The Role of Peer Review
in a Multilateral Framework on
Competition Policy
Andrea Bruce
Investment Trade Policy
UNCTAD Regional Seminar for Latin America and Caribbean
Countries on the Post-Doha WTO Competition Issues
Sao Paulo, Brazil
23-25 April, 2003
Overview
Benefits of an MFC
Core Principles a
fundamental
component of an MFC
Capacity Building a
key goal of an MFC
Why Peer Review in
an MFC
Benefits
A Multilateral Framework on Competition
Policy (MFC) would provide a number of
important benefits for Members
• Establish a coherent set of principles for sound competition
law and policy
• Ensure open and competitive markets for foreign trade and
investment
• Build institutional capacity in WTO Members with no
competition laws or newly established regimes
• Reduce costs to the world economy of global anticompetitive practices
• Encourage cooperation among Members
Core
Principles
The Core Principles, a cornerstone of
multilateral trading system, can be adapted to
an MFC
• Non-discrimination, Transparency and Procedural
Fairness should be a fundamental part of an MFC
• Principles have been continuously adapted to
accommodate specific subject matter at the WTO
• Core principles will need to be tailored to reflect
the specifics of competition law, as is done with
other ‘new issues’
• Competition law and policy should be largely
congruent with the core principles
Core
The adherence to Core Principles in the
Principles
application of competition law will enhance
trade and investment opportunities
Nondiscrimination
Promotes open and competitive markets,
and ensures equal opportunities for all
potential entrants to conduct business
Transparency
Promotes the rules-based approach of the
WTO, and provides information to all
economic actors
Procedural
Fairness
Promotes transparency and fairness in the
regulatory process
Core
Principles
The Canada-Costa Rica Free Trade
Agreement illustrates how the core principles
can be adapted to competition law and policy
• Chapter XI on Competition Policy
• The Chapter, inter alia, outlines commitments
related to each of the core principles to:
• ensure that measures to proscribe anti-competitive activities
and enforcement actions are applicable without regard for the
nationality of the business interests involved
• ensure that such measures are published or otherwise publicly
available
• ensure a number of procedural fairness guarantees for persons
directly affected by competition proceedings
• The Chapter is not subject to dispute settlement
Canada believes that each country should
have the capacity and tools to maintain and
foster open and competitive markets
Capacity
Building
• Competition law is part of overall legal regulatory
framework that facilitates commercial activity
• Sound competition policy promotes economic
growth and development
• Many WTO Members do not have competition
laws or lack enforcement capabilities
• An MFC will encourage and promote the
development of competition laws and institutions
Capacity
Building
Capacity building is an ongoing process and
must reflect the specific needs of countries
• Implementation of sound and effective
competition laws and policy is an ongoing process
• Competition law and policy must be developed to
meet each countries’ national interests
• Capacity building strategies must also be tailored
to address specific needs of countries
• An MFC must reflect these capacity building
needs
International dialogue on competition law
and policy is an important component of the
trade and investment policy dialogue
Capacity
Building
• Compatibility of approaches and voluntary
cooperation will reduce likelihood of conflicts and
duplication of competition enforcement efforts
• Importance of coordinated efforts for TradeRelated Technical Assistance (TRTA), for
example, among WTO, UNCTAD and OECD
• Competition policy is an important component of
overall TRTA agenda, such as the FTAA
Hemispheric Cooperation Program
Canada believes that Peer Review is an
integral part of the overall capacity building
strategy
Two objectives of a Peer Review Mechanism:
1) An ongoing educative and
information sharing mechanism
2) A non-binding compliance
mechanism
Peer
Review
Peer
Review
Peer Review would provide an opportunity for
ongoing learning and information sharing
•
•
•
•
•
•
Transfer knowledge and experience
Contribute to institution building
Promote convergence of approaches
Foster dialogue and cooperation
Develop best practices
Provide better understanding of interaction
between trade and competition policy
Peer
Review
Canada promotes a non-binding, cooperative
approach to compliance for an MFC
• Possible competition policy obligations would not
be subject to formal dispute settlement
• Application of dispute settlement could result in
WTO panels reviewing enforcement decisions
• A peer review alternative promotes compliance
based on assessing competition regimes against
agreed principles and standards
• Consultations among Members would contribute
to this non-binding compliance approach
Canada has recently been the subject of Peer
Review exercises in WTO, APEC and OECD
Peer
Review
WTO
Trade Policy
Review
Assesses Member’s trade policies and
practices and their impact on the functioning
of the multilateral trading system
APEC
Individual
Action Plan
(IAP)
Focuses on the completeness and clarity of
IAPs as well as their efficacy with respect to
achieving free and open trade
OECD
Regulatory
Reform
Evaluates the effectiveness of competition
institutions, including Members’ legislation,
enforcement structure and practices
Peer
Review
We can learn from these different experiences
in designing a Peer Review Mechanism for an
MFC within the WTO
• Existing Peer Review mechanisms in international
forums vary in details regarding structure and
output
• Must consider the advantages of each in the design
of a peer review mechanism for an MFC, e.g.
policy recommendations of OECD reviews and
technical assistance aspect of WTO’s TPRM
Canada believes that Peer Review of MFC
core elements provides the most appropriate
way forward
• Peer review provides an opportunity for ongoing
learning and information sharing on the
development of competition law and institutions
• International dialogue fostered through peer
review would reinforce the core principles that
would be embedded in an MFC
• Peer review approach embraces a cooperative
versus an adversarial approach to international
development of competition policy norms
Peer
Review