Competition Regulation and Policy at the World Trade Organisation

Governmental barriers to trade have gradually been reduced and eliminated; initially under the General Agreements on Tariffs and Trade (GATT) and now under the World Trade Organisation (WTO), leading to freer, fairer and more competitive international trade. However, private barriers to trade still exist and are not currently addressed by any international agreement. As a result, the realisation of the goals of free and fair trade aims of the WTO have not completely come to fruition. This work analyses the question of whether an international competition agreement to address private barriers should be negotiated, from a competition perspective and a trade perspective. The competition perspective considers how anticompetitive activities affecting the international community have been addressed to date, including extraterritorial application of domestic competition laws and co-operation between countries. However, the main focus is on the so-called ‘trade solution’: a competition agreement within the WTO. The book examines and refutes concerns on a competition agreement before showing that the WTO agreements can be interpreted in a procompetitive manner, incorporating the views of consumers as well as producers. It demonstrates that this is easier with the agreements that have been amended and elaborated upon over the years, for example the Anti-Dumping Agreement, the Subsidies and Countervailing Measures Agreement and the Agreement on Safeguards, than it is with the GATT. This gives rise to the suggestion that the members realised these original provisions were insufficient in an increasingly globalised world and in drafting the extended versions attempted to address these imbalances accordingly. This suggestion is cemented in fact by consideration of two of the ‘new’ WTO agreements: the General Agreement on Trade in Services (GATS) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), both of which contain explicit competition provisions. It concludes by asserting that just as the GATT/WTO system was reached in incremental steps over a period of fifty years, so too must a competition agreement. In the interim period, the agreements as they stand can be interpreted in a pro-competitive manner so as to cover disputes concerning anti-competitive activities, using the Trade Policy Review Mechanism and the Dispute Settlement Body as enforcement mechanisms. The proposal is significant and unique as, in contrast to other works in the area which either propose an international competition agreement within the auspices of the World Trade Organisation, or further networks of co-operation between competition authorities, it focuses on using those agreements that have already been negotiated by the contracting parties of the WTO. As a result it proposes a solution that is not only feasible, by avoiding the lengthy negotiations by which the trade rounds are known, but also desirable as the suggested means of enforcement lends itself to promoting convergence of competition laws and ideals, which in turn could result in a stand alone international competition agreement. The work would of interest to those working in the areas of international trade law or competition law.

Chapter One: Introduction: The Last Battle Chapter Two: Through the Looking Glass – The Interaction of Trade and Competition Policy Chapter Three: The Pilgrim’s Progress – Extraterritoriality and Unilateralism Chapter Four: A Tale of Two Cities – Bilateralism Chapter Five: Adventures in Wonderland – Plurilateralism Chapter Six: Great Expectations – A History of Multilateralism Chapter Seven: There and Back Again – The Draft International Antitrust Code and the Work of the WTO Working Group Chapter Eight: A Hitchhiker’s Guide to the Galaxy (GATT) – Kodak-Fuji and a Pro-Competitive Reading Chapter Nine: A Farewell to Arms – A Pro-Competitive Reading of the Anti-Dumping, Safeguards and Subsidies Agreements and the TPRM Chapter Ten: The Great Gatsby – GATS, the Agreement on Basic Telecommunications and Mexico-Telecoms Chapter Eleven: Conclusion: The Importance of Being Earnest