Challenging the need for a 'Global' Competition Law

Challenging the need for a 'Global' Competition Law

In recent years there has been increasing global recognition of the importance and significance of competition law to business and commercial conduct. Over 120 jurisdictions have now adopted a system of competition law with an increasing number of others currently in the process of developing some competition law framework.

These jurisdictions seek to regulate anti-competitive behaviour for the reason that competition is primarily intended to increase a market’s allocative, productive and dynamic efficiencies, thereby increasing innovation, offering consumers better prices, services and choices and improving economic welfare. As such, most of these competition law regimes share common characteristics and features, including prohibitions on certain types of behaviour such as horizontal agreements between firms (for example, cartels aimed at market-sharing, price fixing, limiting production and collusive tendering), vertical restraints between firms operating at different levels of the market and excessive aggregation of market power.
However, there are many economic, social, cultural and political differences between these jurisdictions, making it difficult to reconcile the benefits of removing hindrances to competition with the need for a set of “global” competition laws and policies. In addition, the uncertainty of how competition law should apply across jurisdictions remains the subject of debate.

One complication challenging the need for a “global” competition law is that while many countries have adopted some form of competition law system or framework, some countries have opted to not legislate to protect competition, relying either on the market itself (such as by promoting free trade to bring about desired economic benefits) or on other types of laws to protect competition or on state control and planning. On the other hand, some countries have looked at unilateral, regional or bilateral arrangements or a mixture of these, to create some common order with regard to the application and enforcement of competition law. To what extent, therefore, can competition law be “global”?

This article will consider what attempts have been made to develop a set of “global” competition laws, what the scope of such laws might be and how they might be implemented and whether, if a competition law cannot be truly “global”, efforts in this area should be focused instead on enhanced international co-operation.

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