Transcript No Slide Title

COMPETITION POLICY IN BILATERAL
AND PLURILATERAL AGREEMENTS:
Involvement of the Member States of the
Caribbean Community.
Presented by
Ivor Carryl to ;
The Regional Seminar for Latin America and the
Caribbean on the Post Doha Competition Issues : Sao
Paulo Brazil 23-25 April 2003
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Introduction :
• Caribbean competition policy and law a recent
development
• Infancy: of law, institutions and enforcement
• Changing from : traditional consumer
protection to market conduct/restrictive
practices
• Establish at outset nexus between competition
and development and trade
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Introduction contd:
• Competition and development built into
external dimension of CARICOM foreign
economic policy and agreements with non
members
• Possible multilateral framework would benefit
and be challenged by bilateral and plurilateral
agreements
• TWO ASPECTS :Internal Agreement (CSME)
and External Agreements
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Internal Aspects of Competition Policy:
Traditional Policies and Practices in the
Control of Unfair Trade Practices:
• Consumer Protection Acts
• Standards Acts
• Regulated Industries Policy
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Consumer Protection Type Policies
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false and misleading
bait advertising
misuse and misrepresentation of standards
product /service quality and safety
not really concerned with market conduct
or anti-trust
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Regulated Industries Legislation:
• price and tariff controls
• performance standards
• mixed with hotatory, rather than
substantive anti competitive compliance
requirements
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Regulated Industries Legislation contd;
• problem of state either establishing
,maintaining or participant in monoplies
regulated
• weak or little commitment to
enforcement
• recent departures especially in
telecommunications sector regulation
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Contemporary Developments in
Competition Policy and Law:
• Small market 15 million consumers
spread over 15 countries
• propensity to monoplise ,dominate,
collude: cement,beer,areated
beverage,bus transport, poultry
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Contemporary Developments in
Competition Policy and Law:
• From Common Market to Single Market
and Economy:
• Article 30 of Common Market Annex
;Treaty of 1973
• Movement towards National Law, 1993
onwards: Jamaica, St Vincent, Barbados
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,Trinidad , Guyana , others
Chapter 8: Revised Treaty 2001
Main Competition Policies ;
Objective - Art.169
• ensure benefits of CSME not frustrated
by anti-competitive business conduct
• link competition and trade and
development
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Main Competition Policies:
Chapter 8 Revised Treaty ;Art 177,178,179
Universal Coverage of all sectors
Control behaviour not structures
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Main Competition policies
Prohibitions Approach :
• agreements :meaning horisontal and
vertical
• decisions and concerted practices,
• abuse of dominance
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Main Competition policies :
Dominance conflicts:
Prohibit abuse of dominance but;
• No interference with market structures
• Monopolies permitted : Art 35
• No merger regulation
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Main Competition policies:
Exclusions Art 168 and Chapter 7:
• combinations or activities of employees
• collective bargaining
• certain activities of professional
associations
• public undertakings in LDC’S
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Main Competition policies:
Certain Anti competitive agreements
prohibited :
• price fixing, market division, limitation of
production etc Art 177
• but no mention of cartels specifically
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Exemptions:
• monopolies :established in public interest
• de minimis ; anti competitive but effect
on market negligible
• COTED ‘s Power to exempt any sector
from Article 177,178
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Jurisdictional issues:
• between national authorities; competition vs
regulated industries
• between Community and national authorities
• between disciplines in a CSME; dumping vs
predatory pricing
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Fundamental Principles Apply Article 171 Par.
5(4) :
• MFN
• National treatment
• Transparency
• Due process
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External Dimension of Competition Policy
Fundamentals: Experience shows that to
exploit benefits of trade liberalisation (a)
investment (b) need opportunity to sell inside
the border ie CP
• ensure that market access not undermined by
anticompetitive conduct
• recognise link between competition and trade
and development
• recognition of need for capacity building
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External Dimension of Competition Policy
Fundamentals contd :
• cooperation significant for enforcement
• but enforcement principally national not supra
national act
• special and differential treatment addressed
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Fundamentals applied in CARICOM
Bilaterals/Plurilaterals :
• Dominican Republic
• Cuba
• Costa Rica
• ACP-EU (COTONOU)
• except ( Sand D) in FTAA Negotiations on
Competition Policy
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WTO core principles represented:
• especially non discrimination and
transparency
• due process is constitutional requirement and
well established judicial doctrine
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MULTILATERAL FRAMEWORK ON COMPETITION:
Possibilities increasing for eventual sucessful negotiations :
Bilaterals and plurilaterals contributing ;
• by bringing experience on scope of policy , institutional
arrangements and cooperation that work
• to convergance of agreement on basic principles
• to convergence of agreement on certain areas of policy e.g
agreements on hard core vertical and horisontal activities to be
disciplined
• to deepening universal recognition of link between competition
,trade and development through scope of agreements
• by strengthened cross-border institutional networks and
procedures
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MULTILATERAL FRAMEWORK ON COMPETITION:
Bilaterals plurilaterals could pose challenges ;
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Resistance to dilution of value of concessions
Size and vulnerabilities
Special and Differential treatment
Dispute settlement
Sovereignty and jurisdictional issues
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