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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• 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 ,Trinidad , Guyana , others
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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 ;
• Resistance to dilution of value of concessions
• Size and vulnerabilities
• Special and Differential treatment
• Dispute settlement
• Sovereignty and jurisdictional issues