0% found this document useful (0 votes)

16 views38 pages

17.0_pp_541_578_The_multilateral_option_cooperation_through_binding_and_non-binding_commitments

Chapter 10 discusses the multilateral option for international cooperation in competition law, focusing on binding and non-binding commitments. It outlines historical efforts, such as the Draft Havana Charter and the Munich Group's code, aimed at establishing a collective approach to address global competition issues. The chapter evaluates the potential effectiveness and challenges of these multilateral initiatives in fostering cooperation among countries.

Uploaded by

eddienyirenda24

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as PDF, TXT or read online on Scribd

0% found this document useful (0 votes)

16 views38 pages

17.0_pp_541_578_The_multilateral_option_cooperation_through_binding_and_non-binding_commitments

Uploaded by

eddienyirenda24

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as PDF, TXT or read online on Scribd

You are on page 1/ 38

Chapter 10

The multilateral option: cooperation

through binding and non-binding
commitments

This chapter will examine the third of the three internationalisation

options in the field of competition law: the multilateral option, namely
the desire and efforts to develop a collective approach by countries
in the field. The focus in the chapter will be on specific forms
which this option can take and which may be conveniently grouped
together under two headings: ‘binding’ obligations and ‘non-binding’
obligations. The main forms of the former – as they have come to
emerge over the years – include: concluding a binding multilateral
agreement; drafting an international competition law code; and build-
ing an international competition law regime with an independent
institutional apparatus and capabilities and competence to handle
competition cases. The latter heading, on the other hand, covers multi-
lateral instruments introduced within a loose institutional framework,
extending to mainly but not exhaustively guidelines, best practices and
recommendations produced at a supranational level, i.e. by interna-
tional organisations active in the field; the International Competition
Network (ICN), the Organisation for Economic Cooperation and
Development (OECD) and the United Nations Conference on Trade
and Development (UNCTAD) have all developed and produced such
instruments over the years.
The chapter will in particular shed light on the usefulness of the
multilateral option as a means to address competition problems in
the global economy, and assess the realistic future prospects of pur-
suing this option through binding and non-binding obligations on
countries and highlight the difficulties surrounding each of these two
endeavours.
541

1. Multilateralism through binding obligations

A term that has in recent times been used to describe multilateral instru-
ments resting on binding obligations is that of ‘hard law’ instruments.1

(A) Past developments

The idea of multilateralism was originally developed within the context of
binding obligations. We are in fact not far from a centenary since the first
time the whole idea emerged and was seriously discussed;2 in this regard,
it is important to note that, contrary to the impression formed by many
people in recent years, the debate around this idea (not least in terms of
origins) is not really purely academic.3 The birth of the idea resulted from
some remarkable developments that came to unfold around the first
quarter of the twentieth century including a noticeable antipathy around
that time towards anticompetitive practices, most notably the phenomenon
of cartels. This antipathy can be seen from the way the League of Nations
(replaced in 1945 by the United Nations) considered cartels as ‘an enemy of
world trade’; a slogan that was given a stronger emphasis in the early 1930s.
During those years, cartels were employed by several countries, notably
Germany, Italy and Japan, as a means for mobilising for what became the
Second World War;4 in particular German cartels5 and Japanese zaibatsu6
were viewed as harmful practices in the face of free trade between countries
and they contributed significantly towards efforts to introduce a global
prohibition on cartels, notably the Draft Havana Charter.

1
The chapter will use the terms of ‘binding commitments’, ‘binding obligations’ and ‘hard
law instruments’ interchangeably and in the same manner the terms ‘non-binding
commitments’, ‘non-binding obligations’ and ‘soft law instruments’.
2
A distinction here is made between efforts to build an international competition law
initiative and those aiming at promoting free trade internationally; the latter is considered
to have been started in the 1800s.
3
It is fair to say however that since the 1990s in particular the debate has had a strong
academic ﬂavour and academic leadership has on a number of occasions provided the
‘fuel’ for its continuation – see, as a notable example, the Munich Group’s Initiative (p. 87
above and pp. 545–547 below) and also arguably the launch of the International
Competition Network (p. 149 above).
4
See chapter 1 for a discussion on the historical perspective of competition law.
5
See the I. G. Farben cartel as an (in)famous example.
6
Zaibatsu were powerful, family-owned industrial conglomerates which until the end of
the Second World War were the dominant market players in the Japanese economy
(during this time there was no competition law in the country: Japan adopted its Anti-
monopoly Law in 1947).

I. The Draft Havana Charter

In an attempt to address international cartels and anticompetitive prac-
tices in general, the Draft Havana Charter was introduced under the
auspicious of the ‘new’ United Nations. The Draft Charter aimed to,
among other things, establish an International Trade Organisation (ITO)
and introduce provisions dealing with restrictive business practices.7
The Draft Charter imposed an obligation on member countries of the
proposed ITO to prevent firms from engaging in activities which may
‘restrain competition, limit access to markets or foster monopolistic
control in international trade’ where these restraints interfered with
the trade-liberalising aims of the Draft Charter.8 Among the specific
practices brought within the scope of the prohibition were: price-fixing;
restrictions on terms and conditions of supply; market sharing; discri-
mination; limiting production or fixing quotas; unjustified or unlawful
use of intellectual property rights; and preventing the development of
particular technologies. The Draft Charter stated that members could
bring complaints about such restraints to the ITO. The latter would then
be entitled, under Article 48 of the Draft Charter, to investigate and
recommend action to the home countries of the firms engaged in restric-
tive practices. By all accounts, this was an impressive effort to create an
agenda for developing international competition rules and principles
and for building a global initiative in the field. The initiative however
came to prove to be a distant dream, mainly due to US objection to it,
which meant that the ITO never actually materialised and the Draft
Charter was deemed to fail.9 This result may be considered to be surpri-
sing, particularly in light of the USA’s hostility at that time towards
restrictive practices, especially those with international reach and influ-
ence.10 The serving US President at that time, President Franklin
Roosevelt spoke privately and publicly about the US ‘tradition’ to oppose
monopolies and how competition law was ‘as much part of the American

7
See Havana Charter for an International Trade Organization, UN Doc. E/Conf. 2/78
(1948); printed in C. Wilcox, A Charter for World Trade (Macmillan, 1949). See also
G. Bronz, ‘The International Trade Organisation Charter’ (1949) Harvard Law Review
1089; R. R. Wilson, ‘Proposed ITO Charter’, (1947) American Journal of International
Law 879.
8
See Art. 46 of the Havana Charter.
9
See A. F. Lowenfeld, Public Controls on International Trade (Matthew Bender, 1983).
10
See T. Arnold, Bottlenecks of Business (Reynal & Hitchcock, 1973); C. D. Edwards,
Control of Cartels and Monopolies: an International Comparison (Oceana Publications,
1967), pp. 228–30; B. E. Clubb, United States Foreign Trade Law (Little Brown, 1991).

II. The ECOSOC draft convention

The failure of the Draft Havana Charter however did not derail the entire
multilateralism project completely. Five years later, the United Nations
Economic and Social Council (ECOSOC) recommended the inclusion
of a draft convention that would have established a new international
agency endowed with the responsibility to receive and investigate com-
plaints of restrictive business practices. This was in fact an initiative
originating from President Roosevelt’s vision of utilising the United
Nations to pursue the collaborative effort he had famously spoken
about, as mentioned in the previous section. However, the USA rejected
the draft convention because it felt that disparities in domestic policies
and practices were so substantial that they would render an international
organisation ineffective.12 The USA also was not in favour of a provision
in the draft under which each country enjoyed one vote, believing
that this would have afforded certain countries the chance to abuse
this provision and use it in a hostile manner towards the USA and its
interests.

III. Engaging the GATT

The fate met by the ECOSOC draft convention dealt another serious
blow to the multilateralism effort which – though was not a fatal blow – it
virtually eliminated any chance for real progress to be made for the next
five years, until 1958 that is: when a General Agreement on Tariffs
and Trade (GATT)13 Experts Group was set up to address the topic of
restrictive practices of private firms and make some recommendations.
Among the key findings reached by this group was the finding that there
was a particular lack of necessary consensus among countries and insuffi-
cient experience in the field of competition law (or restrictive business
practices to use the dominant terminology around that time) and this

11
See letter from Franklin Roosevelt to his Secretary of State at the time (the Franklin
Roosevelt Library, New York, File 277).
12
D. P. Wood, ‘The Impossible Dream: Real International Antitrust’ (1992) University of
Chicago Legal Forum 277, 284–5.
13
See pp. 550–562 below for a discussion of the GATT and its successor, the WTO; also
pp. 120–130 above.

IV. The Munich Group’s code

Little progress however came to be made after 1961 until 1993, when a
group of 12 competition law expert scholars – branded widely as the
Munich Group – decided to take a small step that had the potential of
translating into a giant leap towards building an international compe-
tition law framework.16 At the heart of their initiative, stood the (even-
tually completed) task of drafting a multilateral competition law code,

14
GATT Resolution 5 November 1958 cited in D. Furnish, ‘A Transnational Approach to
Restrictive Business Practices’ (1970) International Lawyer 317. See also M. E. Janow,
‘Competition Policy and the WTO’ in J. Bhagwati and M. Hirsh (eds.), The Uruguay
Round and Beyond (University of Michigan Press, 1998).
15
GATT Resolution, BISD 28 (9th Supp., 1961).
16
International Antitrust Code Working Group, Draft International Code as a GATT–MTO
Plurilateral Trade Agreement (10 July 1993).

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
546 international and comparative competition law
which included substantive rules and principles,17 in the form of a
multilateral agreement. The responsibility of ‘administering’ the Draft
Code – primarily to ensure compliance by countries with its provisions
but also to request domestic courts and competition authorities to
initiate investigations to deal with competition problems – was intended
to be that of an independent international body, possibly an autonomous
competition authority; thus the idea of incorporating the Draft Code
within the soon-to-be-created WTO was clearly envisaged. The vision
for operating the Draft Code was highly interesting. The Draft Code had
what may be termed as a ‘hybrid’ nature: on the one hand, countries
would join the Code (when ﬁnalised and adopted) voluntarily whilst
on the other hand they had to ensure the application of their domestic
competition rules would comply with Code.18 Whilst its rules were
intended to deal with competition cases with a cross-border element,
the Draft Code actually recognised that the domestic competition laws of
countries would be the applicable law. This was designed to effectively
make the provisions of the Draft Code enforceable by domestic competi-
tion authorities in their respective jurisdictions. The intended operation
of the Draft Code foresaw the possibility of disputes arising and in this
regard the approach chosen by the group was that such disputes should
be heard by a permanent international competition panel, forming part
of a wider dispute settlement mechanism.
The Draft Code was prepared using a very open-textured language and
it seems this was deliberately used in order to make the Draft Code as
inclusive as possible in terms of ‘accommodating’ the different circu-
mstances of countries, their varying experiences in the ﬁeld of competi-
tion law and the particular needs of different competition authorities.
Nonetheless, the basic concept underlying the Draft Code was remark-
ably ambitious: creating a set of international competition rules and
principles to be implemented through the enforcement actions of
domestic competition authorities, with supervisory and dispute resolu-
tion functions given to an autonomous international body, under the

17
The substantive rules included in the Draft Code dealt with a variety of business
phenomena stretching from cartels to mergers. The principles of the Draft Code on
the other hand covered many of those principles which have come to feature in the WTO
agreements, such as the national treatment principle.
18
What this means is that the system intended to be created under the Draft Code was to be
operated on the basis of ideas originating at the national level as well as on the basis of
understanding international politics and international economic issues; and some
appropriate recourse to principles of public international law.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
the multilateral option 547
auspices of which the Draft Code was to be administered. Yet this
ambitious approach appears to have been by design: the idea was to
facilitate the emergence of a global perspective to competition cases with
an international dimension to ensure that among other things the risk
of inconsistent decisions being reached by competition authorities –
which is inherent in competition law practice particularly in an area
such as merger control – would be eliminated. To realise this idea, a
pragmatic approach was suggested: an incorporation of international
competition rules and principles within domestic competition law
regimes without interfering with the sovereignty of countries, whether
through demanding they modify their domestic rules or limiting their
power of domestic competition authorities or minimising the scope for
domestic enforcement.
Despite these major efforts by the group to enhance the ‘selling
points’ of the Draft Code and show particular sensitivity towards the
issue of sovereignty, the Draft Code came to face a number of criticisms,
which effectively meant it would not advance beyond the proposal stage.
Primarily, the broad and open-textured language of the Draft Code was
perceived to be vague and ambiguous and questions were raised that
this would do away with its value as opposed to enhance the latter. The
perceived vague nature of the wording of the Draft Code was considered
to have a negative contributory effect to the wide role of the proposed
international body. A mixture of the two was considered likely to trigger
difﬁculties in ensuring accountability by this body and add more
bureaucracy to enforcement of competition cases. Additionally, it was
uncertain whether the purported pragmatic approach underpinning
the Draft Code was actually workable for three reasons: the existence
of major differences between countries in the ﬁeld of competition law,
let alone the lack of proper and functioning competition law regimes
in some countries; the serious likelihood that the Draft Code would
be impossible to implement without alterations being made by coun-
tries to their domestic competition rules; and the fact that although
it was intended that actual enforcement powers would remain in
the hands of domestic competition authorities, the operation of the
Draft Code would have impacted on the discretion of competition
authorities.19

19
The issue of discretion of competition authorities has huge importance in the ﬁeld; see
M. Dabbah, The Internationalisation of Antitrust Policy (Cambridge University Press,
2003), ch. 4.

V. Towards the WTO option

Perhaps the ﬁnal ring in the chain of past developments that should
be mentioned is the effort to integrate a competition law agenda within
the World Trade Organisation (WTO) framework which came to surface
in 1995. In a way, this effort may be considered to be a current one,
notwithstanding the serious obstacles it has come to reach since its
initiation. The effort will be discussed in greater detail below.20

(B) Reaching the present

The various (and almost distant past) developments surveyed above
carried hope and frustration for the proponents of the multilateral option
of internationalisation of competition law through binding commit-
ments. On the one hand, the developments showed that there were
merits to the debate on the use of an international strategy to deal with
restrictive business practices and this, among other things, encouraged
the proponents of the option to continue the debate and formulate
different ideas for converting it into concrete steps. There was therefore
hope, which came to spread its wings to what – from the standpoint
at the time – looked like a development in the distant future: the creation
of the WTO and the conclusion of a competition agreement within its
framework. On the other hand, the developments gave rise to an element
of frustration: whilst it was abundantly clear that countries on the whole
were willing to explore options for building a multilateral strategy in the
field of competition law, they lacked a sufficiently strong political will
to take concrete steps in that direction. Furthermore – in fairness to the
sceptics and opponents of the idea – it was equally clear that in practical
terms countries were not ready to take any step in this regard: other
than the lack of sufficient competition law expertise and proper institu-
tional structure to enforce the rules in different countries, it is not clear
that a general consensus actually existed among countries on the value
of competition and whether competition was considered desirable and
worthy of protection. Some countries had deep misgivings about com-
petition as a concept, a phenomenon and a process, and on the whole
believed that it had no benefit to offer them but harm. Much of those
years (of the twentieth century) saw a remarkable tendency in many parts
of the world to favour a tradition of exerting strict government control

20
See pp. 550–562 below.

(C) Contemplating the future

When discussing multilateral cooperation and the option of building it
through binding obligations, it is helpful to review past (and relevant
present) developments. This is what the discussion above aimed to do.
Equally crucial however, it is vital to assess what chances there are for this
strategy in the future, whether in the short or long term. This assessment
calls for awareness of the various options as they stand at present. This
part of the chapter therefore will not attempt simply to ‘propose’ options
or models for pursuing this option of multilateralism. It is probably the
case that it would be more helpful not to do so at any rate but rather to
exhaust the discussion on the options we already have.
In contemplating the future, the discussion here will not aim at an
assessment of speciﬁc individual suggestions or proposals that have been
put forward over the years. Rather the chapter will opt for an assessment
to be conducted in broad terms under which these proposals will be
grouped together according to type or category. This is done with the
commonalities between the different proposals in mind of course.
Looking at the various proposals which have emerged over the years
and which have been ‘imagined’ as suitable ways to push for multi-
lateralism in the ﬁeld of competition law on the basis of binding

I. Proceeding on the basis of a multilateral agreement

For many years, the question was asked whether the way forward in
advancing competition law at the international level was through the
conclusion of some form of a binding multilateral agreement. Towards
the end of the 1990s however this question seems to have shifted in its
emphasis to become what form of binding multilateral agreement was
suitable to pursue a multilateral strategy in the field. In this way, con-
siderable consensus came to emerge that a multilateral agreement was,
if not absolutely necessary, at least highly desirable. Those in favour of
this option have repeatedly confirmed their position that this perhaps
is the best way forward in order to enable the global competition law
community – particularly competition authorities and firms – to operate
in a more effective way and to contribute to advancing competition
law and policy and their understanding in a meaningful way: for the
former (competition authorities) to enhance their ability to deal with
increasingly international competition problems caused by the latter
(firms) while for the latter to be relieved of an increasingly heavy burden
caused by high costs and legal uncertainty resulting from current
multi-investigations or multi-enforcement by different competition

21
See chapter 7 for an examination of regionalism in the ﬁeld of competition law.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
the multilateral option 551
authorities. The proponents of this option received momentum with the
arrival of the new millennium which witnessed encouraging progress
made at the 4th WTO Ministerial Conference held in Doha in November
2001 and the outstanding preparations, which came to be made for the
5th WTO Ministerial Conference held in Cancun in 2003. The (well-
documented) desertion by participants in Cancun of negotiations to ‘go
to the beach’ instead has rendered the multilateral agreement option in
need of serious revival. The lack of this for the past six years however has
come to confirm the doubts expressed for a long time by the opponents
of the option.
Whilst it has been effectively pulled down (some might say removed
from) the global competition law agenda, realistically speaking the ques-
tion appears to have reverted back to its original form: whether the way
forward in internationalising competition law is through the binding
multilateral agreement option. One major consequence of this develop-
ment has been that the competition law community globally has been
effectively forced to pedal back to the former position of debating the
need for this serious step in the field. Obviously, if the step of adopting
such agreement is to be taken, it is widely believed that the most appro-
priate forum at present is the WTO. Essentially therefore, the debate over
the desirability and realistic prospects of adopting a binding multilateral
agreement is over the desirability and realistic prospects of a WTO
competition law option: the question is to what extent in the short or
long term competition law should become part of any multilateral trade
negotiations between countries at the WTO.
Any view in favour of including competition law within the WTO
must be clear on what should be considered – in terms of rules and
principles – in those future negotiations. This includes clarity on whether
there is a set of comprehensive competition rules extending beyond the
core prohibition on cartels and serious abuses of dominance to business
phenomena such as mergers and vertical restraints;22 whether at any
rate these rules should be subject to dispute settlement procedures;
whether the rules should be operated within a framework of various
WTO principles, such as those on transparency, non-discrimination and
national treatment;23 whether a specifically contextualised approach to
competition law should be adopted within WTO obligations to remove

22
Vertical restraint issues have already arisen in the WTO context – see the Kodak/Fuji
case, discussed at pp. 609–614 below.
23
See pp. 607–608 below for a discussion of these principles.

(a) Arguments in favour In proposing the idea of building a WTO

competition law agenda on the basis of a multilateral agreement –
consisting of substantive rules to deal with competition cases with an
international element and an international institutional framework to
monitor compliance by countries with these rules – the Singapore
Group27 broadly had the EU competition law regime as a suitable
model in mind. In proposing this, the Group had the clear backing of
the EU itself, and other important WTO players, including: Canada,
Korea and Japan among others.28 The Group was also encouraged by
what many came to perceive as key strengths enjoyed by the WTO which
put in a ‘favourite’ position as the place in which to bring to life what was
by then considered to be virtually an impossible dream. These strengths
effectively came to be widely recognised as the arguments in favour of
WTO competition policy. Some of these arguments rested on the actual
structure and operation of the WTO. This included the fact that the WTO
enjoyed a broadly inclusive membership of 154 participants representing
the developed and developing world. Such broad membership base

24
See chapter 11 for a discussion on the relationship between competition and trade policy,
speciﬁcally in the context of the ‘market access’ principle.
25
See pp. 100–111 above for a discussion on the role of key actors including countries in
the process of internationalisation.
26
See in particular pp. 123–130 above.
27
See pp. 123–124 above for an account on the background of the Singapore Group.
28
See however below for an account on the speciﬁc views of these countries on the WTO
competition option.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
the multilateral option 553
would give any WTO competition law agreement unquestionable legiti-
macy: the agreement would be the result of negotiations between all of
these countries and would only be reached once their consensus or
approval has been secured. Beyond the advantage of the wide base, the
WTO operates in a way that is considered to afford important flexibility
to countries seeking to implement their WTO obligations: implementa-
tion of such obligations may be undertaken by developed countries in
the immediate term to be followed by implementation by developing
countries following that. This could be of crucial significance in the
context of a WTO competition law agreement, in facilitating a gradual
approach of countries implementing their obligations according to a
timeframe suited to their own domestic circumstances and needs. A
third advantage to be mentioned concerns the WTO’s well-established
dispute resolution mechanism. Through this mechanism the WTO has
been able to demonstrate important credibility to solve disputes between
countries, most crucially in an efficient manner.
The other arguments in favour concern the content of important
WTO provisions and the relevant expertise it enjoys. Competition con-
cepts and language are not totally absent from WTO agreements, pro-
tocols and papers. Notable examples of WTO provisions dealing with
competition issues include: Article VIII and IX of the General Agreement
on Trade in Services (GATS);29 Articles 8 and 40 of the Trade-Related
Intellectual Property Rights (TRIPS) agreement;30 and Article 40 of
the Reference Paper on Telecommunications.31 Additionally, competition
cases have been handled by the WTO Appellate Body in the Kodak/Fuji
case (1998), and competition-based considerations have been applied
by the WTO dispute settlement bodies, most notably in the Mexico-
Telecommunications case (2004).32 In this latter case, the USA had
complained to the WTO against Mexico’s international long-distance
rules, which it claimed were incompatible with the Reference Paper on
Telecommunications. In finding in favour of the USA, the WTO Dispute
Settlement Body followed what may be regarded as a competition
analysis-based approach, which included defining the relevant market.
These advantages – as highlighted in the arguments in favour – serve
as important indicators that when it comes to considering its suitability
to pursue competition policy issues, the WTO may be considered to
be suitable, or at least not totally unsuitable. This suitability can be

29
See pp. 603–604 below. 30 See pp. 604–605 below. 31 See pp. 605–606 below.
32
Both of these cases are discussed in the following chapter; see pp. 609–616 below.

(b) Arguments against The WTO is a trade organisation. This fact on

its own to many people presents a major hurdle in the face of a proposal
advocating the conclusion of a WTO multilateral agreement in the field
of competition law. The basis of this view appears to be informed by the
gulf that can exist between competition and trade policy issues and the
possible lack of harmony between them in practice.33 To be frank, one
wonders however about the merit of this argument given that great
similarities exist between the two policies and the fact that there is a
close nexus between the WTO objectives of trade liberalisation and open
markets, and the commitment of an increasing number of countries –
most of whom are members of the WTO family – to instituting competi-
tion law regimes and reinforcing existing ones. This, in addition to the
fact that the WTO enjoys important capabilities of offering an integrated
trade and competition enforcement approach,34 is a factor in favour
of developing a competition law agenda at the WTO. Nonetheless, one
cannot ignore the huge weight of the fact that the WTO is what it is (a
trade body) and its use by highly influential WTO members to highlight
some of the disadvantages a WTO competition law option suffers from.35
The WTO’s field of competence is not the only factor to be raised in
the form of an argument against involvement in the field of competition
law. In fact some of the perceived key strengths of the WTO have
been identified as major weaknesses too. For example, the WTO’s wide
membership may be considered to be problematic in terms of achieving
convergence among the interests of its different members. To put the
point a different way, a level playing field is clearly lacking between

33
See pp. 589–595 below for the complementarities and conﬂict between competition and
trade policy.
34
This integrated approach is most valuable in the case of hindrances to market access
which are hybrid in nature, meaning ones resulting from private and public involvement.
See pp. 587–588 below for an account of such hindrances.
35
See pp. 556–557 below for an account on the views of USA.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
the multilateral option 555
different WTO members, with some possessing considerable competi-
tion law experience whilst others have either little or no experience at all
in the field. In pushing for ‘universal’ competition rules to be implemen-
ted by countries in such differing positions, there is a real risk that the
lowest common denominator will be opted for – an approach both groups
of members are likely to reject for different reasons. The result therefore
might be a set of substantive rules suffering from major weaknesses and
ineffectiveness to be considered adequate to deal with competition pro-
blems in a globalised economy. This seems only to cement in the position
of those countries who at any rate appear reluctant to accept any form of
binding obligation in the field of competition.
However even if one were to consider these arguments as answerable,
possibly by submitting that the flexibility of the WTO approach could
cater for this through affording countries with less experience in the
field the opportunity to develop this experience within a generous frame-
work for implementing their obligation, other difficulties will immedi-
ately present themselves. Among these is the manner in which disputes
are handled within the WTO framework and which is remarkably
adversarial and runs along a dividing line – that has the prospect of
turning into a major gulf – between exporting and importing countries.
The primary objective behind hearing the case is to establish who is
right and who is wrong. Such an approach – whilst suitable for trade
disputes – would be questionable if it were to be followed in competition
cases. Often – if not always – there is no right or wrong party among
competition authorities in these cases in terms of asserting jurisdictions;
though there might in some cases be right or wrong – but many times in
between – concerning the substantive conclusion by competition autho-
rities in cases. A confrontational or adversarial way of seeking a solution
could cause frictions, possibly more than those triggered occasionally at
present when competition authorities disagree in one and the same case.
Furthermore, a WTO body sitting to hear a competition dispute would
not necessarily be guaranteed to have a sufficiently global perspective,
which would pull all the interests of the countries concerned together
and anchor a policy approach that could offer future useful guidance.

(c) The views of different countries It was remarked above that build-
ing a future vision in the ﬁeld of competition that is based on a binding
multilateral WTO agreement requires an understanding of three differ-
ent strands. The discussion above considered the ﬁrst two of these. Thus
it remains for us to consider the third strand, the views of different

(i) The US scepticism The position of the USA on the appropriateness

of the WTO as a forum for negotiating competition rules has been
inconsistent, but on the whole highly sceptical. Whilst the USA has
actively supported efforts within the Singapore Group, it has also expressed
some reservation on the practical value of using the WTO for the
purposes of developing a multilateral competition law agreement. The
USA has raised several concerns with respect to the WTO venturing into
the field of competition law. These concerns have been repeatedly voiced
by US competition officials who have argued that the case has not been
made as yet for a binding multilateral agreement in the field of competi-
tion law. In particular, they have cited the lack of necessary knowledge on
whether and to what extent key competition and trade policy issues may
benefit from an integrated approach, let alone the difficulty of developing
consensus on these issues. The WTO’s principal concern with govern-
mental trade-restraining practices has been considered to give rise to a
serious limitation on its ability to deal with competition issues (even
those arising in the context of hindrances to market access) because not
all competition and trade policy problems overlap.
The view offered by US competition officials has been that forcing the
issue nonetheless would fuel a perceived inherent risk in the WTO
mechanism that the WTO would second-guess prosecutorial decision-
making in complex evidentiary contexts – a task in which the WTO is
considered to have no experience and for which it is not suited. Reflecting
the general views of the USA, the International Competition Policy
and Advisory Committee (ICPAC)36 has argued that the traditional
mandate of the WTO – negotiation of rules, which are then made subject
to dispute settlement – may be inappropriate for handling competition

36
See pp. 266–267 above.

(ii) The EU enthusiasm The European Union – speciﬁcally the

European Commission – has consistently been in favour of a ‘more’
internationalised competition law. As we saw in chapter 4, the European
Commission has moved beyond placing a heavy emphasis on the impor-
tance and effectiveness of bilateral cooperative agreements between different
competition authorities to champion the idea of a multilateral agreement,
to be introduced within the WTO. This position can be seen in light of the
original push by the EU in 1995 to establish the Singapore Group as well
as the different statements made by successive EU commissioners for
competition; some made very recently indeed and in the aftermath of the
fatal outcome of the negotiations at Cancun: if one were to ask senior

37
See address given by Joe Klein, former assistant attorney general for antitrust before the
OECD Conference on Trade and Competition (30 June 1999) entitled: ‘A Reality Check
on Antitrust Rules in the WTO, a Practical Way Forward on International Antitrust’.
38
See below.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
558 international and comparative competition law
competition officials in the EU – even at this point in time – about the best
option of internationalisation, they would vote overwhelmingly in favour of
the multilateral option and the conclusion of a binding agreement.
The EU vision of a multilateral agreement has had some alterations
made to it over the years, albeit perhaps cosmetic ones. In actual sub-
stance however, this vision has remained unchanged and the ‘roadmap’
it revealed shows careful thinking by the European Commission on
such a difficult issue. For example, the Commission has recommended
what may be seen as a ‘step-by-step’ approach, to begin with preliminary
negotiations, looking at: the different types of business phenomena giving
rise to competition problems; ensuring adequate and transparent com-
petition law enforcement in different jurisdictions; and building interna-
tional cooperation through exchange of non-confidential information
and through incorporating notification and positive comity provisions.39
The Commission has explicitly excluded from its proposal any suggestion
to pursue in the short term convergence among the substantive provi-
sions of the competition laws of different countries, stating that such
wider convergence could be reached over time. It has however suggested
that a dispute-settlement mechanism should be included, though initially
to be limited to deal with breaches of common principles or rules relating
to the developing of competition law regimes at the national level.
Dispute settlement, according to the Commission, might also be used
for alleged patterns of failure to enforce competition law in cases affecting
the trade and investment of other WTO members.40
This position of the EU has won some support by a number of WTO
countries, including Australia, Canada and Japan, although these coun-
tries have not endorsed the proposal verbum verbatim. For example,
Japan appears in favour of a multilateral agreement in the field but also
has concurred with developing countries, particularly from the Asia-
Pacific region, by emphasising that multilateral negotiations on compe-
tition must include anti-dumping issues.41

(iii) The educational approach of African countries Chapter 7 above

dealt with regional competition law and policy. It demonstrated, among

39
See pp. 498–499 above for an account on positive comity.
40
See the proposals of the Group of Experts (the wise men group): ‘Competition Policy in
the New Trade Order: Strengthening International Cooperation and Rules’ COM (95)
359; see pp. 223–224 above.
41
See Communications from Japan, WT/GC/W/308 (25 August 1999).

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
the multilateral option 559
other things, the enormous interest of African countries in adopting a
collective approach in the field, albeit at a regional level. African coun-
tries however have also shown remarkable interest in WTO develop-
ments in the field of competition law and some of them have expressed
interesting views on the matter focusing in particular on the need to
adopt an educational approach and to protect the interest of developing
countries.
Kenya is one of the few African nations that have spoken on the idea of
concluding a binding multilateral agreement in the field of competition
law. It has submitted its own views to the WTO as well as offering views
on behalf of the group of African countries.42 At the heart of Kenya’s own
views stood a concern that a binding multilateral agreement in the field
may have an adverse effect on comparatively stronger firms of develo-
ping countries – by ‘clipping the wings’ of these firms – so that they are
not able to compete with strong firms of the developed countries.43 To
address this concern, Kenya proposed that any multilateral agreement
on competition law should include a code of conduct for multinational
firms.44 This specific proposal was aimed at introducing an educational
element to the process of internationalisation of competition law which
Kenya and African countries in general argued should extend to enhan-
cing the technical assistance offered to developing countries. It was
emphasised that the existence of domestic competition law regimes,
including effective competition authorities to enforce competition law,
was not common to all African countries and most countries around the
world more generally. This meant that it was crucial for a WTO agenda
in the field of competition law to include activities to conduct educa-
tional, exploratory and analytical work focusing on the needs of devel-
oping countries.
The position developed by Kenya – especially on behalf of the African
countries – has been amplified by South Africa who also believed that it
would be crucial to embark on a thorough educational process that

42
See Communications from Kenya on behalf of the African Group, WT/GC/W/300
(6 August 1999).
43
See Communications from Kenya, WT/GC/W/233 (5 July 1999).
44
The idea of a code of conduct had already been introduced (and tested) within
UNCTAD (the Set of Multilaterally Agreed Equitable Principles and Rules for the
Control of Restrictive Business Practices). As the discussion at pp. 144–146 above showed
the UNCTAD Set has not been a particular success. Note however, that efforts toward
reaching consensus between developed and developing countries for such a code failed
previously at the UN.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
560 international and comparative competition law
would better prepare developing countries for any future competition
negotiations within the WTO.45 Indeed South Africa has been an African
champion on the topic of competition law education and has always
welcomed and provided for an opportunity for foreign specialists to
become involved in actual (usually a few selected) cases, which are
handled within the ranks of its competition law regime through offering
advice on the competition analysis conducted in these cases.
According to South Africa, an educational process is a necessary
condition for negotiating multilateral rules on competition within the
WTO due to the fact that developing countries have not had the same
opportunity to prepare for such negotiations, which means that devel-
oping countries are therefore not on a level playing ﬁeld whether vis-à-
vis themselves or developed countries and cannot be expected to present
a well-researched position. In particular, South Africa called for further
analysis of the strengths and weaknesses of reaching a multilateral
agreement in the ﬁeld, and has made it clear that it would be desirable
for UNCTAD and the World Bank to offer some assistance in engaging
in this debate and conducting such analysis; but also crucially for this
assistance to be offered to competition authorities in developing coun-
tries. According to South Africa, this assistance should extend beyond
the traditional support offered to competition authorities in terms of
passing domestic competition laws and their enforcement, and should
include scrupulous assessment of the expected outcomes and the impli-
cations for developing countries of having a multilateral agreement. To
ensure fruitful results from this educational initiative, South Africa has
suggested that process should extend over a period of at least two years. It
has also recommended that resources be provided to developing coun-
tries in order to allow them to participate in the formal negotiations on a
multilateral agreement in a meaningful manner.

(iv) Korea’s vision of internationalisation through transition Korea has

generally supported the conclusion of some form of a multilateral agree-
ment in the ﬁeld of competition law with an effective dispute-settlement
mechanism.46 This particular position in favour of internationalisation
through multilateralism has been based on Korea’s belief in the need for
enhancing international cooperation among competition authorities

45
See Communications from the Republic of South Africa, WT/WGTCP/W/138
(11 October 1999).
46
See Communications from Korea, WT/GC/W/298 (6 August 1999).

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
the multilateral option 561
given that this will lead to better enforcement of competition law in different
jurisdictions. Korea has encouraged opening a discussion within the
WTO on how to incorporate the principle of positive comity47 into a
multilateral framework to impose greater discipline on cross-border
anticompetitive behaviour and conduct and help reduce unnecessary
costs and the risk of conflicts where appropriate. In its communication
of its various views to the WTO on the question of multilateralism in the
field of competition law, Korea has singled out international mergers as
an area in which it cautioned that it may not be feasible to harmonise
substantive rules of merger control in different jurisdictions; though in
its view it remains worthwhile to examine possible means of enhancing
cooperation among competition authorities on issues such as common
procedures for review of mergers, harmonisation of merger notification
forms and notification deadlines, and the establishment of a common
body to which international mergers may be notified. Korea expressed a
similar caution in the context of exchange of confidential information,
arguing that dealing with such exchange of information within the
framework of a multilateral agreement is premature at this stage, given
the differences in the national competition laws governing the exchange
of information in member countries of the WTO.
In supporting the case for building a multilateral framework in the
field of competition law, Korea has recommended, however, transitional
periods for the application of the rules under the framework according to
the level of economic development in each country and other domestic
conditions.48 It has recommended that, given the progressive liberal-
isation of trade worldwide and the fact that as a result developing
countries are no longer able to resort to the export-oriented economic
growth policy through protection of domestic industries, competition
law should be introduced from the early stage of economic development
in countries. According to Korea, greater competition will lead to the
best allocation of economic resources, help small and medium firms to
grow and will enable the country in question to respond proactively
and promptly to fast-changing economic conditions within and outside
national boundaries.

47
See pp. 498–499 above.
48
Also Turkey has recommended that a multilateral framework within the ﬁeld should
include provisions for transitional periods in order to allow members at different stages
of development to observe and adhere to their commitments. See Communications from
Turkey, WT/GC/W/250 (13 July 1999).

II. Convergence
Being a future means through which the multilateral option (based on
binding obligations) in the field of competition law may be pursued,
does not mean that convergence and harmonisation does not exist at
present. Indeed the process has been unfolding one way or another, most
notably in the international arena in recent years through non-binding
obligations.50 During the last two decades or so, domestic competition
laws of different countries have been converging. This process has been
facilitated by several factors. Perhaps the most obvious one is the process
of – formal and informal – bilateral cooperation between domestic
competition authorities. The discussion in the previous chapter in parti-
cular offered several examples of how domestic competition authorities
have, albeit to a limited extent due to restrictions on exchange of con-
fidential information, increasingly engaged in informal consultations
among themselves in enforcement matters in cross-border competition
cases. As we saw, cooperation has been particularly common in merger
cases between EU and US competition authorities who quite frequently
exchange views on their analytical approaches on issues such as market
definition and economic analysis in general in these cases. Furthermore,

49
See Communications from Norway, WT/GC/W/310 7 (5 September 1999).
50
See below.

(a) Advantages A number of advantages are attached to the conver-

gence of competition laws of different countries around the world. Some
of these advantages are considered beneficial to countries and their compe-
tition authorities; others are considered to be of benefit to firms. Obviously,
the fact this is so makes convergence a highly attractive option.

(i) Sovereignty and related considerations An obvious argument that

can be advanced in favour of convergence is that from the perspective of
many countries this form of internationalisation is preferable to the
conclusion of a binding multilateral agreement with an international
institutional framework as discussed in the previous section above.
This is because, unlike the latter, it does not present a serious threat to
the sovereignty of countries nor does it interfere with the enforcement
prerogatives of different competition authorities.

51
See chapter 4 above.

(iii) Relief for ﬁrms Convergence of different competition laws offers

substantial benefits to firms operating in international markets. In parti-
cular, firms would be offered relief from the burden of having to deal
with competition law regimes that are different in both substantive law
and the procedures used.52 The net result would be that the cost of their
operations and compliance would be substantially reduced which is a
highly desired outcome that could have considerable positive results in
terms of enhancing efficiency in the marketplace. Moreover, it is guar-
anteed that, with convergence, uniformity of approach by different
competition authorities will be more likely than otherwise. This is espe-
cially so in the area of merger control.

(iv) Removing hindrances to market access Convergence is likely to

enhance the ﬂows of trade and investment between countries by remo-
ving market access-restraining private anticompetitive behaviour. This is
especially valuable in the case of those countries which have not been
tough enough on private anticompetitive behaviour within their own
boundaries and thus have impaired the entry to domestic markets by
foreign ﬁrms and in the case of countries with no competition laws.

(b) Disadvantages Offsetting these advantages are some disadvan-

tages associated with convergence of domestic competition laws which
must be mentioned.

(i) An inherently long process It would not be difﬁcult, especially in the

light of the discussion on the EU experience in the ﬁeld,53 to point out the
fact that convergence of different competition laws is a very slow process,
and as a matter of fact its success cannot be guaranteed. In the EU,
despite the increasing strength of the EU competition law regime and the

52 53
See pp. 108–109 above. See pp. 187–192 above.

(ii) Different forms and different goals of competition law Those coun-
tries with competition law differ with regard to the form of their laws and
what goals should be sought when enforcing their laws. Whilst some
countries have opted for economic goals, others have used their competition
laws to further social and even political goals.54 Of course, an attempt to
converge competition laws with different goals risks collision between them.
Various views have been put forward over the years advocating that
these concerns should not be particularly problematic because there may
be convergence in the goals of competition law towards certain ‘core’
principles. According to these views, convergence is to be expected, as
countries increasingly look to one another for lessons and, as an increa-
sing number of countries seek to become partners in the global trading
system. Such an approach is in use already, albeit in a limited form, in
certain jurisdictions and international organisations.55
The difﬁculty associated with a convergence approach, however, is
that it may not be possible to succeed in making these goals coincide.56 It
could be argued convergence is not possible when different goals are
claimed in the name of competition law and when competition policy
is dynamic and constantly evolving. For example, how can one arrive at
the ‘core’ of competition law’s purpose by convergence of goals covering

54
See pp. 40–44 above.
55
See, for example, the work of the OECD Committee on Competition Law and Policy
(CLP): Interim Report on Convergence of Competition Policies (1994); the work of the US
Federal Trade Commission: Anticipating the 21st Century: Competition Policy in the New
High-Tech Global Marketplace (1996); and the work of UNCTAD: Draft Commentaries
to Possible Elements for Articles of a Model Law of Laws (1995). Chapter 4 contains some
discussion of this issue in relation to the EU.
56
See M. L. Azcuenaga, ‘The Evolution of International Competition Policy: a FTC
Perspective’ (1992) Fordham Corporate Law Institute 1.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
566 international and comparative competition law
economic efficiency (economics) and others dealing with generic con-
cepts such as fairness and justice (social) and those dealing with integra-
tion within regional economies (politics)? The fear is that certain goals,
not to mention the fact that they are adopted by strong countries, will
prevail over other goals; those ‘other goals’ may, of course, be advocated
by weaker countries.57 For example, in developed countries, a primary
goal of antitrust law is to enhance an efficient allocation of resources and
maximise consumer welfare in the traditional economic sense. In con-
trast, many developing countries tend to have a broader goal for compe-
tition law, namely building a market economy and securing the political
acceptance necessary for this.58 In this case if convergence is to be pursued,
it might lead to benefiting some countries at the expense of others – a factor
which may minimise the prospects of success in achieving meaningful
convergence; although the opposite of this view has been argued by some
countries with advance competition law regimes. For example, in the USA
the view has been expressed that the convergence of goals will lead to a
lowest common denominator, whereby countries with strong competition
law regimes will be forced to accept weaker goals advocated by other
countries with less advanced competition law regimes.
Even if convergence is both possible and effective and an agreement on
the goals of competition law amongst different competition law regimes
may be reached, there can still be great disparity between countries
regarding the means of convergence and regarding how the means to
achieve these goals is perceived.59 This can be illustrated by the way in
which different countries consider competition law should be enforced.
Assume that country A, country B and country C share identical goals
for competition law. A fundamental cause of divergence between them
would be that the means of achieving those goals may be differently
conceived by each country. This divergence of perception may be attrib-
uted to lack of agreement between the countries over the optimal means
of achieving identical goals which is generally caused by differences in
the circumstances prevalent in each country. For example, culture may
affect the optimal means of achieving a particular goal and thus, the
choice of competition law and policy.60 This is reflected by the fact that

57
See A. Guzman, ‘Is International Antitrust Possible?’ (1998) New York University Law
Review 1501.
58
See the discussion in chapter 6. 59 See p. 565 above.
60
See L. Haucher and M. Moran, Capitalism, Culture and Economic Regulation (Oxford
University Press, 1989).

(iii) Deﬁning competition It is not clear whether countries agree on

how the concept of competition should be deﬁned and understood. The
discussion in chapter 1 above considered the concept of competition in
some detail.64

(D) Comments
The discussion above demonstrated that the idea of pursuing the multi-
lateral strategy through binding commitments and obligations on coun-
tries has been seriously considered on a number of occasions. Several

61
See p. 164 above.
62
See D. Gerber, Law and Competition in Twentieth Century Europe (Oxford University
Press, 1998).
63
See WTO Annual Report (WTO, 1997), p. 34. 64 See pp. 20–30 above.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
568 international and comparative competition law
proposals have been made. As we saw, one of these is to establish an
international variant of existing competition law regimes, most notably the
EU regime. The idea here is to develop through the support of the WTO
structural features of a competition law regime. Within such a framework,
the WTO would create a set of rules with a dispute settlement mechanism,
which would require countries to introduce competition laws in their
jurisdictions. Needless to say however, this proposal – and the idea of
convergence – for involving the WTO is not the only one that has surfaced
over the years. Different proposals have been formulated for involving
the WTO. One of these has been to develop general principles, both
procedural and substantive, of competition law. The OECD and the
World Bank have been seeking for a number of years to develop a
‘Global Corporate Governance Forum’.65 The OECD has also developed
a set of ‘best practices’ principles on corporate governance, which comple-
ment its joint projects with the World Bank. The joint initiative has
been hosting meetings and workshops attended by representatives of the
business community and governments of countries.
Regardless of the form of the proposal for involving the WTO, one thing
has become abundantly clear since the Cancun experience in 2003: the
fresh hopes created at Doha in 2001 for a serious mandate to take foothold
within the WTO have been nothing but almost totally erased. This has
seriously affected the prospect for pursuing the multilateral option though
binding obligations, whether in the form of a multilateral agreement or
convergence. In fairness, such development is probably not as bad it sounds
and perhaps the question must be asked again whether pursing the option
through the WTO is a sensible step under all circumstances. As things
stand at present, countries are at enormously different stages of economic
development and at different stages on the ‘competition law ladder’, with
the first step involving the mere adoption of some form of competition law
and the last step involving the existence of an effective competition law
regime, with strong institutional framework and credible enforcement.
Very few countries have made it to the top of the ladder, several have just
climbed to the first step and many are scattered on the way; crucially
however, the majority of countries have not started climbing at all and
their legal systems lack specific competition rules. Additionally, even in
areas where the case for a binding multilateral agreement can arguably
be considered to exist, most notably that of merger control, competition
law is closely interwoven with important domestic policies such as

65
See www.gcgf.org.

2. Multilateralism through non-binding commitments

The discussion in this part of the chapter will in one way complement
that in the previous part by examining the option of pursuing the multi-
lateral strategy through non-binding obligations. This part will focus in
particular on the option of convergence and harmonisation – whether at
substantive or procedural levels – and provide a detailed account and
analysis of the contribution made by key international bodies and orga-
nisations such as UNCTAD, the OECD and the ICN.

(A) Assessing the chances non-binding multilateralism

One of the main conclusions drawn in the previous part was the fact
that not all countries are necessarily prepared to be legally bound by a

66 6
See p. 162 above. See p. 162 above.

I. Form
The idea of pursuing multilateralism through non-binding commit-
ments primarily revolves around the use of recommendations, guidelines
and best practices which themselves carry no binding obligations for
countries. This means that countries are obliged neither to subscribe to
them, nor to take any steps to implement them within their existing
competition law regimes (or legal systems more widely).

II. Reasons for ‘popularity’, advantages etc.

There are a number of reasons to indicate that despite their lack of
binding force, success is possible to achieve in using this option of
multilateralism; most notably the fact that this option has been taking
foothold in recent years. If this experience is a reliable way to ascertain
success, the chances of this option appear to be real. Additionally, there
seems to be a recognition that countries may be prepared to cooperate
in meaningful ways in building a multilateral strategy but without any
binding obligations. As we shall see further below, there is ample evi-
dence supporting this from the work of the International Competition
Network (ICN) which forms the backbone in a discussion on multi-
lateralism through non-binding obligations. But evidence can also be
found outside the boundaries of the ICN. For example, the Asia-Paciﬁc
Economic Cooperation Forum (APEC) has been built on this recogni-
tion,68 that it is possible to advance some harmonisation of practices
outside a framework of binding legal instruments. Also the proposed
global competition law initiative of the International Competition Policy
Advisory Committee (ICPAC)69 is built on the premise that countries
can usefully explore areas of cooperation in the ﬁeld and facilitate further
convergence and harmonisation. Countries seem to prefer developing
a common understanding through consultations and non-binding

68 69
See pp. 396–397 above for a discussion on APEC. See pp. 266–267 above.

III. Disadvantages
The existence of important advantages in the case of non-binding com-
mitments however does not mean that these instruments do not suffer
from any shortcomings. In fact they do and some of the key advantages
underpinning them can be said to have inherent shortcomings. For
example, the fact that non-binding commitments lack binding force
may make it particularly difﬁcult to predict whether, when and how
they will be implemented by countries; as a result they may appear to
offer only a low level of legal certainty, something that could be fuelled
by the considerable discretion left in the hands of countries and their
competition authorities over implementation of the commitments.
Furthermore, the fact that non-binding commitments are formulated
in quite general language means that determining their real beneﬁt and
effectiveness is only possible when their implementation within domestic
competition law regimes occurs. Obviously these shortcomings are ser-
ious. Nonetheless, experience with non-binding commitments shows
they are not impossible to overcome. This is a point which the discussion
will consider below.

(B) The evolution of non-binding multilateralism so far

The idea of building multilateral cooperation through the use of non-
binding obligations is not a new one. It dates back to the 1960s and 1970s

70
See p. 149 above.

I. UNCTAD
UNCTAD’s involvement in the field of competition law was discussed
in chapter 2. It was noted that the centrepiece of this involvement has
been the Set of Multilaterally Agreed Principles and Rules for the
Control of Restrictive Business Practices, which was described as having,
in effect, a two-tiered structure of rules and principles addressed to
countries and firms. The non-binding force of the Set was no doubt
one of its most important features, though utilising it in practice
proved to be a particularly difficult task to discharge in light of the
fact that the Set came to safeguard the interest of developing countries,
many of whom at the time did not have competition law on their
statute books.

II. OECD
As we saw above, the OECD has been playing a leading role in publishing
recommendations and best practices in the field of competition law.72
These have been mainly addressed to competition authorities; though
many concern a wider audience. Through its impressive output, the
OECD has maintained the goal of achieving a variety of benefits for
competition authorities, firms and consumers in different OECD coun-
tries and to some extent non-OECD countries.

71
Especially worth mentioning here are: the increasing number of merger cases being
subjected to multi-jurisdictional merger review and the desire on the part of EU and US
competition authorities to bring their regimes closer together and to eliminate cases of
conﬂict. The few cases of divergence between the EU and US regimes were particularly
inﬂuential here.
72
See pp. 137–140 above which among other things give details of some of the most notable
recommendations and best practices produced over the years.

III. The ICN

One of the key differences between the ICN and other international bodies
and organisations – as identified in chapter 2 – is the fact that it is a ‘virtual’
network, though in practice not all of the ICN operations are conducted
in the virtual environment. This feature – along with the other ones high-
lighted above, such as the uniqueness of its membership and emphasis on
consensus building – have armed the ICN with key advantages in its pursuit
of multilateralism through non-binding commitments in the field.
The work of the ICN has been of particular orientation and focus,
determined by the aim and project at hand. This has enabled it to achieve
greater consensus and to develop two advantages, namely the credibility
of its output due to the large number of competition authorities – from
both the developing and developed worlds – engaged in its work and the
incentives it offers to countries to implement its recommendations and
best practices especially in light of its pragmatic approach and no threat
to national sovereignty. Neither the OECD nor UNCTAD could rival the
ICN in this respect: the former suffers from a lack of a sufficiently broad
membership base, which at any rate excludes developing countries and
the latter – whilst enjoying a broad membership base – seems to fall short
of providing an incentive to countries to implement its Set.73
The benefits brought about by the ICN cannot be overstated. They
have encompassed within their scope competition authorities and firms.
The work of the ICN has been extremely precise and well-focused on
particular projects in areas in which convergence and harmonisation are
considered to be possible and desirable to achieve. The ICN has pro-
ceeded on the basis of a realistic and non-ambitious agenda. Its opera-
tion – using the model of steering and working groups74 – has enabled it
to give different competition authorities the opportunity to play a role in
contributing to the ICN output but at the same time the opportunity to
learn and benefit from the often useful discussions within these groups.
Among the areas in which the ICN’s work has been a huge success
is that of merger control. Since its creation, the ICN has produced a
number of important best practices, recommendations and guiding
principles dealing with different aspects of merger control. These aspects
include: conflict of jurisdiction situations in cases of multi-jurisdictional
merger review; thresholds for merger notification; review period in
merger cases by competition authorities; form(s) used by firms to notify

73 74
See p. 144 above. See pp. 151–152 above.

(a) Conﬂict of jurisdiction principles The ICN recognised at a very

early stage of its existence that the issue of multi-jurisdictional merger
review was a hugely important one because it brings into play the
question of which authority or authorities are entitled to exercise jur-
isdiction over a merger operation. In its deliberation on the matter, the
ICN established an important principle for determining the question of
jurisdiction seeking thus to avoid situations of conflict of jurisdiction
between different competition authorities, namely the principle of appro-
priate nexus. According to this principle, a competition authority should
assert jurisdiction in cases where an appropriate nexus or link is estab-
lished between its jurisdiction and the relevant merger operation. In
practice, this was considered to exist where the operation produces
appreciable effects within the relevant jurisdiction. According to the
ICN guidance on the matter, appreciable effects should normally be
considered to exist where in the relevant jurisdiction(s), at least two of
the merging firms are engaged in economic activities or the acquired firm
or business exists. The idea behind such an approach is to reduce the
number of competent competition authorities: specifically to exclude
those competition authorities in whose jurisdiction the merger operation
produces minimal effects from reviewing the operation.

(b) Merger notiﬁcation principles Anyone who is familiar with the

area of merger control will appreciate the inherent difficulty in determi-
ning the ‘thresholds’ for merger notifications. Obviously this is an issue
which is related to that of exercising jurisdiction, as discussed in the
previous section. This difficulty is caused by the fact that determining
thresholds depends on a number of factors, such as the size of the
economy in the relevant jurisdiction and the other socio-economic and
sociopolitical factors which are unique to the jurisdiction in question.
This means it is understandable that in practice there are significant
differences between merger control regimes around the world over the
type and size of the notification thresholds. Equally, this means that
bridging such differences through convergence or harmonisation may
not be possible to achieve; one may even wonder whether this is in
fact desirable to do given the outcome is bound to be recommended

(c) Merger review period principles The issue of review period in

merger appraisal by competition authorities is another hugely important
one in the area of merger control. It is also a difficult issue because
determining it in practice requires striking a balance between two important
sets of interests: the interest of competition authorities to spend long enough
reviewing merger operations in order to ensure that proper appraisal is
conducted and the interest of merging firms to wait for as short a time as
possible in order to avoid any unnecessary harm to their interests.
Being aware of the need for such balancing exercise, the ICN recommend
that a merger review period should be a reasonable period. Obviously, this
is too general as a recommendation. Nonetheless, the ICN has stated that
up to six months would fit within this description; though it has not ruled
out the possibility of such period being extended up to the same length in
relation to those merger operations meriting this.

(d) Notiﬁcation form principles Looking around the world, one is

able to see significant differences in existence between merger control
regimes with regard to the form used to notify merger operations to
competition authorities. The ICN realised this fact means that it is difficult
to achieve full convergence and harmonisation and for this reason it has
opted for neutral guidance. Specifically, the ICN has given particular atten-
tion to the interests of merging parties and has recommended that the type
of notification form and crucially the information required as part of it

75
Such preference towards loose framework on the part of the ICN can also be seen from
how it recommended expanding the spectrum of events triggering notification of a
merger operation by firms to include situations in which they have demonstrated
‘good faith intention’ to merge; i.e. without necessarily needing to have concluded a
binding merger agreement prior to notification.

(e) Merger remedies principles The ICN has produced some useful
principles concerning the topic of merger remedies, which has come to
receive particular attention in recent years.76 The ICN has emphasised
the importance of operating a regime for merger remedies which is
transparent and efﬁcient. In particular, the ICN recommended that
transparency must exist in relation to crucial issues such as: types of
remedies available and the deadline for their submission; remedies must
be easily administrable and effective to address anticompetitive out-
comes of merger operations; sufﬁcient time must be given to merging
parties to discuss and evaluate proposals for remedies; and competition
authorities should enjoy the power to monitor remedies and where
necessary seek enforcement through the appropriate channels.

(f) Procedural principles The ICN has formulated a number of

important procedural principles which seek to enhance confidentiality,
procedural fairness, effectiveness, transparency, efficiency and predi-
ctability of merger control regimes of ICN members. The ICN has
attached particular significance to the need to facilitate a proper ‘dialo-
gue’ between a competition authority and merging parties.
The ICN has also produced a set of principles advocating the need to
arm competition authorities with the necessary powers to be able to conduct

76
See p. 152 above.

(C) Comments
It is highly arguable that the most significant development in recent
times concerning the multilateral option in the field of competition law
has been the use of non-binding commitments and their outcome of
soft convergence. Such convergence has emerged with regard to mainly
substantive but also procedural issues. For example, in the field of merger
control one is able to see significant evidence of the former in particular.
Such soft convergence has resulted primarily from the increasing reli-
ance and emphasis on economic analysis in the application of competi-
tion law in the vast majority of jurisdictions around the world. It is
the universality of economic analysis that has been an important force
driving convergence. This point is worth emphasising because it can
be easily (wrongly) assumed that the only driving forces behind such
convergence are: political and juridical forces;77 demands for the adop-
tion of international codes; desires to regulate multinational enterprises;
and desires by certain countries – most notably developing countries – to
alter the global trading order.
The ICN experience in particular (and to some extent that of the
OECD)78 has tremendously increased mutual learning between differ-
ent competition law regimes and their authorities. This no doubt has
helped establish that convergence is possible to achieve through the
implementation of soft principles into hard law instruments. For exam-
ple, a number of competition authorities have altered their practices in
77
It is important to note however that in the case of the ICN, the will of key competition
authorities – notably the European Commission, the US Antitrust Division and the US
Federal Trade Commission – has been important in creating the Network in the first
place and ensuring the success of its work.
78
UNCTAD – by comparison to the ICN and the OECD – has in recent times been seen as
far less active in pushing the global multilateral agenda on the basis of non-binding
commitments. This actually is quite remarkable because of the origins of UNCTAD and
its long history in the field. As noted above however, there is no doubt that the
impression that has been formed about UNCTAD – as an organisation for developing
countries – has contributed to its inactivity.

Downloaded from https://www.cambridge.org/core. UCT University of Cape Town Libraries, on 02 Oct 2021 at 01:56:40, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9780511777745.011
578 international and comparative competition law
the field of merger control in light of the work of the ICN. This includes
the introduction of ‘good faith intention’ as a triggering event for
notification of merger operations in the EU regime; the adoption of
the principle of appropriate nexus of jurisdiction in Brazil; the greater
transparency US competition authorities have come to facilitate
through the publication of reasoned explanation of decisions approving
mergers where the decision establishes a precedent; and the use of short
and long notification forms in a number of jurisdictions, most notably
the EU regime. Such outcomes are particularly worth noting because
they show that there has been implementation by even some of the
world’s most advanced competition law regimes.
The remarkable success of the ICN has created serious expectations
that the process of soft convergence is set to continue for the foreseeable
future especially given that the fairly wide consensus that this process has –
in a short period of time of nine years – led to greater trust and confidence
between different competition authorities (not seen before 2001), a reduc-
tion in the costs of firms involved in cross-border merger transactions
and greater effectiveness and efficiency on the part of different competition
law regimes, within both the developed and developing world. At the
same time, such development has arguably rendered merely academic if
not historic any proposal of a multilateral approach that is based on binding
commitments. In a reverse manner, it is arguable that the failure of the
latter – especially within the WTO context – has paved the way for the use
of non-binding commitments and soft convergence.
A final point worth reflecting on concerns the question of whether soft
convergence – notwithstanding the use of non-binding commitments –
suffers from a problem of accountability, namely ensuring that an inter-
national body which produces these instruments remains accountable
to its subjects. Some people have argued that the use of non-binding
instruments is not totally free from limitation of sovereignty and actually
involves some form of coercion: bringing countries to accept commit-
ments produced at the higher level.79 It is doubtful whether in the field of
competition law this should be considered to be problematic, especially
when one considers the important benefits following from soft conver-
gence which surely should be considered as outweighing any such
concern.

79
See B. Kingsbury, N. Krisch and R. B. Stewart, ‘The Emergence of Global Administrative
Law’ (2005) Law and Contemporary Problems 15; J. Cohen and C. Sabel, ‘Global
Democracy?’ (2005) New York University Journal of International Law and Politics 736.

Antidumping Exposed: The Devilish Details of Unfair Trade Law
From Everand
Antidumping Exposed: The Devilish Details of Unfair Trade Law
CSPtrade
No ratings yet
Adjusting to the New World Economy
From Everand
Adjusting to the New World Economy
Michael Czinkota
No ratings yet
The World Trade Organization: A Beginner's Guide
From Everand
The World Trade Organization: A Beginner's Guide
David Collins
4/5 (2)
Ques 1
No ratings yet
Ques 1
15 pages
25743338
No ratings yet
25743338
15 pages
International Regulations
From Everand
International Regulations
Mark Chambers
No ratings yet
The World Trade Organization from 1950s to the Present
From Everand
The World Trade Organization from 1950s to the Present
Oliver Shaw
No ratings yet
Rule of Law in Armed Conflicts Project: Warfare's Legal Frontiers, Navigating Conflict Zones
From Everand
Rule of Law in Armed Conflicts Project: Warfare's Legal Frontiers, Navigating Conflict Zones
Fouad Sabry
No ratings yet
UNIT 1: Concept of International Trade Law: Krishna Bhandari
100% (1)
UNIT 1: Concept of International Trade Law: Krishna Bhandari
14 pages
Cha. 2 - Legal Aspects of International Business - A Canadian Perspective, 4-49-79
No ratings yet
Cha. 2 - Legal Aspects of International Business - A Canadian Perspective, 4-49-79
31 pages
Sustaining Contractual Business: an Exploration of the New Revised International Commercial Terms: Incoterms®2010
From Everand
Sustaining Contractual Business: an Exploration of the New Revised International Commercial Terms: Incoterms®2010
K.B. Chikwava
No ratings yet
Studies and Essays on International and International Humanitarian Law
From Everand
Studies and Essays on International and International Humanitarian Law
Marco Tabili
No ratings yet
Sharing Economy
From Everand
Sharing Economy
Michael C. Munger
No ratings yet
International Trade Law
No ratings yet
International Trade Law
6 pages
Gujarat Maritime University Campus Gnlu, Gandhinagar, Gujarat
No ratings yet
Gujarat Maritime University Campus Gnlu, Gandhinagar, Gujarat
15 pages
Introduction to Trade and Globalisation
From Everand
Introduction to Trade and Globalisation
Eamonn Butler
No ratings yet
Regulating Big Tech: The Analysis of Competition to Remedy Nineteenth-Century Legal Restraint for Twenty-first Century Innovation
From Everand
Regulating Big Tech: The Analysis of Competition to Remedy Nineteenth-Century Legal Restraint for Twenty-first Century Innovation
David R. Gilchrist, PhD, LLM, SJD
No ratings yet
09.0 Pp 78 118 the Internationalisation of Competition Law Concepts Ideas Options and Players
No ratings yet
09.0 Pp 78 118 the Internationalisation of Competition Law Concepts Ideas Options and Players
41 pages
The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy
From Everand
The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy
Daniel J. Gifford
No ratings yet
CMA International Business Lecture 05
No ratings yet
CMA International Business Lecture 05
10 pages
Trade Law Exam
No ratings yet
Trade Law Exam
5 pages
Trade and Competition Policy: at The Wto Issues For Developing Countries
No ratings yet
Trade and Competition Policy: at The Wto Issues For Developing Countries
17 pages
Ten years of effects- Based approach in EU competition law
From Everand
Ten years of effects- Based approach in EU competition law
Primento Digital
No ratings yet
Blw 3204 -International Economic Law - Week 2 (1)
No ratings yet
Blw 3204 -International Economic Law - Week 2 (1)
4 pages
International Trade Law Notes
No ratings yet
International Trade Law Notes
492 pages
Introduction To International Trade Law
100% (1)
Introduction To International Trade Law
17 pages
Keys-Pro to International Business Law: Keys-Pro to Business Law Series, #13
From Everand
Keys-Pro to International Business Law: Keys-Pro to Business Law Series, #13
Mustafa Al-Dori
5/5 (1)
Part IV Activities of Organizations, Ch.16 Trade: Joel P. Trachtman
No ratings yet
Part IV Activities of Organizations, Ch.16 Trade: Joel P. Trachtman
13 pages
School of Law Justice and Governanace: Development Unctad
No ratings yet
School of Law Justice and Governanace: Development Unctad
22 pages
Basics of Int Trade Law
No ratings yet
Basics of Int Trade Law
16 pages
International Trade Law
No ratings yet
International Trade Law
8 pages
The Urgent Call for Harmonizing Preferential Rules of Origin
From Everand
The Urgent Call for Harmonizing Preferential Rules of Origin
Hatem Mabrouk
No ratings yet
International Economic Law States - As Subject of International Economic Law
No ratings yet
International Economic Law States - As Subject of International Economic Law
11 pages
Reflections on the Debate Between Trade and Environment: A Study Guide for Law Students, Researchers,And Academics
From Everand
Reflections on the Debate Between Trade and Environment: A Study Guide for Law Students, Researchers,And Academics
Dr. Yvonne Nana Afua Idun
No ratings yet
International Trade Encyclopedia of Political Science by Bertrand Badie, Dirk Berg-Schlosser, Leonardo Morlino (z-lib.org)
No ratings yet
International Trade Encyclopedia of Political Science by Bertrand Badie, Dirk Berg-Schlosser, Leonardo Morlino (z-lib.org)
4 pages
From Colonial To Multilateral Intl Law
No ratings yet
From Colonial To Multilateral Intl Law
91 pages
From Gatt To Wto Assign 2
No ratings yet
From Gatt To Wto Assign 2
8 pages
Chapter 4 - Dani Rodrik
No ratings yet
Chapter 4 - Dani Rodrik
5 pages
International Trade Laws
From Everand
International Trade Laws
Cassia Vaughn
No ratings yet
Trade Fuels Prosperity
From Everand
Trade Fuels Prosperity
Gideon Fairchild
No ratings yet
Verdier
No ratings yet
Verdier
60 pages
International Law and Global Justice
From Everand
International Law and Global Justice
Pasquale De Marco
No ratings yet
WTO Competition Policies and The Indian Response
100% (1)
WTO Competition Policies and The Indian Response
30 pages
GATT_&_MFN_Assignment[1]
No ratings yet
GATT_&_MFN_Assignment[1]
6 pages
Dr. Ram Manohar Lohiya National Law University: B.A. LL.B. (Hons.), Semester VII, Section B
No ratings yet
Dr. Ram Manohar Lohiya National Law University: B.A. LL.B. (Hons.), Semester VII, Section B
20 pages
ITL Unit 1
No ratings yet
ITL Unit 1
111 pages
MB0037
No ratings yet
MB0037
8 pages
RESEARCH PAPER IB
No ratings yet
RESEARCH PAPER IB
17 pages
ADB & UNCTAD - Kartikey
No ratings yet
ADB & UNCTAD - Kartikey
6 pages
Humanitarian Law Revealed: Legal Protections in Conflict Zones
From Everand
Humanitarian Law Revealed: Legal Protections in Conflict Zones
Quinten J. Tenley
No ratings yet
Trade Under Duress: Examining the Legality, Legitimacy, and Effectiveness of Unilateral Trade Measures
From Everand
Trade Under Duress: Examining the Legality, Legitimacy, and Effectiveness of Unilateral Trade Measures
Pasquale De Marco
No ratings yet
Slowly Improving Human Protection: The normative character of R2P - Responsibility to Protect - and how it can slowly modify States behavior on Human protection
From Everand
Slowly Improving Human Protection: The normative character of R2P - Responsibility to Protect - and how it can slowly modify States behavior on Human protection
Rafael Luchini
No ratings yet
International Economics
No ratings yet
International Economics
5 pages
ICLR Volume 1 (Third Article)
No ratings yet
ICLR Volume 1 (Third Article)
11 pages
Lords of The World- Control Systems Unveiled
From Everand
Lords of The World- Control Systems Unveiled
Silvio Guerrinha
No ratings yet
Ch.1. Lecture 1. INTRODUCTION TO INTERNATIONAL TRADE LAW
No ratings yet
Ch.1. Lecture 1. INTRODUCTION TO INTERNATIONAL TRADE LAW
6 pages
Trade Barriers Hurt
From Everand
Trade Barriers Hurt
Gideon Fairchild
No ratings yet
The Geneva Protocol
From Everand
The Geneva Protocol
David Hunter Miller
No ratings yet
Jürgen Kurtz, 2 - History
No ratings yet
Jürgen Kurtz, 2 - History
48 pages
A Brief History of The WTO
No ratings yet
A Brief History of The WTO
7 pages
15.0 Pp 418 493 the Unilateral Option Extraterritorial Assertion of Jurisdiction
No ratings yet
15.0 Pp 418 493 the Unilateral Option Extraterritorial Assertion of Jurisdiction
76 pages
14.0 Pp 366 417 Regional Competition Law and Policy
No ratings yet
14.0 Pp 366 417 Regional Competition Law and Policy
52 pages
13.0 Pp 275 365 Competition Law and Policy in Developing Countries
No ratings yet
13.0 Pp 275 365 Competition Law and Policy in Developing Countries
91 pages
Competition Law - L.E. Gomomo - Unit 3(1)
No ratings yet
Competition Law - L.E. Gomomo - Unit 3(1)
3 pages
Competition Law - L.E. Gomomo - Unit 4(1) Abuse of Dominance
No ratings yet
Competition Law - L.E. Gomomo - Unit 4(1) Abuse of Dominance
31 pages
Tender Award Details-Weekly 07-03-2024
No ratings yet
Tender Award Details-Weekly 07-03-2024
6 pages
Overviewof Fault Detection Approachesfor Grid Connected Photovoltaic Inverters
No ratings yet
Overviewof Fault Detection Approachesfor Grid Connected Photovoltaic Inverters
31 pages
Autocorrelation-Applied Tests
No ratings yet
Autocorrelation-Applied Tests
16 pages
Case Ih Dx31 Dx34 Tractors Repair Manual
No ratings yet
Case Ih Dx31 Dx34 Tractors Repair Manual
8 pages
Assignment Cover Page: RMIT International University Vietnam
No ratings yet
Assignment Cover Page: RMIT International University Vietnam
4 pages
Chapter 7: Periodic Trends WS: More Exercises
No ratings yet
Chapter 7: Periodic Trends WS: More Exercises
2 pages
MPox Situation in Africa - African Union
No ratings yet
MPox Situation in Africa - African Union
3 pages
Blantyre International University
No ratings yet
Blantyre International University
5 pages
Lecture 3b-Rolling Forging Drawing Extrusion
No ratings yet
Lecture 3b-Rolling Forging Drawing Extrusion
85 pages
CH 14 FDs and Normalization PDF
No ratings yet
CH 14 FDs and Normalization PDF
55 pages
Introduction To The Philosophy of The Human Person Quarter 1 - Module 3.2 The Human Person As An Embodied Spirit
No ratings yet
Introduction To The Philosophy of The Human Person Quarter 1 - Module 3.2 The Human Person As An Embodied Spirit
2 pages
Gender Based Violence
No ratings yet
Gender Based Violence
29 pages
MEGA_GR_7_ENGLISH_1
No ratings yet
MEGA_GR_7_ENGLISH_1
7 pages
Khan Yasir. Governance of Caliph Abu Bakr
No ratings yet
Khan Yasir. Governance of Caliph Abu Bakr
4 pages
2018 Raul Marino EW28_Marino_Payne_Fowler_Wright_Brodnik_Arifin_Ramirez_paper (1)
No ratings yet
2018 Raul Marino EW28_Marino_Payne_Fowler_Wright_Brodnik_Arifin_Ramirez_paper (1)
19 pages
Độc Quyền Giải Full Đề Thi (Task 1 - Task 2) Đề Thi Ngày 020319 by Ngocbach
No ratings yet
Độc Quyền Giải Full Đề Thi (Task 1 - Task 2) Đề Thi Ngày 020319 by Ngocbach
8 pages
International Finance: THE GOLD STANDARD (1876-1913)
No ratings yet
International Finance: THE GOLD STANDARD (1876-1913)
20 pages
Untitled
No ratings yet
Untitled
11 pages
Enjoy Kwanzaa Newsletter by Slidesgo
No ratings yet
Enjoy Kwanzaa Newsletter by Slidesgo
41 pages
PDF HF 110 Rev C Web PDF - Compress
No ratings yet
PDF HF 110 Rev C Web PDF - Compress
80 pages
All AMAT Questions
No ratings yet
All AMAT Questions
406 pages
466 Full PDF
No ratings yet
466 Full PDF
5 pages
A Sustainable Development in Art Education: Through Art Gallery and Museum
No ratings yet
A Sustainable Development in Art Education: Through Art Gallery and Museum
10 pages
Document - 2024-07-26T111956.295
No ratings yet
Document - 2024-07-26T111956.295
7 pages
HANA Modeling Exercises
100% (1)
HANA Modeling Exercises
13 pages
English Files
100% (1)
English Files
12 pages
Chapter 2 The Classical Linear Regression Model (CLRM)
No ratings yet
Chapter 2 The Classical Linear Regression Model (CLRM)
20 pages
Love, Sex & Marriage in the Middle Ages; A Sourcebook Conor Mccarthy download
100% (1)
Love, Sex & Marriage in the Middle Ages; A Sourcebook Conor Mccarthy download
48 pages
What Is Non
No ratings yet
What Is Non
15 pages
B3 - ARB120 - SR Belimo Three Way Valves
No ratings yet
B3 - ARB120 - SR Belimo Three Way Valves
3 pages

17.0_pp_541_578_The_multilateral_option_cooperation_through_binding_and_non-binding_commitments

Uploaded by

17.0_pp_541_578_The_multilateral_option_cooperation_through_binding_and_non-binding_commitments

Uploaded by

Chapter 10

The multilateral option: cooperation

This chapter will examine the third of the three internationalisation

1. Multilateralism through binding obligations

(A) Past developments

I. The Draft Havana Charter

II. The ECOSOC draft convention

III. Engaging the GATT

IV. The Munich Group’s code

V. Towards the WTO option

(B) Reaching the present

(C) Contemplating the future

I. Proceeding on the basis of a multilateral agreement

(a) Arguments in favour In proposing the idea of building a WTO

(b) Arguments against The WTO is a trade organisation. This fact on

(i) The US scepticism The position of the USA on the appropriateness

(ii) The EU enthusiasm The European Union – speciﬁcally the

(iii) The educational approach of African countries Chapter 7 above

(iv) Korea’s vision of internationalisation through transition Korea has

(a) Advantages A number of advantages are attached to the conver-

(i) Sovereignty and related considerations An obvious argument that

(iii) Relief for ﬁrms Convergence of different competition laws offers

(iv) Removing hindrances to market access Convergence is likely to

(b) Disadvantages Offsetting these advantages are some disadvan-

(i) An inherently long process It would not be difﬁcult, especially in the

(iii) Deﬁning competition It is not clear whether countries agree on

2. Multilateralism through non-binding commitments

(A) Assessing the chances non-binding multilateralism

II. Reasons for ‘popularity’, advantages etc.

(B) The evolution of non-binding multilateralism so far

III. The ICN

(a) Conﬂict of jurisdiction principles The ICN recognised at a very

(b) Merger notiﬁcation principles Anyone who is familiar with the

(c) Merger review period principles The issue of review period in

(d) Notiﬁcation form principles Looking around the world, one is

(f) Procedural principles The ICN has formulated a number of

You might also like