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THE CONTRIBUTION OF BILATERAL TRADE OR COMPETITION AGREEMENTS TO COMPETITION LAW ENFORCEMENT COOPERATION

Dr Philip Marsden, Competition Law Forum Director and Senior Research Fellow

Competition Provisions in RTAs UNCTAD/YEDITEPE UNIVERSITY SEMINAR

31 July / 01 August 2006

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OVERVIEW

• Objectives and Methodology

• Findings: General and Specific

• Recommendations

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OBJECTIVES

• Identifying factors affecting the choice of cooperative instruments

• Evaluating their contribution to:

– (formal and informal) enforcement cooperation

– non-enforcement related cooperation

• Identifying factors impeding cooperation

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Competition provisions in FTAs vs.

Agency-agency enforcement arrangements:

– value added over spontaneous cooperation between agencies?

– likely to assist the evolution of cooperation (including follow-on agreements)?

OBJECTIVES

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How do competition provisions of the FTAs or the agency-to-agency cooperation agreements :

• help increase effective enforcement cooperation

• ensure that anticompetitive business practices do not undermine

the benefits of trade liberalisation

OBJECTIVES

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AGREEMENTS STUDIED

Canada and Chile

• Chapter L and J, Canada-Chile Free Trade Agreement (CCFTA)• Canada-Chile Memorandum of Understanding (CCMOU)

Canada and Costa Rica

• Chapter XI, Canada-Costa Rica Free Trade Agreement (CCRFTA)

EU and Mexico

• Annex XV, EU-Mexico Free Trade Agreement (EU-Mex FTA)

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METHODOLOGY

Problems

• Very little literature on these cooperation arrangements • No publicly available official reports

Result

• Majority of research conducted through: – Detailed questionnaires (see annexes to papers)– Interviewing officials

More caveats!

– Agreements quite recent

– Constraints of confidentiality

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GENERAL FINDINGS

Benefits of Cooperation Arrangements:

• Cross-fertilisation/best practices: OECD Recommendations and US-EC Agreements provided the model

• FTAs may introduce a working relationship which further agency-to agency agreements may consolidate (Canada/Chile)

• FTAs may contain detailed cooperation provisions comparable to agency-to-agency agreements (Canada/Costa Rica; EU/Mexico)

• Cooperation agreements promote trust and confidence between the competition agencies of the parties

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• Notifications are important for three reasons:

(a) an early warning of anticompetitive behaviour;

(b) establish channels of communication; and

(c) send a clear signal to undertakings that agencies take antitrust enforcement seriously

• Consultations and exchanges of information:

– opportunity for agencies to offer support, advice and experience

GENERAL FINDINGS

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Limitations of Cooperation Arrangements:

• ‘Soft law’ obligations:

– relatively vague/imprecise

– each party effectively interprets the extent of its obligations

– unenforceable in law between the parties

– no dispute settlement procedures (see EU-Mex FTA infra)

– but not a major problem

GENERAL FINDINGS

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• Restrictions on exchange of confidential business information:

– the arrangements do not require or permit any information

exchange that would otherwise not be permissible

– most officials believe this is the chief limitation on cooperation

GENERAL FINDINGS

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SPECIFIC FINDINGS: CANADA / CHILE

• The CCFTA and CCMOU established a relatively comprehensive framework for both cooperation and coordination

• Chapter J of CCFTA:

– important government-to-government policy statement– enumerates different methods of cooperation– general obligations; could potentially apply to any competition

issue

• CCMOU:

– consolidated working relationship established by CCFTA– more detailed mechanism

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SPECIFIC FINDINGS: CANADA / CHILE

• Notifications (1):

– one sent from Canada to Chile

• Exchanging non-confidential information:

– merger files– policy issues

• Informal discussion

– case related issues– on specific matters e.g. technical assistance programme

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SPECIFIC FINDINGS: CANADA / CHILE

• ‘Periodic meetings’ not as regular as expected

• No requests for cooperation

• FTA vs. agency-to-agency agreement?

– CCMOU contributes more to enforcement cooperation than the chapter in the CCFTA

– more detailed

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SPECIFIC FINDINGS: CANADA / COSTA RICA

• Chapter XI has introduced a working relationship between the

antitrust agencies

• Framework can now direct and improve interaction if necessary

• Potential is there but practice has been less enthusiastic

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SPECIFIC FINDINGS: CANADA / COSTA RICA

• Notifications (0):

• Requests for cooperation (2 at most):

• Technical assistance cooperation project being planned

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SPECIFIC FINDINGS: CANADA / COSTA RICA

• FTA vs. agency-to-agency agreement?

– competition provisions of CCRFTA as useful and as effective as agency-to-agency agreements

– very little difference in substance between Chapter XI CCRFTA and CCMOU

– additional express obligations: • independent and impartial authority• principle of non-discrimination

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SPECIFIC FINDINGS: EU / MEXICO

• Cooperation more official, more open and more intense since signing of EU-Mex FTA

• Notifications (32):

– Mexico notified EU 31 times– EU notified Mexico once

• Requests for consultation (14):

– EU made 2– Mexico made 12

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SPECIFIC FINDINGS: EU / MEXICO

• No requests for positive comity

• Technical assistance programme to take off soon

– involves 7 different areas including competition policy

• Day-to-day information exchanges:

– non-confidential information– generally involves technical aspects of competition enforcement

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SPECIFIC FINDINGS: EU / MEXICO

• Cooperation could be more intense, e.g. the provisions on coordinated or parallel enforcement & (abbreviated form of) positive comity have not yet been used

• Note: dispute settlement procedures

– de facto vs. de jure situation– one authority believes that they do not apply to Annex XV– another believes they do but that they would practically never be

used– authors believe this a non-issue

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SPECIFIC FINDINGS: EU / MEXICO

• FTAs vs. agency-to-agency agreements?

– provisions of Annex XV are as useful and effective as those that could have been included in an agency-to-agency agreement

– no great difference in substance between Annex XV and current agency-to-agency agreements e.g. CCMOU, US/EU, US/Canada

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RECOMMENDATIONS:GENERAL

• Cooperation agreements have obvious limitations, but they are still useful and valuable

• However, may be less useful than before:

– informal cooperation– guidance from existing agreements– development of international fora e.g. the ICN

– quaere: can informal cooperation replace the detail of bilateral cooperation agreements?

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RECOMMENDATIONS:SPECIFIC

All three relationships:

• Existing framework is satisfactory - No further agency-to-agency agreement is required at this stage

• New agreement welcome only if it provided for the exchange of confidential information

• Global initiative as precursor to bilateral approach

• Problems ahead:– definitions– how information shall be used

– Publish reports on cooperation!