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Globalisation of competition law
thesisposted on 2017-02-08, 23:41 authored by Sweeney, Brendan Joseph
The overall purpose of this thesis is to contribute to the discussion on the internationalisation of competition law. Within that context the thesis has three objectives: first, to determine the nature of the competition law problems created by commercial globalisation; secondly, to determine whether the existing mix of domestic and international rules is capable of solving those problems; and thirdly, having regard to the conclusions drawn in respect of the previous objectives, to determine the minimum rules required. Competition law is still predominantly domestic law. Business and commerce, however, is increasingly internationalised. This creates tensions that may require an international solution. International competition law issues - international anti-competitive conduct - may be divided into four categories; conduct designed to exclude imports, export cartels, international cartels and international single firm conduct. A fifth category, mergers, is not discussed in this thesis. The regulatory problems differ depending on the category of conduct concerned. This means that unless a broad-based solution is preferred, solutions will vary depending on the category of conduct. International rules, however, should only be sought if existing regulatory approaches are inadequate. If existing approaches are capable of evolving to solve the problems of international anti-competitive conduct, there is no justification for and little prospect of new international rules. To determine this it is necessary to investigate unilateral, bilateral and multilateral approaches. Unilateralism has advantages, but in a shrinking world it is deeply flawed as long as nations have different policies and legal preferences. Regulatory cooperation is evolving, but within a non-binding structure. Some of the problems associated with international anticompetitive conduct are likely to be resistant to non-binding approaches because they involve protectionism. A possibly relevant binding set of multilateral rules already exists in the shape of the agreements that make up the World Trade Organisation. These may be capable of solving some of the problems of international anti-competitive conduct. However, they will not solve all the problems. For these reasons new rules are required. There are theoretical, practical and institutional reasons why attempts to construct comprehensive rules should be avoided. Any new rules should be the minimum required. This thesis concludes with outline proposals for the minimum rules required to solve the four categories of international anti-competitive conduct.