Failed WTO Platform for Competition Law Convergence: Evolving Alternate Regime of Mous on Internationalization of Competition Law

Abstract

In July 2004, the Working Group on Interaction between Trade and Competition Policy at WTO was made inactive post decision by General Council at Cancun as the proposal to have a formal multilateral framework to enhance the contribution of competition policy to international trade and development agreed to at Doha could not be taken forward. WTO Platform could not be an appropriate forum for having international competition law regime because of the inherent conflict between national competition legislations and international trade principles. For example, in cases of export cartels, while the national trade measure by a country may be perfectly right, under WTO scene, it facilitates anticompetitive conduct. Further, the conflict between developed and developing countries posed another problem. However, international business requires convergence on at least basic principles of competition law which was attempted by UNCTAD long back in 1980s by proposing a Model Law on Competition which is still being negotiated. WTOs failure led to evolution of the regime of MOUs in which the countries entered into soft agreements in the nature of bilateral (EU-US 1991 agreement), multilateral (ICN, OECD), and regional (ASEAN) including the recent class of Free Trade Agreements (India-EU FTA). This evolution has given rise to a fresh concept of internationalization of competition law which aims towards convergence. The International Competition Network (ICN) has further evolved as a specialized though informal venue for about 120 plus competition agencies to thrash out completion principles aiming towards convergence. The present paper seeks to trace this evolution and evaluate the present position in this regard. The paper would be divided into four parts. The first part would provide an introduction and historical background to internationalization of competition law. Second part would deal with WTO work. The third part would discuss the bilateral MOUs and the fourth part would delve into the newer forms of platform leading to convergence. The paper would seek to assess how far these platforms have been successful in achieving convergence especially in view of hard-core cartels and some of the latest trends of extraditing the violators of competition law across countries like Ian Norris.