Eleanor Fox & Amedeo Arena International Institutions GAL & Competition Workshop New York University School of Law February 4, 2011 1. Design, Mandate,

Eleanor Fox & Amedeo Arena

International Institutions

GAL & Competition WorkshopNew York University School of Law

February 4, 2011

1. Design, Mandate, Due Process Norms

International InstitutionsGAL & Competition Workshop

World Trade Organization

(Amedeo Arena)

OECDUNCTAD

ICN

(Eleanor Fox)


WTO - Institutional DesignTemplate models are not applicableSimilar to a pure private enforcement

modelWTO has a tripartite governance

structureMinisterial ConferencesSecretariat, Councils, Committees, TPRBDSB, AB, Panels


WTO - Institutional Design (cont’d)Dispute Settlement Procedure:

Establishment of the panelPanel stageAB stageImplementation / enforcement


WTO - MandateCompetition is NOT a core WTO competenceBUT: private or hybrid anticompetitive

conduct may frustrate trade liberalization goals

State trade-restraining acts are usually caught

Stronger antitrust provisions have been proposed but not adopted


WTO - Mandate (con’t)WTO’s antitrust dimension includes:

Article XI GATT (ban on import/export restrictions)Article 8.1 TBT (conformity assessment procedures)Article 11.1(b) Safeguards (ban on VERs)Article 40.1 TRIPS (IP licensing conditions)Article VIII GATS (monopoly and exclusive suppliers)Telecoms Annex (access and use obligations)Telecoms Reference Paper (ban on anticompetitive

practices, including cartels)


WTO - Due process norms

Sufficient opportunity to be heardFull notice of allegationsReasonable time to prepareRight to appeal


WTO - Due process norms (cont’d)

Independence of decision-makers Allegations of influence by special interest and of

discrimination against developing countries Existing rules attempt to address those issues

Absence of rules of evidence Lack of sophistication in evaluating and handling evidence No rules on burden of proof, but the AB filled this gap in part


OECD – Design and Mandate

Design International organization of developed nations Secretariat, Committees Competition Committee, Committee Bureau

Mandate Research reports, best practices, and guidelines 1995 Recommendation on cooperation on anticompetitive

practices 1998 Recommendation on effective action against cartels


UNCTAD – Design and Mandate

Design UN General Assembly Organ, comprised of States Operates through branches, notably the Competition and

Consumer Policies Branch (CCPB)

Mandate Deals with issues of trade, investment and development CCPB attempts to help developing countries maintain and

modernize their competition laws and policies, through updating commentaries on the UN Set on Competition Policy, a Model Law, peer reviews and fora


ICN – Design and Mandate

Design “Virtual” organization, having no secretariat, no geographic

location, no rule-making, no adjudicative power Composed of competition authorities, led by a steering group NGOs contribute to working groups

Mandate to solve actual competition problems capable of practical

solution to provide an informal environment likely to produce

convergence of the competition laws of the nations.

Documents

Eleanor Fox & Amedeo Arena International Institutions GAL & Competition Workshop New York University School of Law February 4, 2011 1. Design, Mandate,