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Toward a Multilateral Competition Policy Regime?

The multilateral economic system contains a major shortcoming. Although governments have committed themselves to a rule-based multilateral trade policy regime in the World Trade Organization (WTO), private companies that operate in the global marketplace face no such multilateral disciplines. Certainly, most industrialized nations have created their own set of antitrust laws. Furthermore, a series of well-functioning bilateral and regional mutual assistance agreements has been concluded both to facilitate competition enforcement in transnational cases and to avoid the drawbacks of the extraterritorial application of antitrust legislation. Still, on a multilateral level, it has been impossible to agree on a coherent framework for competition rules.

Strangely, international competition policy has received attention only from a relatively small group of specialized antitrust practitioners. As a structural factor determining the margin of maneuver of internationally active private companies on the global market, the international dimension of competition policy deserves a higher place on the agenda of all those interested in international public policy and political economy.

Competition Policy

Competition or antitrust policy serves many purposes. [1] First, by preventing the economy from being dominated by a few large conglomerates, antitrust policy is a tool that ensures the plurality of economic and--ultimately--political life. Second, competition law is set up to protect consumers against abuses of market dominance and against price-increasing and choice-reducing agreements between companies. Third, weak or absent competition poses a problem for the efficiency of resource allocation in the economy. Fourth, competition policy helps to modernize the economy by stimulating companies to constantly innovate in light of the latest technological discoveries. Finally, the strict enforcement of competition policy helps to keep markets open for competitors, whether national or foreign. Today, more than eighty countries have enacted competition legislation, and another twenty countries are considering adopting antitrust laws. [2]

Although I do not intend to provide an assessment of the current intellectual debates on antitrust policy, it might be useful to briefly introduce the most well-known examples of competition enforcement. [3]

In the United States, antitrust law was already well established at the end of the nineteenth century as a tool to fight the formation of industrial conglomerates. [4] The Sherman Act of 1890--which still forms the basis of U.S. antitrust law--prohibits agreements in restraint of trade and monopolization, attempted monopolization, and conspiracies to monopolize. In 1914, Congress adopted the Clayton Act as a means to protect opportunities for small business. The act notably prohibits price discrimination and tie-in sales and exclusive dealing contracts. Furthermore, the Clayton Act forms the starting point of U.S. merger control. It prohibits acquisitions, mergers, or joint ventures that may substantially reduce competition.

Convinced that the concentration of German industries in the 1930s had been an important element in the creation and persistence of Hitler's Nazi regime, the United States insisted after World War II on the establishment of a strict anticartel policy in the Federal Republic of Germany. Germany, in turn, proved instrumental in bringing the antitrust concept into the 1957 Treaty of Rome, which established the European Community (EC). [5] The EC treaty prohibits agreements or concerted practices between companies that may affect trade between the member states and restrict competition. Examples are agreements between companies intended to fix purchase or selling prices. A company's abuse of its dominant position is also prohibited. Large mergers may not be put into effect without EC approval and are prohibited if they create or strengthen a dominant position on the internal market or a substantial part of it. Competition enforcement in the European Union (EU)--of which the EC forms the economic policy pillar--got a boost during the 1990s as a result of the creation of the European internal market and the start of the single currency.

In Japan--as in Germany--the United States imposed an Antimonopoly Act (1947) after World War II. [6] The act was designed to break the power of the zaibatsu, the gigantic family trusts that dominated Japanese society before and during the war. However, in 1952, once the occupation had ended, Japanese anticartel policy was reviewed, and numerous exemptions were granted to allow so-called crisis and rationalization cartels and to permit anticompetitive coordination in the framework of business associations. During the late 1980s and the 1990s, under international pressure, the number of exemptions was gradually reduced. At the same time, an important deregulation program was put in place.

Although antitrust enforcement functions essentially on the basis of national (or in the EU's case, regional) competition legislation, technological developments and trade liberalization agreements have been inviting business to become global. Given this internationalization of economic activity, an increasing number of competition problems transcend national boundaries. [7] First, competition agencies continue to face traditional international cartels. A recent example is the so-called Trans-Atlantic Conference Agreement between shipping lines from such countries as the United States, Mexico, Japan, Korea, and several European states, which notably fixed prices for inland transport operations related to the carriage of containerized cargo between northern Europe and the United States.

Second, with new technologies permitting the emergence of global operators, a new kind of abuse of dominance case has emerged on a worldwide level. The various Microsoft cases are the best-known examples.

Finally, competition enforcers are confronted with companies that are facing worldwide markets and therefore perceive the need to become larger and multinational as a result. The past years have seen a series of so-called megamergers of a truly global dimension, even in such sectors as car manufacturing (Daimler-Benz-Chrysler) and oil (BP-Amoco and Exxon-Mobil) that are still marked by strong national pride. The merger wave--with the consequent reduction in competition it entails--has at times obliged competent competition authorities to refuse proposed operations between companies based in foreign countries. In 1996, for instance, the EC decided to oppose the proposed merger of the platinum mining interests of South Africa's Gencor and Lonrho because it would create a duopolistic dominance in the worldwide platinum and rhodium markets. As an alternative to straight mergers, companies with international ambitions are resorting increasingly to the formation of strategic alliances, particularly in high-technology sectors such as telecommunications, information technology, entertainment, air transport, and pharmaceutical industries.

Competition authorities have been trying to keep pace with the increasing number of transnational business operations by simultaneously pursuing three strategies: the extraterritorial application of their competition laws, the conclusion of bilateral or regional cooperation agreements, and the creation of a worldwide competition regime in the framework of the WTO. I examine these strategies in the next sections.

Extraterritorial Application of Competition Policy

Given the increasing number of private business activities with a transnational impact, neither the United States nor the EU has limited its antitrust enforcement to anticompetitive practices by national companies within the national territory. [8] Still, the extraterritorial application of antitrust law has always been highly controversial.

In the Continental Ore v. Union Carbide case of 1962, the U.S. Supreme Court held that a conspiracy to monopolize or restrain the domestic or foreign commerce of the United States is not outside the reach of the Sherman Act just because part of the conduct occurs in foreign countries. During the 1990s, the U.S. Supreme Court seemed to sustain this viewpoint. In Hartford Fire Insurance v. California in 1993, for instance, the majority found that the Sherman Act applied to anticompetitive conduct taking place outside the United States, even though the behavior was in compliance with legislation of the U.K. According to the Court, the determining factor was that the conduct was meant to produce, and did in fact produce, some substantial effect in the United States. In United States v. Nippon Paper Inds. (1 Cir. 1997), too, a federal appellate court upheld the Department of Justice's ability to use the criminal provisions of the Sherman Act to prosecute anticompetitive conduct outside the United States by non-U.S. citizens that directly and substantially affected U.S. commerce. [9]

The question of the extraterritorial application of U.S. antitrust law did not come up only in cases where external conduct caused a negative effect on the U.S. market or for U.S. consumers; it also emerged when U.S. exports were affected. In 1982, Congress passed the Foreign Trade Antitrust Improvements Act (FTAIA), clarifying that U.S. antitrust laws notably cover anticompetitive practices that have a "direct, substantial, and reasonably foreseeable effect" on U.S. export trade or commerce. However, in 1988, under President Ronald Reagan, the U.S. Department of Justice issued antitrust enforcement guidelines for international operations confining the department's enforcement efforts solely to cases that harmed U.S. consumers, as opposed to U.S. exports or exporters. In 1992, under President George Bush, the Justice Department restored the Antitrust Division's mandate under the FTAIA to prosecute foreign anticompetitive practices that injure U.S. exports. [10] In addition, the Omnibus Trade and Competitiveness Act of 1988 (which amended Section 301 of the 1974 Trade Act) enables the U.S. trade representative to take unilateral action against "the toleration by a foreign government of systematic anticompetitive activities by private firms or among private firms in the foreign country that have the effect of restricting ... access of United States goods to purchasing by such firms." This provision of the Trade Act pressured the Japanese government to participate in the Structural Impediments Initiative (SII)--an attempt by the Bush administration to tackle competition-related trade barriers in Japan. [11]

Although it rejects the extraterritorial use of U.S. antitrust law to expand U.S. export markets, the EU has never been shy to apply its competition rules to foreign companies when their alleged anticompetitive behavior was affecting European consumers. In the Wood Pulp judgment, the European Court of Justice held that the European Commission has jurisdiction to apply European antitrust law with regard to non-EU firms outside the EU if they "implement" anticompetitive agreements reached outside the EU by selling their products to purchasers inside the EU. [12] Mergers that meet the threshold mentioned in the Merger Regulation must always be approved by the European Commission, whether the companies involved are European or not. According to the European Court of First Instance in its Gencor judgment in 1999, application of the Merger Regulation is justified under public international law--even in cases between non-EU companies--"when it is foreseeable that a proposed concentration will have an immediate and substantial effect in the Community." [13] The commission's involvement in the mergers between Swiss pharmaceutical firms Ciba-Geigy and Sandoz in 1996 and between U.S. aircraft manufacturers Boeing and McDonnell-Douglas in 1997 are recent examples.

Rationale for Cooperation

U.S. assertions of extraterritorial jurisdiction--in particular, when used in an attempt to open foreign markets in cases where U.S. consumers were barely affected--have pushed a number of countries to adopt so-called blocking statutes, [14] legislation designed to counteract the effects of U.S. claims of extraterritorial jurisdiction by forbidding cooperation with U.S. authorities enforcing such claims. Traditional U.S. allies such as Canada, the U.K., Germany, the Netherlands, France, and Switzerland have all enacted such blocking statutes.

In addition to the political problems that may result from the extraterritorial application of antitrust law, U.S. and EU competition authorities have concluded that there are three reasons why--given the globalization of the economy--cooperation is to be preferred over unilateralism to enhance the effective enforcement of antitrust rules. [15] First, even if a competition agency is ready to use its antitrust rules extraterritorially, information central to the investigation is often located outside the jurisdiction of the competition authority using the extraterritoriality principle and is thus beyond its reach. Without the necessary proof, competition authorities are unable to take remedial action. Second, there is a need to avoid conflicts of law and remedies to international cases. As international business arrangements may face examination by different authorities at the same time, divergences in the laws applicable to the same set of facts may result in conflicting conclusions as to the legality of the behavior under review. Even where a common view exists among competition agencies as to the anticompetitive nature of the conduct, the remedies imposed in each jurisdiction may be incompatible. Cooperation is thus seen as necessary to reduce the likelihood of such conflicts. Third, cooperation would help to avoid unnecessary duplication of work and costs, both for the competition authorities involved and for the businesses whose conduct is subject to review.

Bilateral and Regional Competition Cooperation

The current framework of bilateral and regional competition cooperation centers mainly on initiatives taken by the United States and the EU.

OECD Recommendations

The council of the Organization for Economic Cooperation and Development (OECD) has--as early as 1967--given the antitrust community an instrument for cooperation in the form of the recommendation concerning cooperation on anticompetitive practices affecting international trade, last revised in 1995. The basic cooperation possibilities under this recommendation are notification of cases, exchange of information, coordination of action, consultation while protecting confidential information, and conciliation. The recommendation, however, is not binding. Each competition authority determines whether it considers it appropriate to enter into bilateral agreements to implement the provisions of the recommendation. Alternatively, competition authorities may cooperate on a case-by-case basis.

In 1998, the OECD council adopted an additional recommendation on cooperation with respect to hard-core cartels. Although encouraging the competition authorities of OECD countries to coordinate their activities in the fight against those cartels, the recommendation imposes no binding obligations either. OECD countries are merely encouraged to give effect to its provisions; for instance, by concluding agreements enabling the communication of confidential information in response to a request for assistance from another competition agency. [16]

Transatlantic Competition Cooperation

The 1991 bilateral competition agreement between the United States and the EU has a much more operational character. [17] The basic obligation stemming from the agreement is the exchange of nonconfidential information. Confidential information may be exchanged between antitrust authorities only with the express agreement of the companies in question. This is an important restriction. The competition agencies notify each other when they deal with cases that may affect important transatlantic interests. In principle, notifications take place "far enough in advance ... to enable the other Party's views to be taken into account."

The agreement also contains provisions on the coordination of enforcement activities. In all cases of mutual interest, the two sides try to synchronize their fact-finding action and coordinate their respective approaches on the definition of relevant markets, on points of foreign law relevant to the interpretation of the case, and on possible remedies to ensure they do not conflict.

Furthermore, the 1991 agreement introduced the concepts traditional and positive comity. The parties enter into the realm of traditional comity when they cooperate to bring their respective positions and remedies closer to each other to avoid creating a harmful effect to the market of the partner. Positive comity, as defined in Article 5 of the agreement, enables one side adversely affected by anticompetitive conduct carried out in the other's territory to request that the other party's competition authority take enforcement action.

The positive comity principle was further clarified in the EU-U.S. Positive Comity agreement signed on 4 June 1998. For the EU, the agreement was notably a means to restrict the extraterritorial use of U.S. antitrust legislation in transatlantic cases. The agreement creates the presumption that in certain circumstances a party will normally defer or suspend its own enforcement activities. The presumption of deferral or suspension arises when the anticompetitive activities at issue do not have a direct, substantial, and reasonably foreseeable impact on the requesting party's consumers or when the anticompetitive activities occur principally in, and are directed principally toward, the other party's territory. Deferral will occur only if the party in whose territory the restrictive activities are occurring has jurisdiction over these activities and is prepared to deal with the matter actively and expeditiously. The application of positive comity not only represents a commitment to cooperate rather than seeking to apply antitrust laws extraterritorially but also reduces the possibility that conflicting decisions will be made by different competition authorities. Mergers are explicitly excluded from the scope of the agreement because merger review provisions of both the United States and the EU contain strict deadlines that do not allow for a deferral or suspension of action. [18]

In the period from April 1995 to December 1998, EU and U.S. competition authorities cooperated on 241 cases. [19] Both sides came to common conclusions in all but one case: the merger between Boeing and McDonnell-Douglas. A majority of cases (180) concerned mergers of a transatlantic dimension. Cooperation in merger cases focuses in particular on the coordination of the remedies companies have to accept to make their operation acceptable from an antitrust perspective. For example, in the 1997 merger between telecommunications companies WorldCom and MCI, U.S. and EU antitrust regulators not only exchanged views on analytical methods but also very concretely coordinated the conditions that were imposed. The parties needed the consent of both competition agencies to the proposed buyer of MCI's Internet assets, which were sold to remedy competition concerns about the stronghold of the two companies with regard to the supply of universal Internet connectivity.

Nonmerger issues such as monopolization and abuse of dominance resulted in 61 transatlantic cooperation cases between 1995 and 1998. Here, the emphasis was on avoiding duplication of work by ensuring that the antitrust authority best placed from the point of view of the evidence takes the lead. The European Commission decided, for instance, that there was no reason to duplicate the Microsoft investigation started in the United States in 1998. The Department of Justice was keeping the European Commission fully informed, and most of the evidence for the case was present in the United States, not in the EU.

Additional Spokes to the Competition Cooperation Framework Surrounding the United States

In addition to the 1991 EU-U.S. agreement, the United States has negotiated six similar bilateral competition agreements. [20] They involve Germany (1976), Australia (1982), Canada (1995, revising an agreement from 1984), Israel (1999), Japan (1999), and Brazil (1999). These agreements have as characteristic that they do not allow the exchange of confidential business information between the competition authorities. The International Antitrust Enforcement Assistance Act of 1994, however, authorizes the Department of Justice and the Federal Trade Commission to enter into antitrust-specific mutual assistance agreements with foreign antitrust agencies to obtain and share confidential information for use in investigations, on strict conditions of confidentiality and reciprocity. The first of these agreements was signed with Australia in 1999.

In 1998, as a step toward the proposed Free Trade Area of the Americas, the United States adopted the Panama communique with Argentina, Brazil, Canada, Colombia, Costa Rica, Jamaica, Mexico, Panama, Peru, and Venezuela calling for greater cooperation by their antitrust authorities in dealing with cartels and anticompetitive behavior. In the framework of the North American Free Trade Agreement, too, the importance of antitrust cooperation and coordination was explicitly recognized, and the parties have commited to cooperate on antitrust enforcement issues. In a less formal way, competition workshops have also taken place in the context of Asia-Pacific Economic Cooperation.

Additional Spokes to the Competition Cooperation Framework Surrounding the EU

In addition to the agreement with the United States, the EU concluded a bilateral competition agreement with Canada that entered into force in 1999. [21] It closely follows the model of the EU-U.S. agreement. Also in 1999, exploratory talks started between the EU and Japan in view of negotiating a possible agreement. Furthermore, the EU has been rather successful at surrounding itself with trading partners that are gradually adopting the principles of the EU's own competition policy. Competition provisions identical to those of the Treaty of Rome have been included in the agreement establishing the European Economic Area (EEA) with Norway, Iceland, and Liechtenstein. The EEA extends the EU's internal market to the participating third countries. In exchange, these countries accept a number of disciplines, notably on competition policy.

With the ten Central and Eastern European countries (CEECs) that are candidates for EU membership, the EU has concluded so-called Europe Association agreements, including a free trade regime. Rules similar to the EU's competition provisions apply in trade between the EU and the CEECs. In preparation for the accession of the CEECs to the EU, the Europe agreements specify that these rules are to be interpreted in accordance with the criteria arising from the application of EU competition provisions. The same principles apply in the framework of the EU's Customs Union decision with Turkey and the new generation of Euro-Mediterranean agreements with the Maghreb and Mashreq countries--also creating a free trade regime. The legal terminology of the agreements is rather sophisticated. In practice, the agreements with the CEECs and the Mediterranean countries focus on the gradual development of a competition culture and on technical assistance for their newly established competition agencies. The EU was able to convince its partners to adopt the European competition model by making duty-free access to the EU market conditional upon the creation of competition disciplines.

Competition Cooperation Frameworks Outside the U.S.--EU Sphere

Although competition cooperation has centered mainly on the United States or the EU, a number of independent frameworks have nevertheless been developed. For instance, in the framework of the Closer Economic Relations agreement between Australia and New Zealand, the harmonization of competition laws and the exchange of information between the national competition authorities are explicitly provided for. Mercosur's Protocol for the Defense of Competition is another example. It has stimulated agreements establishing procedures for reciprocal consultations and technical assistance among participating countries.

Toward a Multilateral Competition Regime

The picture that emerges from the description of the bilateral and regional competition frameworks is that of a hub-and-spoke system mainly surrounding the United States and the EU. The original plan for the post--World War II international antitrust order was entirely different. [22]


The International Trade Organization's (ITO's) 1948 Havana Charter included a detailed chapter on restrictive business practices. Members would have been obliged to take all possible measures through legislation or otherwise to ensure within their jurisdiction that private and public commercial enterprise did not engage in practices affecting international trade that restrained competition, limited access to markets, or fostered monopolistic control. The charter also included a list of actionable practices such as fixing prices, allocating or dividing territorial markets, allocating customers, and discriminating against particular enterprises. Members would have been allowed to cooperate to make more effective any remedial measures taken and to request consultations with, or present written complaints to, the organization. If the organization had found that a restrictive business practice existed, it would have had the authority to request that each member concerned take every possible remedial action. Howeve r, the Havana Charter never entered into force. [23]

In the absence of a legally binding instrument, the most detailed and coherent multilateral statement on restrictive business practices to date is the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, adopted in 1980 by the UN General Assembly. As with similar UN attempts to regulate business behavior through codes of conduct on such topics as the transfer of technology or transnational corporations, the practical effect of the set has been meager. [24]

Attempts to incorporate the ITO's restrictive business practices chapter in the framework of the General Agreement on Tariffs and Trade (GATT) never materialized. [25] In 1960, the GATT contracting parties, although adopting "arrangements for consultations" on restrictive business practices, concluded that "in the present circumstances it would not be practicable for the contracting parties to undertake any form of control of such practices nor to provide for investigations." [26] Nevertheless, a number of competition-related provisions have been incorporated under the WTO umbrella. [27] The General Agreement on Trade in Services (GATS), for instance, requires its members to ensure that a monopoly supplier does not "abuse its monopoly position" when it competes outside its monopoly rights. Furthermore, GATS explicitly recognizes "that certain business practices of service suppliers ... may restrain competition and thereby restrict trade in services." The GATS competition dimension was further developed in th e reference paper in annex to the WTO Telecommunications Agreement of 1997. It is designed to ensure that the advantages of former monopoly operators are not used to the detriment of new entrants into telecommunications markets. [28] The Agreement on Trade-Related Intellectual Property Rights cautiously suggests the necessity for appropriate measures "to prevent the abuse of intellectual property rights by rights holders," such as "anticompetitive practices in contractual licenses." Finally, the Agreement on Trade-Related Investment Measures requires the WTO Council on Trade in Goods to "consider whether [the agreement] should be complemented with provisions on ... competition policy."

Rationale for a Multilateral Regime

The logic for pursuing a more systematic attempt to establish a multilateral competition framework can be based on four arguments. First, as described in the preceding section, the current WTO agreements merely incorporate a number of rather vague references to competition. As a result, the WTO contains bits and pieces of a competition regime but lacks both the necessary substance and the coherence only a general framework of multilateral competition principles could create.

Second, to the degree the world community has seen a need to develop a worldwide trading system that goes beyond regional and bilateral agreements, there seem few reasons not to apply the same logic in the competition sector. Any sustainable liberalization of trade relations at the multilateral level requires the necessary accompanying measures that keep companies from reintroducing similar but private restriction to market access. This was the logic developed in 1948 to underpin the inclusion of the restrictive business practices chapter in the ITO. According to the U.S. Department of State at that time, "It would be rather futile to remove the discriminations and reduce or eliminate the trade barriers imposed on a product by governments if business enterprises were free under the Charter to create them." [29] This argument has only gained in force following the successive multilateral trade liberalization rounds. The EU has been very explicit in sustaining its proposals for a WTO competition regime using t he same rationale. The EU' s experience with the creation of the European internal market in the early 1990s pointed out that several business sectors were tempted to deny consumers the benefits of greater competition by protecting their traditional national markets--for example, through horizontal cartels designed to divide the European market. [30]

Third, under the currently applicable WTO rules, attempts to invoke competition-related arguments during actions against private market access barriers have not been very successful. A recent illustration was provided by the Fuji-Kodak panel report in April 1998. The WTO panel refused to rule against Japan in a dispute brought by the United States based on allegations of anticompetitive behavior by Fuji aimed at denying its U.S. rival Kodak access to the Japanese market for photographic film and paper. [31]

Finally, but most important, the current hub-and-spoke system lacks bridges to the developing world. Neither the EU nor the United States has developed structural competition links with sub-Saharan Africa, for instance. This leaves the African continent's poorest countries exposed to the risk of anticompetitive practices. Developing countries thus have a particular interest in the creation of multilateral competition principles that would help to protect them against abuses of dominance by both domestic and transnational corporations. [32]

Proposals for a Multilateral Regime

In view of this rationale and at the EU's initiative, the WTO's Singapore ministerial meeting in 1996 decided to "establish a Working Group to study ... the interaction between trade and competition policy, including anticompetitive behavior, in order to identify any areas that may merit consideration in the WTO framework." [33] According to the EU, the WTO is the prime candidate for an international framework of competition rules for several reasons. [34] It has near universal membership, in contrast to the OECD. As such, the EU argues that the WTO can provide a balanced response sensitive to the varying interests of both developed and developing countries. As the failed negotiations for the Multilateral Agreement on Investment in the OECD have shown, treaties having important effects on developing countries are more appropriately negotiated in their presence than behind their backs. Moreover, the WTO has a track record of dealing with binding commitments related to international trade, some of which already deal with competition-related issues. Also, the WTO has the institutional infrastructure and capacity to cater to negotiating and monitoring an agreement on international competition rules (possibly in the form of a plurilateral agreement between a more limited number of signatories than full WTO membership).

With very few exceptions, WTO members have actively participated in the development of a competition agenda in the working group. Approximately 125 written contributions were submitted between its first meeting in April 1997 and December 1998. [35] The UN Conference on Trade and Development and World Bank secretariats were also supportive. This led Karel Van Miert, then European commissioner for competition, to argue that "at the end of the present mandate [of the working group], we must seriously consider negotiations on the development of a multilateral framework of competition rules." [36] During the Seattle ministerial meeting (30 November-3 December 1999), expected to launch a new multilateral trade round, EU commissioner for trade Pascal Lamy continued on this line. [37]

In its initial proposals, the EU had identified four points that could possibly be included in negotiating a multilateral competition agreement in the WTO. First, WTO members would identify a core of common principles to be adopted at the international level, concentrating initially on areas where consensus could be reached at an early stage--for example, horizontal restraints such as price or output fixing or market-sharing cartels, bid rigging, group boycotts, and export cartels. The traditional WTO principles of transparency and nondiscrimination would provide key foundations for the development of such a core. Second, and in view of the core of common principles, the members would commit themselves to adopt a domestic competition framework that would include basic rules on restrictive business practices, abuse of dominant position, and mergers, as well as adequate enforcement structures with private party access to enforcement authorities on nondiscriminatory terms. Third, provisions would be developed f ostering

cooperation between competition authorities, including provisions on notification, consultation, and exchanges of nonconfidential information. Particular attention would go to the integration of developing countries in this framework of cooperation, notably through enhanced technical assistance. Finally, a surveillance mechanism could be set up to ensure that WTO members would meet their commitments. In light of the governmental structure of WTO procedures, private parties would not have direct access to the surveillance mechanism. Furthermore, the dispute resolution system would not undertake a review of individual decisions of competition authorities and courts in specific cases.

This line was maintained in a common working paper for the Seattle ministerial meeting by the EU, Hungary, Japan, Korea, Switzerland, and Turkey. The paper underlined the need for flexibility and progressivity with regard to the integration of developing countries in the proposed WTO framework. Furthermore, it left open discussion on surveillance and dispute settlement for later, once more clarity existed on the substance of the new WTO regime. [38] Canada and Australia supported similar positions.

The Skeptics

The most skeptical arguments came from the U.S. antitrust community. In the run-up to Seattle, the United States had sent mixed signals with regard to negotiations toward a multilateral competition agreement in the WTO. U.S. trade representative Charlene Barshefsky had cautiously suggested that the round's negotiating agenda could possibly include a forward-looking work program to explore how competition policy could help to assure fair and open trade. [39] U.S. antitrust authorities proved far less enthusiastic. According to Assistant Attorney General for Antitrust Joel Klein, "Premature efforts to adopt WTO competition rules or procedures will do more harm than good." [40] Coming from the country that has by far the richest experience in effective antitrust enforcement, the U.S. objections obviously carried much weight.

Although he supported the working group's efforts to deepen the WTO's experience with regard to competition, Klein had two important concerns. Because of the lack of a worldwide consensus on competition principles, Klein feared, first, that any WTO competition agreement would get stuck on the lowest common denominator. As a result, a multilateral agreement could end up legitimating weak and ineffective competition rules and thus make it more difficult to pressure countries like Japan into accepting effective market opening. The proponents of a WTO competition regime countered Klein's arguments by referring to the Kodak-Fuji dispute. The Kodak-Fuji panel report seemed to demonstrate that present WTO/GATT rules were in any case far from effective in helping the United States to overcome market access problems caused by restrictive practices. The gradual buildup of a multilateral framework of competition rules--starting with prohibiting such practices as horizontal price fixing, collusive tenders, or market par titioning--therefore looked more likely to enhance rather than to weaken attempts to tackle market access problems. [41]

In addition, Klein argued that extending WTO dispute settlement to individual decisions taken by competition authorities would imply second-guessing the exercise of prosecutorial discretion and judicial decisionmaking. Most proponents of a WTO competition regime agreed there should be no opening toward the possibility of multilateral appeal against decisions by national competition authorities in specific cases. The EU's proposals in particular had repeatedly and explicitly stated that a possible WTO surveillance system--to be worked out at a later stage--would in any case be barred from undertaking a review of the specific decisions of competition authorities and courts. [42]

Other WTO members expressed a number of concerns. Hong Kong and Singapore, for instance, argued against a universal WTO requirement for national competition laws, claiming they had been regarded for years as among the most competitive markets in the world, although neither had a comprehensive antitrust legislation. India and Malaysia felt the working group's exploratory and educative process was still a long way from the point where it could gauge the need for multilateral rules. [43] Developing country criticism convinced the EU to explicitly put "the development dimension ... at the centre of the considerations of such a multilateral framework by combining possible transition periods together with technical assistance and flexibility in the rules." [44] At the same time, the Asian economic crisis--which seemed to have been caused at least in part by poor supervision and underregulation of business behavior, as well as by a lack of market transparency [45]--made it look even more urgent to push for a multil ateral antitrust framework that could help to reorient the economies in question in a direction rewarding efficiency and innovation.


The Seattle ministerial meeting ended in failure on 3 December 1999, and no decision was taken with regard to the start of negotiations on a WTO competition agreement. The system of bilateral and regional competition cooperation agreements surrounding the United States and the EU continues to function well but is limited to the partners of those treaties. In view of the internationalization of business and the resulting competition cases with a transnational effect, bilateral cooperation is seen as a necessity in both the United States and the EU to both ensure the effective enforcement of antitrust disciplines and avoid the drawbacks of the extraterritorial application of competition legislation. However, in comparison with the multilateral trade framework, the bilateral and regional hub-and-spoke system governing competition relations lags significantly in terms of effectiveness and consistency. Furthermore, it fails to provide a bridge toward developing countries. Without proper multilateral cover, the dev eloping countries are especially vulnerable to abuses of dominance and restrictive practices on their market.

The WTO working group on the interaction between trade and competition policy established at the Singapore ministerial meeting in 1996 has accomplished positive study work with the active participation of most WTO members. To move the discussion forward, negotiations on the establishment of multilateral competition rules in the WTO should not be delayed. The fact that the negotiations will be difficult and might take time is an additional reason not to postpone their start. The basic justification for the development of a multilateral antitrust regime, in parallel with the creation of an open trade system, was given more than fifty years ago by U.S. trade negotiator Clair Wilcox. In defense of the ITO's Havana Charter, Wilcox stated: "The effort to expand trade by reducing tariffs and eliminating quotas might well be defeated if no action were taken to prevent the erection of private [restrictive business practices].... The necessary action might either be taken through international agreement or left to the initiative of individual states. But unilateral action, even when taken by a government as powerful as that of the United States, has its limitations." [46]


Youri Devuyst is adjunct professor at the Vrije Universiteit Brussel (Free University of Brussels) in Belgium.

(1.) For an excellent introduction, see Robert Pitofsky, "The Political Content of Antitrust," University of Pennsylvania Law Review 127 (1979): 105 1-1075; E. Thomas Sullivan, ed., The Political Economy of the Sherman Act: The First One Hundred Years (Oxford: Oxford University Press, 1991).

(2.) As an anonymous referee correctly pointed out, it might be useful to mention that even ardent neoclassicals see some benefits of monopolies in particular cases. Patent law, for instance, gives temporary monopolies to firms to provide them with incentives to innovate, whereas the time limit on exclusive rights gives others the incentive to compete with the patent holder in the future. On the relationship between intellectual property rights and competition policy, see Keith E. Mascus, "Intellectual Property Rights in the World Trade Organization: Progress and Prospects," in Jeffrey J. Schott, ed., Launching New Global Trade Talks: An Action Agenda (Washington, D.C.: Institute for International Economics, 1998), pp. 133--148; Susan K. Sell, "Intellectual Property Protection and Antitrust in the Developing World: Crisis, Coercion and Choice," International Organization 49 (1995): 315--349.

(3.) For current intellectual debates on competition policy, see country and issue studies in Edward M. Graham and J. David Richardson, eds., Global Competition Policy (Washington, D.C.: Institute for International Economics, 1997); for an assessment of the rationale and instruments for antitrust in the transition countries of Central Europe, see John Fingleton et al., Competition Policy and the Transformation of Central Europe (London: Centre for Economic Policy Research, 1996); for new perspectives on competition policy of vertical restraints and network industries, see Einar Hope and Per Maeleng, eds., Competition and Trade Policies: Coherence or Conflict? (London: Routledge, 1998); for the link between the various approaches to competition policy and the international discussion, see Graham, "Approaches to Competition Policy," in Miguel Rodriguez Mendoza, Patrick Low, and Barbara Kotschwar, eds., Trade Rules in the Making: Challenges in Regional and Multilateral Negotiations (Washington, D.C.: Organizati on of American States/Brookings Institution Press, 1999), pp. 417--443.

(4.) Eleanor Fox and Robert Pitofsky, "United States," in Graham and Richardson, Global Competition Policy, pp. 235--270; Fox and Lawrence A. Sullivan, "Antitrust--Retrospective and Prospective: Where Are We Coming From? Where Are We Going?" New York University Law Review 62 (1987): 936--988.

(5.) Vivien Rose, ed., Bellamy and Child Common Market Law of Competition (London: Sweet & Maxwell, 1993, with 1996 supplement); Valentine Korah, An Introductory Guide to EC Competition Law and Practice (Oxford, England: Hart, 1997); Jonathan Faull and Ali Nikpay, eds., The EC Law of Competition (Oxford: Oxford University Press, 1999).

(6.) Mitsuo Matsushita, "The Antimonopoly Law of Japan," in Graham and Richardson, Global Competition Policy, pp. 151--197.

(7.) See, for instance, Leonard Waverman, William S. Comanor, and Akira Goto, introduction to Waverman, Comanor, and Goto, eds., Competition Policy in the Global Economy: Modalities for Cooperation (London: Routledge, 1997), pp. 1--5.

(8.) Joseph P. Griffin, "Extraterritoriality in U.S. and EU Antitrust Enforcement," Antitrust Law Journal 67 (1999): 159--199; Peter Torremans, "Extraterritorial Application of EC and U.S. Competition Law," European Law Review 26 (1996): 280--293.

(9.) For an excellent overview of this case law, see Elliott Sulcove, "The Extraterritorial Reach of the Criminal Provisions of U.S. Antitrust Laws: The Impact of United States v. Nippon Paper Industries," University of Pennsylvania Journal of International Economic Law 19 (1998): 1067--1099.

(10.) Robert Pitofsky, "Testimony Concerning International Antitrust Enforcement," Subcommittee on Antitrust, Business Rights and Competition, Senate Committee on the Judiciary, 2 October 1998; Michael H. Byowitz, "The Unilateral Use of U.S. Antitrust Laws to Achieve Foreign Market Access: A Pragmatic Assessment," in Barry E. Hawk, ed., 1996 Annual Proceedings of the Fordham Corporate Law Institute International Antitrust Law and Policy Conference (New York: Fordham Corporate Law Institute, 1997), pp. 21--36; Robert D. Shank, "The Justice Department's Recent Antitrust Enforcement Policy: Toward a 'Positive Comity' Solution to International Competition Problems?" Vanderbilt Journal of Transnational Law 29 (1996): 155--189.

(11.) On the SII and other U.S. attempts to pressure Japan into competition enforcement, see Tony A. Freyer, "Regulatory Distinctiveness and Extraterritorial Competition Policy in Japanese-U.S. Trade," World Competition 21 (1998): 5-53; Gary R. Saxonhouse, "A Short Summary of the Long History of Unfair Trade Allegations Against Japan," in Jagdish Bhagwati and Robert E. Hudec, eds., Economic Analysis, vol. 1 of Fair Trade and Harmonization (Cambridge, Mass.: MIT Press, 1996), pp. 471-513; Yoshio Ohara, "The New U.S. Policy on the Extraterritorial Application of Antitrust Laws, and Japan's Response," World Competition 17 (1994): 49-54.

(12.) Dieter Lange and John Byron Sandage, "The Wood Pulp Decision and Its Implications for the Scope of EC Competition Law," Common Market Law Review 26 (1989): 137-165; Walter Van Gerven, "EC Jurisdiction in Antitrust Matters: The Wood Pulp Judgement," in Barry E. Hawk, ed., 1989 Annual Proceedings of the Fordham Corporate Law Institute International Law and Policy Conference (New York: Fordham Corporate Law Institute, 1990), pp. 451-467.

(13.) Judgment of the Court of First Instance (Fifth Chamber, Extended Composition) in Case T-102/96, 25 March 1999, par. 90. For a comment, see Antonio F. Bavasso, "Gencor: A Judicial Review of the Commission's Policy and Practice: Many Lights and Some Shadows," World Competition 22 (1999): 45-65.

(14.) Joseph P. Griffin, "Foreign Governmental Reactions to U.S. Assertions of Extraterritorial Jurisdiction," European Competition Law Review 19 (1998): 64-73.

(15.) European Commission, "Toward an International Framework of Competition Rules," COM (96) 284 final, 18 June 1996, pp. 4-5; John J. Parisi, "Enforcement Co-operation Among Antitrust Authorities," European Competition Law Review 20 (1999): 133-142; Douglas A. Melamed, "International Cooperation in Competition Law and Policy: What Can Be Achieved at the Bilateral, Regional and Multilateral Levels," Journal of International Economic Law 2 (1999): 423-433.

(16.) For an update on the OECD's activities in the field of competition policy, see the OECD Journal of Competition Law and Policy, created in 1999 by the OECD Committee on Competition Law and Policy.

(17.) For a comment on the agreement, see Allard D. Ham, "International Cooperation in the Anti-Trust Field and in Particular the Agreement Between the United States of America and the Commission of the European Communities," Common Market Law Review 30 (1993): 571-597. For the EU's internal institutional problems in getting the agreement approved, see Noreen Burrows, "No General External Competence for the Commission," European Law Review 20 (1995): 210-213; Gunnar Schuster, "European Communities: Agreement Between the Commission and the United States on Competition, Power of the Commission to Conclude the Agreement," American Journal of International Law 89 (1995): 136-142. For a comment on the application of the agreement, see Alexander Schaub, "International Co-operation in Antitrust Matters: Making the Point in the Wake of the Boeing/MDD Proceedings," Competition Policy Newsletter (February 1998): 2-6; Youri Devuyst, "Transatlantic Competition Relations," in Mark Pollack and Gregory Shaffer, eds., Trans atlantic Governance in the Global Economy (Lanham, Md.: Rowman & Littlefield, forthcoming).

(18.) On the positive comity concept, see James R. Atwood, "Positive Comity: Is It a Positive Step?" in Barry E. Hawk, ed., 1992 Annual Proceedings of the Fordham Corporate Law Institute International Antitrust Law and Policy Conference (New York: Fordham Corporate Law Institute, 1993), pp. 79-89. For an introduction to the agreement, see Youri Devuyst, "Introductory Note: Agreement Between the European Communities and the Government of the United States of America on the Application of Positive Comity Principles in the Enforcement of Their Competition Laws," International Legal Materials 37 (1998): 1070-1075.

(19.) Based on figures in the European Commission reports to the council and the European Parliament on the agreement between the EU and the United States regarding the application of their competition laws, COM (96) 479 final (covering the period from 10 April 1995 to 30 June 1996); COM (97) 346 final (from 1 July 1996 to 31 December 1996); COM (1998) 516 final (from 1 January 1997 to 31 December 1997); COM (1999) 439 final (from 1 January 1998 to 31 December 1998).

(20.) See Parisi, "Enforcement Co-operation"; Melamed, "International Cooperation."

(21.) See Youri Devuyst, "The International Dimension of the EC's Antitrust Policy: Extending the Level Playing Field," European Foreign Affairs Review 3 (1998): 459-479.

(22.) For an excellent overview of multilateral attempts to build a competition policy framework, see John H. Jackson, William J. Davey, and Alan 0. Sykes, Legal Problems of International Economic Relations (St. Paul, Minn.: West Publishing, 1995), pp. 1090-1107.

(23.) Clair Wilcox, A Charter for World Trade (New York: Macmillan, 1949), pp. 103-113; William Adams Brown, The United States and the Restoration of World Trade: An Analysis and Appraisal of the ITO Charter and the General Agreement on Tariffs and Trade (Washington, D.C.: Brookings Institution Press, 1950), pp. 125-131, 222-225.

(24.) Phillipe Brusick, "UN Control of Restrictive Business Practices," Journal of World Trade Law 17 (1983): 337; Debra L. Miller and Joel Davidow, "Antitrust at the UN: A Tale of Two Codes," Stanford Journal of International Law 18 (1982): 347.

(25.) Ernst-Ulrich Petersmann, "Proposals for Negotiating International Competition Rules in the GATT-WTO World Trade and Legal System," Aussenwirtschaft 49 (1994): 231-277.

(26.) GATT Decision of 18 November 1960 on "Restrictive Business Practices: Arrangements for Consultations," Basic Instruments and Selected Documents, 9th Supplement (1961), p. 28.

(27.) OECD Joint Group on Trade and Competition, Competition Elements in International Trade Agreements: A Post-Uruguay Round Overview of WTO Agreements, COM/TD/DAFFE/CLP(98)26/FINAL, 28 January 1999.

(28.) Marco C.E.J. Bronckers, "Trade and Competition Interlinkages: The Case of Telecom," address presented to the Conference on Trade and Competition in the WTO and Beyond, Fondazione Eni Enrico Mattei, Venice, 4-5 December 1998; Bronekers and Pierre Larouche, "Telecommunications Services and the World Trade Organization," Journal of World Trade 31(1997): 5-48.

(29.) Havana Charter for an International Trade Organization Including a Guide to the Study of the Charter (Washington, D.C.: Department of State Publication 3206, Commercial Policy Series 114, 24 March 1948), p. 8.

(30.) Karel Van Miert, "EU Competition Policy in a New Trade Order," in Hope and Maeleng, Competition and Trade Policies, p. 184.

(31.) Mark Furse, "Competition Law and the WTO Report: 'Japan: Measures Affecting Consumer Photographic Film and Paper,"' European Competition Law Review 20 (1999): 9-13; W. Todd Miller, "Fuji Case Leaves Questions Unanswered," Global Competition Review (August-September 1998): 24-26.

(32.) On the position of developing countries in the competition policy debate, see Susan K. Sell, Power and Ideas: North-South Politics of Intellectual Property and Antitrust (Albany: SUNY Press, 1998), especially chap. 5.

(33.) World Trade Organization, Singapore Ministerial Declaration, WT/MIN (96)/DEC/W, 13 December 1996, P. 7.

(34.) On the EU's arguments for a WTO competition regime, see Competition Policy in the New Trade Order: Strengthening International Cooperation and Rules (Luxembourg: Office for Official Publications of the European Communities, 1995); European Commission, "Toward an International Framework of Competition Rules"; Leon Brittan, "Competition Policy and the Trading System: Toward International Rules in the WTO," address presented to the Institute of International Economics, Washington, D.C., 20 November 1997; Karel Van Miert, "The WTO and Competition Policy: The Need to Consider Negotiations," address presented to the WTO ambassadors, Geneva, 21 April 1998.

(35.) World Trade Organization, Report of the Working Group on the Interaction Between Trade and Competition Policy for the General Council, WT/ WGTCP/2, 8 December 1998.

(36.) Van Miert, "The WTO and Competition Policy," p. 2.

(37.) Pascal Lamy, "WTO Issues," address presented to the NGO Symposium, Seattle, 29 November 1999 (European Commission, Spokesman's Service Speech 99/194).

(38.) Common Working Paper of the EC, Hungary, Japan, Korea, Switzerland and Turkey to the Seattle Ministerial Declaration, 29 November 1999, par. 26, online at

(39.) Charlene Barshefsky, "America's View of the Trading System," address presented to the World Economic Forum, Washington, D.C., 14 April 1999; Barshefsky, "Remarks on the Global Trading System," address presented to the Institute for International Economics, Washington, D.C., 15 April 1998. See also David Aaron, "Remarks on Future WTO Issues," address presented to the conference organized by George Mason University, the Congressional Institute for the Future, and the Brookings Institution, Washington, D.C., 19 March 1998.

(40.) Joel Klein, "No Monopoly on Antitrust," Financial Times, 14 February 1998; Klein, "Anticipating the Millennium: International Antitrust Enforcement at the End of the Twentieth Century," in Barry E. Hawk, ed., 1997 Annual Proceedings of the Fordham Corporate Law Institute International Antitrust Law and Policy Conference (New York: Fordham Corporate Law Institute, 1998), pp. 9-10. See also the skeptical viewpoint of the International Competition Policy Advisory Committee to the Attorney General and Assistant Attorney General for Antitrust, Final Report, co-chairs James F. Rill and Paula Stern (Washington, D.C.: U.S. Department of Justice, 2000).

(41.) Van Miert, "The WTO and Competition Policy," p. 5.

(42.) According to Eleanor M. Fox, "It is not a surprise that many Americans prefer things the way they are. Americans are not steeped in the postwar Western European tradition of community building. They have the tools of unilateralism, they fear the compromises of bargaining, and they abjure the 'relinquishment' of sovereignty." See Fox, "Toward World Antitrust and Market Access," American Journal of International Law 91(1997): 12. For a more detailed analysis of the EU and U.S. perspectives on the WTO's role in competition, see David J. Gerber, "The U.S.-European Conflict over the Globalization of Antitrust Law: A Legal Experience Perspective," New England Law Review 34 (1999): 123-142.

(43.) For an overview of the other problems related to the development of a WTO competition framework, see Eleanor M. Fox, "Competition Law and the Millennium Round," Journal of International Economic Law 2 (1999): 665-679; Bernard Hoekman and Petros C. Mavroidis, "Competition, Competition Policy and the GATT," World Economy 17 (1994): 121-150; Robert E. Hudec, "A WTO Perspective on Private Anti-Competitive Behavior in World Markets," New England Law Review 34 (1999): 79-100; Ernst-Ulrich Petersmann, "Legal, Economic and Political Objectives of National and International Competition Policies: Constitutional Functions of WTO 'Linking Principles' for Trade and Competition," New England Law Review 34 (1999): 145-161.

(44.) "Preparation of the Third WTO Ministerial Conference," EU Council Conclusions, 25 October 1999, par. 11(d).

(45.) Morris Goldstein, The Asian Financial Crisis: Causes, Cures, and Systemic Implications (Washington, D.C.: Institute for International Economics, 1998); Steven Radelet and Jeffrey Sachs, "The East Asian Financial Crisis: Diagnosis, Remedies, Prospects," Brookings Papers on Economic Activity No. 1 (1998), pp. 1-74; Paul Krugman, "The Myth of the Asian Miracle," Foreign Affairs 73, no. 6 (1994): 62-78.

(46.) Wilcox, A Charter for World Trade, p. 105.
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Date:Jul 1, 2000
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