This article has been written by Ishita Das, Assistant Professor of Law, National Law University, Assam
There are linkages between international trade and competition policy. Both seek to promote economic welfare, but while the former has ‘international’ characteristics, the latter is implemented mainly by ‘national’ laws. The WTO plays an extremely important role in international economic governance and includes agreements which emphasize the relationship between the two. Several WTO agreements such as the GATT, the GATS, and the TRIPS Agreement contain provisions which indicate the interface between the multilateral trading system and the goals of competition policy through principles of non-discrimination and transparency. Several cases before the WTO, such as the Japan-Films, Mexico-Telecoms, and Canada-Wheat Exports and Grain Imports, also highlight that the WTO is capable of promoting competition concerns.
However, competition being one of the ‘new issues’ was dropped from the Doha agenda in 2004, following the failure of the Cancun Ministerial Conference. While the Singapore Group has become inactive, their work is still relevant for understanding the trade and competition debate. Further, the problems associated with the extra-territorial application of national competition laws, and bilateral arrangements may not be adequate to address cross-border anti-competitive activities. The role of the WTO should be reconsidered and the possibility of negotiating an international agreement regulating competition policy should be assessed seriously.
Keywords: trade, competition, WTO, law, policy
Globalization has led to an increase in international trade, the establishment of businesses in different jurisdictions, and an enhanced dependence for goods and services among various countries. While on one hand, it is advancing economic growth and creating new opportunities, on the other hand, it is generating certain challenges which have to be addressed urgently. Instances of cross-border anti-competitive agreements and mergers are on the rise, and competition authorities across the world are trying to grapple with the problems stemming from such transnational practices. While the twin aims of competition policy are to (a) benefit the consumers and (b) increase the productivity growth, it should not be distorted by anti-competitive conduct. Therefore, there is a need for a proper framework which would take care of the issues with regard to cross-border anti-competitive practices.
Even though international trade has been developing rapidly since the 1990s, the competition laws have been enforced mainly through national efforts. The two exceptions are perhaps the United States (hereinafter referred to as the “US”) and the European Union (hereinafter referred to as the “EU”) which pursue strong national policies to enforce competition law across the borders. Therefore, while many developed countries possess the mechanism to enforce their competition laws aggressively, most developing nations lack appropriate national regimes with regard to competition law. Further, cross-border regimes present tremendous difficulties in developing countries where their competition authorities may not be able to fathom the complexity of the transnational anti-competitive practices. Most countries do not have effective national systems which can deal with cross-border anti-competitive conduct.
Therefore, various organizations such as the International Competition Network (hereinafter referred to as the “ICN”), Organization for Economic Cooperation and Development (hereinafter referred to as the “OECD”), the United Nations Conference on Trade and Development (hereinafter referred to as the “UNCTAD”), and the World Trade Organization (hereinafter referred to as the “WTO”) have suggested the creation of an international framework for the development of competition policy. An ICN/OECD report, for example, emphasizes that an international agreement which allows the proper exchange of information, particularly sensitive or confidential, is desirable. Many scholars have argued that the WTO can provide the requisite support required by this agreement. While the WTO has its share of difficulties with regard to the creation of a multilateral trading agreement which is acceptable to all Member States, there are other options that could be more viable within the multilateral trading system.
The aim of the paper is to provide an insight into the working of the multilateral trading system vis-à-vis competition policy and identify whether the WTO can support in the achievement of competition goals at the global level. While Chapter 2 of the paper explores the interface between international trade and competition policy, Chapter 3 discusses the need for reconsidering the role of the WTO. Chapter 4 provides the concluding remarks.
- The Interface between International Trade and Competition Policy
The objectives of the international trading system and the competition policy framework are to a certain extent similar. Both the systems aim to promote an open market where fairness and equality of economic opportunities exist. Further, transparency and maximization of consumer welfare are sought by both the systems. However, while the international trading system seeks to advance trade liberalization among different nations by reduction of the tariff and non-tariff barriers, the competition policy regime is essentially a system which aims to control anti-competitive conduct within a particular country or region. While international trade law concerns itself with governmental actions or trade measures, competition law or policy deals with both private and government entities. Therefore, both the systems, despite inherent differences, share a common goal of encouraging economic growth in a fair manner. For a better understanding of the interface between international trade and competition policy, it is essential to consider (a) certain provisions and (b) certain cases which establish the link between the two.
- Specific Provisions indicating the Interface between Trade and Competition
The interrelationship between international trade and competition policy has been evident since 1948 through the text of the Havana Charter, specifically, Chapter V which deals with restrictive business practices. It provides that the Member States should take necessary measures and cooperate with the International Trade Organization (hereinafter referred to as the “ITO”) to prevent those business practices which affect international trade by limiting competition through monopolistic behaviour or restricting access to markets. It lists certain practices such as price-fixing, market allocation, and production limitation, as anti-competitive if they have ‘harmful effects’ on the expansion of production or trade.
The Charter lays down the consultation and investigation procedure in those cases where an affected member has reason to believe that restrictive business practices are being carried out. It also empowers the ITO to conduct studies relating to those restrictive business practices which have an effect on international trade and make recommendations to members concerning laws and procedures relevant to the Charter obligations. While the ITO was never realized, the provisions of the Havana Charter play an extremely crucial role in understanding how the international trading regime interacts with competition policy.
While the WTO Agreements do not contain competition policy rules explicitly, some provisions of the General Agreement on Tariffs and Trade (hereinafter referred to as the “GATT”), the General Agreement on Trade in Services (hereinafter referred to as the “GATS”) and the Agreement on Trade-related Aspects of Intellectual Property Rights (hereinafter referred to as the “TRIPS Agreement”) contain references to competition policy. Articles I (dealing with ‘Most-Favoured Nation’) and III (dealing with ‘National Treatment’) lay down the principles of non-discrimination relating to products originating in (a) different foreign countries and (b) between a foreign country and the domestic nation, respectively, to ensure that there is an environment of competitiveness across the world. Article X of the GATT (dealing with Publication and Administration of Trade Regulations) seeks to promote transparency by requiring the publication and administration of trade measures of the Member States.
While Articles II and XVII provide the framework of non-discrimination inter-se Member States, and Article III of the GATS lays down the principle of transparency in relation to trade in services, Articles 4 and 3 state the principle of non-discrimination, and Article 63 of the TRIPS Agreement enshrines the transparency requirement as regards intellectual property covered within the scope of the Agreement. Therefore, the WTO system can be compatible with the competition policy regime, as evident from the references in the GATT, GATS, and the TRIPS Agreement. There have been certain cases before the WTO wherein it has considered issues relating to competition policy or law. Some of these cases have been discussed in the next section.
- Case laws dealing with the Interface between Trade and Competition
The WTO Dispute Settlement Body (hereinafter referred to as the “DSB”) has considered the impact of certain measures on the competition setting in some cases such as (i) the Japan–Film case; (ii) Mexico-Telecoms case; and (iii) Canada-Wheat Exports and Grain Imports case. First, in the Japan–Film case, the United States approached the WTO regarding Japan’s measures affecting the market access of imported photographic film and paper. The genesis of the dispute can be traced back to the complaint filed by the US-based Kodak before the US government under Section 301 of the US Trade Act, 1974. Kodak had contended that the behaviour exhibited by the Japan-based Fuji was anti-competitive as it entered into arrangements with the wholesalers for giving effect to an exclusive relationship, and also with the local distributors for engaging in activities such as resale price maintenance.
The Panel held that Japan’s distribution measures were not discriminatory under Article III: 4 of the GATT as they were neutral with regard to the origin. Therefore, according to the Panel, as the US had failed to establish that ‘less favourable’ treatment was accorded to imported photographic film and paper, there was no violation of the national treatment principle. Further, with regard to the transparency requirement, the Panel held that Japan’s administrative rulings were not in contravention of Article X: 1 of the GATT. From this case, one can infer that as the WTO DSB interprets trade-related provisions in light of competition concerns, the requirements for meeting the anti-competitive thresholds could be different from that provided under various national laws.
Second, in the Mexico–Telecoms case, the United States complained about Mexico’s laws and regulations regulating the supply of telecommunication services. The US argued that the measures maintained by Mexico were anti-competitive in nature as it prevented the market access to US telecommunications operators in its territory. The Panel held that Mexico has violated its WTO obligations under Sections 5 (a) and 5 (b) of the GATS Annex on Telecommunications as it failed to provide ‘reasonable’ and ‘non-discriminatory’ access to its telecommunication sector. Further, Mexico had contravened Section 1 of the Telecommunications Reference Paper by failing to adopt ‘appropriate measures’ to prevent ‘anti-competitive practices’. The Panel also held that Mexico had violated its obligations under Sections 2.1 and 2.2 of the Telecommunications Reference Paper by failing to ensure the process of interconnection at ‘cost-oriented’ rates with regard to the cross-border supply of telecommunication services. This case shows that despite the WTO’s core trade mandate, competition concerns can be accommodated within the multilateral trading regime.
Third, in the Canada–Wheat Exports and Grain Imports case, the United States approached the WTO against Canada’s measures maintained in relation to wheat exports and imports of grain. The US argued that Canada had acted inconsistently with its WTO obligations by engaging in discriminatory practices. The Panel held that Canada had not violated Article XVII: 1 of the GATT (through the conduct of the Canadian Wheat Board), taking into account various factors such as price differentiation methods adopted by the Board for the purpose of its analysis. The Panel, however, held that Canada had violated Article III: 4 of the GATT by adopting certain measures, i.e., Section 57 (c) of the Canada Grain Act and 56 (1) of the Canada Grain Regulations, which discriminated between imported grain and domestic grain. This case indicates that the WTO has the capability to undertake the examination of anti-competitive conduct by considering relevant factors.
Therefore, the WTO, despite its broad trade mandate, can engage in an examination of anti-competitive activities by taking into account the relevant factors and interpret its trade-related provisions in a manner that could promote competition interests. Hence, the goals of the multilateral trading regime are not in contradistinction to the goals of competition policy. However, the current thresholds relating to competition assessments under the WTO Agreements, may not further competition concerns unless there is some modification by way of a separate agreement within the multilateral trading framework. There is a need for reconsidering the role of the WTO and the same has been explored in the next chapter.
- The Need for Reconsidering the WTO’s Role
The WTO plays a central role in international economic governance, along with the Bretton Woods institutions such as the World Bank and the International Monetary Fund (hereinafter referred to as the “IMF”). While the WTO has several agreements dealing with trade in goods, trade in services, and trade-related aspects of intellectual property rights, there is no agreement dealing with competition policy under the WTO framework. The remarkable failure of the Cancun Round brought the competition policy debate within the WTO to a grinding halt, after the short-lived success of the Doha Round in 2001. However, the work as undertaken by the WTO (since 1996) towards the promotion of competition policy goals, is still relevant.
- The Relevance of the Work undertaken by the WTO Singapore Group
The work of the Singapore Group or Working Group on the Interaction between Trade and Competition Policy (hereinafter referred to as the “WGTCP”), which was established in 1996, has guided the debate on international trade and competition policy. The mandate of the WGTCP was four-fold: study and clarification of (a) core principles including fairness and non-discrimination; (b) hard-core cartels; (c) means of voluntary cooperation; and (d) capacity-building wherein competition institutes are established in developing countries.
The problem of hard-core cartels plagued several Member States as transnational price-fixing by private enterprises in various sectors such as seamless steel tubes, graphite electrodes, lysine, and bromine raised the import costs dramatically. Many developing countries had to pay billions of dollars over and above the actual competitive prices. These countries, therefore, emphasized the creation of an effective framework which would enable international cooperation among different governmental authorities. They also focused on utilization of the technical assistance and capacity-building agenda of the WGTCP so that they could develop proper competition policies or laws which would deal with anti-competitive practices at the national level and in turn, contribute towards the establishment of an internationally-recognized competition policy framework under the aegis of the WTO.
The WGTCP has made an immense contribution towards the understanding of the similarities and differences between the international trade regime and competition policy, in the form of several reports and studies. However, there was no active progress on a framework within the WTO that could reconcile the two systems, till a concrete step was taken in 2001 with the launch of the Doha Round of multilateral trade negotiations. This Round is one of the most ambitious with ‘new issues’ such as investment and competition policy being introduced within its fold. The Ministerial Declaration laid down that formal negotiation would be initiated after the next Ministerial Conference (Cancun) for incorporating competition policy within the multilateral trade system.
Paragraphs 23, 24, and 25 of the Ministerial Declaration dealt with competition policy under the WTO. The Declaration recognized the need for a multilateral framework for addressing the relationship between international trade and competition policy  while emphasizing the needs of developing and least-developed countries with regard to technical assistance and capacity-building in this area. It also provided the mandate of the WGTCP. Till the Cancun Ministerial Conference in 2003, the WGTCP focused on the four-fold mandate.
The failure of the Cancun Conference resulted in the adoption of the July 2004 Decision which excluded competition policy from the scope of the Doha Work Programme. The decision stated that negotiations on issues concerning the interaction between trade and competition policy will not take place within the WTO during the Doha Round. However, despite the passage of 16 years, the round has not yielded any concrete outcome for the Member States. While the WGTCP is not active currently, the WTO Secretariat responds to requests put forth by the interested Member States relating to this area. This indicates that the WTO can still play a role with regard to competition policy at the global level, by carrying forward the work of the WGTCP. Further, (a) the inherent difficulties posed by the extraterritoriality provisions and (b) the lack of effectiveness of bilateral arrangements, make the creation of an international agreement crucial, as explained in the next section.
- Lack of Viable Options for Regulating Competition at Global Level
First, extra-territorial application of national laws on the basis of ‘effects’ doctrine for regulating competition has been witnessed in several parts of the world. It can be practiced in two ways: ‘inbound’ extraterritoriality and ‘outbound’ extraterritoriality. While ‘inbound’ extraterritoriality refers to the application of national laws in the event that a restrictive practice (even though it is carried out abroad) affects the competition in the market, ‘outbound’ extraterritoriality is the application of national laws when the country is prevented from gaining access to the market of another country. For example, the Nippon Paper case highlights inbound extraterritoriality wherein the US competition law was applied against a cartel arrangement which was entered into in Japan, as there were adverse effects on the US market. The Pilkington case is an example of outbound extraterritoriality wherein United Kingdom (hereinafter referred to as the “UK”)-based Pilkington’s restrictions were challenged under the US competition law as the US firms were prevented from exporting to the UK. While inbound extraterritoriality can still be justified as the effects of the anti-competitive conduct are felt in the territory of the country applying the national law, outbound extraterritoriality depends on the nexus between the effects test and the passive personality principle, which is “tenuous” at best.
Further, extraterritorial application of competition laws may increase the tension between countries as they may have different competition regimes wherein an anti-competitive conduct in one country may not attract the same scrutiny as in the other country. This also gives rise to power asymmetries wherein the big countries such as the US or members of the EU assert their domestic competition policies extraterritorially upon the less powerful countries which do not have strong competition systems. Therefore, extraterritorial application of competition laws may not further the cause of global economic welfare.
Second, bilateral arrangements or cooperation between countries, for giving effect to competition policies affecting their markets, have become a popular option among several nations. They have grown significantly since the 1990s and there are over 100 such agreements which contain provisions regarding competition policy. There are several forms of bilateral arrangements such as notifications, consultations, mutual assistance, and negative comity (agreement regarding the non-hostile application of extraterritorial competition laws). While these agreements seek to fill the void of an international agreement on competition policy, they fail to address certain pertinent issues such as problems of serious conflicts of interest, difficulties of multiple procedures, and issues stemming from power asymmetries. Further, even if they are implemented effectively, there could be the possibility of incoherence among such bilateral regimes. Therefore, an international agreement would be more desirable in comparison to such bilateral systems.
In light of the work conducted by the Singapore Group or the WGTCP, and the continued efforts of the WTO Secretariat for supporting competition policy, the role of the WTO should be reconsidered. Further, the lack of effective alternatives, whether by reliance on extraterritoriality or bilateralism, makes the need of an international agreement desirable. Therefore, there should be an international agreement on competition policy under the aegis of the WTO so that the multilateral trading system is able to use its current resources to facilitate the promotion of global economic welfare as regards competition policy as well. The nature of this agreement has been explored in the next chapter.
Cross-border anti-competitive practices are on the rise and there is a need for a strong institutional framework for dealing with problems such as hard-core cartels. The Doha Round has failed to meet the expectations of various Member States. Out of the four issues under the Doha mandate, i.e. investment, competition, government procurement, and trade facilitation, only one issue has been realized (trade facilitation) while the remaining three were dropped due to the differences between the developed and developing countries. Therefore, the dropped ‘new issues’ such as competition policy have to be addressed under the WTO through alternative means. Multilateral trade negotiations are long-drawn and time-consuming. Further, Member States may have different policies or law in relation to curbing of anti-competitive conduct.
Therefore, the best way to introduce a discussion on the interface between trade and competition is by way of a plurilateral agreement. Once the requisite critical mass is achieved, it will enter into force. This approach has been adopted with regard to the Information Technology Agreement (hereinafter referred to as the “ITA”) wherein an initial group of 29 Member States had signed the agreement in 1996. As per present records, the number of Member States stands at 82 and these countries represent more than 90 percent of the world trade in information technology products. The EU has been an active proponent of an international framework on competition policy. By entering into a plurilateral agreement under the aegis of the WTO, some Member States (for example, the members of the EU and pro-international agreement developing countries) can trigger the process of incorporation of competition policy within the international trade law regime. This is how the WTO can play an active role as regards regulation of competition concerns at the global level.
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