Perspectives of International Co-operation in Competition Law and Policy

Kim Them Do

ZWeR Online

Contents

I. The need for an alternative approach

II. Overview of the development of multilateral cooperation

1.Early attempts at international agreement

The ITO

The ECOSOC

The GATT

The UNCTAD

The OECD

2. Contemporary debates

The role of the WTO 

The emerging role of the ICN

Limitations of multilateral agreement

III. Perspectives of a global regulatory strateg

1. Institutional perspectives

The interface between trade policy and competition policy

Theory of complementarity

Effects of trade policy on the development of fair competition

Effects of anticompetitive practices on the trade development

Theory of contestable markets

2. Policy perspectives

Diversities in competition culture                 

Differences in substantive competition laws

Differences in procedural laws

3. Law perspectives                       

Plurilateral agreement

International soft law

4. The road ahead 

IV. Conclusion       

***

I. The need for an alternative approach  

Traditionally, competition law and policy are domestically-oriented.[1] With the globalisation of merger activities and in the absence of international competition laws, national competition authorities have to resolve their own enforcement problems in dealing with many nations.

In doing so, they extend the scope of application of their domestic competition laws to the country whose’ conduct has affected the territory or economy of their state. This extraterritorial approach has clear deficiencies, because it cannot provide a basis for one nation to interfere in the domestic competition law affairs of another, as the Laker and Uranium litigation have shown.[2].

Mergers between global players are producing both results beneficial to economic development and unmanageable social welfare risk. The conse-quences of the cross-border restraints on the competition have been controversial, specifically; anti-competitive practices may impede market access, as the Kodak–Fuji and Telmex[3] disputes have shown.

The practitioners are beginning to realise that the more domestic and international processes of enforcement are interwoven, the more co-operation is needed. In this light, bilateral co-operation is applied in order to avoid conflict and make enforcement more effective and efficient.[4] However, bilateral agreements are unique to the relationship involved and are not universally applicable[5]. The rapid development of global mergers poses new challenges for policymakers and legal scholars, who now recognise that global problems need global solutions. The need for the introduction of an international co-operative framework for competition policy is more obvious than ever.

For this reason, there have been various calls for a system for global co-operation[6]. The role of international organisations in dealing with this matter is clearly important.

The United Nations Conference on Trade and Development (UNCTAD), the Organisation for Economic Co-operation and Development (OECD), the World Trade Organisation (WTO) and the International Competition Net-work (ICN) are discussing the problem. The question central to this discussion is which international body can offer the best regulatory and institutional framework for this global co-operation. The WTO seems to be an appropriate institutional vehicle for this task; however, the chance of such desirable co-operation is minimal since the General Council of the WTO decided on 1 August 2004 that competition policy would not be a part of the Work Programme of the Doha Trade Talks.[7]

Consequently, there was no negotiation on this issue in the context of the WTO in the near future. This decision has had remarkable repercussions on the further conceptualisation of international competition law and policy.

Faced with this new reality, an alternative approach is needed. The quest for a new solution has attracted an enormous amount of literature[8]. Armed with this debate, this essay focuses on the question how and over what international co-operation can be achieved. It does not present the historical developments and discuss the issues of unilateral and bilateral solution.

The paper proceeds as follows: section II summarises the development of international co-operation in competition law and policy, and section III describes a feasible strategy for improving current co-operative activities. In doing so, we could bring about reasonable expectation of change in the foreseeable future. rnational co-operation, and the section 2.2 describes

II. Overview of the development of multilateral co-operation in international competition law

The bilateral approach cannot globally operate successfully. On the background of the global market, the question is how the investigative authority can begin proceeding if the anti-competitive action comes from a third party and the bilateral agreement cannot provide geographic coverage.

At first glance, it may be said that a global approach may be able to resolve the problem.The objective of this strategy is to set out multilateral competition rules as well as to design a global agency. It would have proper regulatory power to investigate anti-competitive practices of glo-bally-merged firms and to seek remedies. Consequently, this option may work effectively. 

From the point of view of global welfare, its rationales are politically supported: the parties concerned cannot focus only on their inter-state interests and ignore the rest of the world. It would make positive sense that the legitimate interests of developing countries in dealing with the negative effects of merger activities should be accordingly appreciated.

Looking at the current reality of international politics, it may be said that it is fully illusory to believe that it would be possible to finalize a global approach appropriately by creating a global competition law code and designing a global competition authority. The strongest criticism of this concept concerns the cost to national sovereignty[9]. Regulatory power is exclusively exercised by the national state. States will not give up a part of their right to self-determination to facilitate this desirable approach.

Clearly, the market is globally interconnecting, but competition law remains a national matter. It would not be politically feasible to transfer state sovereignty to another authority in order to realize the global con-cept, whatever form that cooperation may take. Realistically, this emerging question requires a globally coordinated response. This paper offers a modest attempt to show how the existing national competition law and policy could be effectively globally coordinated.

1. Early attempts at international agreement

The approach to the coordination of international competition law is not a new concept. It has a historical tradition; the first attempt was made by the International Trade Organization (ITO).

The ITO[10]

The ITO’s 1948 Havana Charter provided a regulatory framework for increased world trade liberalization.[11] It examined restrictive business practices, especially in the fields of public and private restraints, cartels, manipulation and market access[12]. Practices such as price-fixing, allocation of markets, boycotts, suppression of technology and unauthorized extension of patent monopolies which harm international trade could be referred to the ITO[13]. It foresaw the dispute resolution mecha-nism, rules and recommendations[14]. The charter was not politically sup-ported by the US and developing countries, and was not brought into force.[15]

Following this failure, the international community made no remarkable progress regarding international co-operation in competition policy. However, the efforts of the Economic and Social Council of United Nations (ECOSOC) and the General Agreement on Tariffs and Trade (GATT) are notable, as explained below.

The ECOSOC

In 1953 the ECOSOC prepared a draft agreement aimed at establishing an international coordinating agency the objectives of which would be to receive complaint about the conducts of firms, to investigate firms’ anti-competitive practices and to recommend remedies. Due to the divergence of the participants’ political views, this initiative was not implemented.

The GATT

In 1956 the GATT established a Commission of Competition Law Experts to examine the question of how to deal with competition issues from within the GATT framework. In its 1959 report the Commission concluded that this was not the right time to introduce competition issues from within the GATT. In 1960 the Commission recommended that each GATT member state entered into bilateral negotiations on the harmful effects of any private restrictive practices. This recommendation was not found useful by its members.[16]

In the late 1970s many newly-developed countries needed to make a major reappraisal of how they could benefit from competition policy by controlling anti-competitive practices operating outside their own jurisdic-tion. Hence some efforts toward a global order of competition policy emerged; the work of UNCTAD, among others, was considerable.

The UNCTAD

One of the UNCTAD’s most remarkable achievements was the adoption of the 1980 UN Set of Business Rules.[17] This was the first international competition code in the context of the UN Resolution, and contained special provisions to address the interests of developing countries by aiming at regulating the behavior of multinational firms. Most specifically, firms should respect the competition laws of the countries in which they operate. The new code did not undo the benefits achieved by trade liberalisation. It was characterized as international public law; it focused on recommendations concerning the restrictive business practices of mul-tinational firms rather than on issues of international co-operation. It was non-binding, and had little effect in practical terms. Consequently, it was not seen as a basis for an international co-operation in competition policy.

The UNCTAD is involved with various issues in the field of competition policy. Its objective is to assist developing countries with promoting their economies and integrating them with the world economy. In dealing with competition policy it intends to boost competitiveness by promoting a competition culture.[18] As a trans-governmental institution, it organizes forums, undertakes research, collects data and provides technical assis-tance. Moreover, it offers developing countries a platform from which to express their interests concerning not only the introduction and implementation of model law on competition[19] but also general issues of economic development, social justice and political stability.

The UNCTAD forum unduly favored the interests of developing countries[20]. Its political critics have had negative consequences for the development of co-operation in competition policy.[21] The diversity of views amongst its members discouraged support from the developed countries, especially the US and the EU which have solid experience in the enforcement of mergers and cartels. Currently the majority of UNCTAD members has no competition legislation or is only beginning to introduce it into their legal system. The various levels of its development and implementation make the effort to co-operate more difficult than initially expected[22]. As a soft law institution the UNCTAD is unlikely to be the best platform to persuade its members to fulfil their obligations.

Besides the works of UNCTAD, the recommendations of the OECD have made a considerable contribution towards the positive development of international co-operation in competition policy.[23]

The OECD

The OECD issued a number of soft laws, non-binding recommendations for best practice regarding cartels, mergers and co-operation in 1967, 1973, 1979, 1986, 1995 and 2005.[24] 

The OECD consists of a group of developed countries, and aims to assist its members in developing their economies. The Competition Law and Policy Committee (CLPC) serves as a forum for its members. Among other things, the CLPC assists with discussions on competition matters and promotes harmonisation between countries. In addition, the OECD created the Joint Group on Trade and Competition in order to examine the interface between trade and competition policy.

The OECD is now increasing its outreach efforts to non-member countries[25]. Its most significant operation in recent years has been to run an annual forum on global competition, where developed and developing countries come together to discuss the issues concerned, exchanging experiences in order to enhance the common understanding of compe-tition culture.[26] Since 2001 the CLPC has paid more attention to regional issues. It has established regional competition centres in Eastern Europe (Hungary), Asia (Korea), and recently, in Latin America (El Salvador). Its centres primarily aim to promote regional co-operation, and deal more with technical matters than with theoretical considerations.[27]

The OECD members have solid experience of merger enforcement and co-operation. The organisation serves as an information centre as well as a think tank for further conceptualization. In addition, it has issued a number of guidelines for best practice in implementation in merger review. Certainly, its performance is influential in fighting cartels and contributing to the creation of a comprehensive understanding of common competition policy. In contrast with the strength of UNCTAD, its major weakness is its lack of political support from developing countries. Due to the limited membership of the economically advanced countries, the OECD cannot serve as a global forum for co-operation.[28]

In comparison with the weaknesses of both UNCTAD and the OECD, the WTO can bridge the north-south divide, thanks to its universal membership. At first glance, the WTO appears to be a suitable organisation to take on this responsibility.

2. Contemporary Debate

The Role of the WTO in International Competition Policy and Law 

The WTO began operations on 1 January 1995. Its objectives are to facilitate world trade by arranging the reduction of trade barriers and eliminating discrimination against unfair trade through multilateral nego-tiation. Its main functions are to facilitate the implementation of WTO agreements, to act as a forum for negotiation, to review trade policy, to co-operate with other organisations and to provide technical assistance to developing countries. Its most successful achievement is its dispute settle-ment mechanism. Trade disputes between members can be resolved by the rule of law and the due process of law. Its recommendations and rules are no longer made through diplomatic consultation, as in the past. Most importantly, they are legally binding once adopted.[29]

In comparison with the existing capacities of UNCTAD and the OECD, it seems to be clear that there is much to recommend the WTO’s assumption of the role of international co-ordinator of competition policy. It has universal membership, a dispute settlement mechanism, transpa-rent procedures, experience managing the negotiation and implement-tation of international agreements and solid experience in dealing with international trade law.[30] Arguably, experience shows that the adoption of intellectual property laws within the frame-work of the WTO system has been relatively successful; there is no reason to expect that its incorporation of competition law would be problematic.[31]

Most relevantly, the WTO is considerably experienced in competition policy. After the Ministerial Conference in Singapore 1996 it established the Working Group on the Interface between Trade and Competition Policy, the purpose of which is to study the interaction between trade and competition policy and to examine the possibility of integrating these areas into the WTO framework[32].

The Working Group issued a number of reports in 1997, 1998, 1999, 2000 and 2001.[33] The most important issues under examination are the rela-tionship between trade and competition policy; analysis of instruments and standards; the impact of state monopolies on competition policy; and the contribution of competition policy to achieving the objectives of the WTO.[34]

It is impossible to examine the findings of all these reports in detail, but it is useful to briefly recapitulate the main considerations in this discussion. As a conclusion, the Working Group reaffirmed that there is an interaction between trade and competition policy; that the anti-competitive practices of firms are harmful to the international trading system; that import and export cartels and exclusive dealing arrangements affect market access; and that abuse of their position by dominant firms can exclude competing firms. Co-ordination between members to address anti-competitive practices and further consideration of policy tools and the modality of ne-gotiations would be necessary. There is a divergence of views how to work with the future agreement. From the legal perspective, the form of co-operation needs to be addressed. The question to be resolved is whether the agreement would be multi- or plurilateral, binding or non-binding. Most importantly, the Working Group is exploring how it can draw the political support all of its members.[35]

As a procedural matter, the Working Group planned to submit its findings in the form of an agenda at the Seattle Ministerial Conference. The Group expected that members would discuss these recommendations and decide them on the basis of a consensus. In the case of unanimous approval by members, co-operation in competition policy would be incorporated into the context of the WTO. Due to the political agitation against the Seattle conference, the Working Group was unable to submit the report.

The WTO’s approach to international competition policy was to be re-launched in the Doha Ministerial Conference 2001. The Ministerial Conference agreed to initiate negotiations on competition policy with a view to clarifying existing rules before deciding on appropriate action. Some crucial points were made in the ‘Doha Development Agenda’ [36]as follows:

The WTO agreed that the initiation of negotiations on competition policy would depend on an explicit consensus regarding the modalities of negotiation. The WTO would realise the aid programmes regarding capa-city building in competition matter for the developing countries. The Working Group should continue to examine the interaction between trade and competition policy, especially in the fields of core issues, transpa-rency, non-discrimination, procedural fairness and co-operation.

The Cancun Ministerial Conference of 2003 was to discuss the Doha approach[37]. Due to the divergence of views regarding the modalities of future negotiations and to pressure from the US and other developing country members on other issues, notably subsidies and agriculture, the participants came to agree that the 2004 Ministerial Conference would finally decide the future negotiation of international competition policy. The 2004 Geneva Ministerial Conference decided that competition policy, among other Singapore issues, would not be included in the Work Programme of the Doha Trade Talks[38]. Consequently, no negotiations concerning competition policy in the context of the WTO are planned for the near future. While there is deadlock within the WTO, it is encouraging to observe the cooperative attitude of the ICN in dealing with the matter in question.[39]

The Emerging Role of the ICN

The ICN is an informal network of competition authorities from developed and developing countries. Its purpose is to facilitate coordination by maintaining contact between the national competition authorities and addressing practical competition issues[40]. By attending this forum participants try to diminish potential conflict arising from practical competition matters. The ICN has no intention of becoming an inter-national competition lawmaker; it simply generates recommendations on best practice for its members. In practice, its main goal is to promote the convergence of procedural issues. The ICN does not seek to create man-datory harmonisation.[41] Given the diversity of jurisdictions and notably the gaps in governmental policy, it foresees that its members need the flexibility to be able to introduce standards suited to their individual systems.[42]

The ICN has established five working groups (WGs). They are the WG on the Multijurisdictional Merger Review, the WG on Cartels, the WG on the Capacity Building and Competition Policy Implementation and the WG on Antitrust Enforcement in Regulated Sectors and the WG on Competition Advocacy in Economic Downturn[43] The working results of the ICN are reports, recommendations and handbooks. Even though the recommend-dations of its WGs are not legally binding and compliance is non-compulsory, their practical effects are remarkable, thanks to their trans-mission mechanism, namely cognitive convergence through permanent interaction and peer pressure of best practice. Over the past year the EU, Ireland, Korea, Romania and Russia have implemented legislative or regulative changes to conform to certain ICN practices, and Brazil and Mexico have begun to introduce changes suggested by the ICN. Other jurisdictions are now paying greater attention to this movement.[44]

The ICN’s recommendations for best practice can be seen as a first and necessary step in identifying further steps towards effective co-operation. Contrary to the WTO’s emphasis, the ICN does not concentrate on market access.[45] To date it does not consider the interface of trade and compete-tion to be a chief concern. For this reason, understanding of co-operative issues by its members is limited. As a result it may be said that greater co-operation in international competition policy and law is not the end result of the ICN approach.

Due to its limitations[46] the ICN, at least for the time being, cannot be seen as the best platform for international co-operation in competition policy and law.

3. Limitations of multilateral agreements

In summary, it may be said that various international bodies have considerably influenced the development of international co-operation in competition policy and law. Given the fact that they have no legal capacity to promulgate ‘hard law’, they have served as fora at which participants meet and exchange information on a voluntary basis. These ‘talking shops’ may have a view to establishing legally non-binding international rules to control the practices of firms in the future. In spite of all these invaluable initiatives toward global co-operation, three limitations are particularly striking:

– Existing initiatives have proved unsuccessful in solving the problem of global co-operation. Due to sovereignty costs and the weakness of soft law effects its efficiency is still limited;

– The regulatory framework is provided by a set of institutions, rather than by standards;

– The desirable WTO approach is currently politically unachievable.

III. Perspectives on a global regulatory strategy

Based upon the findings above it may be said that the international community is facing a global regulatory dilemma in international co-operation. This challenge demands re-conceptualisation. It is time to reflect on an alternative approach; in particular, to find potential elements of an efficient and legitimate global regulatory strategy. The following sets up a conceptual framework with questions from three perspectives:

– Institutional: Would the WTO provide a suitable platform for an interntional competition agreement?

– Policy: How far would harmonisation be possible in establishing a framework?

– Law: What form should an international agreement take?

1 Institutional perspective: rethinking of the role of the WTO

It may seem counter-instinctive to argue that the very unsettled nature of international co-operation in competition law and policy generates a new opportunity for creative strategy.  The following does not look further at the other institutional perspective in order to strengthen its desirability in the present time[47]. This analysis suggests that there is another argument that can shed light on the desirable effect of rethinking the role of the WTO because there are many reasons to support the WTO approach. Most relevantly, it must centre on basic theoretical understanding of the theory of complementarity[48] and theory of contestable markets by exploring international trade and competition policy rationales and establishing their practical interrelationship. In doing so, it is argued that the WTO in future will not be able to shed responsibility for regulating the international competition law and policy.

The Interface between Trade Policy and Competition Policy

Looking at both the objective and strategy of trade policy and competition policy, at first glance it may be said that there are some basic differences[49]. One of the most significant of these is that trade policy primarily pertains to the actions of governments, while competition policy looks at market power and the conduct of firms. Each policy follows its respective strategy with its own respective laws.[50]

International trade policy promotes trade liberalisation (free trade)[51]. Trade liberalisation offers the opportunity for firms to go global in order to reach potential consumers beyond their borders. In entering in the global market, firms benefit from economies of scale and greater scope than the national market in which to operate. In this light, international trade law would serve as an instrument to remove discriminatory impediments to cross-border trade. It would bind governments to their multilateral tariff commitments, induce them to comply and prevent them from avoiding their commitments by utilising various types of  non-tariff barriers to trade. In this way trade liberalisation would increase firms’ export opportunities and competition[52]. It would promote investment, innovation and economic growth, and arguably most importantly, it could bring overall benefits for countries[53]

Contrary to the goals and benefits of international trade policy, basic reasoning in competition policy, whether national or international, is based on the idea of the free market. Some governmental interference is desirable only on the condition that it would be necessary to maintain competitive pressure and promote competition and efficiency in the market. From this point of view, competition law would allow firms to take advantage of business opportunities and ensure that market processes would always be as intensively competitive as possible. Workable competetion would promote dynamic economic efficiency in the sense of both productive and allocative efficiency[54]. In order to reach this objective, competition law seeks to reduce the scope for anti-competitive conducts, particularly creating limits to the market power of big firms. Restraints, cartels, monopolies, price fixing and price discrimination are, in this light, not permissible business practices. Therefore international competition policy principally promotes market deregulation and behavioural regu-lation (fair competition).

On closer consideration of its crucial differences, it may be said that the ultimate goals and benefits of both have fundamental similarities: both have the inherent objectives of promoting efficiency and consumer welfare in making the market more competitive, and both focus on national and global welfare.[55] Realistically, neither policy nor law can provide a perfect solution, and they may generate a mixture of governmental and private restraints. In considering an alternative policy approach it is necessary to take a broader focus rather than to be limited purely by the goals of fair competition or trade liberalisation. The view proposed above is just one aspect of its complex problem. Conceptually, the theory of comple-mentarity is quite a different thing and theorists on international compete-tion policy may justify it to support the WTO solution.

Theory of complementarity

According to the theory of complementarity, the possible benefits of trade liberalisation could not be achieved if anti-competitive practices by firms are prevalent in the market[56]. For this reason, researchers focused on some reciprocal effects of both policies and typically illustrate them as follows:

Effects of trade policy on the development of fair competition

The complementary nature of trade liberalisation and fair competition can be seen in the effects of tariffs. The raising of tariffs measure is primarily aimed at preventing foreign firms with cheaper imports from competing in the domestic market. In pursuing this objective the trade policymaker permits domestic firms to raise their prices above the level set in condi-tions of global competition. The ability of firms to sustain prices above the competitive level is termed ‘market power’ in competition law terminology. Market power, even though it has been artificially created by trade policy measures, has a negative effect on consumer welfare. Due to the rising of prices and reduction in quantity of commodities on the competitive market, consumers should have been considerably injured.

Effects of anti-competitive practices on trade development[57]

When a monopolist exercises its market power in an international market, the consumer welfare of all the markets concerned is harmed. Not only the market power, but also market sharing and bid-rigging by global players generates negative effects on consumer welfare. Anti-competitive conduct by dominant firms forces the exclusion of other firms operating in the market. Worst of all, newcomers may be discouraged from investing in the market; there would be no incentive to engage in such unfavourable environment.

The most cited example of this practice affecting the foreign market is where merged firms attempt to monopolise another market. A merger of two or more firms in a domestic market may create a market power not only in that domestic market but also in the foreign market. With its new strength and resources, the merged firm eliminates competitors by pur-suing a predatory pricing policy[58]. In the short run, the consumer could benefit from this strategy by enjoying the cheaper products. Once the competitors were forced out of the market, however, the predator would increase the price to secure its profits in the long run. This would injure both consumers and competitors in the foreign market. The affected authority has no appropriate remedy because the merged firm is located outside the market and the area of jurisdiction concerned. Finally, market structure and trade development can be negatively affected.

Not only policymakers can introduce barriers to trade as discussed above, but also economically powerful firms can indirectly block access to the domestic market through anti-competitive practices. If a group of domestic firms with market power agree to boycott foreign products, this horizontal cartel agreement can keep foreign competitive firms out of the market. Vertical restraints or control by powerful groups of firms in the domestic market have the same effect. A domestic manufacturer could threaten to cut off the supply to his domestic distributor unless the latter undertakes not to handle foreign, competitive products. These types of controls in vertical integration are various[59], but their final effect closes the market to the would-be foreign entrant. The consequences are similar to those of import tariffs, which international trade policy is trying to gradually eliminate.

Importantly, competing foreign firms cannot rely on government action where they operate. They cannot expect the government to remove restraints and open access to markets at their request. Due to various political reasons, governments may encourage, tolerate or support anti-competitive practices by domestic firms.[60] Consequently, these effects of market foreclosure still exist and the difficulties in problem-solving continue.

However, the theory of complementarity is controversial. Re-examining its explanatory power in full would go beyond the scope of this discussion. In practice, two policies are mutually supportive to a certain extent; they are not fully complementary as expected, leaving scope for conflict. Not all competition problems are trade problems.[61] The question is whether or not the conduct of certain firms would be considered anti-competitive and disallowed; this would vary from country to country and from one domestic competition law to another. Its legislation has his own view of the effects of competition pressure and consumer welfare. The practice of merger review does not only have impact on trade policy; but also falls within the scope of other policies. The co-operation of competition authorities in dealing with multi-jurisdictional merger reviews is not relevant to trade policy.

Arguably most importantly, international trade policy and competition policy are so closely related that the WTO cannot escape regulating intenational competition policy by arguing that it serves only to promote trade liberalisation, ignoring the benefits of fair competition.

Although these arguments might have some merit[62], such complementary evidence could not help us adopt this vision without tackling more penetrating question: How we can support the WTO solution while the overlap of these policies still exists? How we can reconcile these issues?  These questions have been a source of concern of most policy makers and economists. Some of them[63] have suggested that the theory of contestable markets could be useful starting point to consider the degree of such possible conciliation.

The theory of contestable markets

A full analysis of the theory of contestable markets with positive effects on the cooperative issues is beyond the scope of this section. Nevertheless, it is important to deal -albeit briefly-with the idea that such theory is positively associated with the perspectives of international cooperation in competition policy and law. The basic concept here is that it is impossible for policy makers to promote a perfect competition in the market.

Practically, it may be possible for them to perform a perfect contestable market where there would have no or low barriers to market entry and exit. Its fundamental features are: it is quite easy for firms to enter the market without incurring sunk cost and to leave without loss; the mere threat of market entry of a potential rivals is decisive factor to protect consumer welfare; and importantly, a highly concentrated or monopoly market does not mean that the firms are harming consumers by earning supernormal profit. In a perfect contestable market an economically efficient outcome can be achieved where there are only few competitors[64].

Realistically, policy makers can never finalize a perfectly contestable mar-ket successfully, but this central idea of the ease of market entry is particularly significant to discuss the aspect market power of firms[65]. Market power refers to the ability of a firm to raise price above some competitive level and a monopolist may enjoy his highest market power in the market. The theory of contestable markets restates the idea that a firm is unlikely to exercise such market power if it faces potential competitors that could quickly enter the market.

Consequently, the threat of market entry may reduce or constraint on market power of dominant firm and this view may have implications for designing competition policy. It helps policy makers to identify the barriers of the market by answering the following questions: Are the barriers a natural part of market structure or a product of government regulations? At least, this theory could be applicable in the domestic market[66].

These arguments may help us tackle more other questions: How crucial is this insight for the reconciliation of the interfacing issues? How theorist can carry over the concept of contestable markets at the domestic market to international context? In broad terms, the international contestability of markets would be a new objective to reconcile international trade policy and international competition policy. A market may seem internationally contestable one when conditions of global competition allow unimpaired market access for potential rivals. The ease of market entry cannot only promote maximum market access by removing the governmental and private barriers to market access but also maximum potential competition by allowing competitors to enter a market quickly and to quit the market painlessly.

This theory hat important implication for designing of competition policy by suggesting that policy makers should concentrate on removing certain types of regulating restrictions, ranging from those on competition policy, etc. Competition and trade are complementary means of international contestable market, too. From the view of global market performance, contestability theory would have implication on examining the mutual interdependence of international competition policy and international trade policy and could be used as a prominent policy tool, in particular in support of the WTO solution[67].      

In summary, according to the theory of complementarity and theory of contestable markets the WTO could offer an institutional framework for international competition co-operation in competition policy.

2. Policy perspective

The main question from the policy perspective is to what extent co-operation should seek the international harmonisation of competition policy and laws. In other words, the following deals with a quest for a commonly acceptable and workable degree of effective convergence.[68] Terms including adaptation, integration, internationalisation, harmoni-sation, convergence and standardisation are often used in the vast amount of related literature. It is not necessary to look further at their semantics or to find the appropriate application for these ambiguous terms. Generally, they refer to the process whereby trading nations come to agree on a desirable and feasible degree of similarity in their domestic competition laws within the international context; they accept a uniformity of substantive or procedural standards in application. Obviously, full harmonisation of the competition system cannot be reasonably expected; from the point of view of a costs and benefits analysis, it is neither realisable nor desirable.

Before examining the degree of international convergence of national competition policies and laws it is important to look at the most basic diversities in national competition policies and laws. Some of its crucial characteristics can be identified as follows:

Diversities in competition culture[69]

Undisputedly, there is a fundamental difference in understanding of spirit of competition policy.[70] It reflects the legal and cultural traditions and political interests of every trading nation. The US antitrust law not only promotes a free market economy, the philosophy of individualism and the free flow of information, it also underlines the protection of consumer welfare; most importantly, it promotes non-political intervention in the market process[71].

In contrast, the EU competition law emphasises competition policy as a political tool for pursuing its market integration project[72]. Based firmly on Ordoliberalism[73], German competition law bolsters market efficiency at the same time as protecting small firms. In pursuing this policy, it would highlight to promote the importance of the distributive justice in economic and social life[74]. Japan stresses fair trading more than consumer welfare in its competition law[75].

Due to international and domestic pressure, economies in transition demonstrate more or less trust in a free market economy by changing their market structure[76]. Politically, they still have an interest in strengthening the economic role of state-owned firms, and they open their markets reluctantly, partially and strategically[77]. Competition culture in this context does not mean economic and political freedom in the best sense, as experiences in emerging China[78] and Vietnam[79] today show[80].

While it is extremely difficult to find a dialogue to overcome the cultural gap in the age of “the clash of civilisations”[81], it is encouraging to see that understanding of competition culture is growing considerably in international discussions. Regulators, practitioners and legal scholars are the main actors that contribute to reaching the general spirit of competition policy. Thanks to regular meetings they are beginning to think, talk about and assess issues of competition policy in the same language.[82] Even though some degree of understanding can be reached, it will be hard to see how to achieve cultural harmonisation in its strictest sense.

In summary, it is not expected that cultural harmonisation in competition policy will be initiated in the context of global agreement, even though this invaluable effort continues.

Differences in substantive competition laws

The discussion on substantive convergence has attracted enormous attention in the comparative literature of law. Some proposals on the way to explore this convergence have been put forward. This section deals with observations about merger controls without attempting to assess all aspects of the proposals in detail.[83]

Experience shows that there is a broad consensus on the negative effects of hard-core cartels. market sharing and price-fixing in horizontal cartel agreements are no longer controversial in the investigative practice of the competition authorities[84]. These concepts may be a more generalised characteristic of competition policy and are commonly accepted by prac-titioner and legal scholars. Many of the substantial differences still are in area of monopolisation, exclusion and predatory pricing, and particularly in market power definition. 

There are currently at least twenty-six merger guidelines published around the world, with very little material convergence[85]. Substantive analysis of those in the EU, France, and UK shows that they all differ. The US Merger Guidelines have solid experience in applying the hypothetical monopolist test; for many reasons the trend to Americanize this strategy is being partly reserved[86].

Each jurisdiction has to consider the same questions: In what way to think of market power and assess the competitive effects[87]? How to protect the market and to promote competition? Would competition be seen as a system or an amount of competitors[88]?  To what extent can a competitor be protected?[89] How can the social costs be compared with the economic benefits of a merger? Each jurisdiction has a different way of answering these questions. The divergence in substantive laws remains the greatest obstacle in the future.

With regard to the diversity of merger review practices in strong jurisdictions it may be said that there are two typical tests[90]; namely the market dominance test and the substantial lessening of competition (SLC test).[91] The US, the UK, Canada, Australia, and New Zealand have tra-ditionally relied on the latter, while the EU has used the former for more than a decade. Two competing criteria are typically illustrated in the disparities in substantive competition laws in transatlantic disputes. Their key features may also be generalised to demonstrate the gaps in the global context.

The dominance test takes the creation or strengthening of the dominant position of firms as a starting point. It checks the market share or concentration of the firms in the market. In practice, if a firm has a market share of 40 percent, it is argued that it holds a dominant position in the market concerned. This factor is very informative and important, but is not decisive. Other additional factors such as relevant market phase, market dynamism and the relevance of potential competitors may also occasionally be considered in making a final decision.

By contrast, the task of the SLC test is solely to assess the market power of a merged firm. Its decisive question is whether competition pressure in the market concerned would be substantially reduced by the practices of dominant firms. It refers to firms’ capacity to influence or to change the quantity and price in the competitive process. Thus consumer welfare is an important factor to be considered.

Both tests have the same starting point – market structure – but the point of departure is that an SLC test concerns the substantial reduction of competition but does not examine the creation of dominant positions, as the market dominance test primarily does[92].

The EU Commission has introduced a new concept in merger reviews by applying the substantial impediment of effective competition test (SIEC)[93]. Its objective is to provide a clearer framework from which to ban mergers that create the non-collusive oligopolies when the merged entity does not achieve a dominant position. Presumably the new approach will reconcile the diverging interests of the test for dominance and the SLC test. In this view, it implies a much broader application[94]. Previously EU merger practices have concentrated more on structural questions or on harm to competitors. With the new test it can focus more than before on the assessment of competitive effects[95]. In short, the SIEC test tries to remove the gaps inherent in merger control[96]. The question is whether the new approach will facilitate merger review practice. The answer to this question requires further theoretical consideration and empirical findings, which goes beyond the scope of this paper. Significantly, the differences in substantive competition laws are not being reduced, but are rather still increasing. The heterogeneity of merger guidelines around the world provides strong evidence for this.

Another factor in this context is the importance of how law is interpreted. Firms’ expectations and governmental interest in merger projects is perhaps the most important element in considering how a conflict of laws could be resolved.[97] The question is whether efforts towards international convergence of substantive laws would be meaningful, when the various interpretations of laws are more fundamentally important than the imposition and convergence of such laws. There are no criteria for uniform interpretation and no efforts have been made to explore how this can be achieved. Governmental interest analysis may be helpful in understanding public considerations. Closely related to these interpretative gaps, political interests are also important in designing economic policy. Mergers can change the structure of the market as wells as of industry.  Due to the importance of the mergers a practice of its review would become a fundamental part of economic policy as a whole, not simply a specific limited issue within competition policy.

Consequently, in examining a merger the competition authority cannot use only the aforementioned test as a basis for its decision: it also needs to broadly consider other public policies such as industrial, regional, military and environmental policy. Public interest in preserving jobs also becomes a legitimate criterion for the decision makers. The cost-benefits analysis of competition policy becomes just a part of a general review of mergers[98]. The key theme in transatlantic disputes in the well-documented merger cases, Boeing/MDD[99] and GE/Honeywell[100], does not arise from the difference in substantive laws or the application of tests but rather in the argumentation, evaluation and expectations regarding national economic development or international competitiveness. In other words, it depends on the comprehensive consideration of public policy as a whole[101].

In summary, a substantive convergence of national competition laws within the global regulatory framework does not appear to be achievable.

Differences in procedural laws

Due to the insurmountable difficulties mentioned above, recent reforms in various countries have concentrated less on cultural and material convergence. However, it is widely accepted  es at procedural laws that the diversities at procedural laws could be reduced at a very basic level[102].

Much of the activity of the competition authorities and most recently of the ICN involves efforts to seek convergence in procedural laws. The reasoning for this is that such a solution would be politically feasible as well as economically effective. The costs and benefits in applying such an approach are evident: the sovereignty cost among nations would not be highly questionable[103]; the benefits for firms and agencies are easily traceable. Some procedural issues in multijurisdictional files can be identified as follows:

In order to avoid multiple notifications, determination from the outset of the jurisdiction to which a merger must be notified would be effective. Such allocation of jurisdictional authority would reduce firms’ financial burdens and give agencies more certainty in their communications with each other. Similarly, it would be beneficial for the working language and the cost of filing for notification to be fixed a priori. If doing this, the competition authorities concerned would formalise the lines of commu-nication during the course of review.

In the implementation of this, some fundamental questions that arise are: notification; objective filing threshold; deadlines and timing of modifycation; and jurisdictional review nexus. With this harmonisation firms may be less burdensome to the authorities and more certain in dealing with this matter than before. The merger review procedure is likely to be more predictable. As a whole, merger policy will become more attractive

From the perspective of promoting the convergence of procedural laws it may be said that the performance of the ICN provides empirical evidence for the proposed approach. The Subgroup ‘Guiding Principle for Merger Notification and Review’ sets out some following principles for dealing with the matter in question.

• Sovereignty: Jurisdictions are sovereign with respect to the application of their own laws to mergers.
• Transparency: In order to foster predictability and fairness, the merger review process should be transparent with respect to the policies, practices, and procedures involved in the review.
• Non-discrimination on the basis of nationality: In the merger review process, jurisdictions should not discriminate in the application of competition laws and regulations on the basis of nationality.
• Procedural fairness: Merging parties should be informed of the competitive concerns that form the basis for the proposed adverse decision and should have an opportunity to express their views in relation to those concerns. Third parties that would be harmed by potential anticompetitive effects of a proposed transaction should be allowed to express their views in the review process.
• Efficient, timely, and effective review: The merger review process should provide enforcement agencies with information needed to review the competitive effects of transactions and should not impose unnecessary costs on transactions. The review of transactions should be conducted within a reasonable and determinable time frame.
• Coordination: Jurisdictions reviewing the same transaction should engage in such coordination as would enhance the efficiency and effectiveness of the review process and reduce transaction costs.
• Convergence: Jurisdictions should seek convergence of merger review processes toward agreed best practices.
• Protection of confidential information: The merger review process should provide for the protection of confidential information.[104]

Apparently procedural convergence is well-implemented in networking practice and seems to be commonly acceptable on a voluntary basis by ICN members[105]. It is reasonably expected that its application would have an international effect.

In summary, given the various difficulties in procedural matters it is encouraging to see that convergence seems to be operating well through the informal network[106]. There is positive empirical evidence to support the continuing promotion of this widely-recognised solution[107]. If this ap-proach were politically feasible as well as economically efficient on the network level, there would be no reason to doubt that its applicability among nations would not succeed.

3. Legal perspective

The last aspect of this debate concerns the question of legal forms of international co-operation in competition law.[108] From the legal perspective it should be recalled that there are several types of co-operation between competition authorities: bilateral, regional and multilateral agreements. As discussed above, bilateral agreements, in spite of their inherent limitations, have proved to be the most successful in the practice of co-operation. However, they cannot provide the geographic coverage needed to rule over a global conflict.

The most successful regional integration is found in the European Union, which creates a far-reaching implication in co-operation of national competition law. An EU Merger Regulations has a rich experience in promoting co-operation but its applicability should be limited to practice within European territory[109]. The EU is a supranational organisation able to promulgate laws; due to this unique feature the international community cannot take this particular EU jurisdiction as a workable model. Other forms of regional co-operation such as the Asia- Pacific Economic Co-operation (APEC)[110] and the Southern Common Market (MERCOSUR)[111] are not as advanced as the EU.

By contrast, the global approach is of extremely limited usefulness. The Havana Charter outlined a multilateral agreement that never came into existence. Various international bodies have formulated a series of recommendations, but their soft law nature could not provide an effective way or serve as a legal framework for any agreement on international competition policy.

The central dilemma in analysing international soft law and determining the appropriate legal form for co-operation to regulate international competition policy is how to combine its aforementioned weakness in an effective and legitimate way in order to use it to govern in such areas. A more coherent international legal framework is required to induce more efficient regulation. The following suggests a fresh perspective which could have the desirable effect. It argues that at the present time effective international co-operation requires a treaty regime to combine soft law principles within a plurilateral mechanism.

Plurilateral agreement

Multilateral and plurilateral agreements reach their objectives by the same method: the parties come to an agreement, setting forth the principles to be observed. The points of difference are that the membership of the former is comprehensive, while the participants of the latter are limited. Agreements implemented by the UNCTAD, the OECD and the WTO are usually qualified as multilateral treaties. The would-be plurilateral treaty can stand alone or under circumstances included within the framework of the international organisation[112]

It is worth noting that the international competition issue has been on the political agenda of the WTO since the establishment of the Organization (1995) was still under negotiation. Much hope has been invested in the idea that the future agreement on international competition law could be inserted among the Plurilateral Treaties annexed to the WTO Charter. This desirable approach had been strongly advocated by the Working Group of experts at the Max Planck Institute. The so-called Munich Group proposed a Draft International Antitrust Codefor possible adoption by the WTO (1993)[113].

The Draft Code envisaged the creation of an international competition law regime and a centralized enforcement and dispute settlement structure. One of the remarkable features introduced by the Munich Group is the investigative power of the International Antitrust Authority. This institution may bring actions against national authoritieswhen a national authority refuses to take appropriate measure, sue private parties forinjunctions, may hold a right of appeal even when it is not a Party to a case. In addition, this body would have a duty to sue aparty before the International Antitrust Panel, assist parties in the enactment of antitrust law and in antitrust enforcement. The objective of the Munich Group was too ambitious academically and the draft was too detailed technically. As a result, this desirable project was not particularly welcomed by both the business community and the competition authorities[114]. Objectively speaking, the Code is draw to the great attention of legal scholars and to raise some specific points which merits further reflections[115]. As to date, this carefully drafted instrument remains a highly useful document for discussion on international competition law.

In current WTO practice, there is no multilateral agreement in competition policy. From this perspective, the plurilateral option could be incrementally tailored to include such co-operation. The plurilateral agreement appears to work well because there are some strong jurisdictions with rich experience, common interests and the same level of development. Developing countries could therefore benefit from these performances by participating in advocacy and technical assistance measures[116]. Given the fact that not all jurisdictions can benefit from this expected agreement, at least at the present time, the plurilateral approach seems more practical than the multilateral one.

How can this strategy be brought about?  To ensure that the plurilateral approach can be implemented and enforced in domestic systems, two steps should be taken. First, the WTO should set out the principles to facilitate trade (transparency, objectivity, most-favoured nation and national treatment) to be used in this agreement[117].

Most relevantly, these rules would prohibit international, import and export cartels because their conduct directly affects trade between members of the WTO. The issue of dealing with vertical restraints, mergers and acquisitions should be considered next. The WTO should analyse these problems by examining the effectiveness. The question is whether these international competition rules, if applicable, would enhance the WTO’s objectives. The costs and benefits of introducing rules regarding mergers and acquisitions should be analysed. As indicated above, there is empirical evidence to strongly support the potential for a procedural convergence of competition laws. The remarkable performance of the ICN in this regard can serve as a useful instrument for developing international competition law standards. Such incorporation would further improve the objectives of the WTO and promote the effectiveness of the WTO system. Therefore, it is suggested that this solution be incorporated within in the framework of the WTO.

International soft law

The question here is how the proposed agreement should require participants to implement it: would it be voluntary or mandatory? binding or non-binding? It has been a matter of controversy on international public law.[118] These features rely on the concept of international law: ‘hard law’ versus ‘soft law’. Soft law refers to legal norms that are recognised in either formal or informal agreements. The parties concerned have the common intent to voluntarily observe the rules agreed and the flexibility to adopt them in their own domestic laws. They may have a political bargaining by interpreting the application and by considering the public policy. Their commitments to observe the law are not compulsory. By contrast, hard law norms require the contracting parties to observe the terms of an agreement strictly; and they have to modify their domestic laws accordingly. In the case of non-compliance, sanctions and enforce-ment must be applied. This analysis focuses more on some characteristics and applicability of soft law than on its theoretical considerations.

The following does not highlight the advantages of soft law by favouring it in its theoretical aspects. It is sufficient here to reiterate the difficulties in convergence, as indicated above, to support its applicability. Practically, due to sovereignty costs, it is hard to see how the states concerned could be compelled to subject their domestic norms to international discipline. As long as policy makers around the world cannot harmonise the objecti-ve, the form and the enforcement process of competition policy, it may be said that there are no grounds for believing that implementation of a mandatory approach to compliance with international law would be smooth.

However, taking a closer look at soft law it may be said that it is no law at all, because it is non-binding and unenforceable. There is no perspective from which to assess its usefulness. In fact all bilateral agreements on competition policy show that although they are of a non-binding nature, they are working well. All of the best practices of the ICN are of a soft law nature and are operating successfully. This is best illustrated to demonstrate that the soft law approach would be helpful in overcoming the current difficulties in global co-operation in competition policy.

In addition, international banking and financial law institutions are also successfully experimenting with soft law. The Basel Committee, the International Organisation of Securities Commissions and the International Association of Insurance Supervisors are the best-known standard-setting bodies. They are increasingly viewed as important mechanisms for promoting convergence and harmonisation of national financial law and regulation. Their decisions are non-binding, but are effective for their members because of the absence of formal procedure. The Rio Declaration on international environmental law is informal but very influential in the law-making decision process.[119]

The reasons for the success of soft law instruments are, among other things, that the standards suggested can provide policy makers with guidance to their use and help them to understand the dimension of a problem[120]. Moreover, they may facilitate consensus building and permit the eventual introduction of hard law instruments.

Most specifically, the dramatic convergence of domestic procedural competition laws within the context of the ICN as soft law could arguably constitute a future for international co-operation. The growing importance of soft law shows that these soft law norms are reasonable options and politically achievable.

In summary, a mixture of soft law and plurilateral approaches in the context of the WTO are seen as the best option for international co-operation in competition law and policy.

4 The road ahead

This analysis has tried to address most of the relevant issues from the institutional, policy and legal perspectives. However, the proposal put forward is not perfect; some criticism has been voiced, notably about the efficiency of standardisation[121] and the dispute settlement mechanism.[122]  It had been argued that the WTO is unsuitable and too inflexible to tackle the problem. It is too early to reach such a conclusion; more compre-hensive study is needed.

The most difficult obstacle to overcome today is that there is no zone of possible agreement in competition law. A shift of climate in international politics is needed for it to be possible to thrash out a new treaty. A number of factors operating both inside and outside the WTO could contribute to this expected orientation[123]. It is highly questionable how to see all of the favourable factors making it happen. Further study is certainly needed, and such extensive discussion goes beyond the scope of this essay. The modest attempt raised here simply suggests possible ways to prepare for future change. 

In this light, it would make sense for the institutional linkage between the WTO and the ICN to promote this preparatory step accordingly. In the past, some WTO agreements incorporated and transformed a specific standard from other organizations and transform it into a WTO obligation (Re-legislation)[124].

In preparing to take this responsibility in the future, the WTO could use the ICN to establish standards to guide its members. This solution is strongly supported by the fact that the WTO embraces international standards in many areas, especially in the SPS, TPT, TRIPS, GATT and Rules of Origin. The co-operation between the WTO with other inter-national standardization organizations (such as International Tele-com-munication Union, International Standardization Organisation, International Organization of Legal Metrology, International Electro-technical Commission etc…) has illustrated that this strategy would work well. These bodies set out recommendations and guidelines on the matter at issue; they are mandatory to design to harmonise the rules concerned within the regulatory framework of the WTO.[125]  There is no reason to doubt why the WTO cannot work with the ICN on the same basis for designing the international competition policy. By allowing the experienced ICN to develop international standards in competition policy, the WTO can conserve its resources and concentrate on its leading role in dealing with the interface of trade and competition. The WTO would provide a legitimate approach, while the ICN could offer an efficient solution[126]. This concerted action would seem to have good potential and would shed light on possibilities for co-operation in the near future. At present, however, the WTO is not considering such initiative.

IV. Conclusion

International competition law and policy are emerging in the world economy and this requires a coordinated response. This discussion has explored ways in which international co-operation might be realised. The bilateral co-operation, in spite of its relatively limited usefulness, is still a regulatory basis for resolving conflict. However, in the age of global mergers the bilateral approach is not practicable, while the multilateral option remains desirable. Due to sovereignty costs, reaching a multilaterally-agreed solution is not politically feasible. At present there is no hope that the WTO will assume this responsibility because its nego-tiations on this issue have reached deadlock.

Based on this reality, this essay has suggested a workable solution at the most basic level that may yield more fruitful and promising results than other possibilities. To reiterate, the key findings of the proposed legitimate and efficient option, notably for application in issues of merger control, are that:

• the convergence of procedural laws would be politically feasible;

• plurilateral agreements would be more practicable and realisable than multilateral treaties;

• soft law effects would be useful in current co-operation and positive in forming hard laws norm; and

• Co-operation between the WTO and the ICN would be the first and best step towards preparing this option for future co-operation in competition policy and law.

• How to make it happen? Constructive engagement is essential. Bilateral co-operative efforts will continue to be strengthened; greater regional integration will reinforce and complement expanding the national competition policy. Practical actions to promote the benefits of international competition policy in developing countries would be necessary. The increasing role of the networking should not be underestimated, particularly in the area of conflict management between the national competition authorities in these changing times.

Above all, perspectives in international co-operation in competition policy need to be better understood and to be taken into consideration in international discussion and decision. This would contribute to more comprehensive and effective solution to address the current global challenges in competition policy and law. Although reaching a co-operation in international competition policy will take a long process of trial and error, political leadership can do a lot to improve things in the meantime, especially in the issues of harmonisation of procedural laws. These shared norms will generate a positive environment for the future of co-operation. Encouragingly, the foundations of competition culture are being laid.

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This paper has been previously published in Zeitschrift für Wettbewerbsrecht (ZWeR), Journal of Competition Law, H.3 September 2009, S. 289-314.

[1] Lampert Thomas (1999): ‘International Co-operation Among Competition Authorities’ in: European Competition Law Review, Issue 4 pp. 214-224.

[2] For these case studies, see Taylor, Martyn D. (2006): ‘International Competition Law: A New Dimension for the WTO’, Cambridge University Press, Cambridge, pp.56-59.

[3] For an extensive discussion, see Lee, Kathy Y. (2005): ‘The WTO Dispute Settlement and Anti-Competitive Practices: Lessons Learned From Trade Disputes’, Working Paper (L) 10/05 Centre for Competition Law and Policy, The University of Oxford.

[4] For more on the development of bilateral co-operation, see Galloway, Jonathan (2005): ‘Moving To a Template for Bilateral Antitrust Agreements’ in: World Competition 28 (4) pp.589, 614; Burnside, Alec and Crossley, Helen (2005): ‘Co-operation in Competition: a New Era?’ in: European Law Review 30, pp.234-260; Canenbley, Cornelis and Rosenthal, Michael (2005): ‘Co-operation Between Antitrust Authorities In- and Outside the EU: What does it Mean for Multinational Corporations?’, Part I in: European Competition Law Review, Issue 2, pp. 106-114; Part II Issue 3, pp.178-187; Fullerton, Larry and Mazard, Camelia C. (2001): ‘International Antitrust Co-operation Agreements’ in: World Competition (24)3, pp.405-423.

[5] Jenny F. (2003) International co-operation on competition: myth, reality and perspective in: Antitrust Bulletin 973.

[6] For more detailed examination, see Ezrachi, Ariel (2005): ‘Merger Control and Cross Border Transaction- A Pragmatic View on Co-operation, Convergence and What´s in Between’, Working Paper (L) 11/05 Centre for Competition Law and Policy, The University of Oxford.

[7] ‘With respect to the three Singapore issues, i. e. investment, competition policy and transparency in government procurement, the General Council decided on General Council 1 August 2004 that these issues, mentioned in the Doha Ministerial Declaration  in paragraphs 20, 22, 23, 25 and 26 respectively, will not form part of the Work Programme set out in the Declaration and therefore no work towards negotiations on any of these issues will take place within the WTO during the Doha Round’, see, http://www.wto.org/english/tratop_e/draft_text_ge_dg_31july04_e.htm.; for a detailed discussion, see Bradford, Anu (2007): ‘International Antitrust Negotiations and the False Hope of the WTO’.48 Harvard International Law Journals, pp. 383-407. Based on the game theory, Bradford explained why the international antitrust negotiation within the WTO has been failed. Some states have perceived the political and economic costs to exceed the expected benefits of cooperation.  They are focussing more on the compelling matter in trade issues and facing to deal with the distributional and informational problem. As a result, competition has not been a priority issue.

[8] See Noonan, Chris  (2008) ‘The Emerging Principles of International Competition Law’, Oxford University Press, Oxford; Budzinski, Oliver (2008) ‘The Governance of Competition, Competence Allocation in International Competition Policy’, Edward Elgar; Sokol, Daniel D. (2007): ‘Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age’  in: Research Paper Nr. 1034 Law School, University of Wisconsin; Utton, Michael A. (2006) ‘International Competition Policy, Maintaining Open Markets in the Global Economy’, Edward Elgar; Bhattacharjea, Aditya. (2006): ‘The Case for a Multilateral Agreement on Competition Policy: A Developing Country Perspective’ in: Journal of International Economic Law  9, 2, pp. 293-323; Stephan, Paul B. (2005):’ Global Governance, Antitrust, and the Limits of International Co-operation’ in: 38 Cornell International Law Journal 174-218; Fox, Eleanor M.(2003) ‘International Antitrust and the Doha Dome’, 43 Virginia Journal International Law  911; Guzman, Andrew T. (2003) ‘International Antitrust and the WTO, The Lesson from Intellectual Property’,43 Virginia Journal of International Law  933; Matsushita, Mitsuo (2002): ‘International Co-operation in the Enforcement of Competition Policy’ in: Washington University Global Studies Law Review Vol.1, pp. 462-475; Jenny, Frédréric (2002): ‘Globalization, Competition and Trade Policy: Convergence, Divergence and Co-operation’ in: Jones, Clifford A; Matsushita, Mitsuo (eds.): ‘Competition Policy in the Global Trading System’, The Hague; for a good overview from German perspective, see Wagner von Papp, Florian (2009):‘Internationales Wettbewerbsrecht’ in: Tietje, Christian (Hrsg.):‘Internationales Wirtschaftsrecht‘, deGruyter, pp. 455-513; with refer to International Procedure Law, see Terhechte, Jörg Philip (Hrsg.2008) ‚Intenationales Kartell- und Fusionskontrollverfahrens-recht International Cartel and Merger Enforcement Law (English Summaries)’, Gieseking.  

[9] See generally Blumenthal, William (2004): ‘The Challenge of Sovereignty and the Mechanism of Convergence’ in: Antitrust Law Journal Vol. 72 Issue 1, pp. 276-282.

[10] See generally Noonan Chris (2008) as note. 8 above at p. 405-407; Budzinski, Oliver (2008) as note 8 above at p. 115-149; Utton, Michael A. (2006) as note 8 above at p.106 offering a historical review of early attempts to harmonize a system of international controls on anticompetitive behaviour.

[11] The Final Act of the United Nations Conference on Trade and Employment which took place in Havana in March 1948, for full text of draft charter, see <httt:www.worldtradelaw.net/misc/havan.pdf>

[12] ITO Charter did not apply to mergers and acquisitions, Art 46. 3

[13] ITO Charter Art 46 2

[14] ITO Charter Art 48-51

[15] See Taylor, Martyn D. (2006): as note 2 above at p.151.

[16] See Taylor, Martyn D. (2006): as note 2 above at p.153.

[17] For the full text UNCTAD-Doc.TD/RBP-CONF6/15 18.11.2005 see <http://www.unctad.org/ensubsites/cpolicy/index.htm&gt;

[18] See UNCTAD (2001): ‘Analysis of Market Access Issue Facing Developing Countries: Consumer Interests, Competitiveness, Competition and Development’, UNCTAD-Doc.TD/B/COM 1/47 5 December 2001.

[19] See UNCTAD (2007): ‘Model Law on Competition, Substantive Possible Elements for Competition Law Commentaries and Alternative Approaches in Existing Legislation’   01.05. 2007 TD-RBP CONF.5/7-Rev. 3 E 07 II D7UNTCAD. It is an updated version of UNCTAD-Doc-TD/RBP/CONE 5/7/ Rev 2 E 04 II. D. 26 1. August 2004.

[20] On those arguments, see Declaration of the Establishment of a New International Economic Order, Resolution 3201 (F-VI) of May 1, 1974, 13 International Legal Materials 715 (1974); on more recent developments, see also UNCTAD (2008):  ‘The Effects of Anti-Competitive Business Practices on Developing Countries and their Development Prospects‘ UNCTAD-Doc./DITC/CLP/2008/2 07/10/08

[21] Soko Daniel (2007): as note 8 above at p.64.

[22] See also Brusick Philippe (2001): ‘UNCTAD´s role in promoting Multilateral Co-operation on Competition Law and Policy’ in: 24 World Competition 23 (1) 2001.

[23] Taylor, Martyn D. (2006) as note 2 above at p.131.

[24] For the full text of these recommendations, see <http:www.oecd.org/document/59/0.2340.en_2649_37463_4599739_1_1_1_1.37463.00.html>

[25] OECD Global Forum on Competition: ‘Competition Policy Implementation in Transition Economies: An Empirical Assessment’ OECD-Doc CCNM/GF/COMP/WD (2002)13.

[26] OECD Global Forum on Competition:’ Optimal Design of Competition Forum’, OECD-Doc: see: <http://www.oecd.org/pdf/M00038000/M00038298.pdf&gt;

[27] See <http:/www.oecd.org/EN/about/0”EN-about-675-nondirectorate-200.htm>

[28] See Soko Daniel D. (2007) as note 8 above at p. 61.

[29] See Soko, Daniel D. (2007): as note 8 above at p.43; Matsushita, Mitsuo, Schoenbaum, Thomas J.; Mavrodris, Petros C. (2006): ‘The World Trade Organisation: Law, Practice and Policy’, Oxford University Press, Oxford, pp. 9-14.

[30] See Schoneveld, Frank R. (2003): ‘Cartel Sanctions and International Competition Policy: Cross-Border Co-operation and Appropriate Forums for Co-operation’ in: World Competition 26(3) pp.433-473; p.466

[31] See Schoneveld, Frank R. (2003): as note 30 above at p. 467.

[32] WTO, Singapore Ministerial Declaration, Conference Doc. WT/MIN(96)DEC/W. 13 December 1996

[33] For the full text, available at <http://www.wto.org/english/tratop_e/com_e/wgtcp_docs_e.htm.&gt;

[34] See Matsushita, Mitsuo (2006) as note 29 above at Chapter 7

[35] For a critical discussion, see Anderson, R. D.; Jenny, Frederic (2005):’Competition Policy, Economic Development and the Possible Role of Multilateral Framework on Competition Policy, Insight from the WTO Working Group on Trade and Competition Policy’ in: Medalle, E (ed.): Competition in East Asia, Routledge, Curzon..; see also Matsushita, Mitsuo (2006): as note 29 above.

[36] See Matsushita, Mitsuo (2006): as note 29 above

[37] For an in-depth discussion, see Drexl Josef (2004) ‘International Competition Policy after Cancún: Placing a Singapore Issue on the WTO Development Agenda’ in World Competition 27 (3) 419-457.

[38] See as note 7 above

[39] See Bode, Bode; Budzinski, Oliver (2006): ‘Competing Ways towards International Antitrust; the WTO versus the ICN’ in: New Development in Antitrust 21 (Frank Columbus ed.); .Budzinski, Oliver (2004): ‘The International Competition Network: Prospects and Limits on the Road towards International Competition Governance’ in: Competition and Change 8 (3), pp. 223-242; (2003): ‘Toward an International Governance of Trans-border Merger? Competition Network Between Centralism and Decentralism’ in 36 New York University Journal of International Law and Politics1, p. 20; Campell A.N.; Chaiet L.; Rowley J. W. (2004):‘Implementation of the International Competition Network’s  Recommended Practices for Merger Notification Procedures: Final Report‘, 5 Business Law International 2001 (19) p. 110. 

[40]  See <http.//www.internationalcompetitionnetwork.org/history.html>

[41] See ICN (2005): ‘A Statement of Mission & Achievement up until May 2005’, available at <http://www. internationalcompetitionnetwork.org>

[42] See Mariana Bode & Oliver Budzinski (2006): as note 39 above

[43] See http://www.internationalcompetitionetwork.org/ media/archive06112004opfrmework.pdf

[44] See Blumenthal William (2004): as note 9 above at p. 269; Campell A.N.; Rowley (2004): ‘Paradise lost or regained? A Report on Implementation of the ICN´s Recommended Practices on Merger Notification’ in: Global Competition Review. 2004, 11; with refer to implementation, see http://www.internationalcompetitionnetworl.org/media/archive0611/050505Merger_NPImplementationRpt.pdf.

[45] See Sokol, Daniel D. (2007): as note 8 above at p. 65.

[46] See Budzinski, Oliver (2004) as note 39 above

[47] On the general situation after Cancún , see Drexl, Josef (2004):  as note 37 above

[48] See Noonan, Chris (2008) as note 8 above at p. 139-167; Evenett, Simon J. (2005): ‘Would Enforcing Competition Law Compromise Industrial  Policy Objectives’ in.: Brooks, David H. and Evenett, Simon J. (2005): ‘Competition Policy and Development in Asia’, Palgrave Macmillian  p. 47-70; Jenny, Frédéric (2002): as note 8 above at p. 302; IPAC (2000): ‘International Competition Policy Advisory Committee to the Attorney General and Assistant Attorney General for Antitrust Final Report’  Department of Justice Antitrust Division Washington DC, available at <hhtp://www.usdoj.gov.atr/icpac/htm> at chapter 5; ; OECD Joint Group on Trade and Competition (1999): ‘Complenentarities between Trade and Competition Policies’, COM/TD/DAFFECLP-(98)98/FINAL, 28. January 1999, 6-7.

[49] Cadot, Oliver; Grether Jean- Marie; Grether and De Malo Jaime (2000): ‘Trade and Competition Policy: Where Do We Stand?’  in: Journal of World Trade 2000, 34 (3) 1-20, at p. 3-7; Nicolaides, Phedon (1994): ‘Trade and Competition Policies: Comparing Objects and Methods’ (Paris, OECD)

[50] ICPAC Report as note 48 above Chapter 5 p.1

[51] Mitchell, Andrew D. (2001): ‘Broadening the Vision of Trade Liberalisation, International Competition Law and the WTO’ in: World Competition 24 (3) pp. 343-365.

[52] For an extensive discussion in dealing with the interface between competition and consumer policies in developing countries, see UNCTAD (2008): as note 20 above at p. 3-71; see also Mitchell Andrew D. (2001):  as note 51 above at p. 345.

[53] Taylor, Martyn D. (2006): as note. 2 above at p. 167.

[54] Mitchell Andrew D. (2001): as note 51 above at p. 345.

[55] On this argument, see Taylor, Martyn D. (2006): as note 2 above at p. 175; Mitchell Andrew D. (2001): as note 51 above at p. 346; OECD (1994):’ Interim Report on Convergence of Competition Policy’ (Paris: OECD GD (94/64).

[56] Kroes, Neelie (2006): ‘Industrial policy and competition law and policy’, Speech to the Fordham University School of Law 14 September 2006, europa.eu, press release

[57] See generally Brooks, Douglas H. (2005):’ Industrial and Competition Policy: Conflict or Complementarity?’ in: ADBI Research Policy Brief No. 24; Mitchell, Andrew D. (2001): as note 51 above at p. 348; (ICPAC Report), Chapter 5 pp. 3-5.

[58] Mitchell, Andrew D. (2001): as note 51 above at p. 348.

[59] For instance, exclusive dealing contracts, geographical territories, resale price maintenance agreements and franchise agreements.

[60] ICPAC Report as note 48 above at chapter 5 pp 3-5.

[61] ICPAC Report as note 48 above at Chapter 5 p. 7.

[62] Guzman, Andrew T. argues that the WTO could serve as the forum for negotiating the substantial questions of an agreement on competition policy and the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”) could be used as a model, see Guzman Andrew T. (2003) as note 8 above at pp. 951-956; see an opposing and convincing view Bradford, Anu (2007) as note 7 above at pp. 423-425. He explained why the dynamics of antitrust negotiations would be unlikely to resemble the negotiations of the TRIPS Agreement. There are at least five basic differences between the Antitrust and TRIPS. These arguments are extremely insightful.

[63] Baumol, W.; J. Panzar and R. Willig (1982): ‘Contestable Markets and the Theory of Industrial Structure’

New York: Hartcourt, Brace, Javanovich.

[64] The ease of market entry is supposed to be absolute, totally displacing the incumbents. Empirical findings did not support this expectation. In reality, initial entry is partial in order to minimise risk and permit learning the market. If conditions would be favourable, then the firm could continue to invest more.

[65] It is far from clear how the competition authorities would consider the theory of contestable markets in the decisional practice. The European Commission refers it negatively in Far Trade Tariff Charges and Surcharges Agreement, OJ (2000) L 268/1, 2000 5 CMLR 1011 para 119. Contrary to this opinion, the UK Competition Commission cleared a merger would create a duopoly where the market was found to be contestable in CHC Helicopter Corpn/Helicopter Service Group ASA in: (2000) 21 ECLR 345.

[66] This theory is also important for merger policy, too. In merger review practice, the competition authorities have difficulties considering these following questions: How likely the rivals are to enter? How long it may take? How are the damages of consumer welfare and social welfare? Most notably, business information is not always freely available for the officials to analyse the strategic interaction between potential entrants and incumbents.

[67] For a discussion of reconciliation, see Schoebaum, Thomas. L (1996): ‘The theory of contestable markets in international trade: a rationale for justifiable unilateralism to combat restrictive business practice?’ in: Journal of World Trade 30(3) 161; see also a critical analysis of those arguments, see: Motta Massimo (2004):’ Competition Policy Theory and Practice’, Cambridge University Press, Cambridge at p. 73 and p. 237.

[68] See Taylor, Martyn D. (2006): as note 2 above at p. 336; Blumenthal William (2004) as note 9 above

[69] See generally, Marsden, Philip (2008): ‘Handbook of Research in Trans-Atlantic Antitrust’, Edward Elgar; Kovacic, William E. (2008): ‘Competition Policy in the European Union and the United States: Convergence or Divergence?’ Speech at the Bates White Fifth Annual Antitrust Conference (Washington, DC, 2 June 2008) available at: www.ftc.gov/spechees/kiviac/080602bateswhite.pdf;  with regard to business laws see Grechenig, Kristofel; Gelter Martin (2008): ‘The Transatlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism,’ Discussion Paper No. 14 Harvard Law School, available at: http://www.law.harvard.edu/progrmas/oline_center ; Kroes Neelie (2007) ‘Antitrust in the EU and the US- our Common Objectives’  Brussels September  26, 2007) available at: http://ec.europa.eu/commission_barroso/kroes/antitrust_eu_us.pdf.; with refer to Merger Guidelines see Zhu, Shilei (2006): ‘Converge? Diverge? A Comparison of Horizontal Merger Law in the United States and the European Union’ in: World Competition 29 (4) pp 635-651; Damro, Chad (2006): ‘Transatlantic Competition Policy: Domestic and International Source of EU-US Co-operation’, in: European Journal of International Relations 12 (2) 171-196; Commissioner Monti (2004): ‘Convergence in EU-US Antitrust Policy regarding Mergers and Acquisitions: an EU Perspective’  Speech at UCLA First Annual  Institute on US and EU Antitrust Aspects of Mergers and Acquisitions Los Angeles February 28, 2004.

[70] For a good overview, see Immenga Ulrich (2004): ‘Internationalization of Competition Law: Levels of Diversities’ in: Tzong Lew Hwang, Chiyuan Chen (eds.): The Future of Competition Framework, The Hague at p. 8.

[71] Fox, Eleanor M. (2003): ‘We Protect Competition, You Protect Competitors’ in: World Competition 26 (2) 149-165 at p.153.

[72] Scott, Andrew (2008): ‘Tweedledum and Tweedledee? Regime Dynamics in US and EC Merger Control’ in: Mardsen, Philip as note 69 above.

[73]See generally Buxbaum Hannah L. (2005): ‘German Legal Culture and the Globalization of Competition Law, a Historical Perspective on the Expansion of Private Antitrust Enforcement’ in: Berkeley Journal of International Law Vol. 23, available at: http://www.ssrn.com/abstract=716363.

[74] On 1 July 2005 the 7^th Amendment to the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen GWB) entered in force. The major changes in the new GWB are to harmonize German with European Competition law. It replaced its previous notification and exemption system and introduced the principles of self-assessment. It contained a general exemption from the prohibition of restrictions which have been adapted to Art. 81c European Competition Law;  the new GWB still contains special provisions in favour of small and medium sized business and deviates from European practice in some crucial points: turnover calculation rules, the de minimis market rules and the ministerial authorization.    

[75] Immenga, Ulrich (2004) as note 70 above at p. 5.

[76] Singh, Ajit. (2002): ‘Competition and Competition Policy in Emerging Markets: International and Developmental Dimensions’ G 24 Discussion Paper Series No. 18 September 2002 UNCTAD/GDS/MDPB/G24

[77] Brooks, Douglas H. (2005): ‘Competition Policy and Development’ ERD Policy Brief No. 38 Asian Development Bank.

[78] See Lorenz, Moritz (2008): ‘The New Chinese Competition Act’ in: ECRL 4  pp. 257-263

[79] See Nguyen, Van Cuong (2008): ‘On Anti-Cartel Rules in Vietnamese Competition Law of 2004, Analyses and Comments’ Working Paper, Faculty of Law University of Victoria, available at: <http.//ssrn.com/abstract=-1269510; Mc Bratney , Amanda (2004): ‘The Nine Lives of Vietnams New Competition Law’ , ECLR 2004, 485-490

[80] China and Vietnam have the same background: economic liberalization has been accompanied by gradual political loosening. The contemporary debate in their newly introduced competition policy seems much complicated in view of the operation of free market economy: the dominant role of the state enterprise, a heavy government intervention in trade policy, lack of political support for competition culture and particularly poor institutional design. The central question behind this overall picture is how China and Vietnam can best use the competition policy to preserve the foundations of free competition, free trade and free enterprise. Practically, socialism in China and Vietnam appears as far away as ever. Theoretically, the goal of creating a competition policy in a free market economy under state guidance is highly controversial. A shared assumption in the literature is that China and Vietnam require a clear, effective and authoritative competition policy. This appears to be particularly true. The search for the proper balance between state-led and market-led solutions in the context of the development of competition policy remains a challenge. China and Vietnam are currently seeking a path that away from dogmatically conservative and liberal views in favour of something more pragmatic and moderate.

[81] in the sense of Huntington Samuel P.

[82] Zhu, Shilei (2006): as note 69 at p. 651.

[83] See generally Kovacic, William E. (2008):  as note 69 above, with refer to the strategic assessment of the various proposals, see Conrad, Christian (2003):‘Strategies to Reform the Regulation on International Competition’, in: World Competition 26 (1), pp. 101–121.

[84] Immenga Ulrich (2004): as note 70 above at p5

[85] On these latest developments, see <http://globalcompetitionforum.org&gt;, see also Blumenthal, William (2004): as note 9 above at p. 271.

[86] The US Merger Guidelines can be accessed at  http.//www.usodoj.gov/atr/public/guidelines/guideline/htm; an opposing view, see  Zhu, Shilei (2006): as note 69 above at p. 650 and Blumenthal, William (2004): as note 9 above at p. 270 arguing in fact overall EC competition law has been moving much closer towards US Antitrust

[87] Point 24 of the US Merger Guidelines focus on market power by setting out the standard for appraising market power in the following term: “The unifying theme of the Guidelines is that mergers should not be permitted to create or enhance market power or to facilitate its exercise. Market power to a seller is the ability profitably to maintain prices above competitive levels for significant period of time”

[88] The US Supreme Court stated that the proper aim of competition law is the protection of competition, not competitors in Brunswick Corp v. Pueblo Bowl-O-Mat Inc. , 429 US, 477, 478 (1997).

[89] Fox, Eleanor M. (2003): as note 71 above

[90] The substantive test in US merger control is whether the effects of the merger ‘may be substantially to lessen competition’ Clayton Act 1914 Section 7; there is no need to establish collective dominance which is a concept that is specific to EC law, see Fountoukakos, Kyriakos; Ryan, Stephen (2005): ‘A New Substantive Test for EU merger Control’ in ECLR 2005 3 pp. 277-296; Voigt, Stefan V.; Schmidt, André (2004):’ Switching to Substantial Impediments of Competition (SIC) can have Substantial Cost- SIC’ in: ECLR 9, pp. 584- 590 at p. 588.

[91] Zhu Shilei (2006): as note 69 above at p. 636.

[92] Voigt, Stefan V.; Schmidt, André (2004): as note 90 above at p. 585.

[93] A concentration which would significantly impede effective competition in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared incompatible with the common market, Art. 2 (3) of Regulation 139/2004 of 20 January 2004, OJ (L 24)

[94] See Völcker Sven B. (2004):’ Mind the Gap Unilateral Effects Analysis Arrives in EC Merger Control’ in: ECLR 395-409; Vickers John (2004): ‘Merger Policy in Europe: Retrospect and Prospect’ in: ECLR 455-463. 

[95] The SLC test deals more with the question how much competition is lost, while the SIEC test looks at the competition after the merger. In doing so, the EU focuses less on the market structure and market share, but rather on whether the merger will allow the merged firms significantly raises prices post merger, see Vickers John (2004) as note 95 above at p. 455

[96] The idea of an era of convergence is a highly contested. Commissioner Mont (2004) as note 69 above stated “The fact that we see eye to eye on the rationale for antitrust intervention is reflected in the detail of our respective approaches to merger control, which over the past decade have been closely convergent. A European competition lawyers who picks up the US federal antitrust agencies’ Merger Guidelines, or who delves into one of the most federal courts’  recent merger control judgments, will – I think- be struck how much common ground it shared between  the US and EU approaches to merger analysis”. Zhu Shilei (2006) as note 69 above at p. 637 argued that the new test undoubtedly represents the most obvious point of convergence between the US and EU merger control regime; see an opposing view, Vickers John as note 92 above at p. 463 argued that merger policy tested by cases. Sound law, guidelines and procedures are but the foundation. It does not follow that every multinational merger will be decided the same way in the Europe as in the US. 

[97] See Immenga Ulrich (2004): as note 70 above at pp.5-6.

[98] Voigt, Stefan V.; Schmidt, André (2004): as note 90 above at p. 588.

[99] Case No IV/M 877 OJ 1997 L 336/16; for a case study, see Kovacic William E. (2001): ’Transatlantic Turbulence: The Boeing Mc Donnell Douglass Merger and International Competition Policy’   in: 68 Antitrust Law Journal 805.

[100] Case No. 2220 (2004) L 48 1; for case study see Abkar, Yasuf (2002): ‘Grabing Victory from the Jaws of Defeat: Can the GE/Honeywell Merger Facilitate International Antitrust Policy Co-operation’ in: World Competition 25 (4) 403-422.

[101] See Voigt Stefan V.; Schmidt, André (2004): as note 90 above, at p.588.

[102] Another interpretation is that the convergence in procedural merger laws would be a research area in Global Administrative Law, for a more detailed examination, see Kingsbury, Benedict (2009): ‘The Concept of ‘Law’ in Global Administrative  Law‘ in: European Journal of International Law Vol. 20 No. 1; Kingsbury, Benedict; Kirch, Nico (2006): ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’ in: European Journal of International Law Vol.17 No. 1; Kingsbury, Benedict; Kirsch, Nico; Stewart, Richard.B. (2005): ‘The Emergence of Global Administrative Law’, 68 Law and Contemporary Problems 15; see also Immenga Ulrich (2004): as note 70 above at p.4.

[103] The standards are often general and only minimally prescriptive.

[104]  For further information, see

http://www.internationalcompetitionnetwork.org/media/archive0611/icnnpguidingprint.htm

[105] ‘As to procedural convergence in the merger field, it seems that the world has turned a corner’ Blumenthal, William (2004): as note 9 above at p. 267.

[106] At the international level, see Raustialia Kal (2002): ‘The Architecture of International Co-operations, Trans-governmental Networks and the Future of International Law ‘in: Virginia Journal of International Law Vol. 43, 2002, available at http://ssrn.com/abtract=33381, for a recent development of the operations of the European Networks, see Lavrijssen-Heijmans Saskia, Hancher L.(2008): ‘European Regulators in the Network Sectors: Revolution or Evolution?’ TILEC Discussion Paper No. DP 2008-024, Tilburg University, available at <http://ssrn.com/abstract=1162164; Dekeyser, Kris; Jaspers, Maria (2007): ‘A New Era of ECN Cooperation, Achievements and Challenges with Special Focus on Work in the Leniency Field’ in: World Competition 30(1): 3-24.

[107] Blumenthal, William (2004): as note 9 above at p. 270.

[108] Taylor, Martyn D. (2006): as note 2 above at p.289; Matsushita, Mitsuo (2002): as note 8 above at p. 466.

[109] For a recent development, see Gippini-Fournier Eric (2008): ‘The Modernisation of European Competition Law: First Experience with Regulation 1/2003’, Community Report to the FIDE Congress 2008, available at http://ssrn.com/abstract=1139770

[110] For the taxonomy of competition related provision in regional trade agreement, see Anderson R. D.; Everett, Simon (2006): ‘Incorporating Competition Elements into Regional Trade Agreements: Characterization and Analysis’ available at http://www.evenett.com/working/CompPrincinRTA.pdf;  OECD Solano, Oliver; Sennekamp, Andreas (2006): ‘Competition Provision in Regional Trade Agreement’, OECD Trade Policy Working Paper No. 31 COM/DAF/TD/20053FINAL; UNCTAD Brusick, Philippe; Alverez, Anna Maria; Cerat, Lucian (2005) ‘Competition Provision in Regional Trade Agreement How to Assure Development Gains’ UNCTAD/DITC/CLP-2005 1; with refer to APEC see, APEC-OECD (2008): ‘Integrated Checklist on Regulatory Reform, A Policy Instrument for Regulatory Quality, Competition Policy and Market Openness’ 25 January 2008 available at: http://www.oecd.org/dataoecd/3/53/36326815.pdf ; for a good overview, see Mehta, Pradeep S. (2001): ‘Competition Policy in Developing Countries: An Asia-Pacific Perspective’, Consumer Unity and Trust Society, available at: http://www.unescap.org.drpad/publication/bulletin/%2020020n7.pdf . ; see also Taylor, Martyn D. (2006) as note 2 above at pp. 71-76.

[111] Rimoldie de Ladman, Eve (2002): ’Mercosur’ in: Basedow Jürgen (ed.): ‘Limits and Control of Competition with a View to International Harmonisation’ The Hague, pp- 273-290.

[112] Matsushita, Mitsuo (2002) as note 8 above at p. 467.

[113] Fikentscher, Wolfgang; Heinemann, Andreas (1994): ‚Munich: The Draft International Antitrust Code‘, 44 Wirtschaft und Wettbewerb 97; for a good overview of  the various proposals for including competition law in the WTO, see Marsden, Philip (2003): ‘A Competition Policy for the WTO’, Cameron May; from a German perspective, see Wins, Henning (2000): ‘Eine international Wettbewerbsordnung als Ergänzung zum GATT’, Nomos, see also Conrad, Christian (2003): as note 83 above.

[114] Weber Waller, Spencer (1997): ‘The Internationalization of Antitrust Enforcement’ in: Brooklyn Law School Review 77 p. 347

[115] The Code had received attention in Europe only, not in the United States, The U.S Trade Representative Yersa viewed that the Munich Code was a utopian document that would probably not resemble any future final product, see Weber Waller, Spencer (1997): as note 114 above.

[116] Clark John, (2005): ‘Competition Advocacy: Challenge for Developing Countries’, OCED Journal of Law and Policy Vol. 6 No. 4 pp. 69-80.

[117] If the WTO proposes that domestic competition policy accord with a principle of non-discrimination, what issues would have to be dealt with? Of what relevance to this debate are the existing WTO commitments to National Treatments? What should the new competition commitment look like? What should the transparency issues look like? Detailed discussion can be found in Consumers International (2003): ’Consumers, Multilateral Competition Policy and the WTO: Technical Report’, at p.14-25 available at: http://www.consumersinternational.org

[118] On a general discussion, see Gersen Jacob E.; Posner Eric A. (2008) ‘Soft Law’ in: Public Law and Legal Theory Working Paper No. 213 The Law School University of Chicago, available at : <http: ssrn.com/abstract=-1113537>;  Shaffer Gregory C; Polack Mark A. (2008): ‘How Hard and Soft Law Interact in International Regulatory Governance: Alternatives, Complements and Antagonists’ Working Paper No. 45/08 in: Society of International Economic Law available at: <http:www.sielnet.org>; on an economic view, see Evenett Simon J.; Hijzen Alexander (2006): ‘Conformity with International Recommendations on Merger Review: An Economic Perspective on Soft Law’ Research paper 2006/04 Leverhulme Centre, The University of Nottingham; see also Matsushita, Mitsuo (2002): as note 8 above at p. 468.

[119] A mass of literature dedicates itself to this subject areas, for an especially pointed review, see: Falkner, Robert (2003): ‘Private Environmental Governance and International Relations: Exploring the Links’ in: Global Environmental Politics 3, 72; see also Taylor, Martyn D. (2006): as note 2 above at p.362.

[120] See the theoretical analysis of compliance by Alkoby Asher (2008): ‘Theories of Compliance with International Law and the Challenge of Cultural Difference’ in: Journal of International Law and International Relations Vol. 4 (1) available at http://ssrn.com/abstract=1113846, arguing that constructivism has an important role in explaining the compliance.

[121] Regarding the minimum standard, it is doubtful that the standards agreed will create not any pressure on strong jurisdictions to modify their competition laws to achieve greater convergence.

[122] It seems to be revolutionary to open the door of the WTO to allow firms to lodge complaints about anti-competitive practice. Much of the discussion has dealt with the capacity of the DSB. For general discussion, see Jenny Frédéric (2002): as note 2 above at p.326; for a critical view of the Telmex case, see Lee, Kathy (2005) as note 3 above.

[123] The role of the WTO and the opportunity to re-negotiate the Doha Round in the midst of the current financial crisis would be one of the most important issues on the agenda in international politics. The recession is continuing to worsen the world economy and the protectionist pressure is globally increasing. Pascal Lamy argued that the re-negotiations on the Doha Development Agenda would be one of the most appropriate collective stimulus packages. It would be the surest way to safeguard the multilateral trading system against the threat of the outbreak of protectionism. Speech at the Trade Policy Trade Review WTO on 14 April 2009, available at: http://www.wto/englishnews_e/news09_e/trdiv_14.apr.e.htm. A simple promise to resist the protectionism is not a convincing enough to bring the trade diplomats back to the negotiation table. This is the so-called commitment approach which rests on a policy credibility arguments. Due to the top priority of the global financial stability on the agenda, there is plenty of work left to be done. Consequently, it is hard to see whether the WTO may be now in a stronger position than in the past to deal with whatever the future cooperation in competition laws and policy may bring. Of course, the open question remaining is whether the benefits of future cooperation within the WTO will suffice or whether the radical thinking of the need of the re-negotiation is necessary.    

[124] The interplay between the WTO and the international standardization bodies is one of the most complicated and potentially fascinating issues in this context; it do highlight interesting field of research for future, see an overview Quick, Reinhard (2008): ‘Regulatory Co-operation- A Subject of Bilateral Trade Negotiations or Even for the WTO?’ in: Journal of World Trade 42 (3) 391-406); WTO (2005):’ Exploring the Links between Trade, Standards and the WTO’ World Trade Report 2005; Charnovitz, Steve (2005): ‘International Standards and the WTO’ in: Legal Study Working Paper No. 133 of the Georg Washington University Law School, available at: http://ssrn.com/abstract=694346 Quick advocated that the WTO can promote regulatory cooperation by giving international standards automatic legal effects and forcing WTO Members to actively participate in international standardization bodies. In doing so, the WTO Secretariat would have a stronger role in offering its Members a platform to facilitate regulatory cooperation.

[125] See also Schoneveld, Frank R. (2003): as note 30 above at p.467. He discussed  the successful cooperation between the World Customs Organization, the World Health Animal Organization and the WTO in dealing with the Rules of Origin 

[126] Scholars refer to this vision rarely; this issue needs more systematic scholarly attention.  Fox, Eleanor M. advocates this approach explicitly in arguing that the ICN could play an important role in formulating an international consensus on competition policy and the WTO would be responsible for its administration, see Fox, Eleanor M. (1999): ‘Competition Law and the Millennium Round’ in: International Economic Law’ 2 665; (1992): ‘The End of Antitrust Isolationism: The Vision of One World’ in: University of Chicago Legal F. 221, 228-235. To deal with all of these issues Wood, Diane argues that extraterritoriality and cooperation remain an effective solution.  She proposes that the OECD and the bilateral agreements could play a crucial role in developing soft harmonization, Diana P. Wood (1995): ‘The Internationalization of Antitrust Law: Option for the Future’ 44 DePaul Law Review 1289.