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Tuesday, August 17, 2010

Waller on Global Competition: Law, Markets and Globalization

Posted by Spencer Waller

I am indebted to David Gerber on two very different levels.  Besides being been a friend and mentor, his scholarship has been an inspiration and an often under-appreciated contribution to international competition policy.  His earlier book “Law and Competition in Twentieth Century Europe: protecting Prometheus” made a compelling case that there is a European competition law that stands apart from US antitrust law and policy.  http://www.amazon.com/Law-Competition-Twentieth-Century-Europe/dp/0199244014/ref=sr_1_1?s=books&ie=UTF8&qid=1280863210&sr=1-1 . He documented how EU competition law and its national analogues share common roots going back to prior to World War II as a true pan-European body of law with indigenous roots and a common frame of reference.  He was the probably one of the very few US writers to be able to pull off this feat given his ability to do primary research in English, German, French, and Swedish and the ability to tie together the various strands of discourse in multiple legal systems.

Gerber now expands his field of inquiry to global competition policy in “Global Competition: Law, Markets and Globalization.”  He both describes and analyzes the history and current state of national and international solutions to international competition law and set forth a path forward where past efforts have failed.

The key to understanding Gerber’s arguments is to appreciate his view that the past efforts did not fail, or at least did not fail as to the substance of the idea that global markets require global solutions to prevent private anticompetitive conduct on a global scale.  He provides one of the best and most nuanced accounts of attempts in the 20th century to develop international competition law and the forces outside of the competition arena that prevented their adoption. 

He begins with the League of Nations conference in the 1920s on global cartels and the glimmering of a consensus that some conduct based rules against cartel abuses were appropriate.  These efforts were overwhelmed by forces outside the competition debate itself such as the failure of the US to ratify the League Charter, the advent of the Great Depression, the eventual rise of the Axis powers, and the collapse of the League itself.

Gerber tells a similar story of consensus on emerging competition norms following World War II in the draft Havana Charter of the International Trade Organization.  Here the heavily negotiated compromise provisions were undermined by the failure of the US to ratify the Charter for other reasons and the almost immediate division of the world in the ensuing Cold War between market and planned economies.  He continues with a similarly sophisticated telling of the more familiar story of post-war US jurisdictional unilateralism as a partial solution for the next fifty years and the promise (and limitations) of convergence as a strategy in more recent times following the collapse of the Soviet Union.  It is fascinating to reflect on what might have emerged decades ago, but for these external factors and the second best solutions that arose in their place.

Throughout Global Competition Gerber uses a much wider and more cosmopolitan lens than the often US-centric approach to these issues.  He is as interested in the EU and the rest of the world, in addition to the US, in figuring out the possibilities of the current and past approaches and his proposals for what he dubs a “commitment pathway” in lieu of continued sole reliance on soft harmonization and convergence. 

He has a unique ability to pull back and make big sweeping connections between competition, trade, and development law and policy and then focus in closely on the impact of a single event or scholar on the progress toward or away from international consensus on competition norms.  In places, this ability to pull back and then swoop in reminds me of one of my favorite science documentaries “Powers of Ten.”  There, the filmmakers show two picnickers in a park “with the area of each frame one-tenth the size of the one before.  Starting from a view of the entire known universe, the camera gradually zooms in until we are viewing the subatomic particles on a man's hand.”  http://www.imdb.com/title/tt0078106/plotsummary.   Like the film, Gerber demonstrates the ability to show both the vast and the miniature in international competition law and have it make sense and reveal new perspectives.  This is uniquely Gerber and wonderfully done.

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