A 'Global' Competition Law: The Best Way to Tackle Clashes between EU Law and the Law of Third Countries on the Application of their Respective Competition Laws?

AuthorNeil Murphy
PositionBA (DCU), LL.M. (Edin), Diploma in Legal Studies Candidate, The Honorable Society of King's Inns. The author would like to thank Dr Robert Lane, University of Edinburgh Law School, for his comments on earlier drafts of this article. Any errors or omissions are the author's own
Pages66-86
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A ‘GLOBAL’ COMPETITION LAW: THE BEST WAY TO TACKLE
CLASHES BETWEEN EU LAW AND THE LAW OF THIRD COUNTRIES
ON THE APPLICATION OF THEIR RESPECTIVE COMPETITION
LAWS?
Neil Murphy*
A INTRODUCTION
The growing process of globalisation stimulates business activity to expand and further operate
at an international level. Therefore, competition authorities in the future will have to further align
their enforcement activities so as to fight anticompetitive practices with an international
dimension. This will entail a closer form of interaction, more enhanced cooperation and
significant modification of the existing systems.1
Recently there has been a significant increase in the global recognition of the importance and
benefit of competition law to both private and commercial conduct. Over 120 jurisdictions have
now adopted a system of competition law with an increasing number of others currently in the
process of developing some competition law framework.2 Based on the premise that competition
has the ability to increase a market’s allocated productive and dynamic efficiencies, these
jurisdictions have an interest in regulating anti-competitive behaviour. There is also the added
benefit of offering consumers better prices, services and choices and improving economic
welfare. It is safe to say that most competition law regimes share common characteristics and
features, including prohibitions on certain types of behaviour such as horizontal agreements
between firms, vertical restraints between firms operating at different levels of the market and
excessive aggregation of market power.3 Coupled with these common features and
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* BA (DCU), LL.M. (Edin), Diploma in Legal Studies Candidate, The Honorable Society of King’s Inns. The author
would like to thank Dr Robert Lane, University of Edinburgh Law School, for his comments on earlier drafts of this
article. Any errors or omissions are the author’s own.
1 International Enforcement Co-operation, Secretariat Report on the OECD/ICN Survey on International
Enforcement Co-operation (OCED 2013) 160 (OCED Report)
http://www.oecd.org/competition/internenforcementcooperation2013.pdf> accessed 10 March 2016.
2 Maher Dabbah, International and Comparative Competition Law ( CUP 2010) 3.
3 Leela Cejnar and Rachel Burgess, ‘Challenging the Need for a “Global” Competition Law’ (2014) 35(9) ECLR
461.
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characteristics there are also considerable economic social cultural and political differences
between the jurisdictions that have introduced competition law regimes.
These differences make it difficult to reconcile the benefits of removing hindrances to
competition with the need for a set of global competition laws and policies. In addition the
uncertainty of how competition law should apply across jurisdictions remains the subject of
debate. Since the early nineties the principles of the market economy have been widely
embraced. As a result, competition laws spread around the world and subsequently many treaties
on competition law have been concluded.4 The treaties differ hugely in nature, some of them
provide for close cooperation, while others do not offer more than a statement of a very general
nature and an agreement to have regular talks. In their most advanced form, bilateral treaties aim
to facilitate international enforcement of antitrust violations or mergers by creating an active
form of mutual cooperation. Even though these agreements are certainly useful, some argue it
may well be time for a further step in international cooperation in order to provide for
coordinated settlements and leniency programmes.5 This ‘further step’ appears to be a global
competition law system, enforced by a dedicated competition agency with the resources to tackle
anti-competitive conduct across the globe.6
This article will first examine the historical context of clashes between the competition law of
the EU and third countries. The second part of the article will explore ways in which the EU and
third countries can address clashes between the respective competition regimes. A number of
possible solutions will be discussed, from the radical option of introducing a global competition
law that would see signatories benefit from a uniform set of rules with regard to competition law
all over the globe, to the use of bilateral treaties between the EU and third countries. The third
and final section of the article will offer concluding comments and observations on the issues
and ideas put forward throughout this article.
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4 The exception seems to be the agreement between the US and the Federal Republic of Germany, which dates from
1976. For an overview of the agreements see: http://ec.europa.eu/competition/international/bilateral/index.html>
and http://www.justice.gov/atr/public/international/int-arrangements.html> accessed 9 March 2017.
5 Piet Jan Slot, ‘International Competition LawBilateral Treaties’ (2015) 36(9) ECLR 391.
6 Jurgita Malinauskaite, ‘International Competition Law Harmonisation and the WTO: Past, Present and Future’
(Theory and Practices of Harmonisation Workshop, London, 2426 June 2008) 12 http://sas-
space.sas.ac.uk/3426/1/Malinauskaite%2C_Jurgita-
INTERNATONAL_COMPETITION_LAW_HARMONISATION_AND_THE_WTO.pdf> accessed 9 March 2017.

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