In the absence of global antitrust law: looking to “bricks and mortar” institutions and agency networks

• DOI: https://doi.org/10.1108/JITLP-04-2021-0023
• Published date: 11 August 2021
• Date: 11 August 2021
• Pages: 145-165
• Subject Matter: Strategy,International business,International business law,Economics,International economics,International trade
• Author: Mary Catherine Lucey

In the absence of global antitrust

law: looking to “bricks and

mortar”institutions and

agency networks

Mary Catherine Lucey

UCD Sutherland School of Law, University College Dublin, Dublin, Ireland

Abstract

Purpose –This paper aims to draw attention to a broad range of experimental institutional initiatives

which operatein the absence of a global antitrust regime. The purposeof this paper is to offer food for thought

to scholarsin other f‌ields of international trade law facing challengesfrom divergent national regimes.

Design/methodology/approach –Taking inspiration from political science literature on institutions,

this paper crafts a broad analytical lenswhich captures various organisational forms (including networks),

codes (including soft law) and culture (including epistemic communities). The strengthand shortcomings of

traditional “bricksand mortar”institutions such as the European Union (EU) and GeneralAgreement Tariffs

and Trade/World Trade Organisation are f‌irst examined. Then, the innovative global network of

InternationalCompetition Network (ICN) is analysed.

Findings –It highlights the value of the global antitrust epistemic community in providing a conducive

environmentfor extensive recourseto “soft law”. Examples from the EU and the ICN include measures which

f‌ind expressionin enforcementtools and networks. These initiatives can be seen as experimental responses to

the challengesof divergent national antitrust regimes.

Research limitations/implications –It is desktop researchrather than empirical f‌ield work.

Practical implications –To raise awareness outside the antitrustscholarly community of the variety of

experimental institutional initiatives which have evolved, often on a soft law basis, in response to the

challenges experiencedby national enforcement agencies and businesses operating in the absence of a global

antitrustregime.

Originality/value –It offers some personal ref‌lections on the ICN from the author’sexperience as a non-

governmental advisor.It draws attention to the ICN’s underappreciated range of educationalmaterials which

are freely available on its website to everyone. It submits that the ICN template offersinteresting ideas for

other f‌ields of international trade law wherea global regime is unrealisable. The ICN is a voluntary virtual

network of agencies collaborating to agree ways to reduce clashes among national regimes. Its goal of

voluntary convergence is portrayed as standardisation rather than as absolute congruence. Even if

standardisation of norms/processes is too ambitious a goal in other f‌ields of internationaltrade law, the ICN

model still offers inspiration as an epistemic community within an inclusive and dynamic forum for

encouragingdebate and creating a culture of learning opportunitieswhere familiarity and trust is fostered.

Keywords World Trade Organisation, Soft law, Antitrust Enforcement, EU competition law,

International Competition Network, Competition law, European Competition Network,

Epistemic community

Paper type Research paper

Introduction

The ongoing absence of a global antitrust (or competitionlaw) regime is signif‌icant because

of its potential implications for the competitivenessof the globalised marketplace. The lack

of a global regime with uniform norms and processes creates challenges for antitrust

Absence of

global

antitrust law

145

Received28 April 2021

Revised8 July 2021

Accepted13 July 2021

Journalof International Trade

Lawand Policy

Vol.20 No. 3, 2021

pp. 145-165

© Emerald Publishing Limited

1477-0024

DOI 10.1108/JITLP-04-2021-0023

The current issue and full text archive of this journal is available on Emerald Insight at:

https://www.emerald.com/insight/1477-0024.htm

enforcement agencies which apply different national/regional norms and processes. The

concern is that disjointed enforcement is an ineff‌icient way to deal with cross border anti-

competitive practices which harm consumers. Moreover, having to comply with divergent

substantive norms and enforcementprocesses creates ineff‌iciencies for businesses that trade

across borders. In practice, national (or regional)antitrust is applied extra-territorially. This

has been described as a default response of “unilateral jurisdiction”(Gerber, 2010,p.5).

Taking the view that unilateral jurisdictionis an unsatisfactory solution, this paper looks at

alternative responses involving institutions (broadly understood). It traverses a broad

landscape which starts withtraditional ‘bricks and mortar’institutions and culminates with

a voluntary virtual global networkof antitrust agencies.

The European Union (EU) regime is examined f‌irst because it exemplif‌ies the most

convergent supranational antitrust model. Nonetheless, as a regional regime, it exhibits

limitations on the global stage. Thus, attention turns to more globally rooted institutional

endeavours. In order to present a sharper contrast,the analysis conf‌ines itself to examining

two radically different global institutional arrangements. The analysis of General

Agreement Tariffs and Trade (GATT)/World Trade Organisation (WTO) considers its

(relatively short lived) direct contribution to global antitrust and takes the view it deserves

credit for stimulating interest in innovative institutional arrangements such as the

International Competition Network (ICN). The ICN is a virtual global network of antitrust

enforcement agencies designedto facilitate intensive collaboration among itsmembers with

the aim of, at least, reducing friction and, more ambitiously,achieving more standardisation

across divergent localregimes.

This paper draws attention to selected modes and fruits of experimentation within a

trusted (or, at least, familiar) international epistemic community when a harmonised

global regime is not readily realisable. It offers an exploration and critical consideration

of institutional initiatives which commenced operating in an environment of divergent

national regimes. Its appraisal of their operation highlights incidences of innovation and

emphasises their recourse to “soft law”measures which incline against divergence. By

focussing on the evolution, motivation and operation of a wide span of institutional

models, this paper shines a light on a variety of responses to divergence within the

antitrust f‌ield.Drawingontheauthor’s experience as a non-governmental adviser (NGA)

to the ICN, this paper offers some personal ref‌lections. It concludes by suggesting that the

network model (even if not as full blown as the ICN) offers food for thought for other

f‌ields of international trade law which encounter challenges in the context of persistently

diverse national regimes.

Antitrust in the global marketplace

Antitrust law is enforced locally along national (or, in regional) territorial lines. However,

national antitrust regimes, on account of the globalised nature of markets, may impact

antitrust agenciesand businesses that are located outside the regimes’own territory.

Antitrust enforcement agencies faced with transnational anti-competitive activities (e.g.

cross-border cartels) must, in practice, seek to engage in bilateral/multilateral interactions

with enforcement agencies operating in other jurisdictions whose substantive norms and

enforcement toolkits may diverge signif‌icantly from each other. The diff‌iculties faced by

agencies operating in different political environments have been recognised in the

observation that “rising populist concerns and differences in competition laws, increase

tensions among competition agenciesand the risk of divergent approaches to enforcement”

(Pham and Pecman, 2019,p.22).

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