Sunday, November 10, 2013

Sokol on The Design of Competition Law Institutions

As with politics, competition law institutional design is local.  The institutional structure of a particular system reflects underlying political and economic structures of organization.  These may shift over time due to global norms and domestic changes. 

Capturing the complexity of institutional changes is not easy.  Eleanor Fox and Michael Trebilcock have filled in a gap in the antitrust/competition law and policy literature by providing the first ever comparative book on institutional structures of competition law with their edited book The Design of Competition Law Institutions: Global Norms, Local Choices.  In doing so, they also have done an excellent job in bringing together a number of excellent analyses and integrating them through the use of a common template.  As a result, the book allows the reader to better analyze the complexity and richness of different competition law systems. 

Eleanor Fox (NYU) and Michael Trebilcock (Toronto) are path-breaking luminaries in comparative and international antitrust.  As ambassadors of the field, they have probably trained and kept up with more students as academics and practitioners in the area of antitrust than anyone else in the western hemisphere and arguably the world.  In doing so, they have shaped some of the very institutional structures studied in this book.

Some chapters stand out for their rigor and clear understanding.  The US chapter by First, Fox and Hemley is an excellent, concise and clearly written overview of the United States system.  If I were teaching in a non-US jurisdiction and wanted a something on the US system, I would assign this chapter as required reading.  The authors have done a good job in integrating legal analysis and academic discussion on the changing dynamics of US institutions.  Likewise, the Iacobucci and Trebilcock chapter on Canada does a excellent job. 

Of course, we expect an excellent job from best in class writers from the most important jurisdictions.  One strength of the book is that Trebilcock and Fox brought in a new generation to author or co-author many of the chapters. Simon Peart did a fine job with the Australia and New Zealand chapter - why is this guy not a full time academic?  Simon, are you reading this? You can't get to a full time teaching job fast enough. One thing that Simon does well is to compare and contrast the Australian and New Zealand systems with each other.  He also teases out a number of complexities and limitations of the two systems.

I will focus on contributions on two other Pacific Rim chapters.  The first is the Chilean contribution by Aguero and Montt, each professors at the University of Chile.  Chile has undergone a number of important structural transformations. These are analyzed well in the Chilean contribution.  Whereas the antitrust system seemed not to work so well before, as a result of institutional design changes, it seems to work better now. However, as with any set of changes, the limits of these changes along both procedural and substantive lines will be tested in coming years. 

Wang Xiaoye is a transformation figure in Chinese competition law.  In various fora I have even called her (with great respect and admiration) the "mother" of the Chinese Anti-Monopoly Law.  She co-authored her chapter with Jessica Su.  The Chinese antitrust reality is a complex and rapidly changing one. However, this chapter has done an excellent job in capturing the institutional complexities that underlies Chinese competition policy.  Wang and Su highlight a number of significant problems with the Chinese competition law system.  My own sense is that given what they have written, the three agency model of enforcement is not sustainable. 

If I have a complaint about the book is that it does too little.  I would have liked to see chapters on Brazil and India.  However, this is a minor complaint.  The book is well done and a valuable addition to any academic library.

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