Eleanor Fox & Amedeo Arena
International Institutions
GAL & Competition Workshop
New York University School of Law
February 4, 2011
1. Design, Mandate, Due Process Norms
International Institutions
GAL & Competition Workshop
 OECD
 UNCTAD
 World Trade
Organization
 ICN
(Eleanor Fox)
(Amedeo Arena)
International Institutions
GAL & Competition Workshop
WTO - Institutional Design
 Template models are not applicable
 Similar to a pure private enforcement
model
 WTO has a tripartite governance structure
 Ministerial Conferences
 Secretariat, Councils, Committees, TPRB
 DSB, AB, Panels
International Institutions
GAL & Competition Workshop
WTO - Institutional Design
(cont’d)
 Dispute Settlement Procedure:
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Establishment of the panel
Panel stage
AB stage
Implementation / enforcement
International Institutions
GAL & Competition Workshop
WTO - Mandate
 Competition is NOT a core WTO competence
 BUT: private or hybrid anticompetitive conduct
may frustrate trade liberalization goals
 State trade-restraining acts are usually caught
 Stronger antitrust provisions have been proposed
but not adopted
International Institutions
GAL & Competition Workshop
WTO - Mandate (con’t)
 WTO’s antitrust dimension includes:
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Article XI GATT (ban on import/export restrictions)
Article 8.1 TBT (conformity assessment procedures)
Article 11.1(b) Safeguards (ban on VERs)
Article 40.1 TRIPS (IP licensing conditions)
Article VIII GATS (monopoly and exclusive suppliers)
Telecoms Annex (access and use obligations)
Telecoms Reference Paper (ban on anticompetitive
practices, including cartels)
International Institutions
GAL & Competition Workshop
WTO - Due process norms
Sufficient opportunity to be heard
Full notice of allegations
Reasonable time to prepare
Right to appeal
International Institutions
GAL & Competition Workshop
WTO - Due process norms (cont’d)
 Independence of decision-makers
 Allegations of influence by special interest and of
discrimination against developing countries
 Existing rules attempt to address those issues
 Absence of rules of evidence
 Lack of sophistication in evaluating and handling evidence
 No rules on burden of proof, but the AB filled this gap in part
International Institutions
GAL & Competition Workshop
OECD – Design and Mandate
 Design
 International organization of developed nations
 Secretariat, Committees
 Competition Committee, Committee Bureau
 Mandate
 Research reports, best practices, and guidelines
 1995 Recommendation on cooperation on anticompetitive
practices
 1998 Recommendation on effective action against cartels
International Institutions
GAL & Competition Workshop
UNCTAD – Design and Mandate
 Design
 UN General Assembly Organ, comprised of States
 Operates through branches, notably the Competition and
Consumer Policies Branch (CCPB)
 Mandate
 Deals with issues of trade, investment and development
 CCPB attempts to help developing countries maintain and
modernize their competition laws and policies, through
updating commentaries on the UN Set on Competition Policy, a
Model Law, peer reviews and fora
International Institutions
GAL & Competition Workshop
ICN – Design and Mandate
 Design
 “Virtual” organization, having no secretariat, no geographic
location, no rule-making, no adjudicative power
 Composed of competition authorities, led by a steering group
 NGOs contribute to working groups
 Mandate
 to solve actual competition problems capable of practical
solution
 to provide an informal environment likely to produce
convergence of the competition laws of the nations.