联合国文件/part0303

It may be recalled in this connection that paragraph E.4 of the Set of Principles and Rules provides that States should seek appropriate remedial or preventive measures to prevent and/or control the use of RBPs within their competence when it comes to their attention that such RBPs adversely affect international trade, and particularly the trade and development of developing countries; and paragraph E.9 provides that States should, on request, or at their own initiative when the need comes to their attention, supply to other States, particularly developing countries, publicly available information and, to the extent consistent with their laws and established public policy, other information necessary to the receiving interested State for its effective control of RBPs.

Substantial procedural cooperation in the competition policy area takes place, mainly between some developed countries or regions, despite significant differences in their substantive approaches; it is not clear to what extent any substantive commitments in binding agreements have been a necessary precondition for such cooperation.

Substantial procedural cooperation in the competition policy area takes place, mainly between some developed countries or regions, despite significant differences in their substantive approaches; it is not clear to what extent any substantive commitments in binding agreements have been a necessary precondition for such cooperation.

Conversely, several free trade or economic partnership agreements, mainly between developed and developing countries (including those reviewed in the present report), provide for substantive commitments of varying natures and degrees in the competition policy area; it is similarly not clear to what extent such commitments have promoted procedural cooperation in competition cases so far.

Conversely, several free trade or economic partnership agreements, mainly between developed and developing countries (including those reviewed in the present report), provide for substantive commitments of varying natures and degrees in the competition policy area; it is similarly not clear to what extent such commitments have promoted procedural cooperation in competition cases so far.

It might be necessary to clarify, for instance: (a) how the specification of minimum standards of cartel prohibition and/or enforcement in an international agreement (in a manner that caters for existing divergences in this area) would assist developing country competition authorities in detecting and undertaking enforcement against domestic or international cartels, taking into account the resources and expertise they could muster for this purpose, the likelihood that cartel participants would be interested in developing-country leniency offers, the likely availability of significant documents or potential witnesses within developing countries and of the means to access any such evidence, the ability of developing countries to enforce their laws outside their borders, and their bargaining power vis-à-vis large firms; and (b) whether a provision in a free trade agreement providing for non-discrimination in the competition policy area would actually be able to prevent discrimination in practice or, conversely, whether it might encourage allegations of discrimination against inexperienced competition authorities.

Accordingly, Governments may wish to discuss: the extent, degree and specificity of substantive commitments in possible international agreements relating to the content or application of national laws; which specific divergences in competition policy approaches are deterring (or might deter) which types of procedural cooperation in which kinds of cases; how far substantive commitments might both succeed in promoting convergence in practice and better enable developing countries to tackle their enforcement problems; conversely, how far the absence or limited nature of such substantive commitments could adversely affect mutual trust and international cooperation (both where there are actually substantial divergences in approach and where there are not); and appropriate technical assistance to assist developing countries in meeting any substantive commitments or in engaging in procedural cooperation.

Such discussions might take into account: the content of substantive provisions in existing international instruments; any linkages or balance among such substantive provisions, case-specific procedural cooperation and dispute settlement; experiences so far in the legal interpretation and application of substantive and procedural provisions of such international instruments; common approaches and divergences in competition policies currently prevailing at the national or regional levels (including in respect of exceptions and exemptions) and likely future trends in this respect; and the lack of experience, knowledge and bargaining power of many developing countries in this area.

It may be recalled in this connection that paragraph 8 of the São Paulo Consensus states that: “It is for each Government to evaluate the trade-offs between the benefits of accepting international rules and the constraints posed by the loss of policy space.

It may be recalled in this connection that paragraph 8 of the São Paulo Consensus states that: “It is for each Government to evaluate the trade-offs between the benefits of accepting international rules and the constraints posed by the loss of policy space.

It is particularly important for developing countries, bearing in mind development goals and objectives, that all countries take into account the need for appropriate balance between national policy space and international disciplines and commitments.” Governments may also wish to discuss: what initiatives might be undertaken to tackle both the obstacles to international cooperation created by confidentiality restraints and possible disincentives for firms to self-report to benefit from national leniency programmes (because such programmes would not shelter them from more widespread and effective international enforcement); conversely, whether incentives for countries with effective enforcement in this area to cooperate with countries with less effective enforcement (mainly developing countries) might be increased by the fact that the success of national leniency programmes is increasingly dependent upon leniency applicants receiving comparable assurances of non-enforcement or limited penalties in other jurisdictions; whether the fact that international cartels appear to be increasingly conducting meetings outside countries with effective anti-cartel enforcement might also provide another incentive to strengthen international cooperation; and what initiatives might be undertaken in terms of technical assistance, appropriate conditions in cooperation agreements or collaboration relating to leniency programmes to enable any such incentives to come fully into play.

It is particularly important for developing countries, bearing in mind development goals and objectives, that all countries take into account the need for appropriate balance between national policy space and international disciplines and commitments.” Governments may also wish to discuss: what initiatives might be undertaken to tackle both the obstacles to international cooperation created by confidentiality restraints and possible disincentives for firms to self-report to benefit from national leniency programmes (because such programmes would not shelter them from more widespread and effective international enforcement); conversely, whether incentives for countries with effective enforcement in this area to cooperate with countries with less effective enforcement (mainly developing countries) might be increased by the fact that the success of national leniency programmes is increasingly dependent upon leniency applicants receiving comparable assurances of non-enforcement or limited penalties in other jurisdictions; whether the fact that international cartels appear to be increasingly conducting meetings outside countries with effective anti-cartel enforcement might also provide another incentive to strengthen international cooperation; and what initiatives might be undertaken in terms of technical assistance, appropriate conditions in cooperation agreements or collaboration relating to leniency programmes to enable any such incentives to come fully into play.

It is particularly important for developing countries, bearing in mind development goals and objectives, that all countries take into account the need for appropriate balance between national policy space and international disciplines and commitments.” Governments may also wish to discuss: what initiatives might be undertaken to tackle both the obstacles to international cooperation created by confidentiality restraints and possible disincentives for firms to self-report to benefit from national leniency programmes (because such programmes would not shelter them from more widespread and effective international enforcement); conversely, whether incentives for countries with effective enforcement in this area to cooperate with countries with less effective enforcement (mainly developing countries) might be increased by the fact that the success of national leniency programmes is increasingly dependent upon leniency applicants receiving comparable assurances of non-enforcement or limited penalties in other jurisdictions; whether the fact that international cartels appear to be increasingly conducting meetings outside countries with effective anti-cartel enforcement might also provide another incentive to strengthen international cooperation; and what initiatives might be undertaken in terms of technical assistance, appropriate conditions in cooperation agreements or collaboration relating to leniency programmes to enable any such incentives to come fully into play.

It is particularly important for developing countries, bearing in mind development goals and objectives, that all countries take into account the need for appropriate balance between national policy space and international disciplines and commitments.” Governments may also wish to discuss: what initiatives might be undertaken to tackle both the obstacles to international cooperation created by confidentiality restraints and possible disincentives for firms to self-report to benefit from national leniency programmes (because such programmes would not shelter them from more widespread and effective international enforcement); conversely, whether incentives for countries with effective enforcement in this area to cooperate with countries with less effective enforcement (mainly developing countries) might be increased by the fact that the success of national leniency programmes is increasingly dependent upon leniency applicants receiving comparable assurances of non-enforcement or limited penalties in other jurisdictions; whether the fact that international cartels appear to be increasingly conducting meetings outside countries with effective anti-cartel enforcement might also provide another incentive to strengthen international cooperation; and what initiatives might be undertaken in terms of technical assistance, appropriate conditions in cooperation agreements or collaboration relating to leniency programmes to enable any such incentives to come fully into play.

Further questions that Governments may wish to discuss are: what might be the possibilities and conditions for the application of competition laws to RBPs affecting foreign markets, including in situations where there are links between foreign and domestic effects of such RBPs; and even in situations where it may not be possible to prove such links, to what extent might countries with more experience in this area still be prepared to take enforcement action to assist developing countries, in the light of paragraph E.4 of the Set.

As described above, in the Empagran case, several developed countries successfully argued against intervention by United States courts in respect of injury to these countries' markets from an international cartel, on the grounds that this would undermine their own antitrust enforcement and amnesty programmes.

It may be appropriate to clarify whether developing countries with less effective enforcement in this area would object to or welcome intervention by more experienced countries in respect of RBPs emanating from overseas affecting developing country markets.

Some suggestions in OECD reports relating to how the export cartel issue might be addressed have been highlighted above.

It may also be recalled in this connection that paragraph C.7 of the Set, dealing with preferential or differential treatment for developing countries, provides that, in order to ensure its equitable application, States, particularly developed countries, should take into account in their RBP control the development, financial and trade needs of developing countries, in particular of the least developed countries, for the purposes especially of developing countries in: promoting the establishment or development of domestic industries and the economic development of other sectors of the economy; and encouraging their economic development through regional or global arrangements among developing countries.

Governments may also wish to identify: how cooperation among developing countries in the competition policy area might be enhanced, in the light of paragraphs C.7 and E.7 of the Set (the latter provides for regional and subregional cooperation in this area through the exchange of information on RBPs or on the application of RBP control laws, and through mutual assistance regarding RBP control); and how UNCTAD might best implement paragraph 104 of the São Paulo Consensus (which provides that UNCTAD should further strengthen analytical work and capacity-building activities to assist developing countries on issues related to competition law and policies, including at a regional level), taking into account ways in which coordination of work in this area by different international bodies might be enhanced.

To date, the Set of Principles and Rules is the only multilateral instrument with a universal character dealing with the area of competition law and policy and setting out commonly agreed standards in this area.

Although it is not legally binding, it has the political authority and legitimacy of a unanimously adopted General Assembly resolution.

The Fourth Review Conference on the Set, held in 2000, reaffirmed the Set's validity, called on all member States to implement its provisions and further reaffirmed the fundamental role of competition law and policy for sound economic development.

Accordingly, any examination of the above-mentioned questions should take due account of the Set's provisions; it might be used as a guide or framework regarding the manner whereby possible international agreements on competition might apply to developing countries (including through preferential or differential treatment).