OECD, revised recommendation ofthe council, concerning co-operation between member countries on anti-competitive practices affecting international trade. 21 September 1995, Paris (c(95)l30/final) Paris 1995
♦ Notification. When an investigation or proceeding of a member country may affect the interests of another member country, it should notify the other country in advance.
♦ Coordination. Member countries should try to cooperate if they proceed against
an anti-competitive practice in international trade.♦ Cooperation. Member countries should cooperate in developing mutually satisfactory measures for dealing with anti-competitive practices. If a member country considers that a company based on its territory is engaged in anti
competitive practices in another country, it should try to take remedial action.♦ Consultation. When a member country considers that an investigation of another country affects its interests, it should transmit its view to the other
member country or request consultation.♦ Information exchange. Member countries should supply one another on demand
with the information they require.♦ Conciliation. If two countries cannot reach a satisfactory conclusion, the countries can use the good offices of the OECD.
458. Furthermore, the OECD has a Competition Law and Policy Committee. This committee promotes international co-operation in competition enforcement. One of committee's working parties is involved in co-operation in merger control, prosecution of cartel activity and sharing of information.77 In addition, the committee surveys the co
operation efforts of the member countries.
IV. The Debate at the World Trade Organization
A. Current Situation
459. Part of the current debate at the WTO takes place in a special working group on the interaction between trade and competition policy. The group studies various issues, such as the impact of state monopolies and the relation between trade-related aspects of intellectual property rights and competition policy. Moreover, it analyses the scope and effectiveness of existing instruments (such as the consultation procedure and provisions on services, intellectual property rights and investments) .
460. The positions of countries in the discussions differ. The European Union favours international rules, whereas the U.S. is more reserved toward new rules. Developing countries are also reluctant to extend the WTO treaty to encompass new rules on competition policy, which is a new area for them.
71 OECD, International co-operation in competition enforcement, p. 4
72 iiiTn /■ii\nn\ — t
B. Negotiating Objectives of the United States (i) U.S. attitude toward international rules
461. The U.S. recognises that some business practices may restrict market access and trade. Therefore, competition policy should be one of the new topics in the trade negotiations. However, the U.S. is not very eager to introduce new multilateral rules in the short-term. Many U.S. scholars are not much in favour of international competition policies."
462. A point of concern in the U.S. is that in a new WTO negotiation a compromise will have to be made. Adhering to international competition policy rules would probably have to be exchanged for less agricultural reform or, in turn, for better rules of origin or dispute-settlement procedure.7'*
463. Furthermore, the U.S. does not particularly favour the idea of harmonisation of competition- policy norms. It is not unlikely that inferior rules would become the standard.
There is a fear that the U.S. would have to make a step backwards and would have to permit worldwide rationalisation or infant-industry cartels. The U.S. realises that bilateral agreements are more favourable, as their negotiating position is far better.
464. In addition to this, the U.S. is reluctant to replace anti-dumping rules with international competition rules. Some high government trade officials are convinced of the merits of anti-dumping. Moreover, influential pressure groups of anti-dumping lawyers are
lobbying for maintaining anti-dumping as a trade tool.75
(ii) Negotiating position of the U.S.
465. Although, the official position of the United States still is not quite clear, the Advisory Comity of the President (ACPTN) wrote a report to the president with a recommendation on negotiations about international competition policy.76 This recommendation can be seen as indicative for future negotiations.
466. The report states that the link between trade and competition policy is relatively new and complex. Therefore, the subject should be studied in more detail and consultation would have to be done with the private sector. It should be ensured that the outcomes of the negotiations are in the best interest of the U.S. and the world trading system. Among the issues that need to be examined more thoroughly are:
♦ To what extent can existing trade agreements deal with market access problems?
♦ What effects would international law have on the competition situation in the U.S.?
♦ What is an appropriate relationship between international rules and the ability of national governments to investigate cases of restrictive business practices and enforce against these?
♦ To what extent should the themes of merger and acquisition procedures be addressed?
♦ Are foreign laws on competition policy adequately enforced?
♦ How do government policies affect (reinforce or facilitate) anti-competitive private actions?
73 Wood, D.P., (1996) p.7 74 Wood, D.P. (1996) p.32
Source: Interview Francois, J.F.
Based On ACTPN renort on COmnetiHnn nolirv fhttlW/www lmlr onv/renntWartnn/nniirv htmli
467. Furthermore, the ACTPN considers that the time is not yet ripe to engage in any competition-policy initiative. A first step could be to study the domestic laws. This could be done by a selected group of interested WTO members, or the work of an international forum, such as the OECD, could be extended. The focus of study should be on anti-competitive activity that is authorised by governments (this includes cartels and price-fixing).
Consideration of these issues and possible multilateral steps to address them, would be a good first step for any eventual WTO work programme.
468. A very important point of view is that the anti-dumping rules should be maintained.
Some countries may consider that anti-dumping is not needed in a globalised world economy. ACTPN explicitly advises that the government should be careful not to link competition policy with antidumping. As long as exporters engage in dumping, the ACPTN sees the need for national antidumping laws.
469. Another common view in the U.S. is that countries should break the government monopoly on enforcement and permit private parties to go to a judge. In the U.S. private enforcement of competition policy is very important. About 90% of all competition-policy