The debate on international antitrust has come from two perspectives. On the one hand, the trade community has emphasised the interface between trade policy and competition (policy and) enforcement. This interface, which was recognised from the outset of multilateral efforts to liberalise trade in what would become the GATT and eventually the WTO, focuses on the prospect that trade liberalisation through border instruments should not be undone by restrictive business practices (RBPs), placing a particular responsibility in this respect on competition enforcement. On the other hand, the antitrust community has emphasised the risk of inefficient enforcement when several jurisdictions can rule on the same case and thereby the need for coordination of enforcement across jurisdictions.
The chapter makes two simple observations. First, from the antitrust perspective, we find that both the deviation from the objective of the protection of consumer welfare and the scope for capture in enforcement are important root causes of conflicts across jurisdictions. This arises because, unlike what happens with other interests, the protection of consumer interests does not involve any direct external effects across jurisdictions. Some, admittedly casual, observations confirm that strategic enforcement in favour of (domestic) business interest remains a concern, so that the soft convergence across jurisdictions on objectives and institution design that has been achieved may not suffice. An international discipline on the enforcement of domestic rules may be desirable, possibly in the context of bilateral free trade agreements (FTAs).
Second, from the trade perspective, we observe that if the protection of market access commitments can in principle be achieved by non-violation complaints (NVCs), such complaints would trigger a competition enforcement that is not focused on the interest of the domestic constituencies that competition law is meant to protect. This mechanism may thus prove ineffective unless supported by an international commitment. In addition, we find that when trade reflects the organisation of production along the vertical chain, NVCs involve the formulation of counterfactuals that is more challenging.
Antitrust and Trade Regulation | International Trade Law | Law
Petros C. Mavroidis & Damien J. Neven,
Competition Enforcement, Trade and Global Governance: A Few Comments,
Reconciling Efficiency and Equity: A Global Challenge for Competition Policy, Damien Gerard & Ioannis Lianos (Eds.), Cambridge University Press
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