Monday, 30 October 2006
Palais des Nations, Geneva
"Ad-Hoc Expert Group on Competition law and Policy"
"Analysis of cooperation and dispute settlement mechanisms relating
to competition policy in regional free trade agreements (RTAs)1,
taking into account issues of particular concern to small and
developing countries"
Competition provisions in RTAs vary substantially. The most obvious and
tangible outcome of such provisions is the adoption of competition laws in those
signatory countries that hadn't such laws before where this is an obligation or is
encouraged by the RTA provisions. Many view this as a positive outcome of those
RTAs whose provisions stipulate that signatory countries must enact and enforce
competition law.
A lot more difficult to ascertain is the impact of cooperation and dispute
settlement mechanisms on domestic competition enforcement. A review of existing
RTAs shows that cooperation can signify a range of actions from capacity building
and technical assistance, exchange of information and consultations on investigations
and enforcement, notifications, to positive and negative comity. However, it is by no
means standard for competition provisions in RTAs to encompass any or all of these
actions. For instance, RTAs do not typically extend the exchange of information to
confidential information so there is not automatically added value to signing a RTA
for competition authorities in this respect. Similarly, there are as yet few RTAs that
embrace comity.
The majority of RTAs exclude competition provisions from the purview of
dispute settlement. When applicable to competition matters, dispute settlement
provisions in RTAs have established consultation mechanisms for the resolution of
disputes and in some cases they have also set up arbitration procedures. Very little is
known about the operation of dispute settlement mechanisms related to competition
provisions in RTAs and available evidence suggests that other avenues, including
punitive trade measures have often been used in spite of their existence.2
More data on the practical operation of consultation and dispute settlement
mechanisms related to competition provisions in RTAs is necessary in order to assess
their impact.
1
For the purposes of the discussion, the term regional trade agreement is used here also to include
various types of agreements, including bilateral agreements, agreements between contiguous and noncontiguous states, south-south and north-south agreements.
2
Cernat, L. (2005), Eager to ink, but ready to act? RTA proliferation and international cooperation on
competition policy. In: UNCTAD (2005), Competition Provisions in Regional Trade Agreements: How
to Assure Development Gains. United Nations, New York and Geneva, p20.
Some questions that could be considered and on which experts could share practical
experience are presented below. The list of questions is by no means exhaustive and
there are many other issues of interest that Experts may wish to deliberate:
•
•
Is the type of RTA important for the content of cooperation and dispute
settlement provisions in RTAs? Do different RTAs pursue the same general and
final competition objectives?
Have competition provisions in RTAs proved successful in detecting and
facilitating the prosecution of anticompetitive behaviour affecting developing
country signatories?
•
How well do competition provisions and dispute settlement mechanisms in
RTAs accommodate the diverse "non-efficiency-related" competition policy
objectives of small and developing country signatories?
•
Is there a danger of competition provisions in RTAs restricting policy measures
that may be deemed appropriate by less developed partners?
•
How well has the European "RTA model", which has inspired a number of
RTAs involving developing economies in which a competition culture is absent
or is not mature, served these economies?
_____________________________________________________________________
Delegates are invited to submit notes and other relevant information on their national
experiences in the operation of consultation and dispute settlement mechanisms relating to
competition provisions in RTAs.
In order to process and make written contributions available in advance of the
meeting, delegates are kindly requested to submit their contributions as soon as
possible but no later than 25 October 2006.
Draft Work Programme
15:00
Keynote Speech:
Mrs. Monica Widegren, Swedish Competition Authority
15:20
Presentations by Panel Members:
16:20
•
Mrs. Celina Escolàn Suay, Executive Director, Superintendenta
de Competencia, (El Salvador);
•
Mr. Nawir Messi, Executive Director, KPPU (Indonesia);
•
Mr. Kububa, Competition and Tariff Commission (Zimbabwe);
•
Dr. M. Njoroge, Commissioner MPC Kenya, (EAC);
•
Mr Tshering, Ministry of Commerce (Bhutan);
•
Mrs. Trudi Hartzenberg, Executive Director, TRALAC-Trade
Law Center, (South Africa).
Question and Answer Session
Contributions by:
European Union, Latvia, SIECA on behalf of Central American
countries, Brazil, Algeria, SACU, Zambia, Tunisia, Morocco, Turkey,
Prof. Gamze Öz, (Independent Expert), Yemen (To be completed)
17:20
General Discussion
18:00
Conclusions and Closure
Delegates wishing to speak during the session are invited to inform the
Secretariat accordingly by contacting Ms. Mispa Ewene (mispa.ewene@unctad.org)
or Mr. Pascal Garde (pascal.garde@unctad.org).