Competition Law in the International Domain: Networks as a New Form of Governance
| Published date | 01 March 2002 |
| Date | 01 March 2002 |
| Author | Imelda Maher |
| DOI | http://doi.org/10.1111/1467-6478.00213 |
JOURNAL OF LAW AND SOCIETY
VOLUME 29, NUMBER 1, MARCH 2002
ISSN: 0263-323X, pp. 111–36
Competition Law in the International Domain: Networks as
a New Form of Governance
Imelda Maher*
Central to the internationalization of competition law has been the
emergence of transnational networks of competition officials and
experts. These networks have operated in three main areas: co-
ordination on enforcement; technical assistance; and moves to develop
overarching competition principles at the level of the WTO. The debate
over the nature of internationalization of competition norms has fallen
into three phases: early failures mainly due to the lack of any network;
politicization of competition policy within a UN context followed by the
emergence of a network primarily focused on the OECD. The current
phase concerns coordination and the attempt to develop a competition
law regime at the WTO level. This process is spearheaded by the
European Union, with the United States of America favouring bilateral
agreements on enforcement and technical assistance only. The way the
debate has changed over the past ten years and how the two main
protagonists have modified their positions, is indicative of the influence
and importance of networks which, while they may give rise to formal
agreements, can operate through soft power and persuasion. What
emerges from the analysis is the centrality of these networks to this
important aspect of contemporary international governance. They
supplement rather than replace more traditional forms of
internationalism and, while they may fundamentally regard themselves
as technocratic, deriving legitimacy from outputs, current pressures on
international policy making require them to attend to the process
aspects associated with legitimacy of democratic regimes.
111
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*Law Program, Research School of Social Sciences, Australian National
University, Canberra, ACT 0200, Australia, and Law Department, London
School of Economics and Political Science, Houghton Street, London WC2A
2AE, England
Earlier versions of this paper were presented at a workshop at the European University
Institute, Florence, 6 May 2000 and at University College London, November 2000.
Thanks to the participants, John Braithwaite, SolPicciotto, and Colin Scott for comments.
The usual disclaimer applies.
INTRODUCTION
The ministerial meeting of the World Trade Organization in Doha in early
November agreed that the negotiations will take place in two years time at
the next ministerial meeting, on multilateral competition rules.
1
This
compromise reflects the division between the United States of America and
the European Union on how and to what extent competition law
2
is and
should be internationalized. The United States government has consistently
advocated a bilateral approach organized around antitrust officials liaising
primarily over enforcement issues with their counterparts in other states, and
with United States officials carrying out an educative and assistance function
for those states with embryonic or non-existent competition regimes. The EU
on the other hand, while sharing the educative ambitions of the United
States, has actively advocated a multilateral approach towards the
development of international competition norms, most recently under the
aegis of the WTO.
3
The EU initially and ambitiously proposed global
competition norms.
4
It has gradually modified its position and now calls for
a Global Competition Network with a wide membership of competition
agencies as well as non-governmental organizations, representatives of
consumer interests, business, the legal professions and academics.
5
This
proposal, following more than a year of talks, is supported by the United
States
6
and thus represents a compromise by both the United States and EU.
The United States has agreed to the establishment of a plurilateral body
albeit one that lies outside any formal international organization, while the
EU has not insisted on competition policy being on the agenda for the Doha
talks. This body will supplement the newly established OECD Global Forum
on Competition which has a narrower membership
7
and will address
specified (and, according to the United States), fairly narrowly drawn
competition problems while the EU sees it as creating a ‘competition
culture’.
112
1 Ministerial Declaration, 14 November 2001.
2 Discussion of competition law here is limited to the regulation of private market
behaviour which restricts competition, including restrictive agreements and abuse of
dominance.
3 Communication from the EC and its Member States WT/WGTCP/W/152, 25
September 2000.
4 EC Commission, Communication to the Council: Towards an International
Framework of Competition Rules COM(96) 284, final.
5 M. Monti, Opening Speech, First OECD Global Forum on Competition Policy,
OECD Paris, 17 October 2001.
6 C.A. James, ‘International Antitrust in the 21st Century: Co-operation and
Convergence’, speech to the OECD Global Forum on Competition, Paris, 17
October 2001.
7 Thirty OECD states, five observers, and twenty-one invited non-members, see press
release, ‘OECD Organises First Global Forum on Competition’, 17 October 2001.
Significantly, the Forum had its first meeting shortly before Doha.
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