Eleanor Fox & Amedeo Arena International Institutions GAL & Competition Workshop

1. Eleanor Fox & Amedeo ArenaInternational InstitutionsGAL & Competition Workshop New York University School of Law February 4, 2011 1. Design, Mandate, Due Process Norms

2. International InstitutionsGAL & Competition Workshop • World Trade Organization (Amedeo Arena) • OECD • UNCTAD • ICN (Eleanor Fox)

3. International InstitutionsGAL & 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

4. International InstitutionsGAL & Competition Workshop • WTO - Institutional Design (cont’d) • Dispute Settlement Procedure: • Establishment of the panel • Panel stage • AB stage • Implementation / enforcement

5. International InstitutionsGAL & 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

6. International InstitutionsGAL & Competition Workshop • WTO - Mandate (con’t) • WTO’s antitrust dimension includes: • 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)

7. International InstitutionsGAL & Competition Workshop • WTO - Due process norms • Sufficient opportunity to be heard • Full notice of allegations • Reasonable time to prepare • Right to appeal

8. International InstitutionsGAL & 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

9. International InstitutionsGAL & 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

10. International InstitutionsGAL & 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

11. International InstitutionsGAL & 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.