Modelling a WTO Dispute Settlement Mechanism in an International Antitrust Agreement

Abstract

As globalization has continued, the interdependence among countries has deepened so much that virtually every country’s policies now affect the domestic economic and social activities of other countries. Some policies traditionally considered to be solely within domestic jurisdiction have extended into the regulatory regimes of foreign countries. Antitrust policy, generally referred to as “competition policy” in Europe,1 is one such policy. In past years, discrepancies between countries in their stances toward antitrust policy have led to trade conflicts. A typical example is where one country is lax in enforcing its antitrust law while another country adopts a strict antitrust policy, so that companies operating in the latter country face difficulties in exporting their products and services. In fact, even though most trade conflicts still concern traditional areas (e.g. antidumping, subsidies, agriculture, Multifibre Agreement (MFA) quotas), the concept of a “level playing field” has gained, since the 1990s, a great currency in the arena of international trade policy. This is one of the central reasons why trade specialists began to take an interest in antitrust policy. The Kodak–Fuji dispute2 between the United States and Japan exemplifies such tension. In this case, the United Sates attempted to trigger Section 301 of the Trade Act of 19743 to address the unique Japanese distribution structure,4 keiretsu.5 The matter was referred to a World Trade Organization (WTO) dispute settlement