Competition policy and the future of the multilateral trading system

Journal of International Economic Law

Volumn 5, Issue 2, 2002, Pages 531-563

  Anderson, Robert D ^b   Holmes, Peter ^a  

^a UNIVERSITY OF SUSSEX   (United Kingdom)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0036332368     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/5.2.531     Document Type: Review

References (158)

1. See also Robert D. Anderson and Frédéric Jenny, 'Current Developments in Competition Policy in the World Trade Organization,' 16(1) Antitrust (Fall 2001), 40-44.
2. World Trade Organization, Ministerial Declaration (Fourth Session of the Ministerial Conference, Doha, WT/MIN(01)/DEC/1, 9-14 November 2001), paragraphs 23-25.
3. In a statement made prior to the adoption of the Declaration, the Chairman of the Conference, Mr. Youssef Kamal, expressed his understanding that the requirement in paragraph 23 for a decision to be taken, by explicit consensus, on the modalities for negotiations before negotiations on competition policy could proceed gave 'each Member the right to take a position on modalities that would prevent negotiations from proceeding after the Fifth Session until that Member was prepared to join in an explicit consensus'.
4. See World Trade Organization, 'Special Study on Trade and Competition Policy', in Annual Report for 1997 (Geneva: 1997), chapter IV, UNCTAD, World Investment Report: Transnational Corporations, Market Structure and Competition Policy (Geneva: 1997) and OECD, Trade and Competition Policies - Options for a Greater Coherence (Paris: 2001).
5. See World Trade Organization, 'Special Study on Trade and Competition Policy', in Annual Report for 1997 (Geneva: 1997), chapter IV, UNCTAD, World Investment Report: Transnational Corporations, Market Structure and Competition Policy (Geneva: 1997) and OECD, Trade and Competition Policies - Options for a Greater Coherence (Paris: 2001).
6. See World Trade Organization, 'Special Study on Trade and Competition Policy', in Annual Report for 1997 (Geneva: 1997), chapter IV, UNCTAD, World Investment Report: Transnational Corporations, Market Structure and Competition Policy (Geneva: 1997) and OECD, Trade and Competition Policies - Options for a Greater Coherence (Paris: 2001).
7. See UNCTAD (1997), id, Frédéric Jenny, 'Globalization, Competition and Trade Policy: Convergence, Divergence and Cooperation' in Yang-Ching Chao Gee San, Changfa Lo, and Jiming Horn (eds), International and Comparative Competition Law and Policies (The Hague: Kluwer Law International 2001), 31-70; Chiedu Osakwe, Poverty Reduction and Development: The Interaction of Trade, Macroeconomic and Regulatory Policies (10th Joseph Mubiru Memorial Lecture Organized by the Bank of Uganda); Bernard Hoekman and Peter Holmes, 'Competition Policy, Developing Countries and the WTO', 22(6) The World Economy (1999), 875-93, Margaret Levenstein and Valerie Suslow, 'Private International Cartels and Their Effect on Developing Countries' (Background Paper for the World Bank's World Development Report 2001, 9 January 2001) (available on the Internet at http://www-unix.oit.umass.edu/̃maggiel/WDR2001.pdf) and Simon J. Evenett, Margaret Levenstein, and Valerie Suslow, 'International Cartel Enforcement: Lessons from the 1990s', The World Economy, September 2001.
8. See UNCTAD (1997), id, Frédéric Jenny, 'Globalization, Competition and Trade Policy: Convergence, Divergence and Cooperation' in Yang-Ching Chao Gee San, Changfa Lo, and Jiming Horn (eds), International and Comparative Competition Law and Policies (The Hague: Kluwer Law International 2001), 31-70; Chiedu Osakwe, Poverty Reduction and Development: The Interaction of Trade, Macroeconomic and Regulatory Policies (10th Joseph Mubiru Memorial Lecture Organized by the Bank of Uganda); Bernard Hoekman and Peter Holmes, 'Competition Policy, Developing Countries and the WTO', 22(6) The World Economy (1999), 875-93, Margaret Levenstein and Valerie Suslow, 'Private International Cartels and Their Effect on Developing Countries' (Background Paper for the World Bank's World Development Report 2001, 9 January 2001) (available on the Internet at http://www-unix.oit.umass.edu/̃maggiel/WDR2001.pdf) and Simon J. Evenett, Margaret Levenstein, and Valerie Suslow, 'International Cartel Enforcement: Lessons from the 1990s', The World Economy, September 2001.
9. See UNCTAD (1997), id, Frédéric Jenny, 'Globalization, Competition and Trade Policy: Convergence, Divergence and Cooperation' in Yang-Ching Chao Gee San, Changfa Lo, and Jiming Horn (eds), International and Comparative Competition Law and Policies (The Hague: Kluwer Law International 2001), 31-70; Chiedu Osakwe, Poverty Reduction and Development: The Interaction of Trade, Macroeconomic and Regulatory Policies (10th Joseph Mubiru Memorial Lecture Organized by the Bank of Uganda); Bernard Hoekman and Peter Holmes, 'Competition Policy, Developing Countries and the WTO', 22(6) The World Economy (1999), 875-93, Margaret Levenstein and Valerie Suslow, 'Private International Cartels and Their Effect on Developing Countries' (Background Paper for the World Bank's World Development Report 2001, 9 January 2001) (available on the Internet at http://www-unix.oit.umass.edu/̃maggiel/WDR2001.pdf) and Simon J. Evenett, Margaret Levenstein, and Valerie Suslow, 'International Cartel Enforcement: Lessons from the 1990s', The World Economy, September 2001.
10. See UNCTAD (1997), id, Frédéric Jenny, 'Globalization, Competition and Trade Policy: Convergence, Divergence and Cooperation' in Yang-Ching Chao Gee San, Changfa Lo, and Jiming Horn (eds), International and Comparative Competition Law and Policies (The Hague: Kluwer Law International 2001), 31-70; Chiedu Osakwe, Poverty Reduction and Development: The Interaction of Trade, Macroeconomic and Regulatory Policies (10th Joseph Mubiru Memorial Lecture Organized by the Bank of Uganda); Bernard Hoekman and Peter Holmes, 'Competition Policy, Developing Countries and the WTO', 22(6) The World Economy (1999), 875-93, Margaret Levenstein and Valerie Suslow, 'Private International Cartels and Their Effect on Developing Countries' (Background Paper for the World Bank's World Development Report 2001, 9 January 2001) (available on the Internet at http://www-unix.oit.umass.edu/̃maggiel/WDR2001.pdf) and Simon J. Evenett, Margaret Levenstein, and Valerie Suslow, 'International Cartel Enforcement: Lessons from the 1990s', The World Economy, September 2001.
11. See UNCTAD (1997), id, Frédéric Jenny, 'Globalization, Competition and Trade Policy: Convergence, Divergence and Cooperation' in Yang-Ching Chao Gee San, Changfa Lo, and Jiming Horn (eds), International and Comparative Competition Law and Policies (The Hague: Kluwer Law International 2001), 31-70; Chiedu Osakwe, Poverty Reduction and Development: The Interaction of Trade, Macroeconomic and Regulatory Policies (10th Joseph Mubiru Memorial Lecture Organized by the Bank of Uganda); Bernard Hoekman and Peter Holmes, 'Competition Policy, Developing Countries and the WTO', 22(6) The World Economy (1999), 875-93, Margaret Levenstein and Valerie Suslow, 'Private International Cartels and Their Effect on Developing Countries' (Background Paper for the World Bank's World Development Report 2001, 9 January 2001) (available on the Internet at http://www-unix.oit.umass.edu/̃maggiel/WDR2001.pdf) and Simon J. Evenett, Margaret Levenstein, and Valerie Suslow, 'International Cartel Enforcement: Lessons from the 1990s', The World Economy, September 2001.
12. See Jenny, id; Nancy Birdsall and Robert Z. Lawrence, 'Deep Integration and Trade Agreements: Good For Developing Countries?' in Inge Kaul, Isabelle Grunberg, and Marc A. Stern (eds), Global Public Goods: International Cooperation in the 21st Century (New York: Oxford University Press for the United Nations Development Programme) 128-51, and Ignacio Garcia-Bercero and Stefan Amarasinha, 'Moving the Trade and Competition Debate Forward,' 4(3) JIEL (2001), 481-506.
13. See Jenny, id; Nancy Birdsall and Robert Z. Lawrence, 'Deep Integration and Trade Agreements: Good For Developing Countries?' in Inge Kaul, Isabelle Grunberg, and Marc A. Stern (eds), Global Public Goods: International Cooperation in the 21st Century (New York: Oxford University Press for the United Nations Development Programme) 128-51, and Ignacio Garcia-Bercero and Stefan Amarasinha, 'Moving the Trade and Competition Debate Forward,' 4(3) JIEL (2001), 481-506.
14. See Jenny, id; Nancy Birdsall and Robert Z. Lawrence, 'Deep Integration and Trade Agreements: Good For Developing Countries?' in Inge Kaul, Isabelle Grunberg, and Marc A. Stern (eds), Global Public Goods: International Cooperation in the 21st Century (New York: Oxford University Press for the United Nations Development Programme) 128-51, and Ignacio Garcia-Bercero and Stefan Amarasinha, 'Moving the Trade and Competition Debate Forward,' 4(3) JIEL (2001), 481-506.
15. 'GE Ruling Shifts Power Toward EU', International Herald Tribune (10 July 2001).
16. See, e.g., Joel Klein, A Note of Caution with Respect to WTO Agenda on Competition Policy (Remarks to the Royal Institute of International Affairs, Chatham House, November 1996), A. Douglas Melamed, International Antitrust in an Age of International Deregulation (Remarks to the George Mason Law Review Symposium: Antitrust in the Global Economy, Washington, DC, 1997) and Daniel K. Tarullo, 'Norms and Institutions in Global Competition Policy', 94(3) American Journal of International Law (July 2000), 478-504.
17. See, e.g., Joel Klein, A Note of Caution with Respect to WTO Agenda on Competition Policy (Remarks to the Royal Institute of International Affairs, Chatham House, November 1996), A. Douglas Melamed, International Antitrust in an Age of International Deregulation (Remarks to the George Mason Law Review Symposium: Antitrust in the Global Economy, Washington, DC, 1997) and Daniel K. Tarullo, 'Norms and Institutions in Global Competition Policy', 94(3) American Journal of International Law (July 2000), 478-504.
18. See, e.g., Joel Klein, A Note of Caution with Respect to WTO Agenda on Competition Policy (Remarks to the Royal Institute of International Affairs, Chatham House, November 1996), A. Douglas Melamed, International Antitrust in an Age of International Deregulation (Remarks to the George Mason Law Review Symposium: Antitrust in the Global Economy, Washington, DC, 1997) and Daniel K. Tarullo, 'Norms and Institutions in Global Competition Policy', 94(3) American Journal of International Law (July 2000), 478-504.
19. Klein, id, Melamed, id, and Tarullo, id.
20. Tarullo, above n 8; see also Hoekman and Holmes, above n 5.
21. Tarullo, above n 8; see also Hoekman and Holmes, above n 5.
22. Klein, above n 8, Melamed, above n 8, and Tarullo, above n 8.
23. Klein, above n 8, Melamed, above n 8, and Tarullo, above n 8.
24. Klein, above n 8, Melamed, above n 8, and Tarullo, above n 8.
25. See also Anderson and Jenny, above n 1. The words 'more systematic integration' reflect the fact that competition policy concepts and principles are already embedded in the WTO Agreements in a number of places. See Part I, below.
26. European Community and its Member states, 'Contribution of the European Community and its Member states to the WTO Working Group on the Interaction between Trade and Competition Policy' (WT/WGTCP/W/152, 25 September) and Garcia-Bercero and Amarasinha, above n 6.
27. European Community and its Member states, 'Contribution of the European Community and its Member states to the WTO Working Group on the Interaction between Trade and Competition Policy' (WT/WGTCP/W/152, 25 September) and Garcia-Bercero and Amarasinha, above n 6.
28. WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Polity to the General Council (Geneva, WT/WGTCP/5, 2001), paragraph 87 and Garcia-Bercero and Amarasinha, above n 6, 504-06.
29. WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Polity to the General Council (Geneva, WT/WGTCP/5, 2001), paragraph 87 and Garcia-Bercero and Amarasinha, above n 6, 504-06.
30. See, for related discussion, Parts II(A) and IV, below.
31. Vladimir Ilyich Lenin, Imperialism: The Highest Stage of Capitalism (1916) (http://www.fordham.edu/halsall/mod/19161enin-imperialism.html).
32. US Proposals, Department of State Pub. No. 2411, at 4 (1945); also quoted in John H. Jackson, World Trade and the Law of GATT (Indianapolis: Bobbs-Merrill, 1969), 522, which provides related context. A year earlier (i.e., in 1944), President Franklin Delano Roosevelt had written to Secretary of State Cordell Hull, observing that 'Cartel practices which restrict the free flow of goods in foreign commerce will have to be curbed.'
33. US Proposals, Department of State Pub. No. 2411, at 4 (1945); also quoted in John H. Jackson, World Trade and the Law of GATT (Indianapolis: Bobbs-Merrill, 1969), 522, which provides related context. A year earlier (i.e., in 1944), President Franklin Delano Roosevelt had written to Secretary of State Cordell Hull, observing that 'Cartel practices which restrict the free flow of goods in foreign commerce will have to be curbed.'
34. See Commissioner, Combines Investigation Act, Canada, and International Cartels (Ottawa: Department of Justice, 1945).
35. http://www.globefield.com/havana.htm#CHAPTERV.
36. See related discussion in Parts II and III, below.
37. On the implications of not applying such disciplines see Tim Frazer and Peter Holmes, 'Self-Restraint: Cars, Complaints and the Commission', 1(1) European Public Law 85-95 (1995).
38. For related discussion and references, see Part II(D), below.
39. US, Council of Economic Advisors, 'Annual Report of the Council of Economic Advisors,' published in Economic Report of the President (Washington, DC: US Government Printing Office 1995), 248.
40. European Commission, Competition Policy in the New Trade Order: Strengthening International Cooperation and Rules (Report of the Group of Experts, 1995).
41. Singapore Ministerial Declaration, Paragraph 20 (reprinted in Appendix I to this paper).
42. WTO Working Group on the Interaction between Trade and Competition Policy, Report (1998) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/2, 1998).
43. See Appendix III to this paper.
44. See WTO Working Group on the Interaction between Trade and Competition Policy, Report (1999) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/3, 1999), WTO Working Group on the Interaction between Trade and Competition Policy, Report (2000) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/4, 2000) and WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5, 2001).
45. See WTO Working Group on the Interaction between Trade and Competition Policy, Report (1999) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/3, 1999), WTO Working Group on the Interaction between Trade and Competition Policy, Report (2000) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/4, 2000) and WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5, 2001).
46. See WTO Working Group on the Interaction between Trade and Competition Policy, Report (1999) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/3, 1999), WTO Working Group on the Interaction between Trade and Competition Policy, Report (2000) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/4, 2000) and WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5, 2001).
47. See, e.g., the European Community and its Member states, above n 13 and various other submissions referred to in WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the General Council, id.
48. See, e.g., World Trade Organization, above n 4, part IV. 1 and, for a thoughtful review of a number of specific complaints regarding perceived anti-competitive conduct allegedly having the effect of impeding market access, US, International Competition Policy Advisory Committee, Final Report (Washington, DC: 2000), 211-26. See also Philip Marsden, 'The Divide on Verticals' in Simon J. Evenett, Alexander Lehmann, and Benn Steil (eds), Antitrust Goes Global: What Future for Transatlantic Cooperation? (London and Washington, DC: Royal Institute of International Affairs and the Brookings Institution 2000), 117-36.
49. See, e.g., World Trade Organization, above n 4, part IV. 1 and, for a thoughtful review of a number of specific complaints regarding perceived anti-competitive conduct allegedly having the effect of impeding market access, US, International Competition Policy Advisory Committee, Final Report (Washington, DC: 2000), 211-26. See also Philip Marsden, 'The Divide on Verticals' in Simon J. Evenett, Alexander Lehmann, and Benn Steil (eds), Antitrust Goes Global: What Future for Transatlantic Cooperation? (London and Washington, DC: Royal Institute of International Affairs and the Brookings Institution 2000), 117-36.
50. See, e.g., World Trade Organization, above n 4, part IV. 1 and, for a thoughtful review of a number of specific complaints regarding perceived anti-competitive conduct allegedly having the effect of impeding market access, US, International Competition Policy Advisory Committee, Final Report (Washington, DC: 2000), 211-26. See also Philip Marsden, 'The Divide on Verticals' in Simon J. Evenett, Alexander Lehmann, and Benn Steil (eds), Antitrust Goes Global: What Future for Transatlantic Cooperation? (London and Washington, DC: Royal Institute of International Affairs and the Brookings Institution 2000), 117-36.
51. World Trade Organization, above n 4, part IV. 1.
52. For example, it has been alleged that market access in the world steel industry has been extensively disrupted by a government-tolerated cartel. See Alan Wm Wolff, 'The Problems of Market Access in the Global Economy: Trade and Competition Policy', in New Dimensions of Market Access in a Globalizing Market Economy (OECD 1995). The United States' complaint in the so-called Kodak-Fuji case (Japan - Measures Affecting Consumer Photographic Film and Paper, WTO WT/DS44/R, 31 March 1998) was based, in part, on the alleged role of Japanese government authorities in encouraging perceived exclusionary practices in the Japanese film distribution sector.
53. US International Competition Policy Advisory Committee; above n 30, 225.
54. Tarullo, above n 8, Melamed, above n 8, and Hoekman and Holmes, above n 5. See also Philip Marsden, 'The Impropriety of WTO "Market Access" Rules on Vertical Restraints', 21(16) World Competition (1998), 5-24, and WTO Working Group on the Interaction between Trade and Competition Policy, Annual Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5) 2001), paragraph 17.
55. Tarullo, above n 8, Melamed, above n 8, and Hoekman and Holmes, above n 5. See also Philip Marsden, 'The Impropriety of WTO "Market Access" Rules on Vertical Restraints', 21(16) World Competition (1998), 5-24, and WTO Working Group on the Interaction between Trade and Competition Policy, Annual Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5) 2001), paragraph 17.
56. Tarullo, above n 8, Melamed, above n 8, and Hoekman and Holmes, above n 5. See also Philip Marsden, 'The Impropriety of WTO "Market Access" Rules on Vertical Restraints', 21(16) World Competition (1998), 5-24, and WTO Working Group on the Interaction between Trade and Competition Policy, Annual Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5) 2001), paragraph 17.
57. Tarullo, above n 8, Melamed, above n 8, and Hoekman and Holmes, above n 5. See also Philip Marsden, 'The Impropriety of WTO "Market Access" Rules on Vertical Restraints', 21(16) World Competition (1998), 5-24, and WTO Working Group on the Interaction between Trade and Competition Policy, Annual Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5) 2001), paragraph 17.
58. Tarullo, above n 8, Melamed, above n 8, and Hoekman and Holmes, above n 5. See also Philip Marsden, 'The Impropriety of WTO "Market Access" Rules on Vertical Restraints', 21(16) World Competition (1998), 5-24, and WTO Working Group on the Interaction between Trade and Competition Policy, Annual Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5) 2001), paragraph 17.
59. As pointed out in US, Council of Economic Advisors, above n 23, at 246, many of the practices which have been labelled as private barriers to entry 'fall in the area of non-price vertical restraints to trade, where there is appropriately no presumption of illegality. In many instances, vertical restraints, such as exclusive dealing arrangements or ownership interests in distributors, can increase efficiency and ensure product and service quality, even as they act as barriers to new entry', See also Dennis W. Carlton and Jeffrey M. Perloff, Modern Industrial Organization (Harper Collins, 2nd edn, 1994), chapter 13, and references cited therein.
60. As pointed out in US, Council of Economic Advisors, above n 23, at 246, many of the practices which have been labelled as private barriers to entry 'fall in the area of non-price vertical restraints to trade, where there is appropriately no presumption of illegality. In many instances, vertical restraints, such as exclusive dealing arrangements or ownership interests in distributors, can increase efficiency and ensure product and service quality, even as they act as barriers to new entry', See also Dennis W. Carlton and Jeffrey M. Perloff, Modern Industrial Organization (Harper Collins, 2nd edn, 1994), chapter 13, and references cited therein.
61. Hoekman and Holmes, above n 5.
62. See, generally, OECD, Antitrust and Market Access (Paris: 1996). The concept of a sectoral exemption is self-explanatory; non-sectoral exemptions relate to particular types of conduct (e.g., joint ventures).
63. World Trade Organization, above n 4, Part IV.5.
64. This would appear to be the underlying premise of the 1996 OECD study, above n 37, with respect to the question of exemptions.
65. These are activities such as speeches, public education, research and analysis, interventions before relevant statutory bodies or legislative committees, and other non-enforcement activities that are undertaken by competition agencies for the purpose of advancing their fundamental objectives.
66. WTO Working Group on the Interaction between Trade and Competition Policy, Annual Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/2), paragraphs 36, 45, 51, 53, and 109. For a review of the Canadian experience in this area, see Robert D. Anderson, Abraham Hollander, Joseph Monteiro, and W. T. Stanbury, 'Competition Policy and Regulatory Reform in Canada, 1986-1997,' 13(1-2) Review of Industrial Organization (1998).
67. WTO Working Group on the Interaction between Trade and Competition Policy, Annual Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/2), paragraphs 36, 45, 51, 53, and 109. For a review of the Canadian experience in this area, see Robert D. Anderson, Abraham Hollander, Joseph Monteiro, and W. T. Stanbury, 'Competition Policy and Regulatory Reform in Canada, 1986-1997,' 13(1-2) Review of Industrial Organization (1998).
68. See http://www.let.leidenuniv.nl/history/rtg/cartels/.
69. For an authoritative discussion, see US, Congress, Committee on Interstate and Foreign Commerce, International Electrical Association: A Continuing Cartel (Washington, DC: US Government Printing Office 1980). The electrical equipment cartel is referred to specifically by Lenin, who observed in his contemporary account, 'In 1907, the German and American trusts concluded an agreement by which they divided the world between themselves. Competition between them ceased. The American General Electric Company (GEC) got the United States and Canada. The German General Electric Company (AEG) got Germany, Austria, Russia, Holland, Denmark, Switzerland, Turkey, and the Balkans.' Lenin, above n 16. In addition to providing food for Lenin's work, the electrical equipment industry gave birth to Phoebus, the light bulb cartel, which plays a key role in Thomas Pynchon's novel, Gravity's Rainbow (New York: Viking Press 1973).
70. For an authoritative discussion, see US, Congress, Committee on Interstate and Foreign Commerce, International Electrical Association: A Continuing Cartel (Washington, DC: US Government Printing Office 1980). The electrical equipment cartel is referred to specifically by Lenin, who observed in his contemporary account, 'In 1907, the German and American trusts concluded an agreement by which they divided the world between themselves. Competition between them ceased. The American General Electric Company (GEC) got the United States and Canada. The German General Electric Company (AEG) got Germany, Austria, Russia, Holland, Denmark, Switzerland, Turkey, and the Balkans.' Lenin, above n 16. In addition to providing food for Lenin's work, the electrical equipment industry gave birth to Phoebus, the light bulb cartel, which plays a key role in Thomas Pynchon's novel, Gravity's Rainbow (New York: Viking Press 1973).
71. For an authoritative discussion, see US, Congress, Committee on Interstate and Foreign Commerce, International Electrical Association: A Continuing Cartel (Washington, DC: US Government Printing Office 1980). The electrical equipment cartel is referred to specifically by Lenin, who observed in his contemporary account, 'In 1907, the German and American trusts concluded an agreement by which they divided the world between themselves. Competition between them ceased. The American General Electric Company (GEC) got the United States and Canada. The German General Electric Company (AEG) got Germany, Austria, Russia, Holland, Denmark, Switzerland, Turkey, and the Balkans.' Lenin, above n 16. In addition to providing food for Lenin's work, the electrical equipment industry gave birth to Phoebus, the light bulb cartel, which plays a key role in Thomas Pynchon's novel, Gravity's Rainbow (New York: Viking Press 1973).
72. Levenstein and Suslow, above n 5; Evenett et al., above n 5; OECD, Hard Core Cartels: Meeting of the OECD Council at Ministerial Level (Paris: 2000) and Joel Klein, The War Against International Cartels: Notes from the Battlefront (Remarks to the Fordham Corporate Law Institute, New York, October 1999).
73. Levenstein and Suslow, above n 5; Evenett et al., above n 5; OECD, Hard Core Cartels: Meeting of the OECD Council at Ministerial Level (Paris: 2000) and Joel Klein, The War Against International Cartels: Notes from the Battlefront (Remarks to the Fordham Corporate Law Institute, New York, October 1999).
74. Levenstein and Suslow, above n 5; Evenett et al., above n 5; OECD, Hard Core Cartels: Meeting of the OECD Council at Ministerial Level (Paris: 2000) and Joel Klein, The War Against International Cartels: Notes from the Battlefront (Remarks to the Fordham Corporate Law Institute, New York, October 1999).
75. Levenstein and Suslow, above n 5; Evenett et al., above n 5; OECD, Hard Core Cartels: Meeting of the OECD Council at Ministerial Level (Paris: 2000) and Joel Klein, The War Against International Cartels: Notes from the Battlefront (Remarks to the Fordham Corporate Law Institute, New York, October 1999).
76. Simon J. Evenett, 'Hard Core Cartels and Developing Economies' (Presentation to a WTO Symposium on Trade and Competition Policy: Looking Ahead After Doha, 22 April 2002).
77. 'German Company Pleads Guilty To Rigging Bids on USAID Construction Contracts in Egypt' (US Department of Justice, Press Release, 18 August 2000).
78. See, e.g., Klein, id, and Alexander Schaub, 'Konvergenz kartellrechtlicher Normen und deren Anwendung auf globale Sachverhalt' (http://europa.eu.int/comm/competition/speeches/text/sp2001034_de.pdf, 14 August 2001) and Konrad Von Finckenstein, 'Section 45 at the Crossroads' (Remarks to 2001 Invitational Forum on Competition Law, October 12, 2001).
79. See, e.g., Klein, id, and Alexander Schaub, 'Konvergenz kartellrechtlicher Normen und deren Anwendung auf globale Sachverhalt' (http://europa.eu.int/comm/competition/speeches/text/sp2001034_de.pdf, 14 August 2001) and Konrad Von Finckenstein, 'Section 45 at the Crossroads' (Remarks to 2001 Invitational Forum on Competition Law, October 12, 2001).
80. See, e.g., Klein, id, and Alexander Schaub, 'Konvergenz kartellrechtlicher Normen und deren Anwendung auf globale Sachverhalt' (http://europa.eu.int/comm/competition/speeches/text/sp2001034_de.pdf, 14 August 2001) and Konrad Von Finckenstein, 'Section 45 at the Crossroads' (Remarks to 2001 Invitational Forum on Competition Law, October 12, 2001).
81. Evenett et al. above n 5, and OECD, above n 44.
82. Evenett et al. above n 5, and OECD, above n 44.
83. This was the conclusion, e.g., of Canada, National Transportation Act Review Commission, Competition in Transportation: Policy and Legislation in Review, 1993, 2 vols.
84. World Trade Organization, above n 4.
85. WTO Working Group on the Interaction between Trade and Competition Policy (1998), above n 26, para 87.
86. Application of the essential facilities doctrine may, nonetheless, be warranted in particular circumstances. See World Trade Organization, above n 4, Part II.4, and references cited therein.
87. The classic diagnoses of this problem are presented in George J. Stigler, 'The Theory of Economic Regulation', 2(1) Bell Journal of Economics and Management Science (1971) 3-21, and William A. Jordan, 'Producer Protection, Prior Market Structure and the Effects of Government Regulation', 15(1) Journal of Law and Economics (1972) 151-76. The costs of rent-seeking through regulation and related forms of intervention in the context of developing economies are highlighted in the closely related analysis of Anne O. Krueger, The Political Economy of the Rent-Seeking Society', 64(3) American Economic Review (1974) 291-303.
88. The classic diagnoses of this problem are presented in George J. Stigler, 'The Theory of Economic Regulation', 2(1) Bell Journal of Economics and Management Science (1971) 3-21, and William A. Jordan, 'Producer Protection, Prior Market Structure and the Effects of Government Regulation', 15(1) Journal of Law and Economics (1972) 151-76. The costs of rent-seeking through regulation and related forms of intervention in the context of developing economies are highlighted in the closely related analysis of Anne O. Krueger, The Political Economy of the Rent-Seeking Society', 64(3) American Economic Review (1974) 291-303.
89. The classic diagnoses of this problem are presented in George J. Stigler, 'The Theory of Economic Regulation', 2(1) Bell Journal of Economics and Management Science (1971) 3-21, and William A. Jordan, 'Producer Protection, Prior Market Structure and the Effects of Government Regulation', 15(1) Journal of Law and Economics (1972) 151-76. The costs of rent-seeking through regulation and related forms of intervention in the context of developing economies are highlighted in the closely related analysis of Anne O. Krueger, The Political Economy of the Rent-Seeking Society', 64(3) American Economic Review (1974) 291-303.
90. 'Justice Department Urges [Department of Transportation] to Impose Conditions on American Airlines/British Airways Alliance' (US, Department of Justice, Press Release, 17 December 2001).
91. 'American Airlines, British Airways Call Off Alliance,' Detroit News (26 January 2002).
92. Opinion of Advocate General Tizzano in Commission of the European Communities v United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria and Germany (Cases of C-466/98, C-467/ 98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98 and C-476/98, Press release No 10/02, 31 January 2002).
93. World Trade Organization, above n 4, Part IV.
94. Similar issues have been raised by some developing countries with regard to certain aspects of tourism-related services.
95. Macro Bronckers, 'Trade and Competition Inter-linkages: the Case of Telecom' (Paper prepared for a conference sponsored by the Fondazione Eni Enrico Mattei, Venice, 4-5 December 1998; also presented in a Symposium on Competition Policy and the Multilateral Trading System at the WTO, 17 April 1999).
96. For an overview of the role of national competition policies in relation to intellectual property rights in the United States, the European Community, Japan, and Canada, see Robert D. Anderson, 'The Interface Between Competition Policy and Intellectual Property in the Context of the International Trading System,' 1 JIEL (1998), 655-78.
97. A prominent example is the recent Microsoft litigation.
98. See http://www.ftc.gov/opp/intellect/index.htm.
99. For example, exclusive dealing arrangements, territorial market limitations or other restrictions incorporated in licensing agreements can affect directly the terms of international trade and technology transfer. A useful discussion of the implications of intellectual property protection for trade and development, and the link with competition policy is provided in Keith E. Maskus and Mohamed Lahouel (2000), 'Competition Policy and Intellectual Property Rights in Developing Countries', 23(4) The World Economy 595-611 (2000).
100. Among other aspects of this relationship, the Working Group has touched on such topics as (i) the objectives of intellectual property and their relationship to those of competition policy; (ii) the appropriate treatment of intellectual property licensing arrangements; and (iii) the implications, from a competition policy perspective, of the territorial segmentation of rights granted under IP legislation. See WTO Working Group on the Interaction between Trade and Competition Policy (1998), above n 26, paragraphs 112-22 and Robert D. Anderson, 'Intellectual Property Rights, Competition Policy and International Trade: Reflections on the Work of the WTO Working Group on the Interaction between Trade and Competition Policy' in T. Cottier and P. Mavroidis (eds), Intellectual Property: Trade, Competition and Sustainable Development (World Trade Forum, vol 3, University of Michigan Press, forthcoming 2002), ch 17.
101. Among other aspects of this relationship, the Working Group has touched on such topics as (i) the objectives of intellectual property and their relationship to those of competition policy; (ii) the appropriate treatment of intellectual property licensing arrangements; and (iii) the implications, from a competition policy perspective, of the territorial segmentation of rights granted under IP legislation. See WTO Working Group on the Interaction between Trade and Competition Policy (1998), above n 26, paragraphs 112-22 and Robert D. Anderson, 'Intellectual Property Rights, Competition Policy and International Trade: Reflections on the Work of the WTO Working Group on the Interaction between Trade and Competition Policy' in T. Cottier and P. Mavroidis (eds), Intellectual Property: Trade, Competition and Sustainable Development (World Trade Forum, vol 3, University of Michigan Press, forthcoming 2002), ch 17.
102. See, generally, Robert D. Anderson and Nancy T. Gallini (eds), Competition Policy and Intellectual Property Rights in the Knowledge-based Economy (Calgary: University of Calgary Press for the Industry Canada Research Series, 1998) and references cited therein.
103. See J. Church and R. Ware, 'Network Industries, Intellectual Property Rights and Competition Policy' in Anderson and Gallini (eds), id, ch 8, and references cited therein.
104. See, e.g., John Barton, 'Patents and Antitrust: A Rethinking in Light of Patent Breadth and Sequential Innovation', 65 Antitrust Law Journal (1997).
105. See, generally, World Trade Organization, above n 4, Part IV.4 and Anderson, above n 60.
106. See, generally, World Trade Organization, above n 4, Part IV.4 and Anderson, above n 60.
107. These are exclusive grant-back conditions, conditions preventing challenges to validity and coercive package licensing.
108. See World Trade Organization, above n 4, Part IV.4.
109. For background, see Timothy J. Muris, Competition and Intellectual Property Policy: the Way Ahead (Remarks before the American Bar Association, Antitrust Section Fall Forum, Washington, DC, 15 November 2001).
110. Anderson, above n 64.
111. G. Robertson, W. T. Stanbury, G. Kofler and J. Monteiro, 'Competition Policy, Trade Liberalization and Agriculture,' in R. M. A. Loyns, Ronald D. Knutson, Karl Meilke and Daniel A. Sumner, Harmonization/Convergence/Compatibility in Agriculture and Agri-Food Policy: Canada, United States and Mexico (Proceedings of the Third Agricultural and Food Policy Systems Information Workshop, 1997) and Canada, Bureau of Competition Policy, Canadian Competition Policy: Its Interface With Other Economic and Social Policies (Hull, Quebec: Department of Consumer and Corporate Affairs, 1989).
112. G. Robertson, W. T. Stanbury, G. Kofler and J. Monteiro, 'Competition Policy, Trade Liberalization and Agriculture,' in R. M. A. Loyns, Ronald D. Knutson, Karl Meilke and Daniel A. Sumner, Harmonization/Convergence/Compatibility in Agriculture and Agri-Food Policy: Canada, United States and Mexico (Proceedings of the Third Agricultural and Food Policy Systems Information Workshop, 1997) and Canada, Bureau of Competition Policy, Canadian Competition Policy: Its Interface With Other Economic and Social Policies (Hull, Quebec: Department of Consumer and Corporate Affairs, 1989).
113. See Loyns et al., id.
114. P. Abbot, Competition Policy and Agricultural Trade (Paper for OECD Workshop on Emerging Issues in Agriculture, October 1998).
115. The US investigation has been widely reported: see, for example, remarks by Joel Klein, Anticipating the Millennium: Antitrust Enforcement at the End of the Twentieth Century (Presented at Fordham Corporate Law Institute, 24th Annual Conference on International Law and Policy, New York, New York). US Assistant Attorney General, http://www.usdoj.gov/atr/public/speeches/1233.htm.
116. See http://www1.oecd.org/daf/clp/Annual_reports/1999-00/brazil.pdf.
117. M. Ahmed, International Competition in the Fertilizer Industry (D.Phil., Sussex University, UK).
118. S. Murphy, Market Power In Agricultural Markets: Some Issues For Developing Countries (Geneva: Southcentre 1999).
119. World Trade Organization, above n 4, Part V. 1
120. WTO Working Group on the Interaction between Trade and Competition Policy, Annual Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (Geneva, WT/WGTCP/5, 2001), para 59.
121. Japan - Measures Affecting Consumer Photographic Film and Paper (WTO WT/DS44/R, 31 March 1998). In this case, a number of non-violation claims by the United States relating to various measures by relevant Japanese authorities which allegedly encouraged the adoption of perceived exclusionary practices in the Japanese film distribution sector were dismissed by the Panel on the ground that nullification and impairment resulting from the various measures had not been shown.
122. Frieder Roessler, 'Should Principles of Competition Policy Be Incorporated into WTO Law through Non-Violation Complaints?' 2 JIEL (1999) 413-21.
123. Michael Porter, The Competitive Advantage of Nations (New York: Free Press, 1990) 117.
124. Porter, id, at 663.
125. James R. Tybout, 'Manufacturing Firms in Developing Countries: How Well Do They Do, and Why?', 38(1) Journal of Economic Literature (2000), 11-44.
126. One explanation for the results might be that most of the data came from economies where there was already some competition and it could not pick up the impact of moving from no entry barriers to only some.
127. UNCTAD, World Investment Report: Cross-border Mergers and Acquisitions and Development (Geneva: 2000).
128. As Jenny, above n 5, at 52-53, points out, 'even if one believes that competition law and policy is not an appropriate tool to foster domestic economic development. . ., it is clear that private international anti-competitive practices or monopolization by global firms of domestic markets can prevent economic development or limit its scope and that failure by developing countries to have adequate means to fight such practices exposes them to significant costs and setbacks on the road to economic development.'
129. WTO Working Group on the Interaction between Trade and Competition Policy (1998), above n 26, paras 36, 45, 51, 53 and 109.
130. WTO Working Group on the Interaction between Trade and Competition Policy (1998), above n 26, para 36; see also Joseph E. Stiglitz, Whither Socialism? (Cambridge, MA: MIT Press 1995).
131. WTO Working Group on the Interaction between Trade and Competition Policy (1998), above n 26, para 36; see also Joseph E. Stiglitz, Whither Socialism? (Cambridge, MA: MIT Press 1995).
132. Osakwe, above n 5.
133. WTO Working Group on the Interaction between Trade and Competition Policy (1998), above n 26, paras 34 and 229.
134. Osakwe, above n 5.
135. Osakwe, above n 5; see also Chiedu Osakwe and Sarath Rajapatirana, 'The Policy-Relevance of Mainstreaming Trade with Country Development Strategies - Perspectives of the Least-Developed Countries' (Background Paper), Report on the Seminar by the Integrated Framework Core Agencies (WT/ LDC/SWG/IF/15/Rev.1, 2001).
136. Osakwe, above n 5; see also Chiedu Osakwe and Sarath Rajapatirana, 'The Policy-Relevance of Mainstreaming Trade with Country Development Strategies - Perspectives of the Least-Developed Countries' (Background Paper), Report on the Seminar by the Integrated Framework Core Agencies (WT/ LDC/SWG/IF/15/Rev.1, 2001).
137. See A. Caceres, 'Indecopi's First Seven Years' in Beatriz Boza (ed), The Role of the State in Competition and IP Policy in Latin America: towards an academic audit of Indecopi (Lima: 2000).
138. WTO Secretariat, Report on WTO Regional Workshop on Competition Policy Economic Development and the Multilateral Trading System (Cape Town, South Africa, 22-24 February 2001).
139. Consumer Unity and Trust Society (2001), 'The 7-Up Project: A Comparative Study of Competition Regimes in Select Developing Countries of the Commonwealth' (available on the internet at http://cuts.org/7-up%20project.htm).
140. WTO Working Group on the Interaction between Trade and Competition Policy Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the General Council, above n 28, para 15. See also N. McCulloch, L. A. Winters, and X. Cirera, Trade Liberalization and Poverty: A Handbook (London: CEPR 2001), chapter 17.
141. WTO Working Group on the Interaction between Trade and Competition Policy Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the General Council, above n 28, para 15. See also N. McCulloch, L. A. Winters, and X. Cirera, Trade Liberalization and Poverty: A Handbook (London: CEPR 2001), chapter 17.
142. WTO Working Group on the Interaction between Trade and Competition Policy, Report (1998) of the Working Group on the Interaction between Trade and Competition Policy to the General Council, above n 26, para 51.
143. See Jenny, above n 5.
144. Birdsall and Lawrence, above n 6, at 136.
145. See also Jenny, above n 5.
146. See Garcia-Bercero and Amarasinha, above n 6.
147. See e.g., European Community and its Member states, above n 13, and Communication from Japan (WT/WGTCP/W/156).
148. See, especially, paras 23 and 25.
149. See also Anderson and Jenny, above n 1.
150. This section of the paper draws, to an extent, on material in Anderson and Jenny, above n 1.
151. See 'Draft International Antitrust Code (DIAC)', 5 World Trade Materials (September 1993) 126-96. The draft code was a detailed, ambitious proposal for a binding international agreement on competition law that was put forward by a private group of academics and practitioners in July 1993.
152. See also Garcia-Bercero and Amarasinha, above n 6.
153. See WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the General Council, above n 20, para 87 and, for related discussion, Garcia-Bercero and Amarasinha, above n 6, at 504-06.
154. See WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the General Council, above n 20, para 87 and, for related discussion, Garcia-Bercero and Amarasinha, above n 6, at 504-06.
155. WTO Working Group on the Interaction between Trade and Competition Policy, Report (2001) of the Working Group on the Interaction between Trade and Competition Polity to the General Council, above n 28, para 88.
156. Anderson and Jenny, above n 1.
157. Ministerial Declaration (WT/MIN(01)/DEC/1, 9-14 November 2001), para 24.
158. Anderson and Jenny, above n 1.