Competition Provisions - Competition Law - Lecture Slides, Slides of Competition Law and Policy

Download Competition Provisions - Competition Law - Lecture Slides and more Slides Competition Law and Policy in PDF only on Docsity! Competition Provisions in RTAs 1 Docsity.com Outline • Competition Related Provisions (CRPs) and Regional Trade Agreements • Promoting Co-operation in enforcement between agencies • Way Forward: development Issues concerning bilateral and RTAs with CRPs 3 Docsity.com 6 Africa Asia Latin America and the Caribbean Agreements with the EU - CEMAC, UEMOA/WAEMU - COMESA, EAC - SACU, SADC - ASEAN - SAARC - APEC - MERCOSUR - Andean Community - CARICOM - NAFTA (+ US & Canada) - Latin American FTAs (US-Peru, US- Colombia, US- Chile, CAFTA-DR-US) Which Regional Trade Agreements containing CRPs are we referring to? - EFTA -Pre-accession agreements -Euromed, EU-SA TDCA, EU-Mexico, EU-Chile - EPAs? Docsity.com • Agency-to-agency - ATAs or agreements of mutual legal assistance – MLATs • Informal co-operation e.g. through the ICN – Seemingly more efficient and less burdensome than RTAs – Value added over spontaneous cooperation between agencies – Likely to assist the evolution of cooperation (including follow-on agreements) • Technical cooperation without commitments (non-enforcement related cooperation) – Non-reciprocal facility – Provisions on Special and Differential Treatment 7 Which agreements containing CRPs are we referring to? (Cont’d) Proliferation of cooperation agreements other than formal integration agreements Docsity.com 8 Agreements including competition provisions (*) UE Style NAFTA Style Agreements included •Chile with EU, EFTA, Korea •Mexico with con: EFTA, EU, Japan •Others: Costa Rica-Canada, Panama-Singapore •Chile with Canada, Central America, US, Mexico •Mexico with: Israel, Chile, Uruguay •Others: Central America - Panama, Panama- Taiwan, Peru-US, Colombia- US Objetives Commitment to apply laws as a way to avoid that anticompetitive practices hinder benefits resulting from liberalization. To promote cooperation and coordination To adopt or maintain a legislation or ensure its enforcement; to promote trade and investment, to recognize the importance to cooperate and coordinate, to promote efficiency and consumer welfare included in some cases. Basic contents Detailed commitments to coordinate and cooperate including: notification, coordination on enforcement, consultations and technical assistance; eventually negative or positive comity. References to monopolies and State enterprises. To promote cooperation, transparency and consultation. Agreements usually followed by ATAs. Dispute Settlement Mechanism Not aplicable to competition. Possible consultation. Not aplicable to some provisions; basically addresses monopolies and State enterprises. *Source: Silva & Alvarez: Cooperación en políticas de competencia y acuerdos comerciales de América Latina y el Caribe: desarrollo y perspectivas. ECLAC, 2006 Docsity.com 11 – Agreements signed with pre-accession countries (Turkey, Croatia, Macedonia) – Agreements with non accession countries: • European Neighbourhood Policy (ENP)/Euro-Med countries (1995). • Other countries, e.g. South Africa TDCA (1999), Mexico (2000), Chile (2002) • Economic Partnership Agreements with between the EU and ACP countries Dedicated cooperation agreements (inter-agency): – MoU (Korea) (2004), – Enforcement cooperation agreements (United States(1991) , Canada, Japan) European Competition Network (ECN) RTAs and Competition Policy including the EU Docsity.com Competition rules in non pre-accession RTAs Content of the Agreements: – Main aim: to challenge anti-competitive practices and distortionary state aids that would be illegal under EU law EU-South Africa(SA) TDCA (1999): – Opportunities for securing market access in both directions. – In merger cases in SA, informal cooperation has taken place, even though not covered by the TDCA. EU-Mexico – Large number of notification provisions, used predominantly by Mexico (31 as opposed to 1) Euro-Med: – More harmonization than EU-SA or EU-Mexico. Promise of end to use of countervailing duties if EU State aid rules applied 12 Docsity.com 13 EU FTAs Substance of competition policy Reference to legislation Technical cooperation Mergers & acquisitions Abuse of dominant position Concerted practices Public (state- aid) Mutual recognition of legislation Sole reference to EU legislation Ban on positive discrimination for commercial state monopolies Ban on special an exclusive rights for (public) enterprises Algeria & Lebanon MED 1     Israel MED 2      Morocco, Jordan, Palistinian authority & Tunisia MED 3       South Africa      Mexico      Chile       Szepesi, S. (2004) «Comparing EU free trade agreements, Competition Policy and State Aid » European Center for Development Policy Managment (ECDPM) Evolving characteristics of competition provisions in EU FTA’s Docsity.com Competition Provisions in RTAs Issues that merit further discussion (dissemination phase) cont’d Questions related to the ‘international’ implications of competition provisions in RTAs include: • In what ways, have competition provisions fostered cooperation between agencies on actual enforcement cases? • What are the Pros and Cons of binding competition enforcement issues? • What disputes have arisen on CLP between signatories of agreements? How were they solved? • What is the relationship between cross-border mergers and acquisitions and implementation of CRPs in bilateral and RTAs? 16 Docsity.com Questions related to the ‘National’ implications of the implementation (or not) of agreements: • To what extent have RTAs been used to bring forward the date of enactment of a competition law? How did the RTA existence or negotiation affect the political economy of competition law enactment and enforcement? • In what ways, if at all, have competition provisions strengthened the deterrent effect of national laws? • How can bilateral and RTAs contribute to strengthen the powers, budget and resources of competition agencies? 17 Competition Provisions in RTAs Issues that merit further discussion (dissemination phase) cont’d Docsity.com Competition Provisions in RTAs Issues that merit further discussion (dissemination phase) cont’d • However, we should not only consider competition chapters of regional trade agreements but also recognize that there may be competition principles in other chapters of the agreement.* – For example, in sector specific chapters such as telecom services, transportation or financial services. • Competition principles may also be found in provisions dealing with government procurement, IP and investment. 18 *Anderson & Evenett 2006 forthcoming Docsity.com 21 • Cooperation initiated by an FTA and reinforced by an ATA (although not necessarily one precedes the other) • Notifications provide: • early warnings • channels of communication • send a clear signal to undertakings that agencies take antitrust enforcement seriously • Consultations and exchanges of information: • opportunity for agencies to offer support, advice and experience Key elements in promoting cooperation*: *Marsden (2005) Docsity.com Key elements in promoting cooperation cont’d. • Distinction between « soft law » and « hard law » • Hard laws are legally binding, relatively precise and delegate legal authority to interpret and implement their scope and substance. • But most agreements exempt competition provisions from dispute settlement • Can cooperation replace binding rules? • New cooperation Instruments* • Assistive notification (burden would fall on the more developed partner) • Positive comity and recourse (mainly borne by the developing country or the less developed partner) 22 *(Mathis, 2006) Docsity.com Some limitations of cooperation agreements* • Soft law obligations: – provisions have been described as `vague and imprecise´ – each party effectively interprets the extent of its obligations – unenforceable in law between the parties – no dispute settlement procedures • Restrictions on exchange of confidential business information: – the arrangements do not require or permit any information exchange that would otherwise not be permissible – this appears to be the chief limitation on cooperation – The definition of confidential information, as well as its potential use were identified as areas which need further study 23 *(Marsden, 2006) Docsity.com Important areas for further research International Cooperation • Prepare an Model competition co-operation agreement • Develop a toolkit for the implementation of co-operation and to study the costs and benefits of RTAs containing competition-related provisions as against direct ATAs. • Develop a specific case enforcement procedural framework: big trading powers should not just ignore the concerns of smaller trading partners. 26 Docsity.com 27 CRPs in bilateral and RTAs: impact on economic development and social impact • Is there a possible positive social impact? Contribution to economic welfare, increase of productive capacities and poverty alleviation • What formulations of CLP are most friendly to poverty alleviation and efficient development? • Role of a regional or national competition body in directly targeting issues of social concern: a quest for a long-lasting competition culture. •The link between competition provisions and other aspects of bilateral and RTAs: implications for trade diversion and trade creation • CLP uses exceptions and exemptions to yield to other policies (SMEs, affirmative action, culture preservation) Docsity.com • Linking CLP provisions to the other regulation mandated by the RTA and to existing domestic regulation. For example: How to relate CLP, intellectual property laws, investment protections and consumer protection? • What is the optimal mix as well as the most appropriate sequencing of reforms? • How is balancing of national/regional CLP objectives actually performed when they conflict? 28 CRPs in RTAs: impact on economic development and social impact cont’d Docsity.com 31 Competition and Consumer Protection work in UNCTAD: Ensuring consistency among the three pillars UNCTAD’s interactive and mutually reinforcing pillars of work consist of international consensus-building, research and policy analysis, and technical cooperation. The dissemination phase aims at ensuring the interconnexion between these three pillars • Consensus building • Research • Technical cooperation Docsity.com 32 UNCTAD mandates on Competition Law and Policies - Promoting regional competition law and policies - Fifth UN Conference to Review all Aspects of the UN Set on Competition (Antalya, Turkey, november 2006) launching of the publication Intergovernmental Group on Experts on Competition Law and Policies – 31 October-2 November 2006 •International cooperation in investigating and prosecuting hard-core cartels affecting developing countries; •Cooperation and dispute settlement mechanisms relating to competition policy in regional free trade agreements, taking into account issues of particular concern to small and developing countries Docsity.com