Norms and institutions in global competition policy

American Journal of International Law

Volumn 94, Issue 3, 2000, Pages 478-503

  Tarullo, Daniel K ^a  

^a NONE

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EID: 0034562687     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2555320     Document Type: Article

References (105)

1. Needless to say, trade officials rarely place on the record their tactical reasons for taking certain policy positions. In the case of competition policy, however, both the European Commission and the United States had at least one important aim exogenous to competition-policy considerations. The European Commission was anxious to restrict the scope of the negotiations on reducing barriers to agricultural trade, and thus had an interest in expanding the list of possible negotiating topics, which could then be traded away for dilution of the agriculture negotiations. The United States, for its part, was eager to avoid any negotiations that might restrict its ability to use its antidumping laws.
2. The ministerial meeting foundered on more fundamental disagreements than that over competition policy, which was not extensively discussed in Seattle. The last draft of a proposed statement by the ministers-which obviously does not reflect a consensus among WTO member states - included what was essentially the U.S. and developing-country position on competition policy in calling not for negotiations, but for further "educational and analytic work, based on proposals by Members." WTO, Draft Ministerial Text, 5:45 P.M., para. 41 (Dec. 3, 1999). However, the draft nodded in the direction of the European and Japanese positions by adding that the "work shall be purposeful and focused, and aim to assist all Members to prepare for, and adequately assess the possible implications of, negotiations on this issue." Id., para. 42.
3. The Antitrust Division of the U.S. Department of Justice appointed an advisory committee to address a range of international competition-policy issues. See INTERNATIONAL COMPETITION POLICY ADVISORY COMMITTEE TO THE ATTORNEY GENERAL AND ASSISTANT ATTORNEY GENERAL FOR ANTITRUST, U.S. DEP'T OF JUSTICE, FINAL REPORT (2000) [hereinafter ICPAC REPORT].
4. See id. at 175-76.
5. See Frederic M. Scherer, International Trade and Competition Policy, in COMPETITION AND TRADE POLICIES-COHERENCE OR CONFLICT? 13 (Einar Hope & Per Maeleng eds., 1998).
6. See Joel I. Klein, assistant attorney general, Antitrust Division, U.S. Dep't of Justice, Statement concerning International Antitrust Enforcement Before the Subcomm. on Antitrust, Business Rights, and Competition of the Senate Comm. on the Judiciary (Oct. 2, 1998), available in LEXIS, Legis Library, Cngtst File.
7. See id. It is worth noting that the 90% figure is not based on a trivial denominator. The $472 million in fines collected in 1997 and 1998 is equal to the total amount of criminal fines imposed in all the division's criminal prosecutions in the twenty years 1976-1995. See A. Douglas Melamed, principal deputy, Antitrust Division U S Dep't of Justice, Antitrust Enforcement in a Global Economy, Address before the Fordham Corporate Law Institute (Oct. 22, 1998) 〈http://www.usdoj.gov/atr/public/speeches/2043.htm〉.
8. See Nina L. Hachigian, Essential Mutual Assistance in International Antitrust Enforcement, 29 INT'L LAW. 117 (1995).
9. See Joel I. Klein, assistant attorney general, Antitrust Division, U.S. Dep't of Justice, A Note of Caution with Respect to a WTO Agenda on Competition Policy, Address Before the Royal Institute of International Affairs (Nov. 18, 1996).
10. Consider, as an illustration, the auto industry. Competition in the production and sale of automobiles is clearly more vigorous today in the United States and Europe than it was 30 years ago. Although many auto companies did not survive, the diminished competition from national sources is more than compensated for by competition from foreign sources - whether through trade, foreign direct investment, or both. Yet the current wave of mergers among major auto companies from different countries raises the possibility admittedly still distant, that the trend might continue until only a few global companies remain in a global oligopoly In a somewhat different vein, the Microsoft case has resurrected the question of the permissible bounds of conduct by dominant firms, dormant in U.S. antitrust jurisprudence since the early 1980s. United States v. Microsoft Corp., 87 F.Supp.2d 30 (D.D.C. 2000). As Microsoft itself demonstrates, the dominance of a high-tech firm - whether ultimately as ephemeral as IBM's apparent dominance in computer hardware in the 1960s and 1970s - is likely to be a worldwide phenomenon.
11. See Gary R. Spratling, deputy assistant attorney general, Antitrust Division, U.S. Dep't of Justice, Negotiating the Waters of International Cartel Prosecution, Presentation Before the Thirteenth Annual National Institute on White Collar Crime (Mar. 4, 1999) 〈http://www.usdoj.gov/atr/public/speeches/2275.htm〉.
12. See Klein, supra note 6.
13. The by-product of these cases was not simply rhetorical combat between the United States and other countries. Some of the closest political allies of the United States enacted "blocking" statutes to impede American antitrust discovery and "claw-back" statutes that gave domestic companies a right to recover extracompensatory damages paid to plaintiffs in U.S. antitrust litigation. See Joseph Griffin, Extraterritoriality in U.S. and EU Antitrust Enforcement, 67 ANTITRUST L.J. 159 (1999).
14. See Steven Pearlstein & Anne Swardson, US, Europe Clash over Airline Deal, WASH. POST, July 17, 1997, at A1.
15. See Robert Pitofsky, chairman, U.S. Federal Trade Commission, Competition Policy in a Global Economy - Today and Tomorrow, Remarks Before the European Institute's Eighth Annual Transatlantic Seminar on Trade and Investment (Nov. 4, 1998), obtainable from 〈http://www.ftc.gov/speeches/speechl.htm〉; Alexander Schaub, director general of competition, European Commission, EC Competition System - Proposals for Reform, Remarks Before the Fordham Corporate Law Institute (Oct. 22, 1998), obtainable from 〈http://europa.eu.int/comm/ dg04/speech/index98.htm〉.
16. See Robert Pitofsky, chairman, U.S. Federal Trade Commission, Competition Policy in a Global Economy - Today and Tomorrow, Remarks Before the European Institute's Eighth Annual Transatlantic Seminar on Trade and Investment (Nov. 4, 1998), obtainable from 〈http://www.ftc.gov/speeches/speechl.htm〉; Alexander Schaub, director general of competition, European Commission, EC Competition System - Proposals for Reform, Remarks Before the Fordham Corporate Law Institute (Oct. 22, 1998), obtainable from 〈http://europa.eu.int/comm/ dg04/speech/index98.htm〉.
17. See ICPAC Gets Briefing on Conflicts, Remedies Involving Multijurisdictional Merger Reviews, Antitrust & Trade Reg. Rep. (BNA) No. 75, at 520 (Nov. 5, 1998). There are other isolated instances of disagreement between competition authorities that had the potential to become government-to-government disputes. In one of the best known, the European Commission disallowed Aérospatiale's acquisition of the Canadian airframe manufacturer de Havilland, even though Canadian competition authorities had cleared the purchase of what was a troubled, if not failing, company. See Commission Determination of 2 October 1991 declaring the incompatibility with the Common Market of a Concentration (Case No. IV/M.053 - Aérospatiale-Alenia/de Havilland), 1991 O.J. (L 334) 66. Eventually, another Canadian company, Bombardier, purchased a majority stake in de Havilland.
18. Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No. 94-435, 90 Stat. 1383.
19. See ICPAC REPORT, supra note 3, at 48. The result can be duplication and delay in government clearance of mergers. Everyone's favorite example is the acquisition in 1989 of Wilkinson by Gillette, which was reviewed by no fewer than 14 competition authorities. See, e.g., RICHARD WHISH & DIANE P. WOOD, MERGER CASES IN THE REAL WORLD: A STUDY OF MERGER CONTROL PROCEDURES 42 (1994).
20. See ICPAC REPORT, supra note 3, at 48. The result can be duplication and delay in government clearance of mergers. Everyone's favorite example is the acquisition in 1989 of Wilkinson by Gillette, which was reviewed by no fewer than 14 competition authorities. See, e.g., RICHARD WHISH & DIANE P. WOOD, MERGER CASES IN THE REAL WORLD: A STUDY OF MERGER CONTROL PROCEDURES 42 (1994).
21. See Merger Review Is out of Control, Non-Government ABA Panelists Agree, Antitrust & Trade Ree Rep (BNA) No 76, at 418 (Apr. 22, 1999).
22. See, e.g., ABA Section on Antitrust Law, Report of the Special Committee on International Antitrust (1991) [hereinafter ABA Report].
23. In its final report, ICPAC recommended "targeted" reforms of pre-merger-notification requirements that would reduce transactions costs while stopping well short of international procedural harmonization. See ICPAC REPORT, supra note 3, at 154-62. This is a cautious, but respectful, response to the complaints of parties that offered testimony before the committee. See id. at 48-56.
24. Not surprisingly, the World Trade Organization's report on the interaction between trade and competition policy, infra note 23, devoted substantial attention to market-access issues, as discussed infra in text at notes 26-29. For a sampling of efforts at comprehensive treatment of international competition issues that tend toward a market-access perspective, see EUROPEAN COMMISSION, REPORT OF THE GROUP OF EXPERTS, COMPETITION POLICY IN THE NEW TRADE ORDER: STRENGTHENING INTERNATIONAL COOPERATION AND RULES (1995); EDWARD M. GRAHAM & J. DAVID RICHARDSON, COMPETITION POLICIES FOR A GLOBAL ECONOMY (1997); Daniel J. Gifford & Mitsuo Matsushita, Antitrust or Competition Laws Viewed in a Trading Context, in 2 FAIR TRADE AND HARMONIZATION 269 (Jagdish Bhagwati & Robert E. Hudec eds., 1996); Eleanor M. Fox, Toward World Antitrust and Market Access, 91 AJIL 1 (1997); Merit E. Janow, Unilateral and Bilateral Approaches to Competition Policy: Drawing on Trade Experience, in BROOKINGS TRADE FORUM 253 (Robert Lawrence ed., 1998); Leonard Waverman, Competition and/or Trade Policy, in COMPETITION AND TRADE POLICIES, supra note 5, at 31.
25. Not surprisingly, the World Trade Organization's report on the interaction between trade and competition policy, infra note 23, devoted substantial attention to market-access issues, as discussed infra in text at notes 26-29. For a sampling of efforts at comprehensive treatment of international competition issues that tend toward a market-access perspective, see EUROPEAN COMMISSION, REPORT OF THE GROUP OF EXPERTS, COMPETITION POLICY IN THE NEW TRADE ORDER: STRENGTHENING INTERNATIONAL COOPERATION AND RULES (1995); EDWARD M. GRAHAM & J. DAVID RICHARDSON, COMPETITION POLICIES FOR A GLOBAL ECONOMY (1997); Daniel J. Gifford & Mitsuo Matsushita, Antitrust or Competition Laws Viewed in a Trading Context, in 2 FAIR TRADE AND HARMONIZATION 269 (Jagdish Bhagwati & Robert E. Hudec eds., 1996); Eleanor M. Fox, Toward World Antitrust and Market Access, 91 AJIL 1 (1997); Merit E. Janow, Unilateral and Bilateral Approaches to Competition Policy: Drawing on Trade Experience, in BROOKINGS TRADE FORUM 253 (Robert Lawrence ed., 1998); Leonard Waverman, Competition and/or Trade Policy, in COMPETITION AND TRADE POLICIES, supra note 5, at 31.
26. Not surprisingly, the World Trade Organization's report on the interaction between trade and competition policy, infra note 23, devoted substantial attention to market-access issues, as discussed infra in text at notes 26-29. For a sampling of efforts at comprehensive treatment of international competition issues that tend toward a market-access perspective, see EUROPEAN COMMISSION, REPORT OF THE GROUP OF EXPERTS, COMPETITION POLICY IN THE NEW TRADE ORDER: STRENGTHENING INTERNATIONAL COOPERATION AND RULES (1995); EDWARD M. GRAHAM & J. DAVID RICHARDSON, COMPETITION POLICIES FOR A GLOBAL ECONOMY (1997); Daniel J. Gifford & Mitsuo Matsushita, Antitrust or Competition Laws Viewed in a Trading Context, in 2 FAIR TRADE AND HARMONIZATION 269 (Jagdish Bhagwati & Robert E. Hudec eds., 1996); Eleanor M. Fox, Toward World Antitrust and Market Access, 91 AJIL 1 (1997); Merit E. Janow, Unilateral and Bilateral Approaches to Competition Policy: Drawing on Trade Experience, in BROOKINGS TRADE FORUM 253 (Robert Lawrence ed., 1998); Leonard Waverman, Competition and/or Trade Policy, in COMPETITION AND TRADE POLICIES, supra note 5, at 31.
27. Not surprisingly, the World Trade Organization's report on the interaction between trade and competition policy, infra note 23, devoted substantial attention to market-access issues, as discussed infra in text at notes 26-29. For a sampling of efforts at comprehensive treatment of international competition issues that tend toward a market-access perspective, see EUROPEAN COMMISSION, REPORT OF THE GROUP OF EXPERTS, COMPETITION POLICY IN THE NEW TRADE ORDER: STRENGTHENING INTERNATIONAL COOPERATION AND RULES (1995); EDWARD M. GRAHAM & J. DAVID RICHARDSON, COMPETITION POLICIES FOR A GLOBAL ECONOMY (1997); Daniel J. Gifford & Mitsuo Matsushita, Antitrust or Competition Laws Viewed in a Trading Context, in 2 FAIR TRADE AND HARMONIZATION 269 (Jagdish Bhagwati & Robert E. Hudec eds., 1996); Eleanor M. Fox, Toward World Antitrust and Market Access, 91 AJIL 1 (1997); Merit E. Janow, Unilateral and Bilateral Approaches to Competition Policy: Drawing on Trade Experience, in BROOKINGS TRADE FORUM 253 (Robert Lawrence ed., 1998); Leonard Waverman, Competition and/or Trade Policy, in COMPETITION AND TRADE POLICIES, supra note 5, at 31.
28. Not surprisingly, the World Trade Organization's report on the interaction between trade and competition policy, infra note 23, devoted substantial attention to market-access issues, as discussed infra in text at notes 26-29. For a sampling of efforts at comprehensive treatment of international competition issues that tend toward a market-access perspective, see EUROPEAN COMMISSION, REPORT OF THE GROUP OF EXPERTS, COMPETITION POLICY IN THE NEW TRADE ORDER: STRENGTHENING INTERNATIONAL COOPERATION AND RULES (1995); EDWARD M. GRAHAM & J. DAVID RICHARDSON, COMPETITION POLICIES FOR A GLOBAL ECONOMY (1997); Daniel J. Gifford & Mitsuo Matsushita, Antitrust or Competition Laws Viewed in a Trading Context, in 2 FAIR TRADE AND HARMONIZATION 269 (Jagdish Bhagwati & Robert E. Hudec eds., 1996); Eleanor M. Fox, Toward World Antitrust and Market Access, 91 AJIL 1 (1997); Merit E. Janow, Unilateral and Bilateral Approaches to Competition Policy: Drawing on Trade Experience, in BROOKINGS TRADE FORUM 253 (Robert Lawrence ed., 1998); Leonard Waverman, Competition and/or Trade Policy, in COMPETITION AND TRADE POLICIES, supra note 5, at 31.
29. Not surprisingly, the World Trade Organization's report on the interaction between trade and competition policy, infra note 23, devoted substantial attention to market-access issues, as discussed infra in text at notes 26-29. For a sampling of efforts at comprehensive treatment of international competition issues that tend toward a market-access perspective, see EUROPEAN COMMISSION, REPORT OF THE GROUP OF EXPERTS, COMPETITION POLICY IN THE NEW TRADE ORDER: STRENGTHENING INTERNATIONAL COOPERATION AND RULES (1995); EDWARD M. GRAHAM & J. DAVID RICHARDSON, COMPETITION POLICIES FOR A GLOBAL ECONOMY (1997); Daniel J. Gifford & Mitsuo Matsushita, Antitrust or Competition Laws Viewed in a Trading Context, in 2 FAIR TRADE AND HARMONIZATION 269 (Jagdish Bhagwati & Robert E. Hudec eds., 1996); Eleanor M. Fox, Toward World Antitrust and Market Access, 91 AJIL 1 (1997); Merit E. Janow, Unilateral and Bilateral Approaches to Competition Policy: Drawing on Trade Experience, in BROOKINGS TRADE FORUM 253 (Robert Lawrence ed., 1998); Leonard Waverman, Competition and/or Trade Policy, in COMPETITION AND TRADE POLICIES, supra note 5, at 31.
30. See, e.g., Report of the Working Group on the Interaction Between Trade and Competition Policy to the General Council, WTO Doc. WT/WGTCP/2, at 7-8 (1998); OECD Joint Group on Trade and Competition, Complementarities Between Trade and Competition Policies, COM/TD/DAFFE/CLP(98)98/FINAL (1999).
31. See, e.g., Report of the Working Group on the Interaction Between Trade and Competition Policy to the General Council, WTO Doc. WT/WGTCP/2, at 7-8 (1998); OECD Joint Group on Trade and Competition, Complementarities Between Trade and Competition Policies, COM/TD/DAFFE/CLP(98)98/FINAL (1999).
32. For an interesting effort to articulate differences between the two sets of policies in general and in specific doctrinal areas, see OECD Joint Group on Trade and Competition, Consistencies and Inconsistencies Between Trade and Competition Policies, COM/TD/DAFFE/CLP(98)25/FINAL (1999).
33. Additional facts, such as collusion by the producers to deny foreign producers the chance to deal with any distributor, could of course change the antitrust analysis.
34. See, e.g., ABA Task Force on International Trade and Antitrust, Report Concerning Private Anticompetitive Practices as Market Access Barriers (unpublished, 1999).
35. Some analyses alleging denials of market access by cartels focus on the cartel's control of distribution facilities or networks. See, e.g., Mark Tilton, Japan's Steel Cartel and the 1998 Steel Export Surge (unpublished, Oct. 23, 1998). As explained in the text infra, distribution problems do present a more compelling case.
36. See, e.g., Communication from Argentina, WTO Doc. WT/WGTCP/W/63 (Mar. 10, 1998).
37. See, e.g., Communication by the European Community and Its Member States, WTO Doc. WGTCP/W/62 (Mar. 5, 1998) (attack upon exclusive-dealing arrangements generally forbidden under European competition laws but permitted as neutral or even pro-competitive under U.S. antitrust law).
38. One well-documented case implicating neither Japan nor straightforward distribution-system problems involved SABRE the leading U.S. supplier of airline reservations by computer. SABRE had been frustrated in its efforts to expand its European operations, because leading European airlines, which jointly owned their own computer-reservation system, had not provided adequate flight and fare information to SABRE. See EU Fines Lufthansa for CRS Offenses, Antitrust & Trade Reg. Rep. (BNA) No. 77, at 122 (July 22, 1999).
39. Perhaps reflecting disagreement among its members, the ICPAC made a curious finding on this point. While concluding that the evidence of "private and government anticompetitive restraints that inhibit market access . . . remains quite limited," that such evidence as exists is "uneven," and that more analytic and empirical work is needed, the committee nonetheless declared that "private, governmental, and mixed public-private restraints that inhibit market access are a problem." ICPAC REPORT, supra note 3, at 224-25.
40. See WTO Doc. WT/WGTCP/W/115 (1999) (Communication by the European Community and Its Member States); Sir Leon Brittan, vice-president of the European Commission, The Need for a Multilateral Framework of Competition Rules, Address Before the OECD Conference on Trade and Competition (June 29-30, 1999). Proposals from U.S. academics for a WTO or similar arrangement differ in detail from that of the Commission. The basic analysis in the remainder of this section is applicable to the chief features of these proposals. Two of the most thoughtful are by Edward M. Graham and J. David Richardson, and by Eleanor M. Fox, supra note 22.
41. In the interests of both realism and brevity, I have not considered the implications of housing such an arrangement in a UN agency or regional economic organization. The United Nations - or, more precisely, the United Nations Conference on Trade and Development (UNCTAD) - has addressed competition issues in the past through its code on restrictive business practices. Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, UN Doc. TD/RBP/CONF/10 (1980), reprinted in 19 ILM 813 (1980). However, this code has had little, if any, impact on either competition enforcement or the multinational companies at which they were principally directed. See Spencer Weber Waller, The Internationalization of Antitrust Enforcement, 77 B.U. L. REV. 343, 351-52 (1997). As a practical matter, it seems unlikely that the United States and certain other nations with well-developed competition policies would house in UNCTAD an arrangement of the sort contemplated in the text.
42. In the interests of both realism and brevity, I have not considered the implications of housing such an arrangement in a UN agency or regional economic organization. The United Nations - or, more precisely, the United Nations Conference on Trade and Development (UNCTAD) - has addressed competition issues in the past through its code on restrictive business practices. Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, UN Doc. TD/RBP/CONF/10 (1980), reprinted in 19 ILM 813 (1980). However, this code has had little, if any, impact on either competition enforcement or the multinational companies at which they were principally directed. See Spencer Weber Waller, The Internationalization of Antitrust Enforcement, 77 B.U. L. REV. 343, 351-52 (1997). As a practical matter, it seems unlikely that the United States and certain other nations with well-developed competition policies would house in UNCTAD an arrangement of the sort contemplated in the text.
43. "Institutions are the rules of the game in a society or, more formally, are the humanly devised constraints that shape human interaction. In consequence they structure incentives in human exchange, whether political, social, or economic." DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE 3 (1991).
44. See LANCE E. DAVIS & DOUGLASS C. NORTH, INSTITUTIONAL CHANGE AND AMERICAN ECONOMIC GROWTH 6-7 (1971). Oliver Williamson uses a conceptually similar taxonomy, but refers to institutional arrangements as "governance mechanisms" and adds a third level of analysis in the form of individual attributes relevant to governance issues. OLIVER E. WILLIAMSON, THE MECHANISMS OF GOVERNANCE 222-24 (1996).
45. See LANCE E. DAVIS & DOUGLASS C. NORTH, INSTITUTIONAL CHANGE AND AMERICAN ECONOMIC GROWTH 6-7 (1971). Oliver Williamson uses a conceptually similar taxonomy, but refers to institutional arrangements as "governance mechanisms" and adds a third level of analysis in the form of individual attributes relevant to governance issues. OLIVER E. WILLIAMSON, THE MECHANISMS OF GOVERNANCE 222-24 (1996).
46. The governance mechanisms used by sovereigns are analogous to those used by market actors in that they are intended to create expectations, reduce information costs, and afford incentives for compliance without the involvement of a coercive authority. They are only "roughly" analogous in that (1) they cannot be constructed against the backdrop of a set of rules that will be imposed by a coercive authority in the absence of particular agreement among the parties, and (2) relations between sovereigns are substantially more multifaceted than those between market actors and have potentially important consequences for governance.
47. WILLIAMSON, supra note 35, at 195; cf. AVINASH K. DIXIT, THE MAKING OF ECONOMIC POLICY: A TRANSACTIONCOST POLITICS PERSPECTIVE 76-77 (1996) (stating that "[t]he most important general idea conveyed by [a transactions-cost] analysis is [the] limit on the feasibility of mutually beneficial cooperation. When no outside authority can enforce a cooperative agreement, attempting too much may give each member too great a temptation [to defect].").
48. WILLIAMSON, supra note 35, at 195; cf. AVINASH K. DIXIT, THE MAKING OF ECONOMIC POLICY: A TRANSACTIONCOST POLITICS PERSPECTIVE 76-77 (1996) (stating that "[t]he most important general idea conveyed by [a transactions-cost] analysis is [the] limit on the feasibility of mutually beneficial cooperation. When no outside authority can enforce a cooperative agreement, attempting too much may give each member too great a temptation [to defect].").
49. Consider, to take an extreme example, an agreement to raise worldwide labor standards negotiated in the International Chamber of Commerce. While it is possible that certain business representatives to the ICC might at times advance labor positions to improve overall relations with their unions, or to curry favor with left-of-center governments, or to level the competitive playing field, one could fairly assume that, in general, the arrangement would not aggressively promote high labor standards. On the other hand, one might also expect that any standards that were agreed upon in the ICC would be effectively implemented.
50. Confusion arises because the "GATT" was both the name of the agreement reached in 1947 and the name attached to the rudimentary organization that evolved around that agreement with the failure of the GATT members (or "Contracting Parties," as they were originally known) to endorse the creation of an International Trade Organization. This reference in the text is to the original GATT agreement, which as modified now applies to all WTO members. Most of the other references to GATT in the text refer to the organization that preceded the WTO until the latter was created in 1994.
51. For a full description of WTO dispute settlement procedures, see JOHN H. JACJSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 124-27 (2d ed. 1997); MICHAEL J. TREBILCOCK & ROBERT HOWSE, THE REGULATION OF INTERNATIONAL TRADE 58-80 (2d ed. 1999). In theory, a unanimous WTO Council can also override a panel, but this would require that the prevailing party vote against a decision in its favor. 41 There are, of course, exceptions to this general observation. For example, the complaint of the European Union that the Helms-Burton Act and the provisions of the Internal Revenue Code on foreign sales corporations violated U.S. obligations under various WTO codes appear to have originated within the European Commission, rather than to have emanated from European companies. The Commission wanted both to rein in what it regarded as increasing U.S. "unilateralism" in trade policy and to counter a series of strong cases filed in the WTO by the United States against various EU practices.
52. For a full description of WTO dispute settlement procedures, see JOHN H. JACJSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 124-27 (2d ed. 1997); MICHAEL J. TREBILCOCK & ROBERT HOWSE, THE REGULATION OF INTERNATIONAL TRADE 58-80 (2d ed. 1999). In theory, a unanimous WTO Council can also override a panel, but this would require that the prevailing party vote against a decision in its favor. 41 There are, of course, exceptions to this general observation. For example, the complaint of the European Union that the Helms-Burton Act and the provisions of the Internal Revenue Code on foreign sales corporations violated U.S. obligations under various WTO codes appear to have originated within the European Commission, rather than to have emanated from European companies. The Commission wanted both to rein in what it regarded as increasing U.S. "unilateralism" in trade policy and to counter a series of strong cases filed in the WTO by the United States against various EU practices.
53. In the author's experience at interagency meeting of the U.S. government on trade issues, the Office of the United States Trade Representative (USTR) and the Commerce Department (whose constituencies closely resemble those of the USTR) supported initiating WTO complaints on behalf of U.S. exporters even when most other agencies felt that the particular case was weak or that the foreign governmental policy at issue was potentially defensible.
54. This conclusion is not disproved by the WTO's foray into competition issues in its 1997 agreement to liberalize trade in telecommunications. Fourth Protocol to the General Agreement on Trade in Services, Feb. 15, 1997, 36 ILM 354 (1997). That agreement requires pro-competitive regulatory oversight to ensure a fair chance for new competitors, based on the sound reasoning that a recently deregulated or privatized telecommunications monopoly may have overwhelming market advantages, at least in the early going. But these provisions are really adjuncts to market-access concerns in particular markets, rather than efforts to address transnational anti-competitive conduct that eludes containment by any one state. In any case, they have yet to be tested.
55. In an article later echoed in her separate views in the ICPAC Report, Professor Fox proposes an "antitrust market access principle," which she defines as "no substantial unjustified market blockage by public or private action." Each nation would have to implement this principle in its national law. Fox, supra note 22, at 23-24; cf. ICPAC REPORT, supra note 3, Annex 1-A (Separate Statement of Advisory Committee Member Eleanor M. Fox). This proposal, while an admirable effort to reconcile the conflicting factors, is also problematic. Though "[e]ach nation would define for itself what it means by an 'unjustifiable' market access restraint," the WTO would monitor compliance with the adoption and enforcement of the "consensus" principles of competition law. Fox, supra, at 24. The more each nation reserves its autonomy, the more limited the efficacy of the proposal. The more potent the WTO's oversight, the greater the extent of the problems detailed in the text, owing to the breadth of the market-access principle.
56. Brittan, supra note 32.
57. For a useful analysis of the difficulties that would be entailed in efforts to negotiate an international antitrust code, see Daniel J. Gifford, The Draft International Antitrust Code Proposed at Munich: Good Intentions Gone Awry, 6 MINN. J. GLOBAL TRADE 1 (1997).
58. Cf. DIXIT, supra note 37, at 66 (observing that "th[e] conflict between commitment and flexibility could be handled in principle by committing the government, not to an unconditional rule, but to a rule that specifies exactly which contingencies it can respond to and how. In practice such rules become too complex to be usable.").
59. The suggestion by the European Commission that monopolization or abuse of dominant position be included as a "core" principle of a WTO code would be very problematic for the reasons described in the text. Monopolization and abuse of dominant position are doctrines whose application is highly specific to the facts of particular cases, and they cannot be easily reduced to more precise rules of conduct.
60. The situation of small importing countries maybe quite different, since companies participating in an export cartel may not have facilities in the importing country, and may thus escape the effective jurisdictional reach of that country. This possibility argues more for the elimination of the export exemptions to competition laws than for the invocation of dispute settlement procedures for failure to enforce anticartel law as it now exists.
61. The European Commission's proposal explicitly rejects WTO review of particular enforcement decisions by national authorities, but leaves open the possibility of review of a "pattern" of nonenforcement. WTO Doc. WT/WGTCP/W/115, supra note 32. One is hard-pressed to understand how a WTO panel could determine a pattern of nonenforcement without de facto reviews of specific cases. Cf. Klein, supra note 9 (if dispute settlement extended to individual decisions taken by domestic competition authorities, national sovereignty would be impaired). Similarly, proposals that a national-treatment standard be applied to competition-law enforcement return us to the basic problem with WTO review of national competition-law decisions, inasmuch as a panel would have to decide whether the circumstances in a case involving a foreign competitor were sufficiently similar to those faced in cases involving only domestic interests.
62. Cf. Fox, supra note 22, at 24 (suggesting fines, rather than trade restrictions, as sanction). As a committed proponent of competition policy, Professor Fox is obviously uncomfortable with the WTO approach. Her proposal to shift that approach in a rather fundamental, and probably unrealistic, manner is an indirect acknowledgment of the institutional difficulties that are entailed in fitting competition policy into a trade institution.
63. See Karel von Miert, Foreword to EUROPEAN COMMISSION, XXVIIITH REPORT ON COMPETITION POLICY - 1998, at 7 (1999).
64. See Brittan, supra note 32; Edward M. Graham & J. David Richardson, Conclusions and Recommendations, in GLOBAL COMPETITION POLICY 547, 577 (Edward M. Graham & J. David Richardson eds., 1997).
65. Alan William Wolff, Unanswered Questions: The Place of Trade and Competition Policy in the " Seattle Round," at 12, Paper Delivered at the OECD Conference on Trade and Competition (June 30, 1999) ("what trade negotiators care about is not competition policy for its own sake, but market access - the ability to sell goods across a border").
66. Another class of cases might be directed in fact at the legislature of a signatory of the code for having failed to enact competition legislation consistent with its requirements. Over time, there would probably be fewer of these sorts of cases.
67. On positive comity, see infra note 66 and corresponding text.
68. See, e.g., United States - Section 211 Omnibus Appropriations Act, WTO Doc. WT/DS176/1 (July 15, 1999) (complaint by the European Communities regarding Helms-Burton law); European Communities - Measures Concerning Meat and Meat Products (Hormones), WTO Docs. WT/DS26/R/USA (Aug. 18, 1997), WT/DS26/ AB/R (Jan. 16, 1998); European Communities - Regime for the Importation, Sale, and Distribution of Bananas, WTO Docs. WT/DS27/R/USA (May 22, 1997), WT/DS27/AB/R (Sept. 9, 1997); United States - Restrictions on Imports of Tuna, 30 ILM 1594 (1991) (Marine Mammals Protection Act, panel report not formally adopted).
69. See, e.g., United States - Section 211 Omnibus Appropriations Act, WTO Doc. WT/DS176/1 (July 15, 1999) (complaint by the European Communities regarding Helms-Burton law); European Communities - Measures Concerning Meat and Meat Products (Hormones), WTO Docs. WT/DS26/R/USA (Aug. 18, 1997), WT/DS26/ AB/R (Jan. 16, 1998); European Communities - Regime for the Importation, Sale, and Distribution of Bananas, WTO Docs. WT/DS27/R/USA (May 22, 1997), WT/DS27/AB/R (Sept. 9, 1997); United States - Restrictions on Imports of Tuna, 30 ILM 1594 (1991) (Marine Mammals Protection Act, panel report not formally adopted).
70. See, e.g., United States - Section 211 Omnibus Appropriations Act, WTO Doc. WT/DS176/1 (July 15, 1999) (complaint by the European Communities regarding Helms-Burton law); European Communities - Measures Concerning Meat and Meat Products (Hormones), WTO Docs. WT/DS26/R/USA (Aug. 18, 1997), WT/DS26/ AB/R (Jan. 16, 1998); European Communities - Regime for the Importation, Sale, and Distribution of Bananas, WTO Docs. WT/DS27/R/USA (May 22, 1997), WT/DS27/AB/R (Sept. 9, 1997); United States - Restrictions on Imports of Tuna, 30 ILM 1594 (1991) (Marine Mammals Protection Act, panel report not formally adopted).
71. See, e.g., United States - Section 211 Omnibus Appropriations Act, WTO Doc. WT/DS176/1 (July 15, 1999) (complaint by the European Communities regarding Helms-Burton law); European Communities - Measures Concerning Meat and Meat Products (Hormones), WTO Docs. WT/DS26/R/USA (Aug. 18, 1997), WT/DS26/ AB/R (Jan. 16, 1998); European Communities - Regime for the Importation, Sale, and Distribution of Bananas, WTO Docs. WT/DS27/R/USA (May 22, 1997), WT/DS27/AB/R (Sept. 9, 1997); United States - Restrictions on Imports of Tuna, 30 ILM 1594 (1991) (Marine Mammals Protection Act, panel report not formally adopted).
72. As described on the OECD's Web site 〈http://www.oecd.org/daf/clp/aboutus.htm〉 (visited May 1, 2000).
73. Revised Recommendation of the Council Concerning Co-operation Between Member Countries on Anticompetitive Practices Affecting International Trade, OECD Doc. C(95)130/FINAL (July 27-28, 1995), obtainable from 〈http://www.oecd.org/daf/clp/recommendations.htm〉.
74. Recommendation of the Council Concerning Effective Action Against Hard Core Cartels, OECD Doc. C(98)35/FINAL (Apr. 27-28, 1998), obtainable from 〈http://www.oecd.org/daf/clp/recommendations.htm〉.
75. The Basel Committee of Banking Supervisors is in many, but not all, respects, the exemplary case of a regulatory-convergence approach. See generally ETHAN B. KAPSTEIN, GOVERNING THE GLOBAL ECONOMY (1994). The Basel Committee is "exemplary" in institutional terms. That is, it has effected intended changes in national regulatory practice without benefit of formal international agreements. The effects it has wrought, however, are controversial. As a result, many banking experts would demur to the suggestion that the arrangement has been "exemplary" as a matter of financial regulatory policy. See, e.g., RICHARD J. HERRING & ROBERT E. LITAN, FINANCIAL REGULATION IN THE GLOBAL ECONOMY 107-13 (1995).
76. The Basel Committee of Banking Supervisors is in many, but not all, respects, the exemplary case of a regulatory-convergence approach. See generally ETHAN B. KAPSTEIN, GOVERNING THE GLOBAL ECONOMY (1994). The Basel Committee is "exemplary" in institutional terms. That is, it has effected intended changes in national regulatory practice without benefit of formal international agreements. The effects it has wrought, however, are controversial. As a result, many banking experts would demur to the suggestion that the arrangement has been "exemplary" as a matter of financial regulatory policy. See, e.g., RICHARD J. HERRING & ROBERT E. LITAN, FINANCIAL REGULATION IN THE GLOBAL ECONOMY 107-13 (1995).
77. Some international-relations theorists have tried to systemize theories of cooperation based on shared knowledge and belief under the heading of "epistemic communities." See, e.g., Knowledge, Power, and International Policy Coordination, 46 INT'L ORG. 1 (spec., issue 1992).
78. Charles F. Sabel, Constitutional Orders: Trust Building and Response to Change, in CONTEMPORARY CAPITALISM: THE EMBEDDEDNESS OF INSTITUTIONS 154, 163 (J. Rogers Hollingsworth & Robert Boyer eds., 1997).
79. Can be does not mean always is. Banking regulators have sharply disagreed, and, as in the Boeing-McDonnell Douglas merger, so have competition authorities. The point is rather that successful regulatory-convergence approaches reduce the number of such conflict and make more likely the mutual perception that any disagreements are good-faith differences of regulatory belief or enforcement policy.
80. See, e.g., Agreement Relating to Mutual Cooperation Regarding Restrictive Business Practices, June 23, 1976. U.S.-FRG, 27 UST 1956.
81. See Agreement on the Application of Positive Comity Principles in the Enforcement of Their Competition Laws, June 4, 1998, U.S.-EC, 37 ILM 1070 (1998).
82. See Pitofsky, supra note 15. These contacts include both information sharing and consultation on the substantive issues of whether the planned merger or other conduct under investigation is in fact anticompetitive. One important limitation from a U.S. perspective is that most bilateral agreements have not really extended compulsory process across national boundaries, in large part because of national legal limitations on the sharing of confidential business information. Until recently, the principal exception has been the relationship between U.S. and Canadian antitrust authorities, based on the Mutual Legal Assistance Treaty between the two nations. Treaty on Mutual Legal Assistance in Criminal Matters, Mar. 18, 1985, U.S.-Can., 24 ILM 1092 (1985). The Inetrnational Antitrust Enforcement Assistance Act (IAEAA), Pub. L. No. 103-438, 108 Stat. 4597 (1994) (codified at 15 U.S.C. §§6200-6212 (1994)), now authorities U.S. antitrust officials to exchange evidence, including confidencial evidence, on a reciprocal basis for use in antitrust enforcement. In April 1999, the United States and Australia signed the first antitrust mutual legal assistance agreement under the IAEAA. Agreement on Mutual Antitrust Enforcement Assistance, Apr. 27, 1999, U.S.-Austl. 〈http://www.usdoj.gov/atr/public/international/docs/ usaus7.htm〉.
83. See Pitofsky, supra note 15. These contacts include both information sharing and consultation on the substantive issues of whether the planned merger or other conduct under investigation is in fact anticompetitive. One important limitation from a U.S. perspective is that most bilateral agreements have not really extended compulsory process across national boundaries, in large part because of national legal limitations on the sharing of confidential business information. Until recently, the principal exception has been the relationship between U.S. and Canadian antitrust authorities, based on the Mutual Legal Assistance Treaty between the two nations. Treaty on Mutual Legal Assistance in Criminal Matters, Mar. 18, 1985, U.S.-Can., 24 ILM 1092 (1985). The Inetrnational Antitrust Enforcement Assistance Act (IAEAA), Pub. L. No. 103-438, 108 Stat. 4597 (1994) (codified at 15 U.S.C. §§6200-6212 (1994)), now authorities U.S. antitrust officials to exchange evidence, including confidencial evidence, on a reciprocal basis for use in antitrust enforcement. In April 1999, the United States and Australia signed the first antitrust mutual legal assistance agreement under the IAEAA. Agreement on Mutual Antitrust Enforcement Assistance, Apr. 27, 1999, U.S.-Austl. 〈http://www.usdoj.gov/atr/public/international/docs/ usaus7.htm〉.
84. See Pitofsky, supra note 15. These contacts include both information sharing and consultation on the substantive issues of whether the planned merger or other conduct under investigation is in fact anticompetitive. One important limitation from a U.S. perspective is that most bilateral agreements have not really extended compulsory process across national boundaries, in large part because of national legal limitations on the sharing of confidential business information. Until recently, the principal exception has been the relationship between U.S. and Canadian antitrust authorities, based on the Mutual Legal Assistance Treaty between the two nations. Treaty on Mutual Legal Assistance in Criminal Matters, Mar. 18, 1985, U.S.-Can., 24 ILM 1092 (1985). The Inetrnational Antitrust Enforcement Assistance Act (IAEAA), Pub. L. No. 103-438, 108 Stat. 4597 (1994) (codified at 15 U.S.C. §§6200-6212 (1994)), now authorities U.S. antitrust officials to exchange evidence, including confidencial evidence, on a reciprocal basis for use in antitrust enforcement. In April 1999, the United States and Australia signed the first antitrust mutual legal assistance agreement under the IAEAA. Agreement on Mutual Antitrust Enforcement Assistance, Apr. 27, 1999, U.S.-Austl. 〈http://www.usdoj.gov/atr/public/international/docs/ usaus7.htm〉.
85. Similarly, U.S. antitrust officials have worried at times that trade-policy-originated attacks on the Japan Fair Trade Commission for inadequate enforcement might impede the development of a constructive relationship between the competition authorities of the two nations.
86. One important factor in the eventual decision of the United States government not to respond to the Commission's insistence that Boeing's exclusive-supply agreements be voided before it merged with McDonnell Douglas was the advice of the Antitrust Division and the FTC that the Commission had previously attacked exclusive-supply deals between European companies. Admittedly, this decision was made easier when the U.S. airlines that had entered into the exclusive agreements with Boeing announced that their own self-interest lay in conforming to terms of the exclusive-supply agreements, regardless of whether they were contractually bound to do so.
87. Fox, supra note 22, at 18.
88. ABA Report, supra note 20, at 170-75.
89. In other contexts, regulatory convergence may be a quite viable alternative to conventional trade negotiations as a path to trade liberalization. For example, convergence on product-safety requirements could remove trade impediments from both legitimate regulation and disguised protectionism in standards setting.
90. This kind of problem is adumbrated in the repeated complaints by lawyers for Kodak that the failure of the WTO case showed that there is no remedy for the wrong it is suffering at the hands of Fuji in Japan. See, e.g., Wolff, supra note 54, at 15.
91. These days, though, no budget item is trivial at the financially strapped OECD.
92. The premise advanced in the text is more limited than the preference of at least some competition officials for rejecting all trade-policy measures that relate to private anticompetitive conduct. As explained in the next section, there is a role for trade rules to address restrictions that derive from closely connected private and governmental conduct. A rough analogy maybe found in the U.S. antitrust doctrines of state action and foreign sovereign compulsion, which essentially hold that antitrust enforcement reaches its limits where governments compel or explicitly authorize private anticompetitive conduct. See California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980); Parker v. Brown, 317 U.S. 341 (1943); Interamerican Ref. Corp. v. Texaco Maracaibo, Inc., 307 F.Supp. 1291 (D. Del. 1970).
93. The premise advanced in the text is more limited than the preference of at least some competition officials for rejecting all trade-policy measures that relate to private anticompetitive conduct. As explained in the next section, there is a role for trade rules to address restrictions that derive from closely connected private and governmental conduct. A rough analogy maybe found in the U.S. antitrust doctrines of state action and foreign sovereign compulsion, which essentially hold that antitrust enforcement reaches its limits where governments compel or explicitly authorize private anticompetitive conduct. See California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980); Parker v. Brown, 317 U.S. 341 (1943); Interamerican Ref. Corp. v. Texaco Maracaibo, Inc., 307 F.Supp. 1291 (D. Del. 1970).
94. The premise advanced in the text is more limited than the preference of at least some competition officials for rejecting all trade-policy measures that relate to private anticompetitive conduct. As explained in the next section, there is a role for trade rules to address restrictions that derive from closely connected private and governmental conduct. A rough analogy maybe found in the U.S. antitrust doctrines of state action and foreign sovereign compulsion, which essentially hold that antitrust enforcement reaches its limits where governments compel or explicitly authorize private anticompetitive conduct. See California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980); Parker v. Brown, 317 U.S. 341 (1943); Interamerican Ref. Corp. v. Texaco Maracaibo, Inc., 307 F.Supp. 1291 (D. Del. 1970).
95. This premise may be rejected both by those holding a strong market-access position and by those holding a position based solely on competition-policy considerations. It is easy to see the disagreement with the former group The disagreement with the latter group may be a bit more surprising. Antitrust enforcers and like-minded advocates may perceive the prospect of only modest enforcement gains from greater institutionalization of cooperative efforts Fney may also anticipate that such an arrangement would reduce enforcement flexibility, strain resources or simply be inconvenient. They may not place a high value on the potential benefits for market access or the strengthening of a regulatory-convergence approach in general. They may thus conclude that international competition-policy problems are not remediable (at least beyond a network of nonbinding bilateral arrangements).
96. Frédéric Jenny, Annex 2, to EUROPEAN COMMISSION, supra note 22, at 30-33. Happily, the recommendations of the ICPAC REPORT, supra note 3, reflect an eclectic approach to international competition-policy problems.
97. In 1999 the U.S. Justice Department undertook just such a program by extending its network of antitrust cooperation agreements to two non-OECD countries, Israel and Brazil.
98. The Competition Lawand Policy Committee has sponsored a series of roundtables on specific topics in recent years. The proceedings often form a useful compendium of comparative thinking on the topic and may plant the seeds for de facto convergence on particular matters. But the roundtables are one-time events, without the continuity necessary for greater convergence. See, e.g., Buying Power of Multiproduct Retailers, OECD Doc. DAFFE/CLP(99)21; Resale Price Maintenance, OECD Doc. OCDE/GD(97)229; Abuse of Dominance and Monopolisation, OECD Doc. OCDE/GD(96)131.
99. The Competition Lawand Policy Committee has sponsored a series of roundtables on specific topics in recent years. The proceedings often form a useful compendium of comparative thinking on the topic and may plant the seeds for de facto convergence on particular matters. But the roundtables are one-time events, without the continuity necessary for greater convergence. See, e.g., Buying Power of Multiproduct Retailers, OECD Doc. DAFFE/CLP(99)21; Resale Price Maintenance, OECD Doc. OCDE/GD(97)229; Abuse of Dominance and Monopolisation, OECD Doc. OCDE/GD(96)131.
100. The Competition Lawand Policy Committee has sponsored a series of roundtables on specific topics in recent years. The proceedings often form a useful compendium of comparative thinking on the topic and may plant the seeds for de facto convergence on particular matters. But the roundtables are one-time events, without the continuity necessary for greater convergence. See, e.g., Buying Power of Multiproduct Retailers, OECD Doc. DAFFE/CLP(99)21; Resale Price Maintenance, OECD Doc. OCDE/GD(97)229; Abuse of Dominance and Monopolisation, OECD Doc. OCDE/GD(96)131.
101. ABA Report, supra note 20, at 19.
102. In this sense, the proposed arrangement in the OECD would deviate from a "pure" regulatory-convergence approach. However, since any agreement by definition would reflect the common views of the enforcement authorities, the essential dynamic of incentives and governance in the arrangement would still apply.
103. ABA Report, supra note 20, at 20.
104. The ICPAC recommended a "Global Competition Initiative" independent of any existing international organization. See ICPAC REPORT, supra note 3, at 281-85. Its rationale was that competition issues need attention and that each existing organization has significant disadvantages as a locus for an international competition arrangement. Mindful of the problems in creating a new organization, the advisory committee explicitly forswore including a permanent physical home, staff, and budget in its proposal, invoking the G-7 as a precedent. There is some appeal to this approach, particularly in reaching the agreement of competition-policy officials on non-binding consensus principles. However, such a "virtual" entity would have difficulty in administering the consultation and informal-mediation roles proposed in the text. Even with respect to the discussion and technical-assistance roles proposed by ICPAC, the committee seems to contemplate the provision of staffing assistance by existing international organizations.
105. Even less realistic are proposals for a supranational antitrust agency to which nations would cede direct legal authority, such as the European Union. Nations, beginning with the United States, seem most unlikely to cede direct regulatory authority in any area, at least for the foreseeable future. Indeed, commentators are virtually unanimous in rejecting such proposals as wholly impractical, whatever their conceptual attractions might be. See, e.g., Michael J. Trebilcock, Competition Policy and Trade Policy, 31 J. WORLD TRADE 71 (1997).