Wednesday, April 14, 2010
Posted by D. Daniel Sokol
Yane Svetiev, Brooklyn Law School describes Learning in an Antitrust Network.
ABSTRACT: The article examines the operation of the International Competition Network, a broad forum for antitrust enforcers from around the world. The ICN is one of many international regulatory networks that have emerged over the past few decades, providing an alternative to international treaties and organizations as the standard mode for cooperation and harmonization. While as a descriptive matter, such networks are less formal than a treaty regime, it is argued that they cannot and should not be viewed as purely informal phenomena. This approach pays insufficient attention to the question of how group norms are formed in those networks. Moreover, purely informal norm enforcement within such large and heterogeneous groups is neither possible nor likely to be robust.
The formulation of norms in the ICN takes place through consensus-based benchmarking of best practices. Benchmarking as a practice is imported from the business context, yet benchmarking is only one discipline for continuous innovation used by firms. By contrast, the ICN lacks robust mechanisms for following up the implementation of endorsed practices in various jurisdictions that would aid in the revision of those practices or their fine-tuning to particular enforcement contexts. Moreover, even if such mechanisms were created, the breadth and size of the network present additional impediments to comparison of international experience, particularly in a way that meets the needs of regulators in newer regimes.
Evidence from interviews with competition officials is used to illustrate some of the limitations of current processes within the ICN and ways in which officials from different jurisdictions overcome those limitations when designing or correcting domestic antitrust rules and procedures. Antitrust authorities increasingly participate in regional competition groupings, which both enhance the capacity and credibility of their enforcement efforts but could also provide the shared context necessary for joint exploration of best practices. The ICN could thus be reconceptualized as a network of networks, providing a venue for the creation of such clusters and the coordination and comparison of their experiences.