"Antitrust in a Globalized Economy: The Unique Enforcement Challenges Faced by Small and by Developing Jurisdictions" (Gal, 2009)

La profesora Michal S. Gal (U. de Haifa, Israel), especializada en temas de antitrust en las pequeñas economías ha subido a Internet su último ensayo titulado "Antitrust in a Globalized Economy: The Unique Enforcement Challenges Faced by Small and by Developing Jurisdictions" que será publicado próximamente en 23 Fordham Intl. L. J. (2009).

Como lo indica su título el objeto de la autora es presentar los retos que tienen las autoridades de competencia de países pequeños o en desarrollo en el marco de un mundo globalizado. A continuación transcribo el resumen del ensayo:

"The increase in global trade has intensified the challenges involved in regulating anti-competitive conduct that takes place, in whole or in part, outside one's borders. While much has been written on international antitrust, not much scholarship has focused on the unique enforcement challenges faced by small and by developing jurisdictions in such a globalized world. This article addresses this challenge. It analyzes the near-futility of the current regime of unilateral enforcement and limited national vision for small and developing jurisdictions. It shows that even when they possess the legal tools to tackle international antitrust issues, small and developing jurisdictions often suffer from serious practical and motivational obstacles to applying their laws. The analysis is both empirical and theoretical. It reports the results of a study of forty nine jurisdictions. As the study clearly indicates, small and developing jurisdictions are marginal players in the globalized antitrust regime and are generally passive bearers of the effects of international anti-competitive conduct rather than proactive confronters of such conduct. The article then analyzes the implications of the empirical findings on the ability of the international community to tackle issues of international interest as well as on the current attempts to create a coordinated antitrust regime. It also suggests some tools that small and developing jurisdictions can use in order to deal more effectively with their unique challenges."

A mediados del año pasado la profesora Gal me remitió una versión preliminar de su ensayo. Abajo comparto algunos de mis comentarios respecto de dos de las afirmaciones contenidas en el ensayo:

1. STATEMENT: "Turning to merger review, the data collected indicates that while the antitrust authorities of small or developing countries often review international mergers, they seldom attempt to prohibit a merger between international firms."

- Although there are at least 18 Latin American & Caribbean jurisdictions that have antitrust laws (Argentina, Barbados, Brazil, Chile, Colombia,
 Costa Rica, Dominican Republic, El Salvador, Honduras, Jamaica, Mexico,
 Nicaragua, Panama, Peru, Saint Vincent and the Grenadines, Uruguay, Trinidad
 and Tobago, and Venezuela) [NOTA: Hoy en día se agrega a la lista dos nuevas jurisdicciones Bolivia y Ecuador] few of them established a premerger notification
 procedure. Mandatory premerger notification exists only in Argentina, Barbados, Brazil, Colombia, El Salvador, Honduras, Mexico and Uruguay [NOTA: En Brasil el control de las integraciones es posterior y obligatorio (ex post)]. In other important
 regimes such as Panama, Peru, Venezuela and Chile only very specific mergers
 have been assessed, in most cases due to voluntary filing.


- Many of the reasons you explain as the causes for
 permissive assessment of international mergers apply to the Colombian case. When the current
 Superintendent was appointed one year ago [NOTA: en el momento de escribir los comentarios me refería al año 2007] I had the opportunity to speak with him (he had private interviews with several scholars and practitioners). h¡He told me that it was not reasonable that mergers that were approved in foreign jurisdictions had problems to be cleared in Colombia. And the argument that supported his statement was that Colombia needed direct foreign investment and a strict
 merger procedure could actually deter it. Foreign investment clearly is on Colombia's President agenda and is on of its top priorities. [NOTA: La opinión inicial del Superintendente parece haber cambiado desde entonces.] Hence, in addition to your argument of external political obstacles faced by competition agencies, I would add internal political obstacles.


2. STATEMENT: "The level of maturity of the agency also affects its ability to deal with international antitrust issues."

- Latin America presents several examples on the degree of competition authority's maturity. The years of experience clearly vary, where only Argentina, Brazil, Chile, Colombia, Costa Rica, Jamaica, Mexico, Panama, Peru, and Venezuela have more than a decade of
 experience enforcing competition laws. However, the number of years of
 existence of a competition agency is not a precise proxy for maturity. Unfortunately, progress cannot be taken for granted, especially when competition policies may vary drastically with the influence of the 
Executive Power. In the case of Venezuela, for example, the "21st century socialism" of Chavez has embraced direct price control over antitrust enforcement. Panama's competition system is similar to
 US's system (the competition authority only investigates and prosecutes,
 while the courts have the role of adjudicating the cases) but it is not as active as the Latin American antitrust systems where the competition
 authorities have adjudicative powers.

- Colombia's fist competition law was enacted in 1959 (as you state in the table), but as it happened in Argentina, the law was no applied for more than thirty years. Actually, enforcement by the Superintendency started by
 the mid 90s, due to a reform of the competition law and an institutional
 restructure of the Superintendency (Decree 2153 of 1992).


"Extra-Territorial Application of Antitrust - The Case of a Small Economy (Israel)" por M. Gal

La profesora Michal Gal de la Universidad de Haifa es reconocida por sus escritos sobre la aplicación de las leyes de competencia en economías pequeñas. En esta ocasión ha publicado el ensayo "Extra-Territorial Application of Antitrust - The Case of a Small Economy (Israel)" que hará parte de un libro titulado COOPERATION, COMITY, AND COMPETITION POLICY, Andrew Guzman, ed., Oxford University Press, 2009.

Abajo transcribo el abstract del paper:

"International trade has changed some of the challenges faced by antitrust authorities: it has added an international dimension. Under the current system of international antitrust, the backbone of enforcement is unilateral: each country applies its own tools to deal with international antitrust issues within the constraints imposed upon it by public international law. This enforcement pattern is sometimes coupled with cooperation agreements which are based on the realization that while cooperation among firms might be anti-competitive, this is generally not true for cooperation among countries. Yet such cooperation is often limited.

This paper, which is part of a book on Cooperation, Comity And Competition Policy (Oxford University Press, 2009), analyzes the effects that a unilateral enforcement system has on a small economy, by focusing on a specific case study: Israel. The case of Israel is interesting not only as a stand-alone case study, but mostly because it provides useful insights into the reality of enforcing antitrust in a globalized world by a small economy. As the paper indicates, even when it possesses the legal tools to tackle international antitrust issues, Israel often suffer from serious practical deficiencies. Most importantly, it frequently cannot create a credible threat to large, multinational firms that engage in anti-competitive conduct which harms its economy. It also has limited resources and incentives to deal with international anti-competitive conduct, especially when such conduct is addressed by other jurisdictions. As a result, despite the sometimes severe effects of anti-competitive conduct on its markets, Israel, like other small economies, is a marginal player in the globalized antitrust regime and is generally a passive bearer of the effects of international anti-competitive conduct and of the enforcement actions of larger jurisdictions rather than proactive confronters of such issues and actions. This observation has important implications for a globalized antitrust regime.The paper also analyzes some intriguing issues which arise from public international law doctrines of extraterritoriality. For example, it analyzes the issue of whether the effects doctrine acts as a pre-condition for a finding of an anti-competitive conduct if some of the parties are foreign or does it apply only if there is a finding of an anti-competitive conduct that has direct legal implications for a foreign firm.

It also analyzes the issue of whether presumptions of illegality can apply in cases which involve foreign firms and in which jurisdiction is based on proof of "a significant and direct" anti-competitive effect."