The Contribution of the United Nations to the Emergence of Global Antitrust Law

Abstract

This Article examines the contribution of the United Nations Conference on Trade and Development (UNCTAD) to the emergence of an international framework for antitrust. It is the first systematic analysis of UNCTAD’s contribution to international antitrust since the 1980s when the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices (the Set) was adopted. The Set still constitutes the only universally applicable instrument in the area of antitrust and its validity has been constantly reaffirmed by international conferences organized by UNCTAD, the most recent one being held in 2005. However, the Set’s existence has also been shadowed: first, by its weak legal effect and, second, by the emergence of new international fora for competition policy, such as the Word Trade Organization and the International Competition Network (ICN). This Article re examines the legal effects of the Set, taking into account the evolution of the legal and political context of global antitrust; the adoption of a significant number of international, regional, and bilateral trade agreements containing various aspects of competition law provisions; and numerous antitrust cooperation agreements. It concludes that even if it is unlikely that the Set produces, by itself, any binding effect, it may eventually contribute to the emergence of a customary international norm against restrictive business practices. Nor is the importance of UNCTAD’s Set limited to the issue of its legal effect; by providing a balanced approach to the relationship between competition law and the specific needs of developing countries, the Set may provide a model for a future international agreement on antitrust that could address the interests of both developed and developing countries

Keywords: UNCTAD, antitrust, competition, customary international law, development

JEL Classification: K21, L49