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Tuesday, August 17, 2010

Chen on Global Competition: Law, Markets and Globalization

Posted by Ruohong Chen

The development of global competition law is undoubtedly a complex problem. It involves complicated factors such as economic globalization, unilateral jurisdictionalism, various competition law systems and historical, cultural and political elements behind each system. For such a complex problem, professor David Gerber’s insightful book presents a complex but clear analytical framework.


1. Perspective

The historical and in-depth comparative perspectives of the author reveal by themselves the significance and altitude of the book. Tracing back to the emerging period of global competition law project, professor Gerber clearly shows us how those efforts emerged and where they fell down. The meaning of such clarification, as I see it, is to differentiate between real “competition dispute” and disputes arising out of other concerns, so as to focus our discussion on real competition disputes and stay away from detracted argument. Also, only with the foundation of such clarification can we work out a workable strategy which helps avoid similar “fall down”. In the latter part of this book, Professor Gerber develops strategy which clearly corresponds to his historical analysis. (E.g, pp 286-292, “Convergence as a Global Competition Law Strategy”)


Prospect of global competition law relies on the closing of the gap between competition thoughts in different systems. Professor Gerber’s profound comparative competition law discussion can greatly help us walk out the puzzle when we try to perceive foreign competition laws. I am deeply impressed by two characteristics in his comparative competition law discussion. One is, he clearly shows the uniqueness of elements contributing to the shaping of each competition law system and cautiously warns the reader to bear in mind the function of these elements. The other is, he develops insightful thought from the trial-and-error experience of US antitrust law. I believe, with such enlightening in-depth comparative narratives, people from different competition law systems will find it easier to understand each other, and head toward a more communicative and constructive discussion of global competition law.


2. Reference system

In the book, Professor Gerber use US antitrust law as a reference for discussion of competition law development. Whether you are fascinated by US antitrust system or remains skeptical toward it, there is no denying that, “The US model’s role as a common reference point is associated with its role as a heuristic-a cognitive device for thinking about complicated issues”(p.152). At least, people could draw some lessons from its evolution process and trial-and-error experience. After explaining his consideration for setting such reference, Gerber brings to everyone’s attention the key feature and general tendency of this system----narrow focus and exclusion or marginalization of political and social factors in considering antitrust law and its influence. Following all these steps, Professor Gerber tries to invoke further discussion----“to conceptualize the distance between systems, provide a way of measuring increases or decreases in distance”.


3. Methodology

As mentioned in the preface of the book, “equally great is the need for effective use of a broad range of economic and other social science insights in developing competition law. Yet the full breadth and richness of thought applicable to these issues often remains unexplored and unused”. Undoubtedly, this insightful book presents to us the author’s solid understanding of history and effective use of theoretical analysis----those thought-provoking insights derive from his historical, sociological, legal and economic methodologies.


When we observe competition in biological world and human society, we may find that competition is always associated with variety. It is among the varieties that competitive ones which can better adapt to environment attract more resources, gain strength and grow stronger. It is notable that, thorough exploration of varieties can be seen in many parts of Professor Gerbers book, just to name a few: competition law systems, global competition law development path, methodology,etc. By doing so, the author is initiating a complex discussion of the complex problem of global competition law, hopefully, a solid academic foundation can be laid for the emerging of a competitive global competition law system.

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