This paper – which you can find here – focuses on the international convergence of competition law.
Global convergence has been a central theme in competition law for more than two decades. Until recently, the trend seemed to be for greater convergence; given recent developments, however, should we expected this trend to hold?
The author’s analysis begins from the observation that convergence has been driven by: (1) continuing political stability and transnational engagement in Europe and the US, (2) the capacity and willingness of the US and Europe to lead competition law developments elsewhere; and (3) the willingness of others to accept the EU and US’ leadership in competition law.
These elements have all been under attack recently. Both the political stability and transnational engagement of Europe and the US are not what they used to be; the same can be said about their capacity (if not willingness) to lead competition law developments across the world; and, importantly, the willingness of others to follow may be put dwindling as the EU/US model has come in for increasing criticism. For example: “While the potential value of using some forms of economic analysis is now widely accepted, scepticism about how far an economics-based model should go has increased. There is, for example, concern about the extent to which the US and European uses of economics are appropriate for emerging market economies. Warnings about its cost and some of its implications are noticeable even in the US and Europe.”
These uncertainties provide an opportunity to re-evaluate both procedural and substantive convergence of competition law. In particular, these developments may: “call for a more inclusive and participatory convergence process. This, in turn, is likely to lead to a broader and more capacious view of the goals and substance of convergence. The economic and political context of competition law in many countries may require increased attention to developmental objectives and to attracting and maintaining political support for competition law.”
Such an approach may lead to a view of convergence that he calls “branched convergence.” While convergence would continue for individual “branches”, it would be limited by individual jurisdictions assessing the effectiveness and limits of converging with the US and EU – mainly by taking into account their own specific circumstances. In this context, “leadership” of the process becomes less important, and integrating experience from various different contexts becomes more important. This form of convergence would be more a process of interaction, persuasion and information flows, and less a one-directional path.
While this is undoubtedly a valuable piece on the nature and value of international competition, I am not sure how I feel about its conclusions. First, I am not sure that the paper’s description of prior international convergence is representative of what actually happened since the fall of the Berlin Wall; instead, I feel that the “normative” proposal of how to go about ensuring convergence in the future is actually a rather good description of how convergence has occurred in the past. As a result, I also think that this normative proposal raises a number of challenges, which are not dissimilar to the main challenges with promoting international convergence in practice: what are the relevant “local circumstances”? How do we identify which elements are suitable for convergence, and those that are not? How do we model this in terms that are generalisable to all jurisdictions, so we can “learn by doing” other than by accumulating personal experiences and developing “educated intuitions”? These are challenges that the paper does not address.
Regardless, this is a good example of how disputes about the nature of the “antitrust enterprise” can – and do – bleed into efforts to promote international cooperation and convergence.