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Sweeney, Brendan J --- "Global Competition: Searching For A Rational Basis For Global Competition Rules" [2008] SydLawRw 14; (2008) 30(2) Sydney Law Review 209

[∗] LLB, B Com (Melb), PhD (Monash), Senior Lecturer, Department of Business Law & Taxation, Monash University.

[1] Although there is a trend towards market-oriented models, it cannot be said that the trend is towards one particular model. In 1999 the Antitrust Law and International Law and Practice Sections of the American Bar Association (‘ABA’) identified seven separate models of competition regimes. See ABA, Report on the Internationalization of Competition Law Rules: Coordination and Convergence: Executive Report (1999) American Bar Association at 1–2 <http://www.abanet.org/antitrust/at-comments/2000/reports/01-00/conv_exe.pdf> accessed 29 December 2006.

[2] In the early 1980s only 20 jurisdictions had a competition law. By 2000 the number of jurisdictions with some form of competition law had grown to 98. See Michal S Gal, Competition Policy for Small Market Economies (2003) at 8.

[3] Ideally a number of the solutions require some form of international oversight. Because of the connections between competition and trade the WTO is an obvious starting point. However, the choice of the WTO presents significant problems which cannot in this paper be analysed at anything like the depth required.

[4] General Agreement on Tariffs and Trade, opened for signature 30 October 1947, 55 UNTS 187 (entered into force provisionally 1 January 1948).

[5] See art 46 of the Havana Charter for an International Trade Organization (‘Havana Charter’) in United Nations Conference on Trade and Employment, Final Act and Related Documents, UN Doc E/CONF.2/78 (1948). The conditions for the entry into force of the Havana Charter, set forth in art 103, were not fulfilled within the prescribed time limit. The ITO failed to obtain US congressional approval and never came into effect. See American Bar Association Sections of Antitrust Law and International Law and Practice, Report on the Internationalization of Competition Law Rules: Coordination and Convergence (1999) American Bar Association at 4 <http://www.abanet.org/antitrust/at-comments/2000/reports/01-00/conv_rpt.pdf> accessed 12 March 2008 (‘ABA Internationalization of Competition Law Rules’). See also John Braithwaite and Peter Drahos, Global Business Regulation (2000) at 177. See also Spencer Weber Waller, ‘Neo-Realism and the International Harmonization of Law: Lessons from Antitrust’ (1994) 42 University of Kansas Law Review 557 at 558–9.

[6] Treaty Establishing the European Economic Community, opened for signature 25 March 1957, 298 UNTS 11, arts 85 and 86 (entered into force 1 January 1958).

[7] On the history of competition law in Japan see, for example, Alex Y Seita & Jiro Tamura, ‘The Historical Background of Japan’s Antimonopoly Law’ (1994) University of Illinois Law Review 115; Hiroshi Iyori & Akinori Uesugi, The Antimonopoly Laws and Policies of Japan (1994).

[8] Singapore Ministerial Declaration, WTO Doc WT/MIN(96)/DEC (1996) [20]. The WTO was established by the Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867–9 UNTS 1, 33 ILM 1125 (entered into force 1 January 1995). The WTO Ministerial Conference in Marrakesh in April 1994 had identified competition policy as one issue amongst a number that required further investigation: See Agreement on Trade-Related Investment Measures, opened for signature 15 April 1994, 1869 UNTS 299, 33 ILM 1197, art 9 (entered into force 1 January 1995).

[9] The working group was known as the Working Group on the Interaction between Trade and Competition Policy (‘WGTCP’).

[10] See Eleanor Fox, ‘Competition Law’ in Andreas F Lowenfeld, International Economic Law (2002) at 379–383.

[11] See Doha Work Programme, WTO Doc WT/L/579 (2004) [1(g)] (Decision Adopted by the General Council on 1 August 2004).

[12] The ICN was created as a formal vehicle for domestic competition agencies to share ideas, strategies and some limited information with the aim of improving the enforcement of domestic-based rules. It derives its creative inspiration from the findings of the ICPAC Report: See International Competition Policy Advisory Committee to the Attorney General and the Assistant Attorney General for Antitrust, United States of America Congress, Final Report (2000). The ICN is described by US authorities as a ‘virtual network’. It has no headquarters. See R Hewitt Pate, ‘The DOJ International Antitrust Program — Maintaining Momentum’ (Speech delivered at the American Bar Association, Section of Antitrust Law, 2003 Forum on International Competition Law, New York, 6 February 2003).

[13] See Oliver Budzinski, ‘The International Competition Network: Prospects and Limits on the Road Towards International Competition Governance’ (2004) 8 Competition and Change 223.

[14] See, for example, David Gerber, ‘Is Reconciliation Possible? The US – European Conflict Over the Globalization of Antitrust Law: A Legal Experience Perspective’ (1999) 34 New England Law Review 123 at 125. See also Alan O Sykes, ‘Externalities in Open Economy Antitrust and their Implications for International Competition Policy’ (1999) 23 Harvard Journal of Law and Public Policy 89 at 93–4; Eleanor Fox, ‘Global Markets, National Law, and the Regulation of Business: A View from the Top’ (2001) 75 St John’s Law Review 383 at 392; Andrew Guzman, ‘Antitrust and International Regulatory Federalism’ (2001) 76 New York University Law Review 1142 at 1152–5. Under public choice analysis the welfare deficit is likely to be even greater.

[15] See, for example, the tensions created as a result of the application of US antitrust law to activities of the uranium cartel, a cartel formed in response to US policies designed to protect its domestic uranium producers by barring non-US producers from US enrichment services. See In re Uranium Antitrust Litigation [1980] USCA7 143; 617 F 2d 1248 (7th Cir, 1980) (the Westinghouse Uranium case). For a discussion of the case see, for example, Warren Pengilley, ‘Extraterritorial Effects of the US Commercial and Antitrust Legislation: A View from Down Under’ (1983) 16 Vanderbilt Journal of Transnational Law 833.

[16] In the wake of Westinghouse Uranium [1980] USCA7 143; 617 F 2d 1248 (7th Cir, 1980) evidence-blocking legislation was passed by Britain, Canada, Australia, New Zealand and South Africa.

[17] The literature reveals a preference for decentralised competition regulation, although the reasons for doing so vary. The literature is now fairly extensive. See, for example, Frederic Jenny, ‘Competition Law and Policy: Global Governance Issues’ (2003) 26 World Competition 609, 620 arguing that a comprehensive competition regime ‘is politically unrealistic at the multilateral level both because of the importance of the differences in levels of economic development of countries around the world and because of the importance of the abandonment of national sovereignty by each country that it implies’. See also Michal S Gal, Competition Policy for Small Market Economies (2003) (the appropriate competition regime varies with the size and level of development of the economy); Ulrich Immenga, ‘Internationalization of Competition Laws: Levels of Disparities’ in Tzong-Leh Hwang & Chiyuan Chen (eds) The Future Development of Competition Framework (2004) at 5–9 (states have different enforcement preferences); Karl Meessen, ‘Competition of Competition Laws’ (1989) 10 Northwestern Journal of International Law and Business 17; Karl M Meessen, Economic Law in Globalizing Markets (2004) at 94 (regulatory competition is more likely to produce optimal outcomes than a GCA); Wolfgang Kerber, ‘An International Multi-Level System of Competition Laws: Federalism in Antitrust’ in Josef Drexl (ed), The Future of Transnational Antitrust — From Comparative to Common Competition Law (2003). Finally, the International Competition Network (ICN), an organisation of national competition authorities, takes the same view: see ICN, A Statement of Mission and Achievements up until May-2005 at 2.

[18] Report of the Meeting of the 11–13 March 1998, WTO Doc WT/WGTCP/M/4 (1998) [22] (Note by the WGTCP Secretariat).

[19] The categorisation is somewhat ambiguous in that categories (ii) and (iii) could be interpreted as being based on geographic effects, that is, global markets (category (ii)) as opposed to national markets (category (iii)). This categorisation lacks rigour. A market may be international, but the effects on any two states quite different. Equally, just because markets are national does not mean that states must suffer different levels of harm. The interpretation in the text accords with the understanding of the Chair at the time of the WGTCP, Professor Jenny. See WGTCP Report, above n18 at [46].

[20] See General Agreement on Tariffs and Trade, art VI, opened for signature 30 October 1947, 55 UNTS 187 (entered into force provisionally 1 January 1948) and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, opened for signature 15 April 1994, 1868 UNTS 201 (entered into force 1 January 1995).

[21] Broadly speaking, hard core cartels are agreements between competitors designed to increase the welfare of the cartel members at the expense of both consumer welfare and aggregate welfare. See discussion in text accompanying n101.

[22] Since World War Two and the introduction of the GATT, tariffs have dropped from an average of 40 percent to 4 percent. See OECD Policy Brief:The Development Dimensions of Trade (2001) OECD at 2 <http://www.oecd.org/dataoecd/20/26/2431455.pdf> accessed 4 October 2006.

[23] But see Joseph Stiglitz, Making Globalization Work: The Next Steps to Global Justice (2006) at 15 arguing that the evidence that trade liberalisation has led to growth is mixed.

[24] See Joseph Stiglitz ‘Trade and the Developing World: A New Agenda’ (1999) 98 Current History 387 at 389–390 arguing that tariff reductions, which have so far served the interests of the industrialised states much more than the developing states, must be more balanced.

[25] See American Bar Association Sections of Antitrust Law and International Law and Practice, Report concerning Private Anticompetitive Practices as Market Access Barriers (1999) American Bar Association at 7–8 <http://www.abanet.org/antitrust/at-comments/2000/reports/01-00/ma_rpt.pdf> accessed 12 March 2008 (‘ABA Report on Market Access’); ICPAC Report, above n12 at 203-209. See also OECD, Trade and Competition Policies for Tomorrow (1999).

[26] Government involvement may be more direct than a failure to enforce the state’s competition law. Many competition regimes make provision for authorising or exempting particular conduct. In such cases the state, through its competition authority, directly authorises the private barriers.

[27] For a discussion on the issue of private import barriers see UNCTAD, Exclusionary Anti-competitive Practices, Their Effects on Competition and Development, and Analytical and Remedial Mechanisms UNCTAD/DITC/CLP/2005/4 (2005); Philip Marsden, A Competition Policy for the WTO (2003); Brendan Sweeney, ‘Globalisation of Competition Law and Policy: Some Aspects of the Interface between Trade and Competition’ [2004] MelbJlIntLaw 15; (2004) 5 Melbourne Journal of International Law 375.

[28] See OECD Joint Group on Trade and Competition Trade and Competition Policies: Options for Greater Coherence (2001) at 16; ABA Report on Market Access, above n25 at 24. ICPAC Report, above n12 at 224–5 concluded that the evidence ‘while uneven, is sufficient to show that private, governmental, and mixed public-private restraints that inhibit market access are a problem’.

[29] See ICPAC Report, above n12 at 211–219. See also the Annual Reports of the Working Group on the Interaction between Trade and Competition Policy (‘WGTCP’) at the WTO. The reports are available at the WTO website: see <http://www.wto.org/english/tratop_e/comp_e/comp_e.htm> (accessed 4 October 2006).

[30] See ABA Report on Market Access, above n25 at 8. Many of the complaints made by US traders follow a similar pattern, often with Japan as the subject of the complaint. The exporter complains that despite having a competitive product at a competitive price, it has been unable to make any inroads into the Japanese market. The exporter then points to some circumstantial evidence that seems to implicate local producers or local buyers and local government in anti-competitive conduct. The exporter then draws the conclusion that the anti-competitive conduct must have occurred and that it must be the cause of the exporter’s failure to make sales. See also ABA, Report on Market Access, above n25 at 6–19.

[31] Contrast UNCTAD Report, Exclusionary Anti-competitive Practices, Their Effects on Competition and Development, and Analytical and Remedial Mechanisms, above n27 at 3.

[32] See Stiglitz, Making Globalization Work, above n23 at 16.

[33] Robert Hudec, ‘A WTO Perspective on Private Anti-Competitive Behavior in World Markets’ (1999) 34 New England Law Review 79 at 82–3.

[34] Ibid. See also Julian Epstein, ‘The Other Side of Harmony: Can Trade and Competition Laws Work Together in the International Marketplace?’ (2002) 17 American University International Law Review 343 at 364.

[35] See Eleanor M Fox, ‘International Antitrust and the DOHA Dome’ (2003) 43 Virginia Journal of International Law 911 at 916; Jürgen Basedow & Stefan Pankoke, ‘General Report’ in Jürgen Basedow (ed), Limits and Control of Competition with a View to International Harmonisation (2002) at 27–8; William E Kovacic, ‘Extraterritoriality, Institutions, and Convergence in International Competition Policy (2003) 97 American Society of International Law 309 at 310. American Bar Association Sections of Antitrust and International Law, Comments and Recommendations on the Competition Elements of the Doha Declaration (2003) American Bar Association at 10 <http://www.abanet.org/antitrust/at-comments/2003/05-03/doha.pdf> accessed 12 March 2008 (Joint Comments and Recommendations to the United States Trade Representative).

[36] Blocking laws have been used both against the production of evidence and enforcement of judgments. Some states have also used ‘claw-back’ laws to allow defendants to claw-back damages payments. See, for example, Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Australia); Protection of Trading Interests Act 1980 (UK) c 11. See generally Deborah Senz & Hilary Charlesworth, ‘Building Blocks: Australia’s Response to Foreign Extraterritorial Legislation’ [2001] MelbJlIntLaw 3; (2001) 2 Melbourne Journal of International Law 69.

[37] See Sweeney, above n27 at 401–411.

[38] See JapanMeasures Affecting Consumer Photographic Film and Paper, WTO Doc WT/DS44/R (1998) (Report of the Panel). The case is discussed in Patricia Isela Hansen, ‘Antitrust In The Global Market: Rethinking "Reasonable Expectations"’ (1999) 72 Southern California Law Review 1601. See also John Linarelli ‘The Role of Dispute Settlement in World Trade Law: Some Lessons From the Kodak-Fuji Dispute’ (2000) 31 Law and Policy in International Business 263 at 334 arguing that Article XXIII of the GATT ought to be interpreted and applied in an expansive manner that furthers the object of trade liberalisation.

[39] JapanMeasures Affecting Consumer Photographic Film and Paper, WTO Doc WT/DS44/R (1998) (Report of the Panel).

[40] Agreement between the European Communities and the Government of the United States of America on the Application of Positive Comity Principles in the Enforcement of their Competition Laws [1998] OJ L 173/28 (signed and entered into force 4 June 1998) art III. This Agreement supplemented the earlier Agreement between the Government of the United States of America and the Commission of the European Communities regarding the Application of their Competition Laws [1995] OJ L 95/47 (signed and entered into force 23 September 1991); corrected at [1995] OJ L 131/38.

[41] Contrast Marsden, above n27, who argues that a non-discrimination agreement is not sufficient. However, the problem that Marsden tackles is broader than the issue of private import barriers jeopardising trade agreements. Essentially Marsden argues for a harmonised competition rule.

[42] Fox, above n35 at 926; Andrew T Guzman, ‘Is International Antitrust Possible?’ (1998) 73 New York University Law Review 1501.

[43] Kevin C Kennedy, ‘Foreign Direct Investment and Competition Policy at the World Trade Organisation’ (2001) 33 George Washington International Law Review 585 at 623; ICPAC, above n12 at 23. See also Alan Wolff, ‘The (Notionally) Bridgeable Chasm between Antitrust and Trade Policy’ (2003) 47 New York Law School Law Review 167 at 184. It has been suggested that this problem could be overcome by adding competition experts to the WTO personnel. Alternatively, WTO panels could call upon competition experts as the need arises.

[44] Hudec, ‘A WTO Perspective’, above n33 at 88. See also Wolff, above n43 at 184–5, arguing that the WTO Secretariat demonstrated its inability to handle complex, factually intensive cases in the Japan-Film case. See also Mariana Bode & Oliver Budzinski, ‘Competing Ways Towards International Antitrust: the WTO Versus the ICN’ (2005) Marburg Papers on Economics at 16 <http://www.wiwi.uni-marburg.de/Lehrstuehle/VWL/WIPOL/downloads/free/Volkswirtschaftliche_Beitraege/2005-03-MPE-Gesamt-Bode-Budzinski.pdf> accessed 26 November 2005. See also Paul B Stephan, ‘Against International Cooperation’ in Michael S Greve & Richard A Epstein (eds) Antitrust Jurisdiction in the Global Economy (2004) at 86 arguing that ‘[a]nalogies to trade agreements do not work, because the assumptions, interests and legal tools at stake in competition policy are far less transparent, and therefore far less susceptible to oversight and satisfactory dispute settlement, than those presented by direct trade barriers’.

[45] See, for example, Hudec, ‘A WTO Perspective’ above n33 at 100.

[46] See John O McGinnis & Mark L Movsesian, ‘The World Trade Constitution(2000) 114 Harvard Law Review 511. The focus of this article is on the attempts to include labour and environmental issues in the WTO trade agreements. However, the arguments may also be applied to competition policy. McGinnis and Movsesian warn that any expansion of WTO authority from purely adjudicative trade responsibility into more broad-ranging regulatory powers will attract interest groups which will attempt to divert the WTO into covert protectionism.

[47] Daniel Tarullo, ‘Norms and Institutions in Global Competition Policy’ (2000) 94 American Journal of International Law 478 at 489–492. See discussion in Claus-Dieter Ehlermann & Lothar Ehring, ‘WTO Dispute Settlement and Competition Law: Views from the Perspective of the Appellate Body’s Experience’ (2003) 26 Fordham International Law Journal 1505.

[48] See Bernard Hoekman, ‘Competition Policy and the Global Trading System: A Developing Country Perspective’ (Working Paper No 1735, World Bank, 1997) 19. See also David W Leebron, ‘The Boundaries of the WTO Linkages’ (2002) 96 American Journal of International Law 5 at 26, discussing the possibility of institutional bias where diverse areas of regulation are linked in a single institutional structure.

[49] Robert Litan & Carl Shapiro, ‘Antitrust Policy During the Clinton Administration’ in Jeffrey Frankel & Peter Orszag (eds) American Economic Policy in the 1990s (2002).

[50] See Edward Graham, ‘Internationalizing Competition Policy: An Assessment of the Two Main Alternatives (2003) 48 Antitrust Bulletin 947 at 952 arguing that the mistrust flows in large part from discontent over the results of the TRIPS agreement. The TRIPS Agreement sets out minimum standards for the protection of intellectual property: See Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995), annex 1C (Agreement on Trade-Related Aspects of Intellectual Property Rights) 1869 UNTS 299 (‘TRIPS Agreement’).

[51] See ICPAC Report, above n12 at 267, citing responses of Kenya to the WTO.

[52] See UNCTAD Intergovernmental Group of Experts on Competition Law and Policy, Preliminary Assessment of the Set, [11] UN Doc TD/B/COM.2/CLP/45 (2004).

[53] See, for example, the concerns expressed by India in the Working Group on Trade and Competition at the WTO: WGTCP, Report of the Meeting of the 23–24 April 2002, WTO Doc WT/WGTCP/M17 (2002) [51]. See also UNCTAD, Report, above n27 at [28].

[54] See Joseph E Stiglitz & Andrew Charlton, Fair Trade for All: How Trade Can Promote Development (2005) at 193 (estimating the cost of maintaining a functioning competition agency).

[55] See, for example, Stiglitz, above n23. See also Bernard Hoekman & Petros C Mavroidis, ‘Economic Development, Competition Policy and the World Trade Organization’ (2003) 37 Journal of World Trade 1 at 7.

[56] See, for example, Trade Policy Review United States, WTO Doc WT/TPR/S/126 (2003) ix (Report by the Secretariat, Trade Policy Review Body), detailing various protectionist aspects of US anti-dumping and countervailing duty policy. See discussion below at text accompanying n 79.

[57] See Core Principles in a Trade and Competition Context WTO Doc WT/WGTCP/W/221 (2003) [41]–[42] (Communication from the OECD to the WGTCP).

[58] See Aditya Bhattacharjea, ‘Export Cartels: A Developing Country Perspective’ (2004) 38 Journal of World Trade 331 at 346–7, discussing the cost efficiencies that arise from export cartels.

[59] See Sykes, ‘Externalities in Open Economy Antitrust’, above n14 at 91.

[60] Wherever the members of an export cartel account for a substantial share of domestic production, their export decisions are likely to spill over and influence domestic supplies and prices. Additionally, the exchanges of information that are likely to be necessary to operate the cartel on such matters as prices, costs, capacities and sales policies could lead to conscious parallelism in the domestic market. See Ulrich Immenga, ‘Export Cartels and Voluntary Export Restraints between Trade and Competition Policy’ (1995) 4 Pacific Rim Law & Policy Journal 93 at 125–126.

[61] In Kaldor-Hicks terms, the outcome is efficient. A change in a given state of affairs is regarded as efficient in Kaldor-Hicks terms if the ‘winners’ from the change are able to compensate the ‘losers’ and still be better off than prior to the change, and the maximum amount the ‘losers’ would be prepared to pay to prevent the change is less than the amount the ‘winners’ are prepared to accept as a bribe to forgo the change. Although it must be possible to compensate the losers, actually doing so is not a requirement.

[62] See, for example, Simon Evenett, Margaret Levenstein, & Valerie Suslow, ‘International Cartel Enforcement: Lessons from the 1990s’ (2001) 4 The World Economy 1221 at 1232.

[63] See Report (1998) WTO Doc WT/WGTCP/2 (1998) [89] (WGTCP, report to the General Council); Report on the Meeting of 11–13 March 1998, WTO Doc WT/WGTCP/M/4 (1998) [31] (WGTCP, note by Secretariat); Report (1999) WTO Doc WT/WGTCP/3 (1999) [26] (WGTCP, report to the General Council); Report (2000) WTO Doc WT/WGTCP/4 (2000) [25] (WGTCP, report to the General Council); Report (2002) WTO Doc WT/WGTCP/6 (2002) [27], [36], [57] (WGTCP, report to the General Council); Report (2003) WTO Doc WT/WGTCP/7 (2003) [50]-[52] (WGTCP, report to the General Council).

[64] See, for example, Submission from Japan, WTO Doc WT/WGTCP/W/156 (2000) 4 (WGTCP, Communication from Japan); Report on the Meeting of 1-2 July 2002, WTO Doc WT/WGTCP/M/18 (2002) [35] (WGTCP, note by Secretariat) for the EU view on export cartels responding to the US argument.

[65] Report on the Meeting of 1-2 July 2002, WTO Doc WT/WGTCP/M/18 (2002) [44] (WGTCP, note by Secretariat); Report on the Meeting of 20-21 February 2003, WTO Doc WT/WGTCP/M/21 (2003) [37] (WGTCP, report by Secretariat).

[66] Some support for this view is found in Evernett, Levenstein, & Suslow, ‘International Cartel Enforcement’, above n62 at 1230–2.

[67] Webb-Pomerene Act of 1918, c. 50, 40 Stat 516, codified at 15 USC §§ 61–66 (1994).

[68] Non-Discrimination in the Context of Competition Policy: National Treatment, WTO Doc WT/WGTCP/W/216 (2002) [3] (WGTCP, communication from India); Hardcore Cartels and Voluntary Co-operation, WTO Doc WT/WGTCP/W/241 (2003) [6] (WGTCP, communication from China). See also Report on the Meeting of 20–21 February 2003 WTO Doc WT/WGTCP/M/21 (2003) [110] (WGTCP, note by the Secretariat); Report on the Meeting of 26–27 May 2003 WTO Doc WT/WGTCP/M/22 (2003) [45] (WGTCP, note by the Secretariat) noting comments by China.

[69] See Immenga, ‘Export Cartels’, above n60 at 126. See also Bhattacharjea, ‘Export Cartels – A Developing Country Perspective’, above n 58, 351, who argues that industrial structures are much more concentrated in developing countries than developed countries.

[70] See Report (2002), above n63 at [35]. See also Closer Multilateral Cooperation on Competition Policy: The Development Dimension, WTO Doc WT/WGTCP/W/197 (2002) [50] (WGTCP, communication from UNCTAD).

[71] See, for example, Daishowa International v North Coast Export Co. Ltd, 1982–2 Trade Cases (CCH) 64,774 (ND Cal, 1982), in which Japanese paper manufacturers formed a buyer’s cartel in response to US wood chip manufacturers organising themselves as a Webb-Pomerene association. A Webb-Pomerene association is exempt from US antitrust laws.

[72] See Bhattacharjea, ‘Export Cartels – A Developing Country Perspective’, above n58 at 349.

[73] Immenga, ‘Export Cartels’, above n60 at 129.

[74] See Immenga, ‘Export Cartels’, above n60 at 129. See also Spencer Weber Waller ‘The Ambivalence of United States Antitrust Policy Towards Single-Country Export Cartels’ (1989) 10 Northwestern Journal of International Law and Business 98 at 101, citing former Assistant Attorney General Baker who gave this as a reason why US policy in the 1970s was not actively to pursue foreign export cartels.

[75] See Waller, ‘The Internationalization of Antitrust Enforcement’ above n95 at 397–8.

[76] See Webb-Pomerene Act of 1918, c. 50, 40 Stat 516, 15 USC §§61–66 (2000); Export Trading Company Act, Pub L 97-290, 96 Stat 1233 (1982), 15 USC §§ 4001–21 (2000). In Australia see Trade Practices Act 1974 (Cth) s 51(2)(g). In India see Competition Act 2002 s 3(5)(ii).

[77] See discussion at text accompanying n43.

[78] Bernard Hoekman, ‘Competition Policy and the Global Trading System: A Developing Country Perspective’ (Working Paper No 1735, World Bank, 1997) at 4.

[79] See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, opened for signature 15 April 1994, 1868 UNTS 201 (entered into force 1 January 1995) (‘Antidumping Agreement’).

[80] Id, art 2. Where this cannot be calculated the Antidumping Agreement provides two other methods for calculating the ‘normal value’.

[81] See, for example, Japan Ministry of Foreign Affairs, ‘Submission by the Government of Japan to the Government of the United States Regarding Regulatory Reform and Competition Policy’ (14 October 2001) and (23 October 2002).

[82] See Joseph E Stiglitz, Two Principles for the Next Round. Or, How to Bring Developing Countries in from the Cold (1999) World Bank at 5 <http://www.worldbank.org/knowledge/chiefecon/articles/geneva.pdf> accessed 4 October 2006; Anne O Krueger, ‘Challenges Facing the Multilateral Trading System’ in Lee-Jay Cho & Yoon Hyung Kim (eds) The Multilateral Trading System in a Globalizing World (2000) at 8; Hoekman, above n78 at 1. This is also the view of many international trade law specialists. See John H Jackson, ‘Challenges Facing the Multilateral System: Commentary’ in Cho & Kim at 49–50. See also Raj Bhala, ‘Rethinking Antidumping Law’ (1995) 29 George Washington Journal of International Law & Economics 1 at 8–23.

[83] See Krueger, above n82 at 8; Keith Maskus, Commentary’ in Cho & Kim, above n82 at 114; Michael Trebilcock, ‘Competition Policy and Trade Policy: Mediating the Interface’ (1996) 30 Journal of World Trade 71 at 81. Traditional users of antidumping remedies were the US, the EU, Canada, Australia and New Zealand. These countries dominated antidumping cases until relatively recent times. Since the mid 1990s the number of countries with anti-dumping laws has grown rapidly. By 2001, over 90 countries had enacted such laws, although over 90% of cases still come from just 19 countries. See Chad P Bown, ‘Global Antidumping Database: Version 2.1’ (2006) <http://people.brandeis.edu/~cbown/global_ad/bown-global-ad-v2.1.pdf> accessed 4 October 2006. The number of anti-dumping cases reached a high in 2001 and has been dropping each year since then. See Maurizio Zanaradi, ‘Antidumping: What are the Numbers to Discuss at Doha?’ (2004) 27 The World Economy 403.

[84] See P D Ehrenhaft, ‘Is Interface of Antidumping and Antitrust Laws Possible?’ (2002) 34 George Washington International Law Review 363 at 369. For a comprehensive coverage of views on antidumping see Robert Z Lawrence (ed), Brookings Trade Forum: 1998 (1998). For a presentation of the arguments for and against anti-dumping see Alan Holmer, Gary Horlick & Terence Stewart, ‘Enacted and Rejected Amendments to the Antidumping Law: In Implementation or Contravention of the Antidumping Agreement?’ (1995) 29 International Lawyer 483.

[85] See Krueger, above n82 at 8.

[86] See Trebilcock, above n83 at 77, citing an OECD study which found that ‘dumping posed no threat to competition in more than 90 percent of cases in which the United States and the EU imposed anti-dumping duties in the 1980s’. There is no reason to believe that the situation has changed: see Joseph Stiglitz, Making Globalization Work, above n23 at 91–93, describing US practices.

[87] See Krueger, above n82 at 8–9.

[88] See Frederic M Scherer, ‘International Competition Policy and Economic Development’ in Cho & Kim, above n82 at 68.

[89] See Bruce A Blonigen & Thomas J Prusa, ‘Antidumping’ (Working Paper 8398, National Bureau of Economic Research, July 2001).

[90] See generally Observations on the Distinction between Competition Laws and Antidumping Rules, WTO Doc WT/WGTCP/88 (1998) (WGTCP, communication from US). See also Ehrenhaft, above n84 at 370; Hoekman, above n78 at 19–20.

[91] See, generally, Ehrenhaft, above n84. Trebilcock, above n83 at 77 has argued that non-economic rationales for anti-dumping measures (such as distributive justice or communitarian values) are only likely to be relevant in only a very small number of cases.

[92] See Ehrenhaft, above n84 at 372. It should be noted that temporary, limited relief against import competition is available for restructuring purposes under the Agreement on Safeguards, opened for signature 15 April 1994, 1869 UNTS 154, art 14 (entered into force 1 January 1995) applying art XIX of the GATT, above n4.

[93] See WGTCP, Observations on the Distinction between Competition Laws and Antidumping Rules, above n90 at 1 where the US argued that ‘there is no reasonable foundation for replacing the anti-dumping rules with competition laws or modifying them in a way that would make them reflect competition policy principles. Stated simply, the anti-dumping rules and the competition laws have different objectives and are founded on different principles, and they seek to remedy different problems.’

[94] Jurgen Basedow, ‘International Antitrust: From Extraterritorial Application to Harmonization’ (2000) 60 Louisiana Law Review 1037 at 1049. See also Frederic M Scherer, Competition Policies for an International Economy (1994). See also Krueger, above n82 at 9. Stiglitz & Charlton, above n54 at 129–30.

[95] Spencer Weber Waller, ‘The Internationalization of Antitrust Enforcement’ (1997) 77 Boston University Law Review 343 at 402. See also P J Pierce, Jr., ‘Antidumping Law as a Means of Facilitating Cartelization’ (2000) 67 Antitrust Law Journal 725 at 735 discussing the political attractions of anti-dumping measures. Thomas J Schoenbaum, ‘The International Trade Laws and the New Protectionism: The Need for a Synthesis with Antitrust’ (1994) 19 North Carolina Journal of International Law and Commercial Regulation 393 at 397–402.

[96] Waller, above n95 at 402. See also Pierce, above n95 at 735 discussing the political attractions of anti-dumping measures; Schoenbaum, above n95 at 397–402. See generally Raj Bhala, above n82 at 3–4 describing anti-dumping measures as the defensive weapon of choice from the 1980s onwards in states such as the US, Canada, Australia and the European Union.

[97] See, for example, Bernard Hoekman & Peter Holmes, ‘Competition Policy, Developing Countries and the WTO’ (Working Paper No 2211, World Bank, 1999) at 18.

[98] See generally Pierce, above n95. See also Maskus, above n83 at 116.

[99] See generally WGTCP, Observations on the Distinction between Competition Laws and Antidumping Rules, above n93. See also Ehrenhaft, above n84 at 363. There is considerable political pressure on the US not to change its stance. See House Members Oppose WTO Trade Rules Renegotiation (2001) US Department of State International Information Programs <http://usinfo.state.gov/topical/econ/wto/wwwh01110701.html> accessed 4 October 2006.

[100] Compare the US approach with the EU approach. In the US it is necessary to prove that prices were below cost and that recoupment of losses was a rational possibility: see Brooke Group Ltd v Brown & Williamson Tobacco Corp. [1993] USSC 105; 509 US 209 (1993). The European Court of Justice takes a more expansive approach to predatory pricing: see AKZO Chemie BV v Commission [1986] 3 CMLR 273.

[101] See Ministerial Declaration, WTO Doc WT/MIN(01)/DEC/1 (2001) [25] (WTO Ministerial Declaration, Doha); WGTCP, Report (2002), above n63 at [47]–[64]; WGTCP, Report (2003) above n63 at 11. See also OECD, Recommendation of the Council concerning Effective Action against Hard Core Cartels (1998) C(98)35/FINAL, 3; OECD, Hard Core Cartels (2000); OECD, Second Hard Core Cartel Report (2003) CNM/COMP/TR(2003)7; OECD, Fighting Hard Core Cartels: Harm, Effective Sanctions and Leniency Programmes (2002) at 75. See also the cartel provisions in the UNCTAD Set of Principles for the Control of Restrictive Business Practices: Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, GA Res 35/63, UN GAOR, 35th sess, 83rd plen mtg, UN Doc Res/35/63 (1980). The UNCTAD Principles were recently reaffirmed.

[102] OECD, Hard Core Cartels: Recent Progress and Challenges Ahead (2003) at 8.

[103] In the 1990s after it had made the pursuit of international cartels an antitrust enforcement priority and over the opposition of the Justice Department, the Clinton administration bowed to industry pressure and permitted Alcoa to form a global cartel to stabilise aluminium prices. An attempt by the Bush administration to do the same for steel failed. See Stiglitz, Making Globalization Work, above n23 at 201.

[104] See generally WGTCP, Report (2002), above n63.

[105] See, for example, ICPAC Report, above n12 at 166–8. See also Scott D Hammond, Deputy Assistant Attorney General for Criminal Enforcement Antitrust Division, US Department of Justice, ‘An Update of the Antitrust Division's Criminal Enforcement Program’ (Speech delivered at the ABA Section of Antitrust Law Cartel Enforcement Roundtable: 2005 Fall Forum, Washington, DC, 16 November 2005). See also generally OECD, Hard Core Cartels (2000) and OECD, Joint Global Forum on Trade and Competition, Second Hard Core Cartels Report above n101.

[106] Margaret Levenstein & Valerie Y Suslow, ‘Contemporary International Cartels and Developing Countries: Economic Effects and Implications for Competition Policy’ (2004) 71 Antitrust Law Journal 801 at 806.

[107] See OECD, Competition Committee, Report on the Nature and Impact of Hard Core Cartels and Sanctions against Cartels under National Competition Laws (2002) DAFFE/COMP(2002)7, Annex A (‘OECD, Report on the Nature and Impact of Hard Core Cartels’). For a description of the vitamins case and its aftermath see John M Connor, Global Price Fixing: Our Customers are the Enemy (2001); Harry First, ‘The Vitamins Case: Cartel Prosecutions and the Coming of International Competition Law’ (2001) 68 Antitrust Law Journal 711.

[108] Levenstein & Suslow, ‘Contemporary International Cartels’, above n106 at 802.

[109] Ibid. See generally also Study on Issues Relating to a Possible Multilateral Framework on Competition Policy, WTO Doc WT/WGTCP/W/228 (2003) [293]–[307] (WGTCP, note from Secretariat); UNCTAD Intergovernmental Group of Experts on Competition Law and Policy, Preliminary Assessment of the Set, [41] UN Doc TD/B/COM.2/CLP/45 (2004). Julian L Clarke & Simon J Evenett, ‘The Deterrent Effects of National Anti-Cartel Laws: Evidence from the International Vitamins Cartel’ (2003) 48 Antitrust Bulletin 689.

[110] The evidence on whether global cartel activity has increased is equivocal. See ICPAC Report, above n12 at 164. But see OECD, Second Hard Core Cartel Report, above n101 at [59] unequivocally stating that international cartels are on the increase. No one denies that there has been an increase in enthusiasm driven partly by the use of more effective tools of detection: See OECD, Hard Core Cartels, above n101; ICPAC Report, above n12 at 163–200. See also Tarullo, ‘Norms and Institutions in Global Competition Policy’ above n47 at 479–80.

[111] OECD, Report on the Nature and Impact of Hard Core Cartels, above n107 at 9. See also OECD, Fighting Hard Core Cartels, above n101 at 72.

[112] OECD, Report on the Nature and Impact of Hard Core Cartels, above n107 at 9.

[113] Connor, above n107.

[114] See Levenstein & Suslow, ‘Contemporary International Cartels’, above n106 at 842.

[115] See Joel Klein, The Antitrust Division's International Anti-Cartel Enforcement Program (Speech delivered at the American Bar Association Antitrust Section Spring Meeting, Washington, DC, 6 April 2000).

[116] See WGTCP, Report (2002), above n63 at 18 in which it is argued that many of the calculations of cartel harm seem to be ‘rather crude estimates’. See also OECD, Report on the Nature and Impact of Hard Core Cartels, above n107 at 5–6.

[117] The difficulty in quantifying cartel harm is one reason many competition regimes do not require evidence of harm to establish a breach.

[118] See Scott D Hammond, An Overview of Recent Developments in the Antitrust Division’s Criminal Enforcement Program (Speech delivered at American Bar Association, Midwinter Leadership Meeting, Kona, Hawaii, 10 January 2005).

[119] Ibid.

[120] See George J Stigler, ‘A Theory of Oligopoly’ (1964) 72 Journal of Political Economy 44, describing the factors at work in determining the success of a cartel. See also Frederic M Scherer & David Ross, Industrial Market Structure and Economic Performance (3rd ed, 1990) at 235–74. See also Peter Asch & Joseph Seneca, ‘Characteristics of Collusive Firms’ (1975) 23 Journal of Industrial Economics 223.

[121] There is a lively discussion about the overall harm done by anti-competitive collusion, particularly in oligopolistic markets. See Robert Bork, Antitrust Paradox: A Policy at War with Itself (with new introduction and epilogue, 1993) at 179–91 arguing that cartels are essentially fragile and in oligopolistic markets do little harm. Compare Jonathon B Baker, ‘Two Sherman Act Section One Dilemmas: Parallel Pricing, the Oligopoly Problem and Contemporary Economic Theory’ (1993) 38 Antitrust Bulletin 143.

[122] See, for example, Dominick T Armentano, Antitrust: The Case for Repeal (1999). Antitrust repealists are often driven by extreme notions of liberalism. Thus, antitrust interferes with the free exercise of private property and the freedom of markets. See Dominick T Armentano, The Myths of Antitrust (1972) at 53.

[123] Public choice theorists reject the notion that intervention is socially beneficial: See generally Charles Rowley & Anne Rathbone, ‘Political Economy of Antitrust’ in Manfred Neumann and Juergen Weigand (eds), The International Handbook of Competition (2004). Deep scepticism about government intervention has been a persistent theme in US thought: See, for example, William H Page, ‘Ideological Conflict and the Origins of Antitrust Policy’ (1991) 66 Tulane Law Review 1.

[124] These are referred to as negative errors. According to non-interventionists cartels will eventually collapse because barriers to entry are generally low and markets are quite robust in their ability to correct market imperfections. These assumptions, based on the organisational theories of economists such as George Stigler, are a common theme in the antitrust analysis of the Chicago school.

[125] These are referred to as positive errors. Unlike negative errors, there are no forces counteracting the regulatory mistake. See, for example, Fred S McChesney, ‘Talking ’Bout My Antitrust Generation: Competition for and in the Field of Competition Law’ (2003) 52 Emory Law Journal 1401 at 1412–3.

[126] Thus, Eleanor Fox has argued: The most libertarian wing of the Chicago School would have preferred no antitrust law at all, unless it prohibited only government interference with the freedom of business. Adherents believed that cartels would self-destruct faster than government intervention could catch them. And the most conservative wing of Chicago School believed that competitor collaboration was usually reasonably necessary to sustain a healthy and productive economy. Eleanor M Fox, ‘What is Harm to Competition? Exclusionary Practices and Anticompetitive Effect’ (2002) 70 Antitrust Law Journal 371 at 378, citing John S McGee, In Defense of Industrial Concentration (1971).

[127] See OECD, Second Hard Core Cartel Report, above n101 at [36]–[47] discussing the tools required to make an anti-cartel enforcement policy effective. See also OECD, Hard Core Cartels: Recent Progress and Challenges Ahead above n102 at 23–27.

[128] See US Department of Justice, Antitrust Division, Status Report: An Overview of Recent Developments in the Antitrust Division’s Criminal Enforcement Program (2004) at 8 <http://www.usdoj.gov/atr/public/guidelines/202531.htm> accessed 19 February 2006 (‘[T]he Leniency Program is the Division’s most effective generator of international cartel cases…’). See also Michael Sullivan & Josée Filion, ‘The Basics of International Cartel Enforcement in Canada’ (2004) Competition Bureau Canada <http://www.competitionbureau.gc.ca/internet/index.cfm?itemID=899 & lg=e> accessed 24 September 2005, arguing that ‘[b]y far the most powerful technique available to detect, investigate, prosecute and ultimately punish and deter cartels has been the use of immunity programs…’. Mr Sullivan is the major case director and strategic policy advisor at the Canadian Competition Bureau. But see Julian Joshua, ‘Competition Law Enforcement: Criminalisation, Cartels, Leniency and Class Actions: A Look into the Future’ (12 October 2004) Competition Law Insight at 3 arguing that as at October 2004 the EC’s leniency program had failed to have any major impact on competition enforcement in the EU. EC officials are much more positive about the role of leniency: See, for example, Neelie Kroes, The First Hundred Days (Speech delivered at the 40th Anniversary of the Studienvereinigung Kartellrecht 1965–2005, International Forum on European Competition Law, Brussels, 7 April 2005). Ms Kroes is Commissioner in charge of competition policy.

[129] See R Hewitt Pate, International Anti-Cartel Enforcement (Speech delivered at 2004 ICN Cartels Workshop, Sydney, Australia, 21 November, 2004).

[130] There is universal support amongst industrialised nations that an effective sanction should be based primarily (though certainly not exclusively) on deterrence rather than on notions of retributive punishment or compensation. See OECD, Report on the Nature and Impact of Hard Core Cartels, above n107 at [35]. See also ICN Working Group on Cartels, Building Blocks for Effective Anti-Cartel Regimes (2005) at 53.

[131] In relation to capacity building a considerable amount of work is being done by the OECD, UNCTAD and by the ICN.

[132] Mostly international single firm conduct is about the activities of suppliers, although it also includes anti-competitive conduct by buyers, for example, by supermarket chains. See, for example, UNCTAD, Commission on Trade in Goods and Services, and Commodities, Market Entry Conditions Affecting Competitiveness and Exports of Goods and Services of Developing Countries: Large Distribution Networks, Taking into Account the Special Needs of LDCs, UN Doc TD/B/COM.1/EM.23/2 (2003). In practice, however, the main concern has been with supplier conduct.

[133] The problem of evidence gathering is likely to be quite different to that experienced in the case of international cartels. The monopolist is much less likely to be engaged in secretive activity. To the extent that its impugned activities are conducted secretly it is likely to be for genuine commercial reasons.

[134] General Electric/Honeywell (COMP/M-2220) [2001] OJ C 074/06. See Alec Burnside, ‘GE, Honey, I Sunk the Merger’ (2002) European Competition Law Review 107. An application for annulment was dismissed by the Court of First Instance: See Honeywell International Inc / General Electric Company v Commission (T-209/01, 210/01) [2005] OJ C 48/26.

[135] See Department of Justice, ‘Statement by Assistant Attorney General Charles A James on the EU's Decision Regarding the GE/Honeywell Acquisition’ (Press Release, 3 July 2001). See Charles A James, ‘International Antitrust in the 21st Century: Cooperation and Convergence’ (Address delivered to the OECD Global Forum on Competition, Paris, France, 17 October 2001).

[136] See Daniel J Gifford & E T Sullivan, ‘Can International Antitrust Be Saved for the Post-Boeing Merger World? A Proposal to Minimize International Conflict and to Rescue Antitrust from Misuse’ (2000) 45 Antitrust Bulletin 55.

[137] The EC was surprised that the US Federal Trade Commission did not challenge the merger given its aggressive attitude to other mergers, while the US viewed the EC’s stance as designed primarily to protect the European manufacturer, Airbus Industrie (which was in receipt of subsidies from three European governments): See ICPAC Report, above n12 at 55. This has been a constant theme of US critiques of EU merger policy, namely that EU policy sometimes protects competitors rather than the process of competition.

[138] Alina Kaczorowska, ‘International Competition Law in the Context of Global Capitalism’ (2000) 21 European Competition Law Review 117 at 117. Concern was also expressed by President Clinton and some members of Congress: See James P Griffin, ‘Jurisdiction and Enforcement: Foreign Governmental Reactions to US Assertions of Extraterritorial Jurisdiction’ (1998) 6 George Mason Law Review 505 at 518. See also generally Barbara Crutchfield George, Lynn Vivian Dymally & Kathleen A Lacey, ‘Increasing Extraterritorial Intrusion of European Union Authority into US Business Mergers and Competition Practices: US Multinational Businesses Underestimate the Strength of the European Commission from GE-Honeywell to Microsoft’ (2004) 19 Connecticut Journal of International Law 571, discussing the tensions between US and EU authorities in a variety of cases.

[139] See Burnside, above n134; George, Dymally & Lacey, above n138 at 596–7.

[140] See US-EU Merger Working Group, Best Practices on Cooperation in Merger Investigations (2002) <http://europa.eu.int/comm/competition/mergers/others/eu_us.pdf> accessed 4 October 2006.

[141] See ICN Merger Working Group: Investigation and Analysis Subgroup, ICN Merger Guidelines Workbook (2006). See also ICN Merger Working Group, Investigative Techniques Subgroup, Investigative Techniques Handbook for Merger Review (2005).

[142] Of course, if B is unable to enforce its judgment against F and F chooses to ignore that judgment, then the result is under-regulation.

[143] See generally Amanda Cohen, ‘Surveying the Microsoft Antitrust Universe’ (2004) 19 Berkeley Technology Law Journal 333.

[144] For the orders made in the US Microsoft case see US v Microsoft Corporation, 231 F Supp 2d 144 (DDC, 2002). The consent order was made pursuant to Antitrust Proceedings and Penalties (Tunney) Act, codified at 15 USC §§ 16(b)-(h). A similar order was made in respect of those actions that had not been settled by compromise. An appeal against this order was dismissed in its entirety: See Commonwealth of Massachusetts v Microsoft Corp, [2004] USCADC 140; 373 F 3d 1199 (DC Cir, 2004).

[145] Commission Decision of 24 March 2004 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-3/37.792 Microsoft) [2004] EC Comm 12 (‘EC-Microsoft decision’) upheld by the Court of First Instance in Microsoft Corp v Commission of the European Communities (T-201/04) [2007] ECR I-xxx. See EC, ‘Commission concludes on Microsoft investigation, imposes conduct remedies and a fine’ (Press Release IP/04/382, 24 March 2004). The Commission’s remedies were altered slightly by the Court of First Instance.

[146] Ibid.

[147] See, for example, the response of certain members of the US House of Representatives International Relations Committee to the EC’s Microsoft decision in 2004: ‘Open letter to European Union Competition Commissioner Mario Monti’ CNET (2004) <http://news.com.com/House+letter+Windows+issue+not+a+concern+for+EU/2100-1012_3-5178964.html?tag=nl> accessed 28 February 2006. The complaining representatives were evenly split between Republicans and Democrats, suggesting a national rather than a partisan reaction.

[148] See Department of Justice, Antitrust Division, ‘Assistant Attorney General for Antitrust, R Hewitt Pate, Issues Statement on the EC's Decision in its Microsoft Investigation’ (Press Release, 24 March 2004). See also R Hewitt Pate, ‘Roundtable Conference with Enforcement Officials’ (Paper delivered at American Bar Association, Section of Antitrust Law Spring Meeting Washington, DC, 2 April, 2004).

[149] See Korea Fair Trade Commission, The Findings of the Microsoft Case (7 December 2005) 3–4 <http://ftc.go.kr/data/hwp/micorsoft_case.pdf> accessed 24 March 2006. See also Department of Justice, ‘Statement of Deputy Assistant Attorney General J Bruce McDonald Regarding Korean Fair Trade Commission's Decision in Its Microsoft Case’ (Press Release, 7 December 2005). Microsoft has appealed.

[150] KFTC Findings, above n149 at 3–4.

[151] Id at 4.

[152] Ibid.

[153] See above n140.

[154] See above n141.

[155] The ICN has proposed a working group to look into unilateral conduct. See ICN, ‘Unilateral Conduct Working Group Draft Mandate’ (2006) <http://www.internationalcompetitionnetwork.org/media/library/conference_5th_capetown_2006/UnilateralConductWorkingGroupDraftMandate.pdf> > accessed 13 March 2008.

[156] See, for example, Robert Bork, Antitrust Paradox: A Policy at War with Itself (with new introduction and epilogue, 1993); Richard A Posner, ‘The Chicago School of Antitrust Analysis’ (1979) 127 University of Pennsylvania Law Review 925; Frank H Easterbrook, ‘The Limits of Antitrust’ (1984) 63 Texas Law Review 1.

[157] See, for example, Joseph F Brodley, ‘The Economic Goals of Antitrust: Efficiency, Consumer Welfare, and Technological Progress’ (1987) 62 New York University Law Review 1020. More recently post-Chicago scholars have accepted the Chicago school’s concentration on efficient outcomes but have insisted that strategic market conduct is an important factor in determining those outcomes. See, for example, Thomas G Krattenmaker & Steven Salop, ‘Anticompetitive Exclusion: Raising Rivals’ Costs to Achieve Power over Price’ (1986) 96 Yale Law Journal 209. For an analysis of post-Chicago antitrust see Herbert Hovenkamp, ‘Antitrust Policy after Chicago’ (1985) 84 Michigan Law Review 213. For a useful overview of the debate see Michael S Jacobs, ‘An Essay on the Normative Foundations of Antitrust Economics’ (1995) 74 North Carolina Law Review 219; Stephen G Corones, Competition Law in Australia (3rd ed, 2004) at 20–25.

[158] Diversity may be preferred to harmonisation for a variety of reasons: to reflect different competition objectives; to cater for different economies and different levels of development (see, for example, Michal S Gal, Competition Policy for Small Market Economies (2003); to foster a competition of competition regimes (see Karl Meessen, ‘Competition of Competition Laws’ (1989) 10 Northwestern Journal of International Law and Business 17; Karl M Meessen, Economic Law in Globalizing Markets (2004) at 94); to avoid rule lock-in that can occur with an internationally-agreed set of rules; to reflect federalist theories of regulation (see Paul Stephan, ‘The Political Economy of Choice of Law’ (2002) 90 Georgetown Law Journal 957).

[159] A consumer effects test is a better rule for allocating jurisdiction than an aggregate effects test. The proposed rule is derived from choice of law methodologies that rely on jurisdiction-selection rather than those, popularised in the US, that rely on rule-selection. On choice of law methodologies see generally Peter Machin North & James J Fawcett (eds), Cheshire and North’s Private International Law (13th ed, 1999); Michael Tilbury, Gary Davis & Brian Opeskin, Conflict of Laws in Australia (2002); William Tetley, ‘A Canadian Looks at American Conflict of Law Theory and Practice, Especially in the Light of the American Legal and Social Systems (Corrective vs. Distributive Justice)’ (1999) 38 Columbia Journal of Transnational Law 299; Michael J Whincop & Mary Keyes, Policy and Pragmatism in the Conflict of Laws (2001).

[160] See discussion at text accompanying n155.