EXPERIENCES GAINED SO FAR ON INTERNATIONAL COOPERATION ON COMPETITION POLICY ISSUES AND THE MECHANISMS USED
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2007
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en
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Abstract
This report focuses mainly upon three of the more formal types of international instruments dealing with competition law and policy cooperation, namely: competition law enforcement cooperation agreements; free trade, customs union or common market agreements; and multilateral instruments. The concentration of such agreements among OECD countries has lessened somewhat. There are many common elements among the relevant provisions of these agreements, even though no single agreement is exactly like another. The implementation of such agreements has helped to minimize conflicts among Governments and to facilitate enforcement in this area. Countries that are close trading partners with significant economic relations, and that have comparable competition policy experiences or views, are the most likely to employ such arrangements. To date, developing countries have played a less significant role than their OECD counterparts in developing or implementing these more formal cooperation arrangements, especially in dealing with specific cases. To promote the active participation of developing countries in such arrangements, it would be advisable to build up mutual confidence gradually, by evolving from simple and informal arrangements to more complex cooperation agreements. Balanced cooperation among developing countries would provide a learning experience and help ensure that cooperation with more advanced partners was fruitful. Free trade or common market agreements might provide a framework conducive to this purpose, but regional rules, institutions and mechanisms would need to be adapted accordingly. Within the framework established by the Fifth Review Conference and taking into account views expressed during or after the seventh session of the Group of Experts, future sessions of the Intergovernmental Group of Experts on Competition Law and Policy might accordingly deliberate upon the status of international cooperation in this area and identify how UNCTAD could further strengthen such cooperation. Specific issues for discussion include the following: (a) how to ensure compatibility, coexistence, coordination and mutual reinforcement among national, subregional, interregional and possible multilateral competition regimes; (b) how much convergence among substantive, procedural and enforcement policy aspects of competition laws and policies is necessary to further enforcement cooperation; (c) the appropriate balance between promoting such convergence and allowing room for diversity and experimentation by each country or subregional grouping; (d) whether and how the principle of preferential or differential treatment for developing countries might be better reflected in competition cooperation agreements; (e) what types of dispute avoidance or resolution mechanisms (if any) might be appropriate in different contexts, and how such mechanisms as applicable might be tailored and developed for cooperation on competition law and policy; (f) how diversity or compatibility/convergence among national, bilateral, regional and multilateral regimes might be catered for or reconciled through such mechanisms as applicable; (g) how best to promote exchange of experiences in this area so as to further develop bilateral and regional cooperation mechanisms, including the organization, functions and powers of the competent institutions; (h) confidentiality restrictions and leniency agreements; (i) possible roles of competition authorities and of UNCTAD with respect to negotiations or implementation of competition-related provisions in regional trading agreements; and (j) minimum standards for substantive and procedural antitrust rules.