Thursday, June 12, 2014
David J. Gerber, Illinois Institute of Technology - Chicago-Kent College of Law has an interesting paper on Global Competition Law Convergence: Potential Roles for Economics.
ABSTRACT: Discussions of the future of competition law on the transnational level often reflect assumptions about the role of economics. Perhaps the most pivotal of these assumptions is that economics can provide a basis for global competition law convergence. It is pivotal, because choices and strategies relating to competition law often depend on it. Moreover, many see convergence among competition law systems as the only viable response to the problems and weaknesses of the current legal framework for transnational competition, and this view reduces incentives to evaluate or pursue other strategies such as coordination among states. Yet the prospects for convergence rest on assumptions about the role of economics in the convergence process, and these assumptions therefore deserve careful attention.
This Essay explores these assumptions. It clarifies some of the concepts involved and identifies some of the roles that economics can play in the context of competition law convergence. In particular, it explores the issue of how and to what extent economics can provide a basis for competition law convergence. Curiously, this “how” issue is seldom explored carefully. Discussions of competition law convergence often proceed as if the science of economics will be central to global convergence, but they seldom explain how it can be expected to play this role.
Our analysis here reveals that undifferentiated assumptions about the role of economics in the convergence process are likely not only to create uncertainty and impose costs, but also to cloud discussions of the issues and distort decisions regarding them. If, however, we distinguish among the various functions that economics performs in competition law regimes and analyze the potential for convergence around each, a different picture emerges. It becomes clear that economics can support certain forms of convergence and that it has much potential value in this context.