This report focuses mainly upon three types of international instruments dealing with competition law and policy, namely: bilateral or tripartite competition law enforcement cooperation agreements; free trade, customs union or common market agreements; and multilateral instruments. The concentration of such agreements among OECD countries has lessened somewhat. There are many common elements among the relevant provisions of these agreements, even though no single agreement is exactly like another. The implementation of such agreements has helped to minimize conflicts among Governments and to facilitate enforcement in this area. However, several concerns continue to impede the further development of enforcement cooperation. Moreover, developing countries have not so far substantially participated in such cooperation. To overcome such impediments and to promote the participation of developing countries, it would be necessary to build up mutual confidence gradually, by evolving from simple to more complex cooperation agreements. Balanced cooperation among developing countries would provide a learning experience and help ensure that cooperation with more advanced partners was fruitful. Free trade or common market agreements might provide a conducive framework for this purpose, but regional rules, institutions and mechanisms would need to be adapted accordingly. For this purpose, there is a need for exchange of experiences among regional and subregional groupings.To respond to the requests made by the Fourth Review Conference on the Set of Principles and Rules and to the terms of the Doha Declaration, and to support or complement the work of the WTO, the OECD Global Forum on Competition and the International Competition Network, the Group of Experts may wish to undertake policy analysis and development relating to modalities for voluntary cooperation on competition law and policy, so as to assist developing and least developed countries to better evaluate the implications of closer multilateral cooperation for their development policies and objectives, as well as for their regional and bilateral arrangements. Towards this end, it should be possible to elaborate, on the basis of provisions in existing instruments, alternative optional Model Cooperation Provisions on Competition Law and Policy, with explanatory commentaries and illustrative hypothetical cases, covering case-specific cooperation, substantive provisions and technical assistance and dispute avoidance or resolution procedures, and incorporating as applicable and appropriate wording within any provision falling within each of these categories on preferential or differential treatment for developing countries. These could be incrementally elaborated in the run-up to the Fifth Review Conference and subsequently periodically updated. Such Model Cooperation Provisions might provide an optional palette of the types or the wording of clauses that might be included in cooperation agreements entered into by Governments, taking into account their suitability for bilateral or regional contexts. They might also be used to facilitate consultations within UNCTAD on (a) how to ensure compatibility, coexistence, coordination and mutual reinforcement among national, subregional, interregional and possible multilateral competition regimes; (b) how much convergence among substantive, procedural and enforcement policy aspects of competition laws and policies is necessary to further enforcement cooperation; (c) the appropriate balance between promoting such convergence and allowing room for diversity and experimentation by each country or subregional grouping; (d) whether and how the principle of preferential or differential treatment for developing countries might be better reflected in competition cooperation agreements, including possible multilateral agreements; (e) what types of dispute avoidance or resolution mechanisms might be appropriate in different contexts, and how such mechanisms might be tailored and developed for cooperation on competition law and policy; (f) how diversity or compatibility/convergence among national, bilateral, regional and multilateral regimes might be catered for or reconciled through such mechanisms; and (g) priorities as regards substantive areas of cooperation - it may be preferable for UNCTAD to initially pay more attention to work on international cooperation on merger control, and focus on cooperation relating to cartels at a later stage
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International Institute for Trade and Developement : UNCTAD Collection
