Global Competition Enforcement New Players, New Challenges Edited by Paulo Burnier da Silveira & William Evan Kovacic In a short span of years, the landscape of global competition has changed significantly. In particular, international cooperation in competition law enforcement has greatly strengthened the battle against abuse of dominance, cartels, anticompetitive mergers and related political corruption. This thoroughly researched book explains the current situation regarding joint investigations, identifies common problems and considers possible solutions and future developments. In addition to covering issues of competition policy, its authors look in detail at practice in both merger and conduct investigations in a variety of countries. The following aspects of the subject and more are examined in depth: the interface between antitrust and anti-corruption; the digital economy’s challenges to competition authorities; convergent aims and rules among different competition authorities; regional organizations with competition mandates; competition neutrality and state-owned enterprises; and leniency programmes. Although necessarily there is considerable information on major antitrust regimes like those of the United States and the European Union, chapters by local experts highlight lessons to be learned from the work of competition authorities in five continents including Argentina, Australia, Brazil, China, Colombia, India, Japan, Mauritius, Mexico, Peru and South Africa. The contributors include competition enforcers, regulators, academics, practitioners and leading commentators from a range of jurisdictions. Adding up to an authoritative analysis from the enforcer’s perspective, the studies presented in the book clarify the approaches and priorities of competition enforcement authorities – including those of major emerging economies – and provide expert guidance on dealing with transnational investigations. Antitrust lawyers, corporate counsel and interested academics as well as policymakers will benefit immeasurably from this book’s wealth of informative detail.

This paper proceeds from the perspective that the engines of vigorous competition promote development and provide economic and social benefits to consumers and firms and, if markets are subverted by private cartels, law enforcement is necessary to protect consumer welfare. For consumers and corporations alike, much modern trade is conducted with little regard for national borders. The ease of communication, commerce and travel that facilitates international business, however, also increases the risk that anticompetitive behavior will cause harm to consumers and competition in more than one jurisdiction. Thus, modern competition lawyers must counsel their clients in an environment where business is conducted across borders and restraints of trade cause harm internationally and national competition laws can be enforced extraterritorially. Whilst purely domestic commercial activity is plausible, its effect on the global market is arguably virtually de minimis. Since commercial activity in one jurisdiction likely affects other states, legal actors and systems must communicate effectively with each other when adopting and enforcing laws that have multi-national impact. Importantly, legislators and law enforcement officials are already cooperating and competition law is undergoing a process of consolidation and harmonization. On one level, the issues raised by global competition enforcement are purely instrumental: a function of ascertaining whether are there differences in substance or procedure that matter, identifying these areas of divergence, evaluating their significance, and deciding whether and how they should they be resolved and by whom. On a non-utilitarian, non-pragmatic level, it is also important to identify the theoretical bases for any divergences among competition laws and enforcement regimes and to inquire whether such laws and enforcement priorities should be harmonized, and evaluate the justifications for harmonization. There is real value, but also a real cost, in the existence of multiple enforcement agencies. Even though most substantive provisions of competition laws are largely consistent, there have been examples of conflicts, most problematic in major merger cases because the costs of divergence are most acute. However, the potential costs are significant and should be minimized to the greatest extent possible to facilitate global competition while protecting consumers and competition from multinational cartels, restrictive agreements, and monopolies. Vigorous competition is a powerful route to improving the economic and social condition of citizens by allowing them to participate in a fair market economy. The current 90 jurisdictions that have adopted and are enforcing their own competition laws offer the benefits of competition for their citizens and firms doing business in these states. However, since these numerous competition laws may have differing underlying goals, substantive standards, and procedures, there are inefficiencies and costs to firms seeking to compete in multiple jurisdictions. This paper articulates a standard to evaluate whether a particular resolution to inconsistent global enforcement is recommended. Any such model for minimizing conflicts must further the values of competition law and enforcement and reserve sufficient discretion for individual sovereign states to effectuate their own legitimate competitive goals and evaluate the effect of cartels on their own consumers and competitive processes. I argue that the characteristics of such a model system include the following: competition law or laws, and their enforcement regimes, should be predictable, transparent, efficient, non-discriminatory in application, and legitimate or credible. At this time, a supra-national enforcement agency that pre-empts state competition laws and enforcement not is not likely to achieve these goals. Whilst substantive uniformity on core issues is plausible, agreement on non-core issues and underlying norms unlikely to be achieved. Moreover, differences in enforcement priorities and expertise make a uniform law an unappealing option. Voluntary cooperation, consultation and soft harmonization among state competition agencies offers the most promise. Harmonization, especially if the consultative process includes representatives of diverse interests including consumers, is efficient, transparent and credible. To the extent that agreement on core principles and processes is achieved, enforcement will be more predictable and fair.

The Future of International Competition Law Enforcement undertakes an original assessment of the EU's international cooperation agreements in the field of competition law and is uniquely focused on the bilateral sphere, often labelled as a mere 'interim-solution' awaiting a global agreement.

The vast majority of the countries in the world are developing countries—there are only thirty-four OECD (Organisation for Economic Co-operation and Development) countries—and yet there is a serious dearth of attention to developing countries in the international and comparative law scholarship, which has been preoccupied with the United States and the European Union. Competition Law and Development investigates whether or not the competition law and policy transplanted from Europe and the United States can be successfully implemented in the developing world or whether the developing-world experience suggests a need for a different analytical framework. The political and economic environment of developing countries often differs significantly from that of developed countries in ways that may have serious implications for competition law enforcement. The need to devote greater attention to developing countries is also justified by the changing global economic reality in which developing countries—especially China, India, and Brazil—have emerged as economic powerhouses. Together with Russia, the so-called BRIC countries have accounted for thirty percent of global economic growth since the term was coined in 2001. In this sense, developing countries deserve more attention not because of any justifiable differences from developed countries in competition law enforcement, either in theoretical or practical terms, but because of their sheer economic heft. This book, the second in the Global Competition Law and Economics series, provides a number of viewpoints of what competition law and policy mean both in theory and practice in a development context.

A key factor in the emerging relationship between law and economic globalization is how global competition now shapes economies and societies. Competition law is provided by those players that have sufficient 'power' to apply their laws transnationally. This book examines this important and controversial aspect of globalization.

The international dimensions of competition law and policy are most often examined at the level of substantive law. In this legal area both intentional and spontaneous assimilation and harmonization trends can be recognized, which manifest themselves e.g. in comparable approaches to combating particularly harmful restraints (so-called "hardcore cartels"). However, the complex terrain of enforcement law has been mainly ignored up to date. Are there common approaches in this field as well? How are the various competition laws linked with each other in respect to procedural norms? This book conceptualizes "International Competition Enforcement Law" against the backdrop of these issues and at the level of comparative law. The ciphers "cooperation" and "convergence" will serve as the two principle ideas for this book.

Provides a new conceptualization of competition law as economic inequality and its interaction with efficiency become of central concern to policy and decision-makers.