Salil Mehra[*]

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Since the early 1990s, the world has seen the establishment of comprehensive antitrust regimes in the Eastern European transitional economies,[1] Latin America,[2] China,[3] and India.[4]  The growth of new and revitalized antitrust regimes around the world has focused attention on how to build effective and helpful competition law institutions.  In many respects, this is a novel challenge because the need and impulse for antitrust had previously been associated with mature market economies.[5]  Technical assistance as currently supplied in the world predominantly takes the form of experts from senior antitrust institutions in developed countries making recommendations to new or newer antitrust regimes in emerging economies.[6]  Because of the incongruity of this fit, technical assistance may be aimed at the problems it seeks to find, rather than the most pressing problems.

This brief Essay provides some context to understand why the transfer of antitrust expertise from experienced regimes such as the United States to emerging enforcement institutions elsewhere will likely not be a simple exercise.  A technocratic model of antitrust law suits the context of the United States because of the wide consensus on the goals of antitrust policy in the U.S.[7]  But emerging antitrust regimes may not have the benefit of the same underlying consensus on methods and goals that American enforcers enjoy.  As a result, technical assistance focusing on narrow questions of interpretation may elide difficult questions of first principles and institutional design in emerging antitrust regimes.

The descriptive statistics that Professor Sokol provides can help shed light on common problems with how technical assistance is provided to emerging antitrust regimes.[8]  However, as shown by the examples I will discuss, the focus on forms of technical assistance in isolation may lead to the inaccurate view that emerging antitrust regimes are part of a sterilized environment in which other issues of enforcement authority and state power in markets can be controlled.  In fact, reforming or emerging antitrust regimes may confront difficult—and contested—issues involving both the methods and institutions of competition law ("rules" of the game in Sokol's terms) and their application to achieve goals in specific cases ("play" of the game).  Part I of this Essay sets forth an example of how competition law may involve different, intertwined goals, Part II provides an example of how competition law can hinge on the nature of enforcement authority, and Part III considers Professor Sokol's findings in light of these issues.

D. Daniel Sokol[*]

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One of the key issues in international antitrust has been how to make antitrust effective around the world.  Most antitrust laws have been adopted or significantly modified since 1990.[1]   A number of key jurisdictions are either fairly new to antitrust altogether or to an antitrust regime that effectively employs the latest in economic thinking and the legal tools necessary to promote competition.[2]   Jurisdictions that have made antitrust a new and important cornerstone to economic policy include Brazil, Russia, India, and China.  Because of the stakes involved in the ability of antitrust to foster economic development and to prevent misguided antitrust policy from operating as a regulatory tax, it is critical that the future of antitrust focus on improved capacity around the world.[3]   By capacity, I mean the ability of a given agency to undertake well reasoned and effective decisionmaking in the implementation of antitrust policy.  There are two concerns for countries in various stages of antitrust development: harmonization of domestic antitrust with international antitrust "best practices," and implementation of an effective antitrust regime.[4]   In an effort to solve these issues, policymakers in antitrust emphasize two dynamics to shape the development of increased capacity of younger antitrust regimes.  The first is international antitrust institutions, such as the International Competition Network, that develop antitrust norms.[5]   The other is technical assistance, either from these international antitrust institutions or directly from more developed antitrust agencies or other aid providers.  By technical assistance, I mean the process through which agencies improve their capacity to undertake competition policy.

This Essay focuses on how both external (international institutions) and internal (agency capacity and technical assistance) dynamics shape the capacity of younger agencies to undertake antitrust in their jurisdictions.  Both approaches play an important role in improving capacity.  In the case of technical assistance, this Essay analyzes survey data from recipient agencies of antitrust technical assistance to determine the most effective means of improving antitrust agency capacity.  Part I explains the type of capacity building that antitrust agencies undertake themselves.  The rest of this Essay focuses upon international efforts that can assist agencies in capacity building, but it is important not to overlook capacity building efforts that can occur at the agency level.  Part II describes the work that international antitrust institutions undertake to improve agency capacity.  Part III provides an analysis of survey data that shows how technical assistance from outside providers can improve agency capacity.  Part IV concludes and offers recommendations to improve developing world antitrust agency capacity building.