In his introductory chapter for this thoughtful volume on the broad topic of international competition law, editor Ariel Ezrachi describes “the core archipelago characteristics of current competition enforcement – the amalgamation of independent islands of sovereignty” (p. 11). Competition laws have been, historically, not only domestic in their scope and aims, but also largely the preserve of a limited number of developed world legal systems. Yet a growing global consensus has emerged that competition laws are a good thing as such, necessary not only to support economic development – a not-uncontroversial objective – but also to promote and protect the more universally-accepted goal of consumer welfare. Recent years have witnessed the adoption and/or modernisation of competition laws in many jurisdictions worldwide, suggesting something of a movement towards a more globalised approach to competition regulation. Nonetheless, divergent standards, economically-irrational rules and significant gaps in coverage persist. This book analyses the progress to date towards a truly international system of antitrust, as well as the considerable way left to go.
The concept of “international competition law” is not (yet) a term of art, and this volume does not propose a single unified meaning. Instead, the contributors consider a variety of means by which the existing structure of varying domestic rules can be both internationalised and standardised. The principal drawback to this approach is that it is nearly impossible to discern any common or consistent leitmotif that can unite the almost two dozen contributions. The opening chapter, which draws broad yet nuanced themes from the material that follows, would perhaps function more effectively as a coda than as an introduction, and this reviewer struggled clearly to identify at the outset what the book aims to achieve in terms of the range of topics that are presented. Nonetheless, the sheer breadth of the material that is addressed in the volume, the generally high quality of the essays and the inclusion of several outstanding and/or highly original contributions, ensure that this collection has much to offer for both academic lawyers and competition practitioners.
Four potential meanings or aspects of “international competition law” can be identified from the material presented in the book. The first relates to efforts to extend the reach of national competition rules beyond their purely domestic context. In this regard, an early essay by Florian Wagner-von Papp, on the extraterritorial application of competition law, and a later piece by Michael O'Kane, on extradition in criminal cartel prosecutions, are directly on point. The second reflects the global spread of competition law to ever greater numbers of jurisdictions worldwide. In this regard the contributions consider, inter alia, the task of competition advocacy, the role for NGOs, the question of legal transplants and the proper fit between an adopted competition framework and its host (typically, developing nation) legal system, as well as the functions that supranational organisations like the International Competition Network (ICN) play in promoting and facilitating the adoption of competition laws. This latter topic also concerns the third understanding of “international competition law” that emerges, which concerns the efforts towards supranational mechanisms for control or at least convergence within competition law. The fourth and final aspect involves the search for globally-accepted standards as well as continuing divergences between ostensibly similar rules. Broadly speaking, those truly internationalising currents within modern competition law are considered within the first half of the book, whereas those essentially comparative aspects are considered in the second half.
The earlier sections of the volume make a particularly valuable addition to the growing literature on internationalisation of competition law. The ICN, with its inclusive membership, its focus on competition issues that affect both developed and developing legal systems and its approach of encouraging convergence through consensus based on “soft norms, hard economics” (p. 231), emerges from this book as the clear victor amongst national and supranational organisations that effectively are doing battle for leadership and control within this area. Yet the success of the ICN model, which acknowledges the inevitability of Anne-Marie Slaughter's notion of “informed divergence” on many issues, arguably reflects the impossibility of achieving any true form of international competition law in practice. The contributions within the book offer a largely positive assessment of the ICN's working methods and achievements; what Philip Marsden succinctly describes as a focus on talk rather than treaties. In the absence of such hard law, however, it seems likely that the search for international competition law will remain at the level of a global movement rather than a set of global rules. Certain outstanding contributions on this issue are worthy of particular note, and these alone are sufficient to make the book a rewarding read for any competition specialist: Philip Marsden on the informality of convergence to date, Donald I. Baker on the public/private enforcement divide, Kathryn McMahon on competition law in developing economies, and a straightforward but hugely informative overview of competition agency networks worldwide by Imelda Maher and Anestis Papadopoulos.
The question of similarities and differences between the substantive rules found within different competition jurisdictions occupies much of the latter half of the book. The treatment of this material is rather less successful than the earlier sections on internationalisation. In general, the later chapters consist of a comparative review of the differing standards that have been applied to some of the more controversial aspects of competition law. Most of these essays involve a straightforward description of the different approaches that are adopted within the US, EU and occasionally other competition systems. A number take the ICN model as their starting-point: Giorgio Monti's careful assessment of unilateral conduct rules provides a successful illustration of the latter category.
Although, generally, these contributions are knowledgeable and well written, the topics that are considered in the second half of the volume are more familiar than those addressed in the earlier chapters, and also less closely focused on “international competition law” as an issue that merits distinct scrutiny. For a book that appears to be aimed, most decidedly, at competition law specialists, some of these wholly comparative contributions risk a degree of superficiality in their treatment of jurisdictional divergences. Moreover, the task of describing discrete differences between competition law systems is almost unlimited in its potential scope. Therefore, the necessarily limited range of issues addressed – including the comparative treatment of market power, resale price maintenance, merger controls and competition law in the pharmaceutical sector – results in an idiosyncratic coverage of questions of standardisation and divergence. The book contains three separate contributions considering regional variations in the application of competition law to intellectual property problems, for example, but there is no chapter that directly addresses the topical question of the application of competition law within digital economy markets that are often worldwide in scope. These gaps and overlaps lead to a somewhat impressionistic treatment that says little about competition law as an international enterprise beyond the recognition that, globally, different rules have sometimes been applied to similar market problems.
As an exploration of the increasingly imperative, yet still imprecise, subject of international competition law, this Research Handbook provides much food for thought. The volume comprises a miscellany of informed opinions on efforts towards and obstacles to realisation of a globalised approach to competition law, rather than an entirely systematic or comprehensive treatment of the subject-matter. Yet, within this collection of essays there are some real gems, while overall, the volume provides a wide-ranging assessment of many issues raised by the movement towards such a globalised approach. Although we may be no closer to the emergence of a formal category of international competition law as such, the essays in this collection demonstrate that competition law has moved beyond an insular nation state model towards a more obviously internationalised structure for both policy-making and enforcement.
