Thursday, September 23, 2010

Gerber Responds to Blog Symposium on Global Competition: Law, Markets and Globalization

[Editor's Note: In August 2010 we held a blog symposium on the excellent book Global Competition: Law, Markets and Globalization (Oxford University Press 2010) by David Gerber.  We assembled a group of scholars from around the world to discuss to book. The posts of these scholars are linked at the end of this post.]

Posted by David Gerber

My thanks to each of the participants in the blog symposium held in August to discuss  my new book, Global Competition: Law, Markets and Globalization (OUP, 2010) and to Prof. Danny Sokol for hosting the symposium.   Their contributions provide valuable perspectives on the book as well as keen insights into some of the issues it raises.

I take this opportunity to comment briefly on a few points that may help to put these and other reviews of the book in context.    I hope the comments will further clarify my objectives and perhaps correct one or two misunderstandings about the project that have surfaced in the symposium and in other discussions of the book.

One particularly important point is that the book’s objectives are primarily historical and analytical!  I did not set out to argue for a particular policy agenda, and I very much hope that the project will not be viewed as a pladoyer for such.    In fact, the policy suggestions emerged only after most of the rest of the book had been completed.   They were shaped and spurred by the analysis; they did not shape the analysis.   The book was certainly not written to support them.  

A central feature of the analysis is its combination of perspectives.    It seeks to understand the process of global competition law development and the issues that that process raises by looking at it from a variety of angles and then combining the pictures to “see” it more clearly.   This reveals often unseen dimensions of the process and provides a fuller a fuller and more valuable picture than could be provided in any other way.   

A central lens  is historical.   I look closely at the evolution of competition law in legislation and practice, the conceptual developments in economics and law that have influenced that evolution,  and the social, political and economic contexts in which those interactions have occurred.   The book does this on the global level as well as within important national jurisdictions.    Throughout the analysis, the focus is on the interactions and interrelationships between these two dimensions – national and transnational.    These domains of competition law have continually shaped and reshaped each other, and these interactions are, therefore, critical to understanding the dynamics of global competition law development.  I believe that the book breaks much new ground in treating these issues..  

One of my central objectives in the book is to provide a view of experience with competition law on the global level that is broader and more capacious than has previously been available.   The images of that experience that are referred to in recent discussions are often wrong, and at least highly misleading.    This is particularly important, because these distorted views tend to foster a particular set of policy perspectives and objectives, and they may also, therefore, lead to misguided policy options and choices.   For example, discussions of global competition law sometimes assume that the story starts in the 1990s (with the advent of globalization).   By ignoring earlier experience this assumption overlooks much accumulated experience and restricts the range of considerations and alternatives for discussion.   Informed observers sometimes mention briefly the failed efforts to include competition law in the institutional framework of world trade after the Second World War, but they typically dismiss that experience as an indication that competition law on a global scale is inevitably hopeless because it has never garnered widespread support.    Closer examination reveals not only that there was significant support for the basic idea both in the 1920s and in the postwar period, but that it often came from groups and countries generally resistant to such efforts today.  

The book also examines  national competition law experience from this broad perspective, seeking to place the discussion of competition law development in its political, economic and historical contexts.    Recent discussions of “models” for competition law development – i.e., the experiences  and systems that are looked to in evaluating current decisions – are often remarkably narrow.    They almost invariably focus on US experience.   Yet this eliminates extensive amounts of potentially relevant experience from the discussion.    In particular, European national experience in the twentieth century may have significant value for current thinking about competition law development on both the national and global level.   European states traversed many of the same issues and dealt with many of the same obstacles that newer competition law systems face today, and thus to omit this experience from view is to diminish and narrow thinking about the issues. 

The book’s analysis also breaks much new ground in going beyond US and European competition law experience, which have long dominated discussion of the issues, and integrating into global development dynamics the newer players in competition law from Asia, Latin America and Africa.    Much can be learned about the prospects for global competition law development from looking at these experiences and relating  them to the processes of globalization.  

A comparative lens is of particular value in this context.   Discussions of global competition law development all too often not only marginalize or exclude national experiences other than those of the US (and perhaps Europe), but also fail to provide adequate comparative analysis of the issues.    They may mention such other experiences, but there is seldom serious effort  to look carefully at patterns in their operations or at reasons why some solutions have been successful while others failed.   Many factors are potentially relevant, and careful comparative study can lead not only to a better understanding of the problems, but a fuller set of options for responding to them.    The book applies a comparative analysis that is designed to identify such patterns and factors and thereby to render  national experiences both relevant and useful to contemporary and future discussions.

Finally, I suggest some policy consequences that might be drawn from this examination.   As emphasized above, these conclusions emerged from the study of the data.    They did not precede or shape the analysis.   The main policy conclusions are (1) that there may be a significantly greater basis for support for some form of transnational coordination than is usually assumed in current discussions, (2) that progress on this level may provide important benefits that are not likely to be provided by simply waiting for countries to “converge” spontaneously around a single model (i.e., the US model), and  (3) that the effectiveness and “success” of any such coordination efforts must depend on their capacity to provide a voice and a role for all interests involved.    Only if there is sufficient political support for competition law can it be of value, and this is particularly true with regard to competition law on the global level.    This means that there is no necessary basis for believing that the US or any other national “model” can effectively serve as the basis for global competition law development.    Perhaps there will be widespread agreement that it should serve as a model, but it is far too early to predict such an outcome.  

On the basis of this analysis, I coin the term “commitment pathway” to refer to a process of coordination over time that holds promise for effective global competition law development, and I suggest some of the reasons why it might be effective.    I do not develop this proposal fully (that may be appropriate later), but I set out some of its basic ideas and components.  
Some have suggested that I am “optimistic” about the idea of a global competition law agreement.    While I am cautiously optimistic that progress can be made along the lines I mention, I also suspect that if there is to be real progress, the process will be a long one in which successes are based on gradually developing support for the project at national and sub-national levels.   An agreement that is “imposed” or “coerced” – whether directly or indirectly –  is not likely to be effective, and it may be more harmful than beneficial.    

This brief response to the blog symposium has highlighted some of the book’s main objectives and  clarified  the overall design.    I again express my sincere gratitude to each of  the participants and to Professor Sokol for hosting symposium.. 

Previous Posts for the Blog Symposium on Global Competition: Law, Markets and Globalization

Michal Gal

M. Elina Cruz

David Lewis

Enrico Camilleri

Spencer Waller

Damien Gerard

Ruohong Chen

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