Competition policy is today in the process of adoption in dozens of nations worldwide, at a time when competition laws have necessarily become applicable to such new fields as trade, investment, intellectual property rights, information technology, and global consumer protection.
Although vigorous enforcement remains the most serious challenge to global success, it is also important to recognize that the established American-European model of competition policy may not be the `right thing' for countries with radically different cultural traditions, especially less-developed countries.
This timely and valuable book explores the prospects for competition policy, its likely development, and its ever-more-central role in the world trade regime. With this book, interested parties everywhere may benefit from the insightful perspectives of outstanding scholars and policymakers representing Asia Pacific, Europe, and North and South America.
Among the crucial issues investigated are:
the costs of absorbing a new technology; distinct and evolving national competition policies and the fabric of world trade; extraterritorial enforcement and cooperation agreements; and criteria for `material injury' in international trade rules.Preface v About the Authors xxiv Opening Remarks 1(4) Yang-Ching Chao Establish a fair trade system and ensure an environment for free competition 1(1) In market liberalization 1(1) In regulatory regimes 2(1) In transparency of law enforcement 2(1) Investigation into allegations and maintaining market order 2(1) Establish coordination and communication channels, promote public education 3(1) Establish coordination and communication channels 3(1) Promote public education and legal counseling 3(1) Promote international exchanges, take part in international events 3(1) Bilateral consultations and agreements 3(1) Exchange visits 3(1) Provide technical assistance 3(1) APEC Competition Policy Databank 4(1) Welcome Address 5(2) Yueh-Sheng Weng Keynote Speech - A Century of Competition Policy Enforcement 7(14) F. M. Scherer SESSION I - COMPETITION POLICIES / LAWS AND NATIONAL DEVELOPMENT Recent Trends and Prospects for Brazilian Antitrust 21(10) Gesner Oliveira The development of Brazils antitrust legislation and the three roles of CADE 22(3) The development of antitrust legislation in Brazil 22(1) The three roles of CADE 23(1) The repressive role 23(1) The preventive role: merger control 24(1) The educational role 25(1) Recent trends in CADEs performance 25(5) The advances in CADEs jurisprudence 25(1) Conduct control: the repressive role 25(2) Merger control: the preventive role 27(2) Promotion of free competition: the educational role 29(1) Institutional building 30(1) Future prospects 30(1) Globalization, Competition and Trade Policy: Convergence, Divergence and Cooperation 31(40) Frederic Jenny The goals and benefits of trade liberalization 32(2) The goals and benefits of regulatory reforms 34(2) The goals and benefits of competition policy 36(2) The challenges of globalization 38(2) The complementarity between trade policy, domestic deregulation and competition policy in the perspective of globalization 40(3) Competition policy and economic development 43(10) Bilateral or regional cooperation 53(3) Multilateral agreements 56(5) Dangers of a multilateral agreement; race to the bottom and dispute settlement mechanism 61(7) Conclusion 68(3) US Competition Policy and Law: Learning from a Century of Antitrust Enforcement 71(10) Debra A. Valentine The current consensus: protecting the process of competition 73(2) Challenges for the future 75(6) A Decade of Fair Trade Law Legislation and its Enforcement in the Republic of China 81(38) Gee San Changfa Lo The economic background for enacting the FTL 82(1) Several key issues during the legislative debates 83(5) Was the law necessary? 85(1) How to treat mergers? 86(1) Should the FTC be under the MOEA? 87(1) A review of the initial three years of the FTC 88(3) To develop the FTC as an effective and accountable agency 91(8) Maintaining the independence of the Commission and making it more accountable and transparent 91(2) Making the Fair Trade Law superior to other laws and engaging in deregulation tasks: comprehensive application of competition policy 93(1) Selection of enforcement tools and strategies 94(3) Enhancing the quality of work as an important factor to the effective enforcement of the law and to the enhancement accountability 97(1) Establishment of working groups and speeding up the process 97(1) Education and utilizing outside resources 98(1) Cooperation between competition authorities of different jurisdictions 99(1) Law enforcement and its social impact 99(14) Relevant law enforcement statistics 99(4) The social impact 103(1) The implementation of the FTL on Taiwans export competitiveness 104(2) The implementation of the FTL on inflation 106(1) Employment opportunities 107(2) Flow of FDI 109(2) Drive for innovation 111(1) Summary of the empirical results 112(1) Conclusion 113(6) References 114(5) SESSION II - THE COMPARATIVE REGULATION OF COMPETITION LAWS Regulation of Mergers & Monopolization 119(24) Terry Calvani Thomas A. Evans Merger regulation 119(16) Substantive horizontal merger law 120(1) Merger policy 120(4) Market definition 124(1) Concentration 124(1) Entry conditions 125(1) Customer reaction 126(1) Efficiencies 126(1) Potential competition 127(1) Substantive vertical & conglomerate merger law 128(1) Vertical mergers 128(2) Conglomerate mergers 130(1) Merger procedure 130(3) Lessons from the American experience 133(1) Substantive merger law 133(1) Merger procedure 134(1) The law of monopolization 135(7) Conclusion 142(1) Principles of German Competition Law Under the 6th Act to Amend the Act Against Restraints of Competition (ARC) 143(14) Kurt Stockmann Opening remarks 143(2) Existing legislation under the 6th act to amend the act against restraints of competition 145(9) Cartels 145(3) Other agreements 148(1) Dominant undertaking 148(4) Merger control 152(1) Cartel authorities and procedures 153(1) Relationship between German and EU competition law 154(3) The Reform of EC Competition Policy 157(6) Helmuth Schroter Introduction 157(1) Particularities of EC competition law and policy 158(3) Shortcomings of the current system 161(1) The reform of the current system 161(2) Competition Authorities in Competition 163(18) Yeong-Chin Su Ideological background 163(2) Independent agencies 165(2) The offices 165(1) The commissions 166(1) The Attorneys-General and the courts 167(2) The ministers 169(2) The regulators 171(2) Taiwans case 173(4) The international perspective 177(1) Concluding remarks 178(3) Current Trends in Koreas Competition Law/Policy 181(6) Soon-Sik Ju SESSION III - INTERNATIONAL APPROACH ON THE REGULATION OF COMPETITION LAWS International Approaches to Competition Laws: Government Cooperation for Business Competition 187(30) Kerrin M. Vautier Abstract 187(1) A directional shift in competition thinking 188(2) Work programmes of three international organizations 190(8) The OECD 191(1) APEC 192(3) A postscript: the PECC Competition Principles 195(2) The WTO 197(1) Views of the key players - the US, EU and Japan 198(2) Different levels of multinational government cooperation 200(13) Bilateral 200(3) Concluding remarks 203(1) A postscript: market definition 204(1) Regional 205(2) The CER experience 207(1) Concluding remarks 207(1) A postscript: FTAs post-Seattle 208(1) Plurilateral 209(1) The GATT, UN and OECD instruments 209(1) The APEC Principles to enhance competition and regulatory reform 210(2) Multilateral 212(1) Concluding remarks 213(4) References 214(3) International Cooperation in Competition Policy: Approaches Currently under Consideration in the WTO 217(18) Robert D. Anderson Factors underlying the current interest in competition policy in the WTO 219(3) The work programme to date of the WTO Working Group on the Interaction between Trade and Competition Policy 222(1) The argument for enhanced international cooperation in the implementation of competition law and policy, including (possibly) at the multilateral level 223(4) Description of options currently under consideration 227(8) Bibliography 229(2) Appendix I - Singapore Ministerial Declaration, paragraph 20 231(1) Appendix II - Checklist of Issues Suggested for Study (July 1997) 232(1) Appendix III - Decision of the General Council, December 1998 (WT/GC/M/32, p. 52) 233(2) OECD Programmes for International Responses to Global Competition Issues 235(14) Walter T. Winslow The OECD competition policy outreach programme 235(2) The activities of the OECDs CLP committee 237(9) Competition law enforcement 237(1) Benefits of voluntary approaches 238(2) Benefits of OECD/CLP activity - in general 240(1) Benefits of OECD/CLP activity - improved cooperation 240(1) Benefits of OECD/CLP activity - a campaign against illegal cartels 241(2) Conclusions regarding OECD/CLP law enforcement activity 243(1) Regulatory reform 244(2) Beyond capacity building - a global forum for policy dialogue among competition law enforcement officials 246(2) Conclusion 248(1) Globalizing the World Economy and Competition Law and Policy: The Need for International Cooperation (Preliminary Draft Without Citations) 249(14) Mitsuo Matsushita Shrinking world economy and competition policy 249(1) Cooperation in the enforcement of competition policy and law 250(7) Types of cooperation in the enforcement of competition laws 250(2) A `soft law versus a `hard law approach 252(2) Positive comity and negative comity 254(2) Cooperation in investigation 256(1) Convergence of competition laws 257(6) Convergence of substantive competition laws 257(2) Convergence of the enforcement process 259(4) SESSION IV - TECHNOLOGICAL DEVELOPMENT AND COMPETITION POLICIES / LAWS The Trips Agreement, Competition Policy, and Third World Welfare: The Case of Pharmaceutical Product Patents 263(16) F. M. Scherer The costs and risks of pharmaceutical R&D 264(1) The role of patents 265(4) The Uruguay round TRIPS agreements 269(1) Multinational drug patents and LDCs 270(2) Does granting patents transform national industries? 272(4) Possible LDC legal strategies 276(1) Conclusion 277(2) Intellectual Property and Antitrust in the Electronic Age 279(30) Christopher Heath Introduction 279(1) Intellectual property and antitrust then and now 279(5) The intrinsic dichotomy between intellectual property and antitrust 279(2) The relationship between intellectual property and antitrust today 281(3) The challenges of the information age to intellectual property and antitrust 284(2) Technical challenges and intellectual property 284(1) Antitrust and the information age 285(1) Technology and patent law 286(9) The balance between invention and investment 286(1) Applying patent standards to modern technology 287(1) Complete description 287(1) Enabling disclosure 288(1) Inventions and discoveries 289(2) Research tools 291(1) Research exemptions 292(2) Compulsory licences 294(1) Technology and trade marks 295(8) The class society 295(1) Territoriality 295(1) Specificity 296(1) Famous and well-known marks 296(3) International trade, e-commerce and trademarks 299(1) The Internet and its potential 299(1) Free flow of goods and problems related to exhaustion 300(3) Technology and copyrights/designs 303(4) Software, databases and new forms of protecting investment 303(1) Reverse engineering 304(1) Designs and spare parts: protecting investment or tying consumers? 305(2) Conclusion 307(2) Japans Broadcasting and Telecommunications: Digital Convergence, Market Structure and Competition 309(20) Kiyoshi Nakamura Introduction 309(1) Towards a competitive market structure 310(2) Broadcasting 312(2) Telecommunications 314(3) The first phase 314(1) The second phase 315(2) Market and industrial convergence in Japan 317(3) Wired service 317(2) Wireless service 319(1) Hybrid 319(1) Convergence and competition policy issues 320(5) Interconnection 321(1) Public service broadcasting 322(1) Standards and systems competition 323(2) Standing at the crossroads 325(4) Bibliography 326(3) Communications, Convergence and Competition: The Case of Taiwan 329(18) Lawrence S. Liu Chorng-Jian Liu Chuen-Fa Chuang Introduction 329(1) A summary of Taiwans Fair Trade Law 330(6) Coverage 331(1) Exemptions 331(1) Control of monopolization 332(1) Pre-merger review 333(1) Cartel regulation 333(1) Vertical restraints 334(1) Organization and enforcement of the FTC 334(2) Telecommunications reform 336(6) Status quo ante 336(1) Phase I of telecom reform 336(2) Phase II of telecom reform 338(3) Beyond telecom market opening 341(1) Interaction of competition and communication laws 342(3) Embracing competition and agency coordination 342(1) Re-thinking FTL rules 342(1) Re-thinking industry regulation 343(1) Enhancing independence 343(1) Avoidance of governments conflict of interest 344(1) Conclusions 345(2) Leveling the Playing Field for Digital Network Industries in Taiwan 347(20) Kung-Chung Liu Introduction: from sector-specific regulations to convergence 347(1) Relevant Taiwan regulatory regimes 348(6) Legal framework 348(1) The Telecommunications Law 348(4) Cable Broadcast TV Law 352(1) Radio and Television Law 353(1) Satellite Radio and Television Law 353(1) Interaction between regulatory authorities and the FTC 353(1) Competition policy for digital network industries 354(6) Further deregulation to dismantle regulatory barriers 355(1) International system competitiveness 355(1) Competition policy not as a means for the realization and enhancement of an information society 356(1) The `Competition First principle 356(1) The `Single Regulation principle 357(2) The `Dynamic Legal Certainty principle 359(1) How to level the playing field for digital network industries 360(4) Redefining the players and legal framework 360(2) Reconstructing the licensing mechanism 362(1) Re-inventing frequency allocation regimes 362(1) Revising tariff and fee regulations 363(1) Tariff regulations 363(1) Fee regulations 363(1) Conclusions 364(3) SESSION V - CONSUMER PROTECTION, GLOBAL COMMERCE AND COMPETITION LAW Parallel Imports and Competition Effects of a Court Ruling 367(32) Jorgen Holgersson Introduction 367(1) Background 367(1) Definition of terms 368(3) Parallel imports 368(1) Private brands 369(1) Private imports 369(1) Pharmaceuticals 370(1) Factory outlets 370(1) The Silhouette ruling 371(1) Swedish views prior to the Silhouette ruling 371(1) The Swedish Government assignment 372(1) Economic research and parallel imports 372(6) Introduction 372(2) The simplest model 374(1) Parallel imports may reduce investment in development or marketing 375(1) The importers transaction costs 375(1) The producers transaction costs 376(1) Incentives for market division 377(1) Distribution of surplus 377(1) Reduced barriers 377(1) Conclusions 378(1) E-commerce 378(3) Positive effects connected with parallel imports 381(2) Access to surplus products 381(1) Price differences 381(1) Transparency 382(1) Negative effects connected with parallel imports 383(1) Extent of parallel imports into Sweden 384(1) Effects for the Swedish market of a switch to regional exhaustion 385(3) Winners and losers 385(1) What would be the impact in Sweden of the Silhouette ruling on prices and competition in the sectors concerned? 386(1) What would be the effect on the Swedish market of assuming no limitation on parallel imports? 386(1) What might be the long-term effects of an elimination of parallel imports compared to an extension of parallel imports into other product sectors where they have not yet occurred? 387(1) Policies for the new millennium 388(11) Appendix - The Silhouette Ruling 389(10) Intervention of Competition Law in International Trade: The Taiwan Experience 399(28) Changfa Lo Introduction 399(2) The general structure of Taiwans competition law 401(3) Objectives of Taiwans trade law and policy and the similarity of the objective as found in the competition law 404(3) Objective of Taiwans foreign trade law and policy 404(2) Similarity of the goals between foreign trade law/policy and the Fair Trade Law 406(1) Import trade and the Fair Trade Law 407(16) How international trade is affected by business practices 407(1) Domestic firms engaging in activities restricting foreign products or services 408(1) Foreign export cartels and other horizontal arrangements 409(1) Domestic import cartels 410(1) International mergers 411(1) Vertical arrangement 412(1) Licensing of IPR and other intervention in the exercise of IPRs 413(3) Certain unfair trade practices 416(1) Article 21 examples 416(1) Article 20 examples 416(1) Article 24 examples 417(1) Dumping 418(5) Export trade and the Fair Trade Law: export cartels 423(1) Concluding remarks 424(3) Consumer Protection in the Global Economy 427(20) Allan Asher Introduction 427(1) The interaction between consumer protection laws and competition laws 427(2) Consumer protection in the global market place 429(2) Global consumer protection issues 430(1) Approaches to resolving the issues 431(1) Market-based consumer protection strategies 431(8) `Self-regulation and codes of conduct 431(2) Addressing consumer concerns 433(1) Consultation 433(1) Code administration 434(1) Transparency 434(1) Coverage 434(1) Complaints handling 434(1) In-house compliance 434(1) Sanctions for non-compliance 435(1) Independent review of complaints handling decisions 435(1) Consumer awareness 435(1) Industry awareness 435(1) Data collection 435(1) Monitoring 435(1) Accountability 436(1) Review 436(1) Competitive implications 436(1) Performance indicators 436(2) Consumer charters 438(1) Industry-based complaints handling schemes 438(1) International cooperation and coordination 439(7) Alternative rule making forums 440(1) United Nations 441(1) UN guidelines on consumer protection 441(2) OECD 443(1) International industry organizations/peak bodies 444(1) International non-governmental organizations 445(1) Commercial initiatives 445(1) Conclusion 446(1) Consumer Protection of the Fair Trade Law in Taiwan 447(76) Chien-Te Fan Preface 447(4) A travaux preparatoires review of the legislative goals of the FTL 448(1) Opinions addressed in the Legislative Yuan 448(2) Academic points of view 450(1) A theoretical discussion on consumer protection at the embryo stage of the FTC 451(5) The preventive monitoring of multi-level sales schemes 452(4) Some practical issues solved or to be solved 456(4) Fair trading in real estate transactions and the regulation of false or misleading advertisement 456(2) The impact of the cable TV dispute in the broadband era 458(2) The convergence of consumer protection and other laws 460(4) Associated works 460(1) Case study: the storage of rice wine with the purpose of affecting the market supply 460(1) The proposed consumer protection plan 461(1) Internal efforts 462(1) The transparency requirement concerning the weight loss industry 462(1) The handling of gas companies abuse of market position in improperly charging the pipeline installment fee 463(1) The penalty against Nan-i Book Company for its unfair competition in promoting reference materials for elementary schools 463(1) Conclusion 464(5) SESSION VI - ROUNDTABLE DISCUSSION Introductory Speech - Integration of Markets and Industries: The Challenge for Global Competition Policy 469(6) Dieter Wolf Panel I - Is Convergence Possible: The Experience of Developing and Developed Countries 475(22) Panel II - Regional or Multilateral Cooperation: The Role of International Organizations for the New Millennium 497(14) Panel III - Challenge Confronting Competition Laws: The Borderless New Trading Order 511(10) Closing Remarks 521(2) Chairperson Chao Abbreviations 523(6) Table of Cases 529(5) Table of Treaties, Statutes, Codes and Laws 534
