Thursday, January 22, 2009
Posted by D. Daniel Sokol
Salil Mehra, Temple University - James E. Beasley School of Law discusses Building Antitrust Agency Capacity in Context. He responds to my piece The Future of International Antitrust and Improving Antitrust Agency Capacity.
ABSTRACT: This brief Essay provides some context to understand why the transfer of antitrust expertise from experienced regimes such as the United States to emerging enforcement institutions elsewhere will likely not be a simple exercise. A technocratic model of antitrust law suits the context of the United States because of the wide consensus on the goals of antitrust policy in the U.S. But emerging antitrust regimes may not have the benefit of the same underlying consensus on methods and goals that American enforcers enjoy. As a result, technical assistance focusing on narrow questions of interpretation may elide difficult questions of first principles and institutional design in emerging antitrust regimes.
The descriptive statistics that Professor Sokol provides can help shed light on common problems with how technical assistance is provided to emerging antitrust regimes. However, as shown by the examples I will discuss, the focus on forms of technical assistance in isolation may lead to the inaccurate view that emerging antitrust regimes are part of a sterilized environment in which other issues of enforcement authority and state power in markets can be controlled. In fact, reforming or emerging antitrust regimes may confront difficult—and contested—issues involving both the methods and institutions of competition law (“rules” of the game in Sokol’s terms) and their application to achieve goals in specific cases (“play” of the game). Part I of this Essay sets forth an example of how competition law may involve different, intertwined goals, Part II provides an example of how competition law can hinge on the nature of enforcement authority, and Part III considers Professor Sokol’s findings in light of these issues.