clear deregulation of capital market, strict budgetary discipline and favorable technological innovation. Not only policymakers but also consumers in South American countries are now aware that promotion of a more market-oriented policy can improve the globally-connected economy considerably.
Second, these trends to the market based economy are more obvious than ever before, as all the centrally-planned economies broke down systematically in the late 1980s and early 1990s. State failure is becoming a fact, and nobody believes that public monopolies and state pricing control can best serve the people, as ideologically presumed, any longer.
Third, the need for development in developing countries is the subject of the United Nations’ 2000 Millennium Development Goals (MDG).[19] The main purpose of this global strategy is to help developing countries to rise out of destitution. Much hope has been invested in the idea that improving education, health care and medicines, infrastructure and governance is the best remedy. These measures are about desirable distribution, and can work together with the free market mechanism development.[20]
Overall, policy makers believe that a better future for developing countries lies in empowering people to participate in the competitive market, facilitating economic development through trade and prohibiting anti-competitive practices by business firms. All these would contribute to improving social welfare and distributive justice. Of course there is a mainstream philosophical theory to explain this move[21]; however, most remarkable is Amartya Sen’s reasoning in his moral and political theory of economic development.[22]
Sen, a modern legal philosopher, maintains that the promotion of well-functioning domestic and international markets is inescapable for two reasons: first, markets are necessary to provide the resources that are required if human rights are to be advanced and protected by society and to promote development. Second, markets are a social platform that enables participants to develop personal freedom and accept to be tolerant of individual diversity. In general terms, markets need to be understood as both instruments for material advancement and an aspect of individual liberty.[23] This dual contribution of markets to human welfare and development is widely acknowledged in current academic discourse and empirical findings.
A poll in an October 2007 found that 82% of people in 47 developed and developing countries have positive views of trade and 66% have positive views about the free market.[24] Sympathy for the free market economy remained unchanged even after the crisis in 2008: 25 countries believe that the free market economy is the best system on which to base the future of the world. Most remarkably, 67% of Chinese, 65% of Brazilians and 58% of Americans continue to support unregulated markets.[25] At present the US and EU are still at the center of the crisis and suffering an economic slowdown; the US will soon hit a legal debit limit and the EU has to face defaults in debt repayment. However, the global economy is now into its recovery, as an IWF report points out. Emerging Asia and much of Latin America are expecting to expand rapidly. Growth in China is expected to remain at 9 1/2 percent, in India at 7 1/2 percent and the ASEAN economies are projected to expand by 5 1/2 percent this year. Growth in the Latin American region is projected to average 4 3/4 percent this year.[26]
These theoretical explanations and empirical evidence together show that the global economic environment is much less conducive to resolving the current crisis and may get considerably worse before it gets better. The free market mechanism has been functioning to move forward, although the outlook for the world economy looks very bleak and the leading countries are trying to restore confidence to keep the free market mechanism alive.[27] Importantly, they do not show how they evaluate competitition. Did the supervisory role of the competition authority fail? How can the competition authority test the performance of the banking industry while the objective of banking law is to ensure the stability of the financial sector?
2. Normative repercussions [28]
It is hard to find an affirmative answer to these questions because the essential mission of a competition authority is to look at the potential emergence of a monopolized market. In theory, a competition authoritiy pays attention to violations of banking law in the competition law context. It looks at how banks act in conformity with banking law and intervenes in cases of distortion in the banking market structure. In doing so, it measures the allocative, productive and dynamic efficiency of the banking industry using a structural and constestability test approach. In practice there is no evidence to suggest that the behaviour of lending banks is anticompetitve or the degree of competition within the sector has been distorted.
Were the decisions of competition authority in the bank merger review before the shock mistaken? Presumably, without appropriate jusitification it permitted merged banks to grow so big and so fast that the banking industry became too big to fail.[29] The link between concentration, efficiency and stability in the banking industry is truly problematic; this is still a question that needs to be fully explored but its analysis is beyond the scope of this section.
In short, the failure of the banking industry is entirely irrelevant to the objective of competition law and policy: it was simply caused by the lax attitude of those responsible for prudential regulation.
The sociopolitical climate has been affected by the shock and the public ought to value competition seriously. Would the interventionist and protectionist pressures have displaced competition? Would economic efficiency and consumer welfare suffer? Can a competition authority provide a remedy to bring the economy out of the crisis to the benefit of consumers?
While the banking industry should be radically restructured and massively refinanced, there is no room for the competition authority to view the dynamic of competition and test the contestable market using entry and exit rules. As long as goverments do their best to improve their institutional environment and market structure, the competition authority may not intervene to enable the leveling of the playing field across financial services and test the incentive for competition. In all cases, the crisis needs a comprehensive policy response: only politics can rescue the banking system, and the competition authority is not responsible for this. In fact, it can contribute to the remedy only to the limited extent of applying competition law.
It may seem that the contemporary crisis would dampen merger activities. On the contrary, in 2008 merger activities reached record-breaking levels and continue on an upward trend. The total number of global merger deals was 28,000 transactions to a value of US$3.28 billion.[30] The countries concerned may profit from these business activities in improving the economy. In dong so, competition authority should treat merger control in the financial market as well as in the real economy with great care.[31] They should test the effects of mergers based on the post-crisis standard.[32] How the benchmark can be changed to adjust to the new circumstances and value competition is still problematic. The more behavioral or less structural remedies that are effective in times of crisis are not an easy answer.[33] It is time to review its criteria to meet the constraints of the crisis. At least at present, it is not clear that the supervisory efforts of the competition authority would offer more a conveniency to the regulated sector than before or help in all dimensions until the power of the competitive market is fully recovered.
The discussion above suggests first, that the growth of the global economy is slowing down and the effects of market recovery are falling short of expectations. Second, capitalism is still alive and the value of competition is being partly restored. It is worth exploring normative issues of the global competition regime because the value of competition is the thing for its own sake and it may be a way to promote consumer welfare as the transatlantic law discourse development illustrated below.
III. US and EU competition law discourse
The beneficial nature of competition for society is self-evident: in particular, consumers have more choice at lower prices and higher quality. Without competition pressure larger producers have no incentive to improve their product or to keep their prices down. The consumer welfare promotion objective is so significant that policymakers follow this commonsense approach in formulating the goals of their competition law and policy, as US and EU competition law discourse illustrates.
US consumer welfare
One of the leading thinkers in consumer welfare is Robert Bork, who avocates a consumer welfare approach in various publications with the aim of protecting small and medium sized enterprises (SMEs).[34] He claims that neither logic nor experience of the law are beneficial for consumers and that bad economics and weak jurisprudence make them worse off.[35] The way forward, he suggests, is using consumer welfare as a only legitimate goal of antitrust law, and this law should be interpreted and applied only in the way of consumer welfare protection objective: this is the simplest method of serving the goal of the law effectively.[36]
Bork provide two arguments for this: First, it is easier to pursue a single than a multiple goal approach to antitrust law. Second, a court is unlikely to assess all the harmful effects of given conduct on the consumer harm when balancing all of the kind of tests needed. A consumer welfare test would therefore be an easy tool for use by the courts. In his argument for the goal of the US antitrust law, Bork points out that the Congress adopted the Sherman Act as a ’consumer welfare prescription‘[37] and that ’competition must be understood as a term of art signifying any state of affairs in which consumer welfare cannot be increased by judicial decree.’[38]
By contrast, the welfare economics scholarship has long invoked the role of consumer welfare, but contrary to Bork’s argument tells us that consumer welfare is an economic, not a legal term; its semantic ambiguity is truly problematic among scholars. Their dispute is deeply and essentially substantive; their convincing arguments rests on the idea that this economic concept is not by itself a normative theory and cannot be used as a normative foundation, and it especially should not be seen as the only and ultimate goal of antitrust law. Perhaps most importantly, its interpretation and application may harm consumers and reduce total social welfare.[39]
What scholars are more concerned about is that Bork oversimplifies this complex terminology. It is deceptively simple, as Bork highlights just one aspect of its semantic variation in terms and fails to contribute further insights to convince them. For analytical purposes it is helpful to recall the concepts of economic efficiency and welfare optimization in order to understand Bork’s arguments. Two basic concepts are discussed below.[40]
First, there are four forms of economic efficiency: static, productive, allocative and dynamic. Efficiency is static if the set of products, production factors and prefences are assumed as given and constant and competition will cause no considerable effects in the particular market. Besides the static efficiency there are two other forms: productive and allocative efficiency. The former is not only the ulitization of resources but also the maximization in the process of production. Firms focus solely on the amount of inputs or factors of production with minimal costs to reach productive efficiency. In doing so, they maximize their allocative efficiency. However, consumers think only of their willingness to pay and are happy to pay only the production cost.
Of course, static efficiency cannot statisfactorily explain the problem of inefficient allocation as techonological progress and consumer preferences change over time. The dynamic dimension of innovation in the production process and buyers’ tastes cannot be excluded from the analysis. Innovation is positive if it can better serve consumer preference. The dynamic efficiency test would therefore be a necessary tool for the further examination of market development.
Second, welfare means the performance of industry, and economic welfare is a standard concept that needs to be clarified. Most economists suggest using two tests: total surplus and consumer surplus. Total surplus (total welfare) is the sum of consumer surplus and producer surplus. Economic welfare is reached only if total surplus can be reached. In contrast, consumer welfare (consumer surplus) is the aggregate measure of the surplus of all consumers. Producers’ profits are excluded from the analysis. Economists favor the total surplus standard and ignore the balancing test between producer and consumer welfare.
The reason for this is twofold: First, the consumer surplus calculation makes basic sense in welfare planning, but considering the increase in firms’ profits makes more sense when viewing industry performance and societal development.[41]
Second, the effects of distributive justice between producer and consumer welfare should not be an issue for their further examination; this is a philosophical rather than an economic research project and calls for entirely different methods from those that economists use daily. They cannot describe and justify it appropriately, but lawyers and philosophers can help policymakers reconsider the tax system and the law of succesion to solve the equality problem.[42]
These concepts illustrated above, are not synonymous: most notably, they offer more insight to assess what Bork advocated. Four typical misconceptions by Bork are discussed below.
First, his concept of allocative efficiency is most questionable. Instead of bringing more clarity to these conceptual confusions, Bork mixes allocative efficiency with productive efficiency without justifying his argument. Bork states that ‘the whole task of antitrust can be summed up as an effort to improve allocative efficiency without impairing productive efficiency so greatly as to produce either no gain ar a net loss in consumer welfare.’ [43]
Second, in developing his thesis Bork speaks of consumer welfare, which he understands as allocative efficiency in his argument: ‘Consumer welfare is maximization of wealth or consumer want satisfaction’.[44] In fact the wealth of the nation can conceivably be employed as social welfare; efficiency and consumer welfare are two closely interrelated concepts in the economic literature, and they may – but do not necessarily – align.
Third, based on price model theory, Bork advances his thesis. He contends that the best way to assess consumer welfare is to check the output restriction or price increase. Consequently cost saving and social loss are excluded from the analysis, but these factors are entirely relevant to further examination of the welfare economy.
Fourth, what Bork calls the consumer welfare standard is not clear enough, as he deals with the effects of the total welfare standard. He insists that ‘all consumers are also of business, and hence they must benefit from monopolisitic price increases, so efficiency with price increase would not hurt the average consumer.’ If the consumer welfare test is intended to appreciate the effects of given conduct on final consumers, producer welfare should be excluded from the analysis. [45]
All these counterarguments together indicate that Bork’s concept should not be convincing to academics. Not surprisingly, no courts refer to his concept directly, although most judicial decisions illustrate that the objective of antitrust is to improve consumer welfare. There is no evidence to suggest that the court adhered to Bork s analysis as a starting point for its judicial review. Some leading court decisions demonstrate this, as shown below.
In National Colegiate Athlethic Association v. Board of Regents of University of Oklahoma,[46] the court stated that the Congress enacted the Sherman Act as a ’consumer welfare prescription’, as Bork explains, but did not rely exclusively on price theory to test consumer welfare as Bork suggests. The court stated that the fundamental goal of antitrust law cannot be based only on the setting of price or output because that is not fully consistent with the consumer welfare protection objective.
In Brooke Groupe Ltd v. Brown & Williamson Tobacco Group[47] and Weyerhaeuser Co. v. Ross Simmons Hardwood Lumber Co.[48] the court made a distinction between consumer welfare and total welfare, stating that the former has always prevailed but the that court did not refer to economic efficiency.
Historically, most antitrust enforcement has been directed at anticompetitive behavior by sellers rather than buyers. In Telecor Communications v. Sw. Bell Tel. Co.[49], the court points out that suppliers should be protected by antitrust law as much as consumers, even when the anti-competitive practice does not harm the end users. The court argues that buying power can bring down prices across the market. The welfare efffect is in the interest not only of the final consumer but also the input suppliers.
Finally, the court held that effects on the competitive process are worth considering in testing the net welfare effect. In the Microsoft case,[50] the court states that the firm’s anticompetitive practice must be condemned if it harms the competitive process and thereby harms consumers.
Although the consumer welfare standard is a well-etablished concept in US competition law discourse, Bork’s concept has not been entirely accepted by the scholarship or the court. EU has the same experiences that are discussed below.
EU consumer welfare [51]
The adoption of the consumer welfare approach is one of the most fundamental changes to current EU competition law discourse. EU policymakers contend that consumer welfare is now established as the standard that the EU Commission applies when assessing mergers and infringements of the Treaty’s rules on cartels and monopolies.[52]
The Commission seeks to ensure that dominant undertakings do not impair effective competition, thus having an adverse impact on consumer welfare. Is the rhetoric of the Commission on consumer welfare orientation fully consistent with its decisional practice? Does the court apply consumer welfare effects as a test for legality?
Of course the EU debate on welfare maximization is different from the US law discourse and there are too many explanatory aspects to mention, but its historical and sociopolitical contexts are worth discussing. Two typical particularities for this development are presented here.
First, the main duty of the Commission is to provide a legal framework to protect the good functioning of European market development and to ensure that competition is not distorted. The Competion rules should be interpreted and implemented in this way, as Art. 3 (1) (g) EC points out. The main concern of the Commission is how best to implement competition law to serve its objectives.
Second, perhaps most fundamentally, after the court has annulled three prohibition decisions in merger control,[53] the Commission has to review its practice radically in adopting the more economic approach. The main argument for this reform is that the form-based approach has been not fully proven to serve the objective effectively.
Based on modern industrial economy theory, the effects-based approach is supposed to be a better tool for consumer welfare purposes. Technically speaking, the price theoretical model would be best for identifying consumer harm in a particular market and using a case-by-case basis analysis. Consequently the Commission has adopted this more economic US approach in applying competition law.
Behind the methodological shift in the interpretation and application of law there are many incentives to change in EU law thinking. In theory, the Chicago School arguments appear more convincing, not only to the scholarship but also to the leadership. Due to the joint action in the merger control review, US and EU officials have come to share the same methods, to work together, to speak the same language and to have the same reasoning in the decision making process. In addition, US economists, consultants and lawyers are in a powerful position to contribute to shaping this process over time. The pressure of the US industry lobby on the Commission is rising, too.
All of these factors together support EU competition policymakers ‘adoption of US principles of economic efficiency and consumer welfare, although there is much controversy over policy consideration in the transatlantic context. Inevitably this orientation is linked with public criticism of the Americianisation of EU law.
Declaring consumer welfare as the goal to pursue is one thing, but the wording of the relevant provisions is another: for instance, Art. 81 (3) provides that the provision of the Art. 81 (1) may be applicable in respect of agreements if consumers get a fair share of the benefits associated with the agreement in restraint of competition. However, the Commission does not clearly define the ‘fair share to the consumer’ in examining the intensity of competition in the relevant market in review practice. Broadly speaking, the main concern of the Commission is that competition is not substantially eliminated in assessing violation of Art. 81 (3).
According to Art. 82 (2) (b), any abuse of a dominant undertaking should be prohibited if this abuse may limit production, market or technical development and is to the prejudice of consumers. Art. 2 of European Merger Control Review is an important companion to Art. 82. The interests of the intermediate and ultimate consumer and the development of technical and economic progress, provided that it is to consumers’ advantage and do not form an obstable to competition are the aspects need to be considered in the context of merger control.
The teleological interpretation of Art. 82 in the light of Art. 81 suggests that the good functioning of the competitive process in the social market economy is seen as the ultimate goal of EU competition law. The consumer’s interests in this context are just one example of the paramount consideration of potential abuse . As a result, these regulations offer unsufficiently the test of direct harm to consumers and the global picture of consumers after the Treaty of Lisbon remains unchanged.
The Treaty of Lisbon eliminated Art. 3 (1) (g) EC: ‘competition is not distorted’ has been removed to Protocol 27 of the Treaty on European Union (TEU). This is just a contextual change rather than a semantic one because in general the EU continues to pursue the principle of an open market economy with free competition, as Art. 3 (1) (b) TEU postulates. Arts 81 to 86 EC became Arts 101 to 106 of the Treaty on the Functioning of the European Union (TFEU). 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 had no substantive effects of the debate of the consumer welfare objective.[54]
Do the Commission’s interpretative documents shed light on this puzzle? Its guidance documents, which aim to help practitioners to solve enforcement difficulties, do not offer room for critical assessment of the policy objective as discussion papers do in general. How does the Commission apply its rhetoric in these guidance documents?
The Commission’ s Guideline on Vertical Restraints[55] states that the Commission will adopt an economic approach based on the effects of the market. The Commission’s Guideline on Art. 82[56] states that the Commission will prevent anticompetitive foreclosure that would have an adverse impact on consumer welfare. This guideline suggests that anticompetitive foreclosure is the most relevant factor to be tested and direct analysis of consumer harm is not used in a more economic effects-based approach.[57] The Discussion Paper on Art. 82 points out: ‘Competition and market integration serve these ends since the creation and preservation of an open single market promotes an efficient allocation of resources throughout the Community for the benefit of consumers’.[58]
All of this wording together reveals that promoting consumer welfare is the ultimate goal of the law but does not offer a test for legality. While the Commission provides a vague concept of harm to consumer welfare, how does the court consider consumer interests in a judicial review?
The courts have determined the concept of market structure and its distortion in many leading decisions, as shown below.
In Continental Can Co. [59] the court identifed the main objectives of Arts 81 and 82 as ’the maintenance of the effective competition within the Common Market’ and Art. 82 ’is not only aimed at practices which may cause prejudices to consumers directly, but also at those which are detrimental to them through their impact on an effective competition structure, such as is mentioned in Art. 3 (1) (g) EC.’
In British Airways, [60] the court found that ‘Art. 82 does not require it to be demonstrated that the conduct in question had any actual or direct effect on consumers. Competition law concentrates upon protecting the market structure from artificial distortion because by doing so the interests of the consumer in the medium to long term are best protected.’
Recently, in reconsidering the application of the more economic approach by the Commission in Sot Lelos kai Sia. v. GlaxoSmithKline,[61] the court found that benefits to consumers need to be understood as a systemic consequence of competition. The more alternative sources of supply consumers have in a particular market, the more benefits they may enjoy. However, the court failed to quantify these benefits, to balance them with the other welfare effects or to refer to the price theoretical model as a test for legality.
Certainly this test would help practitioners to appraise the short-run effects only. The effect on consumer welfare would not be seen as a direct benchmark for testing the violation of competition law. This is still an open question whether the EU focuses on welfare maximization or still insists on the ordoliberal goals.
The EU ordoliberal objective [62]
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. These normative values are primarily based on the ordoliberal school of thought and German law discourse. Although case law is not explored further here to illustrate this evidence, two factors explain this influence: on the one hand, German competition law officials working in the EU institution were responsible for shaping EU competition law[63]; on the other hand, the German competition law system itself is a success story.[64] Its practice has been influential in the development of EU competition law.
One of the leading thinkers in this ordoliberal school is Friedrick August Hayek.[65] His way of thinking is about a competition paradigm that is bound to a larger social order. He argues that economic freedom, political freedom, social security and social justice are interrelated concepts that are necessary for developing the community. In order to achieve these multilayered objectives we need an economic and legal order within the dynamic competition system. But exactly: what is the purpose of competition law?
The general purpose of law is to provide order for society and preditability in its development. It offers guidance to individual behaviors and prediction of behaviors of other individuals. It preserves legitimate expectations and enables interpersonal coordination. This coordination is the overching goal of law, and the law cannot determine some end-state goal. [66]
In justifying in regard to what we do we refer to two kinds of knowledge: scientific knowledge and knowledge of particular circumstances of time and place.[67] The former refers to generalized knowledge that may be justified or falsifized in the academic discourse. The latter relates to economic matters. Due to their particularities we cannot standardize these knowledges for general purposes, but they are valuable for considering the outcome. As evidence for his thesis, Hayek draws an analogy between competition law and market price development.
Hayek points out that not the division of labor but rather the division of knowledge is a decisive factor for improving the market structure.[68] farmer selling his grain at the price he wishes to sell, it is not setting or making the price in the technical sense of price theory, but rather recognizing the price in the rule of the market through an impersonal process. Informational transmission about the price system within the market mechanism is a means of coordination among market actors. For this reason, instead of using static analysis Hayek suggests focusing on the coordination of the market actors because the effects of price development are unpredictable and our knowledge is not perfect to grasp the reality.
Although this information is valuable, it is just part of the problem because we cannot identify all the market actors or predefine all the aggregations of consumers’ preferences. While these rules are the emergent results of an spontaneous order process, our main duty is to discover it over time. Competition lawmaking is therefore a discovery process.[69]
Such a process will work only in a liberal democracy, and economic freedom is a political imperative to protect the competition process. The objective of competition law is therefore to offer a background so that all market actors can enjoy freedom in their economic activity: freedom to compete, freedom to contract, the guarantee of property rights and so on. Of course, the positive development of rule of law in the liberal state contributes to the effective protection of the competition process.
Not only protection of the competition process but also that of market structure in past EU and German law discourse matter. The controversy over the objective of German competition law between two economists Erich Hoppmann and Erhard Kantzenback is evidence of this.
German competition law discourse [70]
Based on controversies over the Harvard School’s ‘structure-conduct performance’ paradigm and J. M. Clark’ s theory on workable competition, both Hoppmann and Kantzenback focus on the question of the objective of competition law.
Kantzenback holds that competition has various functions: the competitive market enables policymakers to shape policy for the redistribution of wealth appropriately; the power of consumers to decide their preferences leads producers to adjust their sale strategies and allocation of resources for production. Their efforts to innovate and freedom to compete compel producers to keep prices down and quality up.[71]
Bringing all of these objectives together, Kantzenback advocates that the intensity of the competition is an important feature to consider the market outcome. In illustrating his thesis, he distinguishes between potential and effective intensity. The former is not dangerous because its effects are not explicitly negative; however, the latter matters where the effects of restraint conducts have been seriously affected in the market.
Both situations are closely interrelated: the more effective the intensity, the less potential intensity the market has. The effective intensity of competition can be only realized on condition that the market structure can be dynamically improved, with freedom to compete and innovation pressure continuously strengthened. Here the main objective of competition law and policy is improving the form and structure of the market to the extent that the effective intensity is best realized. Consequently, competition law should support broad monopolies because they can produce most competition intensity.
Contrary to the conception of Kantzenback and in connection with Hayek’s view, Hoppmann argues that freedom of economic action is a value in itself and that not market structure but rather freedom to compete best serves the goal of competition law. By freedom to compete he means that market actors may enjoy the freedom to decide, act and exchange to the extent of their scope of autonomy. The semantic of freedom is of relative importance because this action parameter should be within the limit of the existing legal order, the social market economy and liberal philosophy. For Hoppmann, the market power of firms is not truly harmful because first, it is not easy for dominant firms to exclude their competitors from the market; and second, the future market is determined not by a political agenda but rather by an open-ended competition process. Finally, freedom of economic action becomes an ultimate objective of competition. Hoppmann argues that to date his assumption cannot be falsifised in practice.[72]
Some points of controversy between Kantzenback and Hoppmann are important: Kantzenbach focuses on the market outcome as the purpose of competitive market development and the market structure as the determinant of the function of competition law. Consequently the price theory model is a tool for the analysis of welfare development in the relevant market. By contrast, Hoppmann highlights freedom to compete within the liberalism, not only as a pure economic objective to pursue but rather as a basic value in human and liberal society.[73]
Kantzenbach considers competition only as means of reaching the economic objective, while Hoppmann qualifies it as a noneconomic justification for societal development. He argues that we can identify and promote it only through a process of discovery of dispersed knowledge. Two relevant consequences of his illustration are that the price theory model has no power to explain economic progress in the long term, and that there is no dilemma between the purpose of competition law and economic development.
In support of the workable competition approach, Kantzenbach points out that there is a link between intensity and function in competitive market development. In practice, empirical research tells us otherwise: his assumption can be seen as oversimplifying the complexity of economic reality with insufficient evidence to prove its causality. Hoppmann provides us with a model for thinking of freedom in action and non-dilemma theory, but he fails to justify the need for intervention at a time of market turbulence. The current chaos teaches us that the leadership needs to identify the risks of the market in time to recover the power of market.
It is well known that German competition law was effective in supporting economic development processes in the 1960s. Kantzenback’s concept has been accepted as the right approach at the right time for practitioners. There is a simple reason for this. Controlling harmful conduct and prohibiting concentration were at the top of the agenda of the leardership in the 1960s. Hoppmann’s insight appears to be unrealistic to put it in practice, although it is still referred to in the liberalist literature.[74]
Due to the dominant position of the Chicago School of thought at the time of privatization, German competition policymakers have extensively revisited Hoppmann’s liberal view in modeling a conceptual framework for the liberalization process for particular sectors. Finally, the theory of industrial economy has taken a leading place in German law discourse, The effect-based approach and consumer welfare standards have had greater roles in practice reviews.[75]
IV. The global competition regime from the perspective of developing countries [76]
Can developing countries learn from the experiences illustrated above in building consensus for the normative conception of the future global regime and opening up a new regulatory initiative?
At first glance, it would appear that there are two crucial limitations in this context: First, a global competition regime is not an exclusively transatlantic but a worldwide affair. Notably, the critical voices of emerging countries regarding this project are inevitably relevant because the integration of the world economy has increased and continues to increase; the drastic changing demonstrates how important developing countries are in its consensus-building process in the world order today.
Second, the US and EU’s consumer welfare objectives have been applied within the given legally advanced framework and this project has not yet emerged on the global landscape.
Despite these differences, from a closer view it can be argued that these objectives are the rising concern of all countries around the world. If a consensus in this respect is growing, then the past motivational failure and participatory gap seem to be surmountable. Some relevant questions are important: are developing countries recognizing consumer sovereignty and directing their competition law to meet the demands of consumers? Do they consider negotiating as part of the core principle of the global competition regime? Based on cost benefit analysis and the capability of developing countries, these questions are discussed below.
Consumer welfare
Over the last decade most Latin American countries and many developing countries have enacted a competition law regime in the course of their regulatory reforms.[77] Do they have the same perception of its objective as the US and EU? Would all consumers derive benefit from this developmental dimension, so that developing countries pay more attention to the global project? [78]
At first sight the answer is affirmative for the two following reasons.
First, both competition and consumer law are principally concerned with economic goals to maximize social welfare. While preventing anticompetitive conduct, governments may cause favorable effects for the consumers. Direct competition keeps prices down and quality up and improves the business environment with incentives for innovation and investment. Both approaches are cumulative instruments that embrace the central aim of economic development because consumer welfare is a desirable outcome of the competition process, and the end objective of both policies is the same: consumer welfare is the final objective, and free competition is not an end in itself but a means to an end. As a result, consumer welfare needs to be understood as another term for the wealth of the nation.
Second, at the global level a competition regime would serve consumers around the world by making them relatively better off and could not make consumers in developed countries worse off. There is no strong evidence to justify that this regime would do any harm at all on either side. The global consumer welfare standard would therefore be a global strategy to make this possible and developing countries are likely to support this orientation.
By contrast, looking at these aspirations further in the developing country context, we have reason to doubt that these arguments are convincing due to the following limitations. [79]
First, developing countries cannot restrict this concern only to the economic interests of final consumers in terms of price, output and quality and choice of product in the market. Beyond this, safety, health and information are important in society’s long-term interests. For example, lowering the price in the tobacco industry would be attractive to a heavy smoker, but consequently would reduce his well being and the cost of his medical treatment to the public health care service would increase.
In this light, information, education and greater awareness would help to protect consumers effectively. There are various consumer groups of in society with heterogeneous interests. The global competition regime generally aims to enhance society’s economic efficiency and wealth, therefore it does not serve all groups of consumers equally.[80]
Second, developing countries cannot favor the consumer proctection objective over trade, competition and consumer policy. Obviously market access is their first best choice, as the experience of the East Asian economies has shown. Although there is a direct connection between competition and consumer welfare and the protection of consumer interests is supposed to be a normatively desirable objective, export-led strategy is still their main consideration.[81]
At this time of global recession the picture is no different from in the past. Developing countries will be facing new challenges and have no better option to follow: trade should still be a fundamental tool for policy consideration. The G20 economies have recently provided evidence for this. They have introduced more trade barriers, including export-restrictive measures, than before the financial crisis began in 2008. [82]
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 may lead to cooperation among countries. For political reasons, policymakers in developed and developing countries are most likely to engage in this to gain political support from domestic stakeholders.
We need to understand how local consumers can be effectively protected. As with environment protection policy, policymakers in developing countries think globally and act locally in consumer issues. The protection levels are inherently domestic and based on direct transactions in which the direct seller and final consumer meet. The direct effect on the domestic market is more important than that on the electronically-connected market. That means that developing countries prefer implementing an arbitration mechanism and or alternative dispute resolutuion (ARD) mechanism to resorting to an international code to resolve problems. Viewed in this way there is little incentive to include developing countries in this global initiative.[83]
Fourth, it is apparently advantageous for them, as international institutions would provide them with technical assistance with this. Historically there have been many global efforts 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 some targets for business and encourages consumer groups to take an active role in pursuing the consumer interest protection objective.
The UN Convention on the International Sale of Goods 1980 and the UN Convention on the Use of Electronic Communication in International Contracts 2005 also deal with this.
Both have excluded consumer contracts from their scope because consumer law is subject to national jurisdiction. The Organisation of Economic Cooperation and Development (OECD), the Untied Nation Conference on Trade and Development (UNCTAD), the World Trade Organisation (WTO), the International Standard Setting Organization (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 or recognized as best practice by governments. One of the international networks of governmental organizations is the International Consumer and Enforcement Network (ICPEN); it has 41 member states and its main mission is to share information on consumer protection issues and best practice.[84]
However, the main challenge is that there is no systematic understanding of how a coordinated approach could work globally. Inevitably, duplication and conflicting problems are the biggest obstacles in this ongoing effort. It is too early to assess the impacts of these organizations on a future competition regime. There is an only possible explanation for this limitation: little progress has been made over time.
Whatever the scope of future cooperation may be, developing countries do not have the resources to implement this desirable approach. Consumer interest protection would not be highlighted as a goal of the global competition regime, and developing countries would have no incentive to support doing so.
The more economic approach [85]
In promoting consumer welfare protection, US and EU jurisdiction apply a more economic approach in their decisional practice. Can their experiences in this regard be fruitful for developing countries in shaping the future global competition regime?
The competition authority would apply a more quantitative analysis in the hope of gaining objective evidence to facilitate a decision making process. However, there would be many negative effects of applying a more economic approach because more economists and more economic data are needed. It is a costly business. Only a well-trained competition authority would be able in a position to use this test for their temporary purposes. By contrast, developing countries, especially those with limited resources, do not trust the usefulness of this tool for the reasons given below.
First, by showing econometric evidence in merger review practice, economists cannot provide a sound basis for long-run efficiency because dynamic innovation, quality improvement and changes in consumer preference are excluded from this analysis. Economists could erroneously predict the outcome of transactions based on collected data that are not absolutely accurate. The outcome of an analysis, whether wrong or correct, should be valid for a very specific case based on a specific assumption; its explanatory power should not be replaced by the normative foundation of law.
Second, a competition authority can miscalculate in approving or prohibiting false positive and false negative decisions. That means that it incorrectly prohibits conduct that does not harm competition or allows conduct that harms competition.
As a result, economic welfare cannot be realized because welfare gains and losses are wrongly evaluated on a contrary effect basis. Case law study tells us that this mistake has occurred in unilateral and coordinated effects in EU merger control and that it could happen in the future.[86]
There are two explanations for this: enhancing and reducing welfare are speculative in nature and information asymmetries in decision-making process are inevitable. More fundamentally still, a regulatory requirement is a precondition for any analytical practice, and a specific economic analysis on a case study basis cannot be generalized and referred to in any future examination.
Finally, fact finding is more complex for the parties concerned than ever before. Deciding the lawfulness of restraint conduct by larger firms has become more the business of economists than of lawyers. It takes more time and costs and there is no guarantee for improving the quality of decisional practice.
Viewed from the capability perspective, developing countries have no reason to argue that the more economic approach enables them to find practical value that they may attach to promoting the global competition regime.
Protection of economic freedom
Can freedom to compete form the basic value of the global competition regime for developing countries? Hoppmann’s original concept was not shaped for the global issue, but his insight may be relevant to our discussion. The answer appears to be negative for many reasons.
First, the pressing task today for the competition authority is discovering how investigative action can begin if the anticompetitive conduct concerned comes from a third party and the bilateral agreement cannot provide the necessary geographic coverage. A global approach may be able to resolve the problem by facilitating coordination and obtaining more information and political support in the decision-making process.
Such a cooperative response should be defined in practical terms, and help in better understanding the objective of economic freedom is, of course, not needed. Obviously there are different perceptions among countries in this respect and it would be impossible to unify this vision at the project level. Developing countries will not give up their right to self-interpretation of the concept of freedom and the interpretative practice is profoundly political.
Second, Hoppmann suggests that the idea of wealth and the idea of freedom can go together; these two objectives are not mutually contradictory with the effect of freedom in economic action and become a decisive factor in shaping the competition law objective. In this light, developing countries may profit from this legislation by maximizing their societies’ wealth and living standards. In doing so, we can expect that they will come to support the global project’s objective of protecting economic freedom.
Although most detailed research in Latin America, Columbia, Chile and South Africa affirm this link, however, the economic development success story around the world does not provide sufficient evidence for such a positive in the literature. Competition law is not a panacea of the market- based economy for developing countries, and its strengths need to be understood along with its limitations. It is just one factor among others in the developmental context. A competition regime alone would not perform miracles in the economy. There is no causal connection between these variables and the interdependences between the two objectives are multiple. In developing countries that have introduced the competition law, its impact on economic prosperity has been ambiguous. Importantly, there is no an urgent need for developing countries to engage further in this project because the economic downturn is by no means over, and there is much infighting for export strategy.[87]
Can such a project support democratization and democratic stability in developing countries? Certainly there is a vast body of literature on the link between economic and democratic development, but there is no rationale to argue that the domestic and global competition law are useful tools to promote political liberalization globally because the positive effect of competition law is primarily to prevent an economic concentration and establish competition in the domestic market. Is competition law most attractive as an ideal?
The United States Supreme Court described that ideal in its classic statement in Northern Pacific Railway Co. v. United States, 356 U.S. 1 (1958). ‘The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade … while at the same time providing an environment conducive to the preservation of our democratic political and social institutions.’
In fact, the centralization of political power inevitably leads to the consolidation of economic power in any political landscape. The history of German competition law is also an evidence of this: business cartels played a crucial role in the Nazi regime’s rise to power.[88] The negative effects of cartelization in the past was the rationale for radically reforming this legislation in the post-war reconstruction process. Japan had the same experience.[89] The social significance of competition policy in South Africa provides further evidence for the process of democratization. One of its goals is to increase the ownwership stakes of people who suffered in the apartheid regime. Competition law in Indonesia, besides the common objective of efficiency, also concentrates on social equality.[90]
In theory, competition law may be able to find an appropriate counterbance to the economic power in preparing a step to promoting democracy. Competition law may fullfil this function on condition that the market mechanism and democratic system are already established to a certain extent.
This is not the case in most developing countries today, where the free market mechanism is still developing and the value of democracy needs to be tested. In building a capitalist cronyism, some of the leadership in developing countries would do best to oppose the democratization process and ignore the introduction of the rule of law. Chile, China, Peru, South Korea, Taiwan and Vietnam argue that economic reform works effectively with its authoritarian structures. Hong Kong and Singapore argue that competition law is not neceessary because the modern market is competitive enough.[91]
Modernization theory tells us that both a higher level of economic development and improvement to education play a crucial role in developing democracy.[92] Specifically, rather than economy and wealth distribution, cultural change teachs us pluralistic values and tolerance. Both factors, among others, are important to lead to a new democratic life. [93]
Finally, protecting economic freedom to improve the quality of democratic governance is one thing, and strengthening the effectiveness of competition law for economic development is another. Demand for and opposition to democratic reform depend on the sociopolitical climate. That is a bigger question needs to be addressed in the context of rising expectations and public participation in political life. As long as there is no correlation between the positive effects of emerging competitiveness and the democratic quality on the domestic level, developing countries are not ready to support the global project on the reason that it can simply help the democratic development.
V. A negotiable approach for the future?
Our discussion is puzzling because developing countries do not support consumer welfare standards and do not favor freedom to compete in combating restraint practices by business firms. While scholars discuss these objectives as hypothetical imperatives[94] or the axiomatic natures[95] of a given pattern of prediction, negotiators consider them as negotiation chips in their possible agenda. Should negotiators share the basic competition paradigms, as scholars and practitioners suggest? Would these intrinsic values be conducive to such negotiation? What then remains for discussion?
This section takes another look at the moral and political philosophy of Amartya Sen[96] in order to appreciate the intrinsic values of competition for the following reasons. Measuring and balancing of the existing effects of both objectives, as discussed above, would reduce its proscriptive value because it leads us to find out the lowest level of its description and its applicability, and a mininal test of proportionality is not worth pursuing. Furthermore, efforts to resuscitate the freedom to compete or the efficiency principle appear unsuitable in the current global economic context. Perhaps most importantly, if the negotiators reevaluate this subject matter by way of Sen’s illustration, they will come to see that this negotiation package is more attractive than before. Two central issues are particularly relevant.
Protection of economic freedom
As discussed above, Hoppmann advocates protecting freedom to compete and finding a way of ensuring the preconditions of competition so that participants may enjoy more opportunities to do business in the given market. Furthermore, he fails to assess the market outcome, arguing that there is no dilemma between these objectives. In reality these preconditions are not always available in the developing market. Here is the point that Sen can further in demonstrating the functionality of freedom and market.
According to Sen[97] there are two aspects of freedom: freedom in general and agency freedom in particular. The agency aspect pays attention to the person as doer and is dependent on his well-being and capabability. Both aspects are parts of effective power to promote the economy. Sen differentiates freedom in general, which deals with the disparity between well-being and freedom and capability, from agency freedom, which relates to the link between freedom and achievement. Bringing the two distinctions together ,he points out that there ar four different views of a person’s advantages:
- well being achievement,
- agency achievement,
- well being freedom and
- agency freedom.
These ideas bring out a complex pattern of the correspondence of rights and duties and can explain the evaluative framework for human rights.[98]
Looking at individual rights, Sen contends that different market actors perceive the development of a state of affairs differently in order to perform their contributory role appropriately. From the point of view of agency it is obvious that two persons would not evaluate a state of affairs in exactly the same way.
For Sen, capability to act depends on the individual’s perception and the opportunity aspect of freedom. How to determine to wish and achieve is a dynamic process of a person in open society; this feature should not be framed within in the given infrastructure, as Hoppmann argues. Agency encompasses all of the goals that a person has reason to adopt, which can include the goals of others rather than the achievement of his own well-being,and can thus generate orderings different from those of well-being. Hopmann’s theory fails to discuss how to appreciate and engineer this.[99]
Efficiency
Based on his ethical considerations, Sen explains that the reasoning behind welfare economy needs to be adjusted because the theory of rational choice and the maximixation of self interest do not necessarily lead to the best outcome, and the engineering aspect of economy has always a limit. Instead, he argues that the evaluation in plurality would make more sense and that the arguments of mainstream economics in this respect are narrow.[100]
The consequential reasoning is, of course, useful to analyse the outcome, but not always plausible in all the cases in practice. By and large, economists think of consequences, but in fact cause and consequence may be independent of each other. It is diffcult to assess the goodness of a state of affairs; the result would appear ambivalent. This is the case when one aspect to be considered is dealing with an intrinsically valuable object. In this light, consequentialism is of relative significance in considering a process, and the scope of its application therefore needs to be broadened.[101]
In illuminating this thesis, Sen demonstrates that Japan’ impressive post-war economic reconstruction can mostly be explained by deontological demand.[102] Not just self-interested behaviour as usual, but also duty, loyalty and goodwill were the decisive factors in Japan’s power of recovery. The mutual benefit of cooperation is not sufficient to explain the efficiency because there are many reasons beyond the motivations of mutual benefit and the reasonable behaviours. To a certain extent the broad consequential approach can provide an appropriate structure for proscriptive thinking on such fundamental issues as rights and freedom.[103]
Although Sen’s original position will not define in terms of the normative value of competition, his illustrations can empower negotiators to take a step toward further evaluation of these questions.
The developmental perspective
Undisputably, the most basic goal here is to deter anticompetitive conducts imposed by business firms.The spill over effects of international and export cartels, mergers and acquisitions (M&A) and intellectual property rights (IPRs) are key determinants blocking development prospects. [104]
By and large, practitioners think that combatting the restraint effects of M&A and IPRs is the best way to serve economy and the protection of consumer welfare, and efficiency objectives are a means toward that end. They equate combatting in anticompetitive conducts of firms with economic development; they come to terms with this synonym as to a wishful thinking. Competition becomes the lens through which development can be perceived. However, competition is not a technical but also political issue. The point here is that competition rules need to achieve broad-based development objectives. How global should global competition rules be? What needs to be changed here for negotiators?
Arguably most importantly, a change in negotiators’ overall mindset about competition negotiation is essential. They would consider these agendas on the broad principles of prosperity, stability, freedom and quality of life rather than on specifically combating the restraint practices of M&A and IPRs of business firms in the technical sense. They should manage the interface between different objectives around the world rather than harmonizing the consumer and efficiency objectives in the context of transatlantic experience. Most notably, transatlantic conflict has become rare in recent practice.
The rhetoric of development is not new in the competition literature,[105] but in the present context, how can negotiators argue the broader interpretation of development objective in incorprating the normative significance of competition into the global level?[106]
No country has developed simply by enacting competition law. Surely the global governance of competition will not do phenomenally better than we may expect. Essentially, it is a means to an end and serves broader developmental goals through long-term orientation. It would enable countries to pursue their own values and developmental objectives.
In light of pluralist theory in evaluation and capability perspective as Sen suggests, developing countries should not promote applying consumer welfare standards for the global project because it would be costly in terms of time and resources to test price theory, as its effectiveness has not been fully proven in US and EU practice. As a result, consumer welfare protection is not a reasoning for this global objective.
If the future regime maximizes developmental prospects, it can be argued that only developing countries should change this mindset because political freedom, civil liberties and human rights have been well established in the democratic tradition of developed countries. They no longer require additional policy space to practice these values as a normative objective. In fact democracy does not always work perfectly in democratically advanced countries and needs to be improved to a certain extent. The incorporation of the European Convention on Human Rights (ECHR) into EU law is evidence of this.
The Charter of Fundamental Rights became a binding legal instrument of EU primary law through the Lisbon Treaty. EU practitioners have to pay more attention to these human rights issues in the enforcement of competition law (e.g high fining policy, concept of deterrence and so on).[107] How EU competition law practice is adjusted in light of the ECHR cannot be fully explored here, but this fundamental change tells us that the intrinsic importance of these values must be universally appreciated. For this reason, EU negotiators cannot disregard this imperative in dealing with the global project, although there is disparity in the level of protection among countries. The interdependence of human rights and freedom to compete is a starting point for both sides from which to reconsider these normative foundations. Finally, freedom to compete becomes the global motivation for the participants.
A shift to a developmental mindset in negotiations would not lead to the perfect global governance of competition but would rather facilitate the overcoming of some obstacles to future talks. Some primary advantages are briefly discussed below.
In response to the global strategy of developmental perspective,[108] developing countries could improve their current economic environment considerably. They could provide a more friendly atmosphere of trust and respect to the business community and place greater reliance on cooperation with international politics than before.[109] Undoubtedly, the legal certainty and the lowering of transaction costs may inspire firms with the confidence to do more business.
Importantly, they can save resources to use for testing consumer welfare and efficiency, compliance costs and the regulatory burden. MNCs confrontational business strategy in the past has not enhanced the benefits to consumers that flow from competition, and hands-off strategies regarding cooperative issues do not solve the world competition problem. On the contrary, if the negotiation package were debatable on a broader basis, the deal could meet the expectations of practitioners to a certain extent later.
As developed countries view the global competition regime from a developmental perspective, critical voices from developing countries and Northern NGOs may lessen. Developing countries claim that social welfare is greatly reduced because consumer welfare, market structure and competitiveness have been affected by the dominant abuse of MNCs.
Moreover, larger firms tend to raise profits gained outside the jurisdiction of developing countries. Evidently developed countries are continuing to encourage, tolerate and support their anti-competitive practices imposed by business firms and to turn down requests to cooperate in any investigative action.
Importantly, developing countries blame developed countries for providing them with a politically incorrect solution by requesting them to open their service markets to technologically advanced firms and blocking the exportation of the agricultural products to the developed market. These paradoxes persist. The issues and their solutions cut across conventional disciplines: these highly specialized conflicts still exist, but at least deliberation in the vague terms of the developmental perspective could transcend traditional boundaries (academic disciplines, time, space, stakeholders and so on).
What will it take for a global competition regime to grab the attention of policymakers presently preoccupied with the global recession and global warming? The answer lies in convincing them to integrate the normative foundation of the global competition regime into their development strategy at the broadest level. Sen’s insights offer some initial practical steps to help to make this possible. At the project level, they draw on two basic principles:
First, the general goal must be to make freedom to compete more possible at both the domestic and the global level. This protection objective would make development more sustainable. Development through freedom of economic action and the competition regime can be seen here as an aspiration in the long-term process. Of course, we cannot build a mechanism to resolve the world competition problem on aspirations alone. It is up to translate these non binding commitments into effective cooperation to meet the interests, responsibilities and obligations of the participants. These are the second things that will determine the future outcome.
Second, the specific goals (approaching to hardcore cartels and modalities of cooperation, establishment of a leniency programme, links beween the level of competition and the impacts of IPRs and so on) can be tested in bilateral and regional projects or at the sublevel of agreement. International institutions (OECD, UNCTAD, ICN etc) would continue to offer measures to prohibit the full range of anticompetitive behaviors of business firms, to strengthen cooperation and support institutional building.
These valuable resouces would help to guide policymakers trying to shape a long-term consensus on reconciliation among participating countries on costs, benefits and development aspirations.[110]
How do we translate this desirability into the operational concept?
To borrow a phrase from the financial world, we may call for a careful, steady and dynamic stewardship, so that the global competition governance should not be to big to fail. Arguably most importantly, there is a deeper question that is most relevant to the development of the future global competition regime: Why should EU countries revise their competition law to promote human rights values in the EU zone in supporting and tolerating the EU-based firms as cartel members to harm the world business as usual? Why do the EU, US and other developed countries not make hardcore export cartels illegal, at least on a bilateral basis, as they believe that this problem-solving mechanism works well?
In this light, developing countries have legitimate reasons to claim that developed countries should pursue global economic wellbeing and resolve hardcore export cartel problems in the specific sense of fundamental human rights values. Of course, this binding commitment by developed countries in the bilateral ties will supplement and will not supplant the multilateral ties.
However, the willingness to remain engaged in this project of the leading participants would be a first step in nurturing the hope of antitrust practitioners around the world that a multi-track global competition regime will incrementally become feasible and would pave the way for sustained multilateral diplomacy among the diplomats. Therefore, strengthening bilateral ties is most relevant to this strategy. The binding commitment to the competition regime must proactively test at the bilateral ties.
This regulatory step, if pursued seriously, would enable a deeper analysis of the future governance of global competition regime. After all, the WTO needs to be empowered to analyse the gains, that would have increased in these interconnected actions over time, and propose possible multilateral mechanism of competition policy, provided that it acclerates its own governance reforms, so that this global competition governance is perceived as being in interest of consumers and business firms in a globalized world.
More fundamentally still, a simple appeal to freedom in economic action as a modern paradigm for a future global competition regime cannot help anyone, and does not meet the expectations raised by practitioners. The worldwide consensus on the need to think about Sen’s insights is not growing enough to take any further action. The argument, however, is flawed on this point.
VI. Conclusion
What should the global competition regime serve? This question remains unresolved and its normative vision is no longer attractive in the policy debate. However, this article argues that its global reasoning is important in helping to find a solution to encourage the leadership to move to the negotiating table. As yet, no major new theory has taken root in the scholarship to explain how the leadership should act.
This paper reveals that we need to be more critical of the period of presumably failed capitalism and the interventionist and protectionist demands than before in order to evaluate economic competition. After reviewing the policy, regulatory and market failures in the current crisis, this article argues that the ideological failure does not exist and it is therefore worth valuing competition for its own sake, and the global competition regime may be seen as a way to promote the world economy.
This article traces some points of relevance to the subject matter in revisiting US, EU and German competition law discourse. The current debate is about consumer welfare standards, economic efficiency and the protection of economic freedom. This article does not share these normative underpinnings because these standards have not been fully proved effective in solving the problems in developed countries and will not be the best model for developing countries. Therefore they are unsuitable for reimagining a future global competition regime.
In suggesting a negotiable approach, this article sets out another way to enhance the intrinsic value of competition. It presents the moral and political philosophy of Sen in finding it out as an appealing one, and although his illustration cannot provide a complete explanation, at least it offers an initial brief for this process. Sen characterizes market captalism, development and ethics as global reasoning in which a global competition regime might be based for further conceptualization.
This paper sees Sen’s account as twofold. First, the marketplace is to provide the resources and to promote development; second, market participants can develop their freedom in two ways – through engineering and through agency. Expanding these insights into the regime horizon we can focus on this global reasoning to the optimal extent and in the broadest sense, rather than equating the conventional nature of competition with prohibitions against the restraint practices of business firms.
Beyond this, the developmental perspective in the best sense – freedom to compete and market performance improvement – would be brought to bear in contemporary debate. If the general approach of developmental aspirations can be negotiable, tensions over specific issues such as the abuse of the dominant position, M&A, IPRs, vertical restraints and price discrimination would be manageable at the sublevel or at various forums later.
Should this more cautious approach be described as lower hanging fruit of a fiction or serious oversimplification of a vision? That is still a question that needs to be deeply explored.
There is a hope that a new discourse on a viable, substantive normative vision for this project will begin. The year ahead is not a time for seeking a sound balance between the different objectives of competition policy in the transatlantic affairs but rather for expanding a developmental conception of what a global competition regime may plausibly look like, and making this more explicit.
Encouragingly, the economy of developing countries is expanding rapidly. Never has the world economy depends so much on the success of developing countries as today. Finally, developing economies need visionaries to see the opportunities and have a voice in this decision-making proces.
This paper has been previously published in Social Sience Resaerch Network, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=256368
[1] Americans have no confidence in big business or regulators whereas Europeans rely heavily on the state to protect them. The US consumer protection model based on “information and litigation” while the EU model focused on “regulation and administration”. Fabrizio Cafaggi; Hans W. Micklitz., “Administrative and Judicial Collective Enforcement of Consumer Law in the US and the European Community” Florence EUI 2007 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1024103
[2] Howells et al (eds.) International Handbook of Consumer Law 2011, Chapter 1 ‘Consumer Law in its International Dimension’.
[3] Budzinski, The Governance of Competition, Competence Allocation in International Competition Policy, 2008; Calvani, Antitrust Law Journal 2005, 72 (3) 1127; Do, Zeitschrift fürWettbewebsrecht 2009, 3, 289; Drexl, World Competition 2004, 27(3) 419; Drexl et al (eds.) More Common Ground for International Competition Law, 2011; Fox; Mateus (eds.), Economic Development The Critical Role of Competition Law and Policy 2011); Gerber, Journal of International Economic Law, 2007 10 (3) 724; Gerber Global Competition, Law, Market, and Globalization, 2010; Lew, Chen (eds.),The Future Development of Competition Framework, 2004; Noonan, The Emerging Principles of International Competition Law’, 2008; Taylor, International Competition Law: A New Dimension for the WTO, 2009; Utton, International Competition Policy-Maintaining Open Markets in the Global Economy, 2006; Zäch et al (eds.) ,The Development of Competition Law, Global Perspectives, 2010.
[4] For example competition law scholars in CLasSF (2009) and ASCOLA (2010) discuss the objective in competition law in the annual conference, see http://www.clasf.org/events/previous/OtherNorms.htm
[5] Gerber 2007, 2010 footnote 3; Do footnote 3.
[6] Recently, competition law practitioners advocate the idea of initiating dialogue on global framework on competition see http://www.cuts-grc.org/pdf/Agenda Symposium_on_Trade_in_Primary_Product_Markets_and_Comp_policy.pdf and http://www.wto.org/english/forums_e/public_forum11_e/public_forum11_e.htm. Diplomats come to review the outcome of adoption of the United Nation Set see http://www.unctad.info/en/6th-UN-Conference-on-Competition-Policy/ and http://www.unctad.org/Templates/Meeting.asp?intItemID=5926&lang=1
[7] Sen, Adam Smith’s market never stood alone, Financial Times March 10 2009, – http://www.ft.com/cms/s/0/8f2829fa-0daf-11de-8ea3 0000779fd2ac.html#ixzz1Pto8g155; Posner, ‘The Crisis of Capitalism- The Crisis of ‘08 and the Descent into Depression’ 2009.
[8] The symposium on “New World, New Capitalism” led by Nicolas Sarkozy, Tony Blair, Angela Merkel, in Paris 8 January 2009.
[9] Tarr ‘The Political, Regulatory and Market Failures That Caused the US Financial Crisis’, Policy Research Paper 5324, The World Bank 2010; FIW ‘Wettbewerbs in der Finanzkrise – Lehre für die Zukunft ‘2011.
[10] Posner, The Effects of Deregulation on Competition: The Experience of the United States, 23 2000 Fordham Int’l L. J. (7), 12.
[11] Financial deregulation in the past three decades consisted of the removal of interest rate ceilings, allowing greater consolidation through the relaxation of branching restrictions and allowing commercial banks to enter underwriting and insurance and other financial activities. Tarr (footnote 9) p. 22.
[12] Fannie Mae is a government-sponsored enterprise (GSE) chartered by Congress with a mission to provide liquidity, stability and affordability to the U.S. housing and mortgage markets. Freddie Mac is a stockholder-owned corporation chartered by Congress in 1970 to keep money flowing to mortgage lenders in support of homeownership and rental housing”.
[13]The US Department of Housing and Urban Development (HUD) has lowered mortgage underwriting standards. President Clinton directed then HUD to develop a “National Homeownership Strategy” that would “increase home ownership opportunities among populations and communities with lower than average home ownership rates.”
[14] Inderst ‚Systemische Risiken‘ in Finanzsektor: Lehre aus der Krise in: FIW 2011 (footnote 6) pp. 7-20.
[15] Tarr (footnote 9).
[16] Smith, The Wealth of the Nations, 2003.
[17] Bruff, European Journal of International Relations 2010 16 (4) 614.
[18] For description, see Williamson, Institute for International Economics, 1990, 7-20.; for critiques se Rodrik, 2006 44 J. of Economic Literature 973.
[19] The Secretary-General, Report of the Secretary-General: Road Map Towards the Implementation of the United Nations Millennium Declaration, U.N. GAOR, 56th Sess., U.N. DOC. A/56/326 (Sept. 6, 2001).
[20] http://www.un.org/millenniumgoals/; Spence, The Growth Report: Strategies for Sustained Growth and Inclusive Development, World Bank 2008, http://cgd.s3.amazonaws.com/GrowthReportComplete.pdf.
[21] For example see Frieden, Global Capitalism Its Fall and Rise in the Twentieth Century, 2006.
[22] Sen, Development as Freedom 1999; most similarly, Petersmann argues that market freedoms are indispensable for human autonomy and self determination, see Petersmann, 1998, 20 Mich J Int’l Law 1 p. 17.
[23] Sen, (footnote 22) p. 4.
[24] Pew Research Center, ‘World Public Welcomes Global Trade – But not Immigration’, see
http://pewglobal.org/reports/display.php?ReportID=258.
[25] http://www.globescan.com/news_archives/radar10w2_free_market/.
[26] IMF: World Economic Outlook: Tensions from Two Speed Recovery, Chapter II Country and Regional Perspectives September 2011.
[27]”The economic difficulties of today do not, I would argue, call for some “new capitalism”, but they do demand an open-minded understanding of older ideas about the reach and limits of the market economy” Sen note 7.
[28]OECD ‘The Role of Competition Authorities in the Management of Economic Crisis’ DAF/COMP/GF 2009 (4) 02 Feb. 2009; OECD ‘ Competition and the Financial Crisis , Working Paper 17-18 February 2009, Dabbah Cambridge Law Journal 2011, 70 (1) 113-143; Mundt, ‘Die Finanzmartkrise aus der Sicht der Wettbewerbsbehörde’; Schnappauf ‘Wettbewerb als tragende Säule der Sozialen Marktwirtschaft in FIW (footnote 9) ; DeVito, ‘The Role of Competition Policy and Competition Enforcers in the EU Response to the Financial Crisis: Applying the State Aid Rules of the TFEU to Bank Bailouts in Order to Limit Distortions of Competition in the Financial Sector’, AAI Working Paper No. 11-01; Jenny, World Competition 2009 32 (4) 449.
[29] In the 1996 merger between Boston Corp and BayBanks, the Antitrust Division cleared the transaction subject to divestiture due to competition issues identified in the market for banking services given to small and lower-middle size businesses. The Federal Reserve later decided, however, to clear the merger unconditionally because it defined a different market using its “cluster of banking services”. Dabbah, footnote 28 p. 127.
[30] Lina Saigol, Record Number of M&A Deals Cancelled in 2008, Financial Times, Dec. 22, 2008, http://www.ft.com/cms/s/0/d322de98-d056-11dd-ae00-000077b07658.html.,for the latest development see also http://www.financethomson.com
[31] Schulte Fusionskontrolle in der Krise in FIW (footnote 9).
[32] DeVito (footnote 28) p. 24; Jenny (footnote 28) p. 463.
[33] DeVito (footnote 28) p. 18; Jenny (footnote 28) p. 459.
[34] Bork, 1967, 57 Am. Econ. Rev. 242 (1967); Bork, Fortune, Aug. 1967; Bork, 1968 77 Yale L.R. 950 (1968); Bork The Antitrust Paradox, 1978; Bork, 1966, 9 J.L. & Econ 7.
[35] Bork (footnote 34) 1967 p. 242.
[36] Bork (footnote 34) 1967 p. 244.
[37] Bork (footnote 34) 1978 at 66.
[38] Bork (footnote 34) 1978 at 51.
[39] Orbach, Journal of Competition Law & Economics 2010 7 (1) 133-164.
[40] Kerber ‚Should competition law promote efficiency? Some reflections of an economist on the normative foundations of competition law in Drexl (footnote 3), 93-100.
[41] Orbach (footnote 39) at 141.
[42] For the classical economists, economics war part of moral philosophy. The principle of benevolence and self- restraint in The Theory of Moral Sentiments and the principle of the invisible hand and the self-interest in The Wealth of Nations of Adam Smith go hand in hand. Modern economists become versed in philosophy and argue that the redistributive justice through tax code or minimum wages is a costly affair, but the equality is determinant in promoting efficiency and sustaining growth, see Berg and Ostry ‘Equality and Efficiency’ 2011 Finance and Development 48 (3) 1-5.
[43] Bork (footnote 34) 1978 p. 91.
[44] Bork (footnote 34) 1966 p. 7.
[45] Orbach (footnote 39) at 140-142.
[46] 468 U.S. at 85.
[47] 509 U.S. 209 (1993).
[48] 549 U.S. 312 (2007).
[49] 305 F.3d 1124 (10th Cir. 2002).
[50] 253 F.3d 34 (D.C. Cir. 2001).
[51] For a good overview see Gerber, Law and Competition Law in Twentieth Century Europe 1998; Gerber (footnote 3) at 159; Drexl, ’Competition Law as Part of the European Constitution’ in: von Bogdandy; Bast (eds.): Principles of European Constitutional Law 2010, 659 – 698.
[52] Commission Press Release: ‘Antitrust: Consumer welfare at the heart of Commission fight against abuses by dominant undertakings’ Brussels IP/08/1877 3 December 2008.
[53] Airtour Plc v European Commission (T-342/99) 2002 E.C. R II 2585; Schneider Electric SA v European Commission (T-301/01) 2002 E.C.R. II 4071 ; Tetra Laval v European Commission (T-5/02) 2002 E.C. R. II 4381.
[54] Weiß, European Competition Law Review 2011 (4) 186.
[55] Guidelines on Vertical Restraints (2000) OJ C 291 and (2010) C 130.
[56] Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, [2009] OJ C 45/02.
[57] Guidelines on Vertical Restraints OJ 2000 291 note 4 para 7.
[58] EC Commission DG Competition Discussion Paper on the Application of Art 82, Brussels December 2005. This paper shows that Commission has not so far established a test of harm to consumers as declared.
[59] Case 6/72, 1973 ECR 215.
[60] T-219/99, 2003 ECR II 5917.
[61] (2008) ECR 1-000.
[62] Gerber (foonote 51) 1998 p. 334.
[63] Walter Hallstein
[64] Gerber (footnote 51) 1998 at 331.
[65] Von Hayek, ‘Competition as a discovery procedure’ in Nishiyama; Leube (eds.)’The Essen of Hayek’, 1984, 24; Von Hayek Law, Legislation and Liberty Vol. 3:The Political of Free People 1979, 65.
[66]The system of rules into which the rules guiding the action of any one person must be fitted does not merely comprise all the rules governing his actions but also the rules which govern the actions of the other members of the society.” F. A. Hayek note 63 (1979)
[67] Von Hayek, 1945, 35 Am. Econ. Rev. 519, in Nishiyama, Leube (eds.) (footnote 65) pp. 211-213.
[68] “If we possess all the relevant information, if we can start out from a given system of preferences, and if we command complete knowledge of available means, the problem which remains is purely one of logic.” See Von Hayek, Economics and Knowledge, L.S.E. Essays on Cost 45 in James M. Buchanan & George F. Thirlby eds. 1981.
[69] “Competition . . . means decentralized planning by many separate persons” Von F. A Hayek (1984:258)
[70] Gerber 1998 (note 51) at 266.
[71] Kantzenbach, Die Funktionsfähigkeit des Wettbewerbs, 1996; ‚Die Funktionsfähigkeit des Wettbewerbs. Bemerkungen zu Kantzenbachs Erwiderung‘, Jahrbücher für Nationalökonomie und Statistik 1967/1968 (181) 193.
[72] Hoppmann, Marktmacht und Wettbewerb 1977
[73] Eichof ‚Die Hoppmann-Kantzenbach Kontroverse: Darstellung, Vergleich und Bedeutung der beiden wettbewerbspolitischen Leitbilder, Diskussionsbeitrag Nr. 95, 2008, Universität Potsdam.
[74] Eichof(footnote 73) p. 21.
[75] Eichof footnote 73) p. 22-24.
[76]The WTO competition agreement could support developing countries in promoting economic development effectively in addressing the cross-border effects of anticompetitive practices by business firms. They need frame their conceptions in order to advance their interests in the future and increase their participatory power for the next strategic step. ICN is the most suitable partner for informal collective action. See Do in Zeitschrift für Wettbewerbsrecht, (2) Juni 2011 pp. 133-160.
[77] Do, Manchester Journal of International Economic Law 2011 8, (1): 18-35.
[78] Twigg-Flesner; Micklitz ‘Think Global-Toward International Consumer Law’, Journal of Consumer Law 2010 (33) 201.
[79] Scott ‘Enforcing Consumer Protection Laws’ in Geraint Howells et al (eds.) International Handbook of Consumer Law 2011 Chapter 18; Kamala, Mathis ‘Consumer protection, competition and RTAs: Some lessons for developing countries’ in: Brusick Philipe et al (eds.) Competition Provisions in Regional Trade Agreements: How to Assure Development Gains 2005 Chapter 7.
[80] Kamala, Mathis (footnote 79).
[81] http://wto.org/english/news_e/news11_e/ddg_06jun11_e.htm
[82] http://wto.org/english/news_e/news11_e/igo_24may11_e.htm
[83] Kamala, Mathis footnote 79.
[84]Twigg-Flesner; Micklitz footnote 78.
[85] Drexl et al (eds.) Competition Law and the Economic Approach, 2011; Christiansen ‘The more economic approach in the EU merger control – A critical assessment’ Deutsche Bank Research 1 March 2006.
[86] Christiansen footnote 85
[87] Do (footnote 77) pp. 34-35.
[88] Gerber(footnote 51) 1998 p. 115.
[89] Gerber(footnote 51) 2010 p. 208.
[90] Fox, Harvard International Law Journal 2000, 41, 579; for latest development see Klees, Wirtschaft and Wettbewerb 2011 (2) 140.
[91] Do (footnote 77) p. 31.
[92] Lipset, American Political Science Review 1959, 53: 69-105; Sheri, Foreign Affairs, March 2009.
[93] Inglehart, Welzel, Foreign Affairs, April 2009.
[94] Vanberg in Drexl 2011 (footnote 3)
[95] Zäch; Künzler, Zeitschrift für Wettbewersrecht 2009 (3) 269
[96] Sen, The Idea of Justice 2009; Sen, On Ethics and Economics, 1990.
[97] Sen (footnote 96)2009 p. 19.
[98] Sen (footnote 96) 2009 pp. 19, 231, 250.
[99] Critics claim that Sen pays insufficient attention the question of asymmetries in social power within the global power. He focuses more on local factors than global and national driving force to explain the justice and poverty. Sen underestimates the powerful role of the social sponsoring and aid donor to contribute to change the global structure and institution. The capability approach could not justify how to explain the global duty at a global basis; see Pogge, Can the capability approach be justified? Philosophical Topics, 30, 2, (2002) 167-228.
[100] Sen, (footnote 96) 2009 p. 178.
[101] Sen (footnote 96) 1990 p. 70.
[102] Sen (footnote 96) 1990 p. 74-76.
[103] Sen (footnote 96) 1990 p. 39-40
[104] Do (footnote 76) Developing countries need to obtain support and evidence for furthering action. In this respect, system of data collection, reporting, monitoring and process of determining of harm are the most important issues to be addressed; these problem can be resolved only with the support of developed countries and donors agencies.
[105] For example see Black, Conceptual Foundations of Antitrust 2005 and Townley, Article 81 EC and Public Policy 2009. Both advocate that competition law can be used to promote the general well being of citizens.
[106] There is strong argument against this vision: competition law regime is not concerned with everything, most notably ‘When everything is relevant, nothing is dispositive’ Easterbrook argued in The Limit of Antitrust’, 1984 63 Texas L Rev 1-40. How can the competition law regime be capable of achieving everything in developmental purpose? How can the inclusion of developmental policy considerations do in competition law adjudication? Do we need the world court of last resort? What is the best fruit in this regard? These concerns raised by practitioners cannot be underestimated in this framework.
[107] Weiß (footnote 56)
[108] Gerber, 2007 (footnote 3) arguing the WTO framework becomes a political imperative for developing countries. Do, 2011 (footnote 76) arguing developing countries need to increase their participatory power for the next strategic step from capability perspective.
[109] Do, 2011 (footnote 76) arguing the crucial role of ICN
[110] This is a bigger question needs to be addressed in future research, see for example ‘Coordination between ICN, OECD, UNCTAD, WTO, etc.: Do We Need a Summit?’
