BOOK LAUNCH: The law and politics of Global Competition

Arguments

The speaker appreciates the efforts of the European Union and the United States in regulating the digital economy from a competition policy perspective, specifically mentioning the Digital Market Act.

Supporting facts:

• The speaker acknowledges the long years of discussion and debates regarding the usefulness and potential role of the DMA and its interaction with competition law.

Topics: Digital Economy, Competition Policy, Digital Market Act

The audience thinks there is a global consensus that a handful of companies can act as gatekeepers in the digital economy.

Supporting facts:

• The audience works on the task force of the DMA

• There was agreement on this point during the adoption of the DMA

Topics: digital market, company power, digital gatekeepers, competition laws

Companies acting as gatekeepers can also be gate openers, providing benefits for small and medium enterprises.

Supporting facts:

• Companies can provide revenue opportunities for small and medium enterprises through online advertising

Topics: company power, digital economy, digital advertising, economic growth

Forums like those mentioned can have an impact in building consensus on global issues, even if they don’t have decision-making power.

Topics: global forums, consensus building

The filtering of best practices itself establishes a norm that could potentially turn against those who are supposed to be privileged by the disseminated norms.

Supporting facts:

• Chris’s intervention about the filtering of best practices

• Establishing a norm that could potentially undermine those who are supposed to be privileged by the disseminated norms.

Topics: Best Practices, Filtering Norms, Creation of Norms

Competition law can incorporate values beyond consumer welfare

Supporting facts:

• Christopher Townley mentions the possibility of altering societal norms within an organization.

• Mention of South Africa incorporating the aid of historically disadvantaged people in their competition law.

Topics: Competition law, Values, Consumer Welfare

Rich and powerful entities can potentially misuse values-based arguments for self-interest.

Supporting facts:

• There is mentioned possibility of businesses using environmental arguments to promote their interests.

Topics: Competition law, Powerful entities, Misuse

Public interest provisions vary greatly between different countries and cultures

Supporting facts:

• In the Comesa region, the issue of public interest came up in discussions related to the African Continental Free Trade Area

• Public interest provisions in South Africa are based on cultural values, while in countries like Kenya, Botswana, Namibia they are based on issues like employment

Topics: Public Interest, Trade Policies, Competition Laws

The debate on the intersection of geopolitics and competition law is timely and relevant

Topics: Geopolitics, Competition Law

Report

In the analysis, several speakers discuss different aspects of regulating the digital economy and competition policy. Firstly, the efforts of the European Union and the United States in regulating the digital economy through the Digital Market Act are praised. This act is specifically mentioned as a valuable tool from a competition policy perspective.

In regards to developing and least developed economies, the speakers raise a question regarding the approach these economies should take in developing their own policy regulations involving the digital economy. They suggest considering guidance from regional organizations such as the OECD, UNCTAD, or the international network of competition authorities.

This highlights the importance of seeking advice and expertise when formulating regulations to ensure effective policies. The analysis also highlights a global consensus, agreed upon by the audience, that a small number of companies can act as gatekeepers in the digital economy.

This recognition is crucial in understanding the influence and power that these companies hold. However, it is also emphasized that these gatekeepers can have a positive impact by providing revenue opportunities for small and medium-sized enterprises through online advertising. This duality of the gatekeepers’ role is important to consider in discussions surrounding competition policy and the digital economy.

The role of global forums is deemed essential in building consensus on global issues, even if they do not have decision-making power. Their ability to bring together different stakeholders and perspectives contributes to the development of effective policies. An interesting observation from the analysis is the questioning of the prominent role of law firms and the limited say of consumers in matters related to the regulation of the digital economy.

This highlights the need for increased consumer involvement and a more balanced representation of various stakeholders in decision-making processes. The analysis also explores the filtering of best practices and highlights a potential concern. The filtering itself may establish a norm that could inadvertently disadvantage those who were intended to benefit from the disseminated norms.

This observation sheds light on the potential unintended consequences of implementing certain practices. Transparency and disclosure are suggested as possible solutions to address concerns regarding the influence of affiliations, dependencies, investments, and strategic positions of speakers or writers in conversations related to the digital economy and competition policy.

These measures would help foster trust and accountability among stakeholders. Additionally, the analysis emphasizes that competition law can encompass values beyond consumer welfare. Christopher Townley mentions the possibility of altering societal norms within organizations, and South Africa is cited as an example of incorporating historically disadvantaged people in their competition law.

This broader consideration of values in competition law highlights the potential for positive social impact. It is noted that rich and powerful entities can potentially misuse values-based arguments for their own self-interest, presenting a concern in the context of competition policy.

The analysis also draws attention to how public interest provisions vary greatly between different countries and cultures. Cultural values, employment, and other relevant factors influence the development of public interest provisions by different nations. The intersection of geopolitics and competition law is mentioned as a timely and relevant debate.

This observation highlights the expanding scope of competition law to include international political dynamics. Finally, the analysis recognizes the crucial role of governments and their institutions in shaping policies related to the digital economy and competition. Policies are driven by recommendations from institutions based on their market findings or respective spheres of expertise.

Overall, the speakers in the analysis provide insights into various aspects of regulating the digital economy and competition policy. The analysis encourages seeking guidance, considering different perspectives, and recognizing the potential influence of powerful entities. It emphasizes the importance of transparency, consumer input, and the incorporation of values beyond consumer welfare in competition law.

The varying approaches to public interest provisions and the intersection of geopolitics and competition law are further areas of consideration. The role of governments and institutions in shaping policies is also underscored.

Arguments

Competition laws are a product of their history, culture, and values of the jurisdiction

Supporting facts:

• EU competition rules work towards the goal of a single market

• South African competition rules intentionally address the power balance issues raised by past apartheid

Topics: Competition laws, Jurisdiction

Global solutions might benefit if competition authorities worked together

Supporting facts:

• Multinational firms might face one set of rules that make it cheaper to do business

• Collaboration could benefit especially the developing countries by learning from more established authorities

Topics: Competition authorities, Global collaboration

The International Competition Network (ICN) operates in an informal and unusual manner, allowing multinationals to draft proposed rules and practices

Supporting facts:

• Large multinationals, primarily from the EU and the US, are heavily involved in helping to draft the ICN’s recommended practices

• Political science theory highlights how initiating the drafting process can give considerable power to these multinationals

• While national competition authorities also contribute to this process, the most powerful ones (from the EU, US and UK) tend to have the most say

Topics: International Competition Network, multinationals, regulation

Power distribution in the ICN can disproportionately affect developing countries

Supporting facts:

• The ICN’s norms and practices tend to be based on the interests of the most powerful states, mostly from the EU and the US

• Developing countries don’t usually drive the ICN’s agenda

• The most powerful and influential voices in these discussions tend to come from richer states

• Best practices selected for promotion by the ICN typically align with EU or US norms

Topics: International Competition Network, developing countries, inequality

Law firms have a more prominent role in influencing competition law compared to consumer organizations

Supporting facts:

• Law firms benefit massively from getting inside the room and making rules or best practices.

• International Competition Network was originally organized by the International Lawyers Association.

Topics: Competition Law, Consumer Organizations, Law Firms

Consumers face a coordination problem making it difficult for them to stand against something

Supporting facts:

• Individual losses for consumers are so small that it doesn’t provoke them to fight against it.

• Firms collectively benefit from all these small losses from consumers.

Topics: Consumers, Coordination Problem, Political Salience

The narrative around competition law has successfully been depoliticized and made uninteresting.

Supporting facts:

• Competition law is portrayed as value neutral, preventing it from becoming a topic for mainstream political debate.

• This depoliticization works in favor of competition authorities aiming to preserve their independence.

Topics: Competition Law, Depoliticization

An asymmetry of power and finances exists between big business and consumer organizations.

Supporting facts:

• Big businesses have lots of interest in getting access to law making due to the massive gains to be made.

• Consumer organizations are underfunded, making it difficult for them to participate.

Topics: Big Businesses, Consumer Organizations, Power Asymmetry

The norms can definitely change and could totally be the answer

Supporting facts:

• An organization’s norm could be not to monolithically say, there’s just one thing to talk about

• South Africans think that helping historically disadvantaged people in their competition law is a good way to do it

Topics: Competition Law, ICN rules, Organization norms

More space and time should be opened up for discussion

Supporting facts:

• Marianne mentioned the importance of informed divergence in the early days of the ICN

Topics: Open discussion, ICN

Report

Competition laws are shaped by the unique history, culture, and values of each jurisdiction, which means that rules and regulations can vary significantly across countries. For example, EU competition rules aim to establish a single market, while South African competition rules address power imbalances resulting from apartheid.

Collaboration among competition authorities globally can benefit developing countries, allowing them to learn from more established jurisdictions. However, creating one set of rules may conflict with individual countries’ aims and values. The International Competition Network (ICN) is an informal platform where multinational firms participate in drafting proposed rules.

While national competition authorities also contribute, the most powerful players tend to have the most influence. This raises concerns about fairness and whether multinationals have an advantage in shaping competition policies. The power dynamics within the ICN can disproportionately affect developing countries, as the norms and practices often align with the interests of the most powerful states.

This can perpetuate inequalities in global competition. Exposure to the ICN can influence national competition authorities’ allegiance, potentially leading to a divergence from their state’s interests. This highlights the need for a balance between international collaboration and safeguarding jurisdictional interests.

Law firms have a more significant role in shaping competition law compared to consumer organizations, primarily due to their resources and knowledge. Consumers face a coordination problem in standing against competition issues, as individual losses are often small and distributed across a large population.

The depoliticization of competition law favors competition authorities, preserving their independence. An inherent asymmetry of power and finances exists between big businesses and consumer organizations, with big businesses exerting more influence. Organizational norms within competition law can change over time and provide potential solutions, but there are also risks associated with changing norms.

Big businesses can exploit environmental arguments to support cartels. Understanding and discussing the values that impact competition law is crucial to tailor it to specific needs. Encouraging open discussion and informed divergence within the ICN is essential for innovation and better decision-making.

Striking a balance between global collaboration and preserving jurisdictional interests is key. In conclusion, competition laws are influenced by history, culture, and values. Collaboration should respect individual aims and values, and concerns should be addressed regarding power dynamics, influence, and fairness.

Attention must be given to the imbalance of power and finances between big business and consumer organizations. Understanding values and promoting open dialogue can lead to more effective and equitable competition practices.

Arguments

Competition rules differ across countries due to varying cultures, histories and values; global or regional collaborations could provide effective solutions, while simultaneously posing challenges in respecting individual states’ unique goals

Supporting facts:

• The EU’s competition rules aim towards a single market, taking into account their separate nations’ barriers

• South Africa’s competition rules directly address the power imbalance caused by apartheid

Topics: Competition Law, International Collaboration, Globalization

Collaborations between competition authorities can provide beneficial learning opportunities, particularly for developing countries with less resources and experience

Supporting facts:

• Collaboration between more established bodies and younger competition authorities can provide chances for growth and improvement

Topics: Collaboration, Developing Countries, Learning Opportunities

Need to question the role of large multinationals in the ICN

Supporting facts:

• Large multinationals are heavily involved in drafting the ICN recommended practices, giving them a significant amount of influence.

Topics: International Competition Network, Large Multinationals

State actors should be involved in policy discussions in the ICN

Supporting facts:

• Discussions on competition policy are not simply about enforcement, but also about legislation making. Thus, it is important for state actors to have a say in these discussions.

Topics: ICN Policy, State Actors

Need for better support for developing countries in ICN participation

Supporting facts:

• Participating in the ICN requires a lot of resources, which could be challenging for developing countries. Support from organizations like UNCTAD can be very helpful.

Topics: Developing Countries, ICN Participation, UNCTAD

The issues in terms of digital markets competition of developing countries starts from a different ground from developed countries

Supporting facts:

• A start point for understanding competition in the digital markets for developing countries is to observe the infrastructure such as the implementation of telecom providers.

• The role of digital platforms in developing countries could be different than that in developed countries.

Topics: Digital Economy, Competition Law

Report

The discussion focuses on differing perspectives regarding global collaboration in competition law. One perspective suggests that collaborations between competition authorities can offer valuable learning opportunities, especially for developing countries with limited resources and experience. By partnering with more established bodies, these developing countries can gain insights and knowledge to improve their competition laws and contribute to SDG 17: Partnerships for the Goals, SDG 4: Quality Education, and SDG 9: Industry, Innovation and Infrastructure.

However, there are concerns about potential conflicts arising from differing norms and rules resulting from global collaborations, specifically those related to SDG 16: Peace, Justice, and Strong Institutions. Multinational firms may prefer simplified rules for cost-effective operations, but this may undermine individual countries’ aims and values.

Another viewpoint questions the ability of the International Competition Network’s (ICN) “best practices” to accommodate diverse jurisdictional goals. While the ICN consistently presents recommended practices, their suitability for all jurisdictions with varying competition law goals is debatable. There is also concern about the influence of large multinationals in shaping ICN recommended practices.

This raises questions about the influence of these corporations on global competition policies and regulations, potentially impacting SDG 10: Reduced Inequalities. In contrast, the importance of involving state actors in policy discussions within the ICN is emphasized. Such discussions are not only about enforcement but also about legislation-making, so state actors’ involvement ensures diverse perspectives and inclusive decision-making processes.

Furthermore, support for developing countries’ participation in the ICN is considered crucial. Participating in global collaborations often requires significant resources, making it challenging for developing countries. Organizations like the United Nations Conference on Trade and Development (UNCTAD) can play a helpful role in providing support to ensure equal opportunities for these countries, aligning with the goal of reducing inequalities (SDG 10).

In the context of digital markets, it is recognized that the competition challenges faced by developing countries differ from those in developed countries. Factors such as infrastructure, specifically telecom provider implementation, play a significant role. Hence, a tailored approach is essential to address the unique challenges of developing countries in the digital space.

The Digital Market Act (DMA) and other solutions should be studied and customized to suit the specific needs of each country. For example, the DMA’s success in Europe was influenced by specific political and historical conditions that may not be applicable elsewhere.

Additionally, the role and usage of digital platforms in developing countries may differ due to infrastructure issues, such as unreliable postal services. In conclusion, the discussion highlights the range of perspectives and debates on global collaboration in competition law. Collaborations between competition authorities can offer learning opportunities for developing countries, but concerns about conflicting norms and the influence of large multinationals persist.

Skepticism surrounds the adaptability of “best practices” to diverse jurisdictions, while the involvement of state actors and support for developing countries’ participation are seen as positive steps. Furthermore, the importance of studying and customizing solutions, like the DMA, to suit the specific needs of each country in the digital markets is emphasized.

Overall, this analysis underscores the complexity and challenges involved in achieving effective global collaborations in competition law, while also recognizing the potential benefits and opportunities for learning and growth.

Arguments

E-commerce can transcend national borders, making it challenging for national competition authorities to effectively regulate and enforce competition laws on their own

Topics: E-commerce, Cross-border regulation, Competition law enforcement

International cooperation in competition law and policy, and specifically enforcement, can help to reduce these challenges

Topics: International cooperation, Competition law and policy, Law enforcement

UNCTAD has been working on this important issue of facilitating international cooperation between competition authorities

Supporting facts:

• A recent ANCTAD survey cited major obstacles for developing countries in international cooperation

• Guiding policies under Section F of UN were adopted by ANCTAD members in 2020 to assist lesser experienced authorities

Topics: UNCTAD, International cooperation, Competition authorities

UNCTAD is the focal point for competition law and policy within the United Nations system and provides the largest platform for exchange of information and knowledge.

Supporting facts:

• UNCTAD has 195 member states, providing a large platform for exchange

Topics: Competition law, United Nations system, Information exchange, Knowledge sharing

It’s crucial to expose less experienced competition authorities from developing countries to the most advanced competition authorities’ knowledge and practices.

Supporting facts:

• UNCTAD provides technical cooperation trying to provide options for countries according to their specificities

Topics: Developing countries, Competition authorities, Best practices

The growing power of developing countries is counterbalancing the influence of the most developed countries in competition law and policy.

Supporting facts:

• Countries such as Brazil, the Russian Federation, India, China, South Africa have established themselves in the field of competition law and policy for development

Topics: Developing countries, Competition law and policy

Regional cooperation is important and acts as a platform for young and less resourced countries to interact and benefit.

Supporting facts:

• Seven regional economic organizations in the African continent have elected competition law and policy at regional level

• The Africa Continental Free Trade Area is an example of regional cooperation

Topics: Regional cooperation, Developing countries, Competition law and policy

Consumer organizations play a crucial role in representing the interests of consumers who might otherwise struggle due to inertia or unawareness of their rights

Supporting facts:

• Consumer groups as a way of representing faceless consumers and ensuring their interests

Topics: Consumer Rights, Consumer Protection

Competition authorities are becoming more attentive to non-efficiency related goals

Supporting facts:

• Competition authorities are considering sustainability concerns and cost of living crisis

• Significant discussions on rethinking the consumer welfare standard since pandemic

Topics: Competition Law, Economic Efficiency, Consumer Welfare Standard

The International Competition Network (ICN) annual conference launched project on food sector

Supporting facts:

• The project was largely driven by academia and competition authorities of developing countries

Topics: Food Security, International Competition Network (ICN)

Report

E-commerce presents a significant challenge for national competition authorities, as it transcends national boundaries and makes it difficult for them to regulate and enforce competition laws effectively. International cooperation in competition law and policy enforcement is crucial to address this challenge.

UNCTAD (United Nations Conference on Trade and Development) actively facilitates international cooperation between competition authorities. As the focal point for competition law and policy within the United Nations system, UNCTAD provides a substantial platform for information and knowledge exchange. This enables competition authorities to learn from each other and apply best practices in their jurisdictions.

Supporting competition authorities from developing countries is essential, as they may have less experience dealing with the complexities of competition law and policy. UNCTAD plays a significant role in offering tailored technical cooperation to meet the specific needs of these authorities.

By exposing them to advanced knowledge and practices, competition authorities from developing countries can enhance their ability to address competition issues effectively. Regional cooperation is also vital in promoting interaction and mutual benefit among countries. For example, several regional economic organizations in Africa have established competition law and policy frameworks at a regional level.

The Africa Continental Free Trade Area is an excellent example of regional cooperation, providing opportunities for less-resourced countries to engage and benefit from shared experiences. Consumer organizations are crucial for safeguarding consumer rights and representing their interests. They provide a platform for consumers to stand against potential exploitation and ensure their voices are heard.

These organizations play a vital role, especially for consumers who may lack awareness or face barriers in asserting their rights. Competition authorities are evolving and considering goals beyond efficiency-related concerns. They are increasingly aware of sustainability issues and the cost of living crisis.

This broad understanding demonstrates the impact of competition on various aspects of society and the economy. The International Competition Network (ICN), in collaboration with academia and competition authorities from developing countries, launched a project focusing on the food sector. This highlights the growing recognition of competition’s role in ensuring food security and responsible consumption and production.

In summary, international cooperation, knowledge sharing, and empowering consumer organizations are crucial in addressing the challenges faced by competition authorities in regulating and enforcing competition laws. UNCTAD’s efforts in facilitating international cooperation, providing technical support, and sharing knowledge significantly contribute to enhancing competition law and policy worldwide.

The evolving nature of competition law and policy, with a focus on specific sectors such as the food sector, reflects the changing landscape of competition regulation. Collaboration and shared learning among competition authorities are key to effectively navigating the complexities of the digital age.