ABSTRACT
International state practice has approached international competition problems from at least four different perspectives:
The intellectual property law approach, notably in the 1883 Paris Convention on Protection of Industrial Property, has focused one-sidedly on ‘effective protection against unfair competition’ (Article 10bis) without providing for international antitrust rules to protect freedom of competition and consumer welfare (e.g. against market segmentation by means of patent rights).
The competition policy approach relies essentially on the extraterritorial application of domestic competition laws (notably of the USA and EC) to anticompetitive practices abroad and on legally non-binding multilateral guidelines (e.g. the 1980 UNCTAD Guidelines and 1986 OECD Guidelines) and a few bilateral agreements for the coordination of domestic competition laws. Many national competition laws provide, however, for the exemption of export cartels, import cartels or governmentsupported restraints of competition; and the divergencies among national competition policies continue to generate international conflicts, e.g. in case of conflicting merger-control policies, or ‘blocking statutes’ in response to extraterritorial enforcement of US antitrust law.
The worldwide trade law approach, notably in the General Agreement on Tariffs and Trade (GATT) of 1947 and in the 1994 Agreement Establishing the World Trade Organization (WTO), has so far focused on the liberalization of governmental market access barriers and market distortions, including government-supported restrictive business practices such as voluntary export restraints or the granting of ‘exclusive or special privileges’ to private enterprises (cf. Article XVII of GATT). GATT/WTO law also includes consultation and dispute settlement procedures for certain trade-restrictive business practices. The more ambitious integration law approach in the stillborn 1948 Havana Charter for an International Trade Organization, which combined liberal trade rules with comprehensive competition rules for restrictive business practices, has, however, so far not been implemented on the worldwide level.
The regional integration law approach—notably in EC law, the EC’s ‘Europe Agreements’, in the North American Free Trade Agreement (NAFTA), the Andean Common Market, and in the Australia—New Zealand Economic Cooperation Agreement—integrates trade and competition rules so as to protect international market competition and cross-border transactions against both governmental market access barriers (e.g. in favour of public undertakings and enterprises with privileged positions) and private distortions (e.g. in the case of trade-restricting patent misuse and anticompetitive licensing agreements). Moreover, the states involved also have domestic competition laws protecting the private rights of competitors and enabling parties affected by anticompetitive practices to submit their case to a domestic court for judicial review.
