Towards an International Common Law of Competition
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Description
Much of the literature dealing with the internationalization of antitrust focuses either on the extent to which antitrust rules should be harmonized or on the content of those rules. The unexamined assumption of this literature is that harmonization is dependent on some form of legislative action, that is, some form of international treaty that will establish either basic principles or minimum standards for applying antitrust to cross-border economic transactions. Might it be possible, however, that international antitrust rules could develop without international legislative action? Setting aside the question whether harmonization is a good idea, and setting aside the question of the proper harmonized rules, are there mechanisms that might produce a system of international antitrust rules? These questions trigger a second set of issues. The dark side of antitrust harmonization has always been procedure, not the substantive rules of antitrust. By procedure, I mean the institutions through which international antitrust rules will be applied and enforced. Commentators have certainly been well aware that enforcement issues are difficult and important, but these issues have generally not been the prime focus of debate. Rather, they have taken a back seat to what many perceive as the fundamental need for an agreement on substantive antitrust principles. In this paper I would like to explore the unexamined assumption of the need for a "legislative” approach to substantive principles of international antitrust law and to explore the underexamined problem of the institutions of antitrust enforcement. To do so I will contrast two theoretical models, the “WTO model” and the “sovereignty model,” and propose a third, the “networks model,” which I put forward as an evolving synthesis of the other two. It is my thesis that the evolution of a networks model shows both that international antitrust rules can emerge (and are emerging) without an international legislative superstructure and that the tools of the common law can allow us to manage an international system effectively.
Source Publication
Towards WTO Competition Rules: Key Issues and Comments on the WTO Report (1998) on Trade and Competition: Proceedings of the Seminar, Zurich University, 8-10 July 1999, Organized in Cooperation with Marino Baldi, Wolfgang Fikentscher, Ulrich Immenga and Hanns Ullrich
Source Editors/Authors
Roger Zäch
Publication Date
1999
Recommended Citation
First, Harry, "Towards an International Common Law of Competition" (1999). Faculty Chapters. 619.
https://gretchen.law.nyu.edu/fac-chapt/619
