Competition policy in WTO
sectoral agreements
Dr. Pierre Arhel
Counsellor (competition policy)
Intellectual Property Division
Sao Paulo, 23-25 April 2003
Presentation based on s1ides prepared by R. Anderson (Counsellor, WTO Secretariat)
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Issues to be addressed
 The Doha Mandate on Competition Policy
 Possible Elements of WTO Competition Policy
Agreement
 Competition - Related Provisions and Core
Principles in Existing WTO Agreements
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The Doha Ministerial Conference:
Background
23. Recognizing the case for a multilateral
framework to enhance the contribution of
competition policy to international trade and
development, and the need for enhanced technical
assistance and capacity-building in this area as
referred to in paragraph 24, we agree that
negotiations will take place after the Fifth Session
of the Ministerial Conference on the basis of a
decision to be taken, by explicit consensus, at that
Session on modalities of negotiations.
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24. We recognize the needs of developing and
least-developed countries for enhanced support for
technical assistance and capacity building in this
area, including policy analysis and development so
that they may better evaluate the implications of
closer multilateral
cooperation for their
development policies and objectives, and human
and institutional development. To this end, we
shall work in cooperation with other relevant
intergovernmental
organisations,
including
UNCTAD, and through appropriate regional and
bilateral channels, to provide strengthened and
adequately resourced assistance to respond to these4
25. In the period until the Fifth Session, further
work in the Working Group on the Interaction
between Trade and Competition Policy will focus
on the clarification of: core principles, including
transparency, non-discrimination and procedural
fairness, and provisions on hardcore cartels;
modalities for voluntary cooperation; and support
for progressive reinforcement of competition
institutions in developing countries through
capacity building. Full account shall be taken of
the needs of developing and least-developed
country participants and appropriate flexibility
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provided to address them.
Possible Elements of WTO Competition
Policy Agreement
 Commitment by WTO Members to a set of core
principles, comprising transparency, non-discrimination
and procedural fairness in the application of
competition law and/or policy
 Commitment to the taking of measures against hardcore cartels
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Possible Elements of WTO Competition
Policy Agreement (cont’d)
 Modalities for cooperation, of a voluntary nature, with
respect to national legislation, the exchange of national
experience by competition authorities and aspects of
enforcement
 Enhanced support for technical assistance and
institution-building relating to competition policy, in the
framework of the WTO but in cooperation with other
interested organizations and national governments
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Possible Elements of WTO Competition
Policy Agreement (cont’d)
 A standing WTO Committee on Competition Policy to
provide a forum for exchange of national
experience/peer review, promote voluntary convergence
in Members’ policies etc.
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Competition - Related Provisions in
Existing WTO Agreements
 GATS, Article VIII: Members to ensure that state
monopolies do not act in a manner inconsistent with
their obligations/specific commitments
 TRIPS, Articles 8 and 40: Authority to take measures
against abuses of intellectual property rights/ anticompetitive licensing practices
 Basic Telecom Negotiations, Reference Paper on
Regulatory Principles: Commitment to adopt
appropriate measures to prevent anti-competitive
practices by major suppliers
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Competition - Related Provisions in
Existing WTO Agreements (Cont’d)
 Agreement on Safeguards, Article 11:3: Members not to
encourage/support the adoption of non-governmental
measures equivalent to voluntary export restraints,
orderly marketing arrangements or other governmental
arrangements prohibited under Article 11.1
 Consultation Arrangements, 1960 Resolution under
GATT and GATS: Recognition that business practices
that restrict competition in international trade may
hamper the expansion of world trade and economic
development
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Implications?
 Competition is NOT a new issue at the WTO
 However, it has not, as yet, been systematically
developed
Major sectoral areas are not covered
Hard core cartels are not covered
No provision on cooperation
The need for a coherent case law cannot be
met
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Core Principles in Existing WTO
Agreements
When it affects trade, competition policy is already
subject to the principles of non-discrimination,
transparency and procedural fairness.
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Implications?
Given the unique characteristics of competition policy
and its inherent differences from conventional trade
issues, it is desirable to consider and make more explicit
the application of the principles in the area of
competition, in a manner that takes account of the
special characteristics of this field.
A good precedent for this approach could be found in
various existing WTO agreements.
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