Dispute Settlement in International Competition Law

Meghna De, Symbiosis Law School, Pune. This Article won 9th position in 4th RostrumLegal Essay Competition, 2016

After liberalisation of markets, the next barrier to international trade lies in the internal working of markets. Hence, the importance of competition law has risen in the global conscience and has led to a point where most countries have competition law principles in some form or other in their legal framework. While most countries try to maintain fair competition amongst domestic players, the same enforcement is not accorded to international players in a country’s domestic market. In recent times, numerous disputes have cropped up between nations as a result, due to non-compliance of competition law agreements that are usually negotiated between states. As of yet, there is very limited recognition of competition law in international law conventions. Due to this, disputes that arise between states are settled privately which lead to a host of other problems such as political fallouts, domination of developing countries by developed countries etc. This paper focuses on the inclusion and formulation of competition law principles in the World Trade Organisation (WTO) framework, and why the WTO is an apt forum to address the issue. The WTO has a Dispute Settlement Understanding (DSU) which facilitates dispute settlement between its member states. The merits of this mechanism are numerous; the aim is to settle the dispute by facilitating dialogue between the conflicting states as opposed to states taking unilateral action against the other. Further, the entire procedure is time bound, hence the disputes do not get dragged on indefinitely; decisions are enforced by ensuring that the losing party of the dispute fulfils his obligations. The system has proven to be effective while dealing with issues in the past. Ideal examples lie in the Kodak-Fuji case and the Telmex case of Mexico, both of which have been evaluated in this paper. The paper examines the merits of applying the same system to settle competition law disputes between countries. However, the pre-condition to that is introducing competition law agreements formally in the WTO. The paper gives suggestions for the same.

INTRODUCTION TO INTERNATIONAL TRADE AND COMPETITION

Over the recent years there has been rapid growth in the volume of trade flowing between borders of countries. With the opening up of borders and reduction of tariffs, goods and services are transacted freely. Hence, the first barrier to international trade, i.e. closed borders, has been successfully overridden. Many view anti-competitive laws, regulations and practices as the next barrier.

More and more countries have now adopted some form of competition policy. Very often the approach has been to simply follow the procedures of those countries that have had the longest history with the subject (like the USA). Many have adopted competition in order to gain entry into regional groups (such as the European Union).

This rapid integration of national markets into the global sphere has been due to the intersection of various reasons. The primary ones have been

  1. Continued tariff reduction in the successive General Agreement on Tariffs and Trade[i] (GATT) rounds. After the Uruguay Round in 1995, the average was reduced to under 5 per cent. [ii]
  2. Foreign direct investment (FDI) has grown and an important part of this takes the form of international mergers and acquisition.[iii]
  3. There has been marked reduction in controls over capital movements
  4. The revolution in information technology

Due to all of these developments, there has been an increased attention to non-tariff barriers to trade, the most prominent of which is competition policy. There have been a number of publicised international competition cases. While competition authorities strive to treat all firms equally, domestic or foreign, most of the time the maximum consideration is given to national policies instead of international principles.  Many a times it has also led to heightening of political tensions between trading nations.

There are a number of anti-competitive practices that occur, such as import cartelisation, vertical restraints and monopolies. Many a times nations whose liberalisation has been enforced by outside agencies choose to keep lax anti-competitive measures in order to help domestic firms. Such practices are hugely damaging to the foreign players. The situation is indeed complex with such vast and conflicting national and international interests.  Therefore, a number of disputes regarding fair competition policies and its enforcement crop up.

COMPETITION LAW AGREEMENTS UNDER INTERNATIONAL LAW

There are a number of bilateral, multilateral and regional agreements regarding competition law agreements. It was a 1960 GATT decision[iv] that recommended consultations among governments instead of mandating a specific code on them.

The following are efforts made towards international competition law co-operations

  1. The Organisation for Economic Co-operation and Development (OECD)

The OECD has developed guidelines for procedural fairness and co-operation. Its first report was in 1998 on hard-core cartels and it made recommendations for the same. A series of reports have been introduced since. There has been findings on trade and competitions[v] and co-operation on enforcement between competition law authorities[vi]. The main impact of OECD has been to promote dialogue on policy development regarding competition law.[vii]

  1. International Competition Network (ICN)

Its mains aim was to facilitate co-operation between national competition law authorities. It increases collaboration between members to build consensus about competition principles. There are recommendations that are non-binding to address specific issues and authorities are allowed to adopt them.

  1. European Union

The European Commission mostly derives its competition law principles from Article 101 to 109 of the Treaty of the Functioning of the European Union, amongst other sources. There are extensive provisions regarding vertical and horizontal agreements, abuse of market dominance, mergers, public monopolies, etc. Commission guidelines and case law has developed set principles of competition law in the EU that are applied by its national courts. Competition law is also evident in the agreements that EU enters into with other nations. Hence, the EU is a main proponent of inclusion of competition in the WTO framework.[viii]

  1. Regional Efforts

Some of the regional agreements include the North American Free Trade Agreement (NAFTA), the Asia Pacific Economic Cooperation and the Australian-New Zealand Closer Economic Co-operation Agreement (ANZCERTA)

UNDER THE WTO

There are elements of competition policy under WTO agreements. These are scattered and not explicitly stated as they don’t address competition law specifically.

Article III of GATT contained provisions on National Treatment while Article XI of GATT contained prohibitions on quantitative restrictions.

Article XXIII of GATT deals with cases of non violation wherein a member can bring action if benefits accruing to them under the agreement are being nullified or impaired by measures that do not per se violate any provision of the GATT.

Article II of General Agreement on Trade in Services[ix] (GATS) mandates that monopolies should not abuse their market power when competing in services outside of their monopoly. Article VIII of GATS contains provisions of monopoly service suppliers and providers

There are sector agreements that deal with competition policy as well. The Reference Paper on Telecommunications prohibits abuse of monopoly, cross subsidisation, etc. The Understanding on Commitments in Financial Services requires monopoly rights to be listed and efforts should be made to reduce them.

While there are elements of competition law, these elements are not of a very substantive nature. Efforts are underway to introduce more stringent principles under WTO, either in general across all sectors or in specific sector agreements. The current debate focuses on not whether competition law should be a part of WTO, but on what form such agreements will take. There is a divide of opinion regarding the form of these agreements not only between members of different levels of economic development, but also between the European Communities and the United States.[x]

DISPUTES IN INTERNATIONAL COMPETITION LAW

While Competition law agreements continue to exist under bilateral, multilateral negotiations between states, this part describes what would happen if and when disputes relating to these obligations arise.

As it is hard to prosecute other states in one’s own domestic country as it raises questions of sovereignty and jurisdiction, the usual method adopted is to arbitrate these matters. Due to the commercial nature of transactions, most contracts have an arbitration clause in case any dispute arises. The Arbitration clause comes complete with all the other relevant details, such as seat of arbitration, appointment of arbitrator, laws to be followed, time limit, etc.

Arbitrations are usually adopted as the preferred method of resolving a dispute in the following cases:

  1. Contractual Claims:

When a party claims contravention of Competition law agreements due to a restrictive contract or a restrictive clause in a contract that has the effect of hampering competition law in the market.

For example:

Article 101 of the Treaty of the Functioning of the European Union (TFEU) states that any agreement that has the following effect will be automatically void if it:

  1. directly or indirectly fixes purchase or selling prices or any other trading conditions;
  2. limits or controls production, markets, technical development, or investment;
  3. applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
  4. makes the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

If a clause a contract attracts Article 101 of the TFEU, such claims can be arbitrated.

  1. Damages for Infringement

In the even that there is an infringement finding by a competition authority, arbitration proceedings may be appropriate thereafter for establishing the liability of the defendant in the form of damages to be paid.

For example:

If a group of firms have been found to be fixing prices at a particular level, in breach of Article 101 of the TFEU, an affected retailer or distributor can choose to bring on a follow-on damages for losses sustained due to inflated prices.

  1. In respect of commitments

Where parties have made certain commitments to give effect to fair competition in the market, these commitments are usually accompanied by clauses requiring arbitration in order to resolve any disputes if and when they arise. Such commitments usually take the form of allowing fair and reasonable access to third parties for physical infrastructure or intellectual property rights.

ADVANTAGES AND DISADVANTAGES OF ARBITRATION

Advantages:

  1. Confidentiality:

Unlike litigation proceedings, arbitration proceedings are in private. There is no requirement of the information to be made public and most part of the proceedings is confidential.

  1. Jurisdiction:

Most parties try to avoid proceedings by raising the plea that the domestic courts do not have appropriate jurisdiction to hear the suit. However these problems can be circumvented through arbitration proceedings as the seat of the arbitration proceedings are pre-negotiated at the time of agreements.

  1. Flexibility over process:

Arbitration allows parties to alter arrangements to suit their own requirements. They may be at liberty to choose the arbitrator, or panel of arbitrators, the legal rules and principles that are to govern the proceedings. They are also free to consult expert economists and competition specialists in order to resolve complex issues.

  1. Speed of procedure:

In the event that the subject matter and facts surrounding the issue are complex, the litigation proceedings are bound to be extremely lengthy and slow. In comparison, an arbitration proceeding will be much faster in reaching a solution.

  1. Objective:

Usually the objective of competition law authorities is to punish the wrong doer in order to deter future anti-competitive practices in the market place. It is not necessarily involved in awarding damages to the parties adversely affected. Such damages can be obtained through arbitration proceedings.

 

Disadvantages of Arbitration Law

  1. Public Policy

An arbitral award may be set aside if it is contrary to public policy. For example, the US allows arbitral awards are on a punitive or exemplary basis instead of just being compensatory in nature. Such an award may be set aside in EU as it may contravene their public policy.

  1. Private nature of arbitration

Concern arises that the wrong doers may use arbitration due to its private nature in order to avoid persecution by national competition law authorities. Arbitrators cannot refer matters to competition law authorities without the consent of parties.

  1. Privity of contract

Due to privity of contract, not all the parties responsible to the damage can be proceeded against due to the absence of a contract and therefore no arbitration is possible. For e.g., in cases involving cartels, all the firms involved in the cartel cannot be proceeded against.

  1. Disclosure of Information

Arbitrators are not armed with the same powers as that of a court or a national competition law authority. Hence arbitrators have a limited power to compel information to be disclosed from parties unwilling to do it. This limits the scope of an arbitrator’s findings on the issue.

The case to be made here is that although mechanisms do exist under status quo to resolve disputes, there is an absence of a uniform way of dealing with them in such a way that would yield results. An integral part of the dispute resolution system under status quo is the level of co-operation that exists between states that disputes occur between. These co-operation agreements typically take the form of bilateral or multilateral agreements. The underlying strength of these agreements is the level of good political ties and diplomacy between the countries. In the absence of such, amicably resolving disputes becomes an issue. In the event that disputes are aimed to be resolved, the process takes too long and most of the time, the decisions are not effectively enforced. A solution to this lies in the dispute settlement mechanism under the WTO.

DISPUTE SETTLEMENT UNDER WTO

In the Uruguay Round, the Understanding on Rules and Procedures Governing the Settlement of Disputes, more simply called “Dispute Settlement Understanding” (DSU), was originally agreed to for resolving disagreements between member nations regarding tariff barriers, the same agreement can be applicable to resolving competition disputes, as and when competition law is introduced under WTO.

The principle is that when member states feel that a nation is not adhering to the WTO agreements or fails to fulfil obligations agreed to, instead of taking unilateral action against them, the multilateral system contained in the DSU can be used.

Before the Uruguay rounds, the dispute settlement mechanism existed but suffered from a lot of anomalies. Rulings were easier to block, there were no fixed timetables and cases dragged on inconclusively. The process is now more structured, with clearly defined stages and fixed deadlines. If the WTO is to function effectively, prompt settlement needs to be emphasised upon. The aim is to settle disputes, not pass judgements. The aim is to get the countries to discuss the problems and amicably settle the dispute.
The DSU, under Article 2, establishes the Dispute Settlement Body (DSB) to administer rules and procedures of the DSU. In brief, the mechanism involves the following steps

  1. Consultation between parties

The parties to the dispute undergo consultation where they try to settle their differences. This is done in accordance with the provisions of Article 4 of the DSU. A period of 60 days is assigned to complete all talks. The complaining party can choose to enter the next stage either after 60 days are completed or during the consultations itself.

  1. Adjudication by Panel (and the Appellate Board, if appealed)

Once a panel is requested[xi], the panellists are chosen in accordance to the provisions of Article 8 of the DSU which governs its composition. The members are chosen in consultation with the countries affected. This has to be completed within 20 days.[xii]

The panel starts the procedure for settlement. Both parties present its case in writing. At the first hearing, the panel hears the complaining party, the responding country and those that have declared an interest in the dispute. [xiii] Rebuttals are presented to the panel at the second hearing. [xiv] If there are matters of a scientific nature, then experts are consulted, in accordance with Article 13 and Appendix 4 of the DSU.
A panel report is sent to the parties[xv] and the DSB. [xvi] All of this is completed within 6 months of the panel being set up. The time period reduces to 3 months if there are perishable goods involved.

In accordance with Article 17 of the DSU, countries can appeal the decision. The Appellate body does not re-examine facts, it merely overlooks the legality of the decision. Within 90 days, the appellate body can reverse, modify or uphold the panel’s legal findings and conclusions.

  1. Enforcing the ruling

Under Article 16 of the DSU, within 60 days of the report being circulated, but not less than 20 days, the report (including the changes made by the appeal, if any) is adopted by the DSB unless the decision to not adopt it is reached unanimously by the DSB. Due to this provision, non-adoption of the report is highly impossible.
The losing party formally has to declare its intention to act in accordance with the report within 30 days of the report being adopted by the DSB.[xvii]

Implementation is ensured by Article 21.6 of the DSU:

“The DSB shall keep under surveillance the implementation of adopted recommendations or rulings. The issue of implementation of the recommendations or rulings may be raised at the DSB by any Member at any time following their adoption. Unless the DSB decides otherwise, the issue of implementation of the recommendations or rulings shall be placed on the agenda of the DSB meeting after six months following the date of establishment of the reasonable period of time pursuant to paragraph 3 and shall remain on the DSB’s agenda until the issue is resolved.”

POSSIBLE DRAWBACKS

  1. Right of Panels to seek information

Pertaining to Article 13 of the DSU, the panel is entitled to seek information and technical advice from an individual or body which it deems appropriate. The powers given are broad and sweeping in order for them to establish correct facts. However, despite this right, it is generally believed that the investigation of facts is among the weakest spots of the panel procedure.[xviii]

  1. Duty of Members to Surrender Information

From the wording of Article 13.1 of the DSU, where it is stated that members ‘should’ surrender information implies that it is their duty to do so. Many believe that because of the absence of the word ‘shall’ the Article does not impose a legal obligation on the members to surrender information to the fact finding body.[xix]

  1. Absence of Standard Rules of Procedure

Article 12.1 of the DSU mandates panels to adopt Working Procedures set out in Appendix 3 of the DSU, however these are very basic. Article 12.1 of the DSU authorizes panels to adopt additional rules and procedures after consultation with parties.
There is a divide of opinion whether the absence of any standard rules of procedure is a pro or con to the process. Many believe that the absence allows for a flexible approach, allowing the members to adopt procedures suitable to the issue at hand.
Yet the other side believes that standard procedures ensure due process and procedural fairness.[xx]

  1. Panel Structure

Although the Appellate Body is a permanent institution composed of seven Members appointed for a fixed term[xxi], panels are established on an ad hoc basis for each dispute.[xxii] Article 8.2 stipulates that panel members be independent. While according to Article 8.3, the personal independence of members are ensured, the rules of the WTO dispute settlement don’t do enough to guarantee institutional independence of the members.

CASES ADJUDICATED BY THE DSB

KODAK v FUJIFILM

This is a case from Japan and was indirectly dealt with in the WTO. The current non violation provisions under the WTO framework present several disadvantages, both to panels attempting to resolve disputes under these provisions and to the WTO system as a whole.

Facts

The most important non violation complaint from a competition perspective has been the one about the importation and sale in Japan of photo films and paper originating in the United States. Kodak claimed that Japan’s photographic market and distribution structure denied Kodak fair and equitable market opportunities. Kodak argued that it could not penetrate the Japanese market beyond a certain level due to structural restraints, government intervention, and back-room policies that favoured Fuji.[xxiii]

Kodak petitioned the United States Trade Representative (USTR) to allege that anti-competitive practices (non-price vertical restraints) had denied Kodak access to the Japanese market. They alleged restrictive business practices against foreign suppliers in the Japanese film market under Section 301 of the Trade Act of 1974, in which the definition of ‘unreasonable practices’ includes government actions constituting systematic toleration of anti-competitive activities by foreign firms which result in restricting market access. Under the section, the threat of economic sanctions is used to force a negotiated solution to the dispute.

The USTR concluded that the policies and practices were actionable under the Section 301.[xxiv] It decided the following to address the situation:

  1. To engage with Japan under a conciliation and consultation mechanism
  2. To initiate investigation through the Japanese Fair Trade Commission (JFTC) into the Japanese consumer photographic materials market.

This actions of US was vehemently opposed by the Japanese government. There objections were on the following grounds

  1. The unilateral approach of the US was a potential attack on the Japanese government’s sovereign powers.[xxv]
  2. The USTR had advanced without first pursuing alternative remedies through the JFTC.
  3. The US when dealing with Japanese vertical restraints did not address the issue of efficiency, which was inconsistent with the standards applied in traditional US antitrust analysis. Kodak had themselves employed restrictive business practices to protect its position in the US market, and the USTR had not engaged with this. This highlights an inherent difficulty of trade negotiators tackling international competition disputes.[xxvi]

Additionally, Fuji and Japan contended that Kodak’s poor performance in Japan was due to deficient marketing, management and investment in the Japanese market. They perceived the allegations as groundless and refused to enter into negotiations with Kodak.

The report of JFTC on the matter in July 1997 concluded that there was no violation by Fuji of Japan’s Anti-Monopoly Act. This was condemned and the USTR decided to submit the controversy to WTO dispute settlement.

THE ISSUE

The non-violation complaint was under Article XXIII:1(b) of the GATT, under which it was alleged that the Japanese government’s industrial policy in the photographic film and paper sector had upset the competitive position of imported products, thereby frustrating legitimate expectations of improved market-access opportunities arising out of tariff concessions.

In October 1996, the United States filed a complaint with the WTO against Japan, arguing that laws, regulations and requirements of the Japanese government negatively affected the distribution, offering for sale, and internal sale of imported consumer photographic film and paper. The thrust of the U.S. argument was that Japan had violated Article III (National Treatment) of GATT[xxvii], Article III (Transparency) and Article XVI (Market Access) of GATS. Alternatively, the United States contended that even if there was no violation, the practices regarding anti-competitive barriers directly or indirectly harmed the United States under the GATT and GATS within the meaning of the non-violation provisions. In other words, the United States argued that in the event that the regulations of the Japanese government governing the Japanese film market were GATT or GATS legal, the benefits to the United States as a GATT or GATS Member were nevertheless nullified or impaired. [xxviii]

A non-violation complaint is successful only if three cumulative conditions are satisfied:

(1) the application of a measure by a Member;

(2) the existence of a concession or an advantage resulting in a benefit accruing to another Member directly or indirectly under the agreement in question, and

(3) the nullification or impairment of this benefit as a consequence of the measure of the other Member[xxix]

THE DECISION

The panel ruled that the Japanese regulations predated the reductions on tariffs that had been negotiated on photographic film. Consequently, those regulations could not have negated the benefits accruing to the United States in the trade agreement. Although the ruling was technical in nature, if the WTO had ruled in favour of US, the result would have been to create new international obligations of competition, an act not sanctioned by the WTO Agreement.

SIGNIFICANCE

This dispute received wide attention in Japan, the US, and also in the international community. In the US in particular the dispute led to the perception that as a general rule “Japanese markets are closed”. This perception was used to justify the US claims in the dispute. However, the Panel judged the case based on the arguments and evidence presented to it, analyzing the claims made by the US objectively from the perspective of whether they met the requirements of the WTO rules, and reached its conclusions accordingly. This attitude is to be welcomed, for it strengthens the confidence of WTO Members that the dispute settlement system will render fair and impartial judgements according to objective rules. Valid procedures are used to settle disputes in a multilateral setting like the WTO which ensures that the decisions reached by the dispute-settlement system are just and that trade disputes have the opportunity to be judged fairly.

The case posed a difficult problem for the panel. It primarily raised the question of whether a Member country could nullify or impair benefits of another without breaching any obligations. Further, even if the panel ruled in the affirmative, then that US benefits were nullified or impaired without any violation by Japan, such a decision would be difficult since the non-violation provisions in GATT and GATS themselves do not directly address the issue. Since it is the sovereign right of the Japanese government to implement any domestic policy as long as it observes international obligations, the panel could not then successfully rule against Japan. Such a decision would not be acceptable to Japan or the other WTO members.

TELMEX

Facts

Mexico privatised its telecommunication sector in 1990. Telmex, a telecom company had previous monopoly, now there were six new carriers in the market. Two of these were Avantel and Alestra which were part owned by US companies AT&T and MCI respectively.

The main allegations were that Telmex, which had a larger network and had a long distance-services between the US and Mexico refused interconnection facilities to the new entrants in the market. Pursuant to this, AT&T and MCI lobbied the USTR for assistance. A complaint was therefore filed alleging that Mexico’s anti-competitive International Long Distance (ILD) Rules precluded Mexican carriers from competing with each other to carry calls into Mexico.[xxx]

On 17th August 2000, the US government filed a formal complaint in the WTO alleging that Mexico’s telecom sector was in violation of the GATS commitments that Mexico had made, including those specifically mentioned in the Reference Paper.

THE ISSUE

US alleged action and inaction of Mexico that was inconsistent with GATS obligations. The allegations specifically related to Article VI, XVI, and XVII under GATS; Article XVII of the Reference Paper; and Sections 4 and 5 of the GATS Annex on Telecommunications.

THE DECISION

The DSB established a Panel to deal with the issues at hand. On 2 April 2004, the Panel report was circulated to members. The decision was that Mexico had violated its GATS obligations as

  1. It had failed to ensure interconnection at cost oriented prices for telecom services
  2. It did not maintain proper measures to prevent anti-competitive practices by a major supplier in the market
  3. It had failed to ensure reasonable and non discriminatory use and access of telcom networks.

All of this were in direct violations of the commitments that Mexico had chosen to adopt in its obligations though GATS and the Annex to Telecommunications.

On 1 June 2004, the DSB adopted the Panel Report.

On the same day, Mexico and Us reached an agreement that stated that a reasonable period of time (the Report states 13 months) to comply with the recommendations.

On 12 August, 2005, Mexico announced in the DSB meeting that it had fully complied with the DSB’s recommendations. The United States expressed its satisfaction with the changes introduced by Mexico.

SIGNIFICANCE

This case was one of the most significant rulings of the WTO Panel and received international attention. Although competition law principles receive limited recognition under the WTO system, this case shows that non-observance of commitments have repercussions and these can be effectively redressed through the DSB.

Although the decision has faced criticism due to the drawbacks in the dispute resolution system, such difficulties can be combatted by improving the framework of the body and the procedure in the future. Currently, the DSB can be used to reach a settlement that is amenable to the parties involved in the dispute, in a way that does not affect the sovereignty of the states.

SUGGESTIONS

The current international framework has not been fully successful in creating an international understanding of competition law. Further, in such a scenario, where disputes relating to competition law arises, there are various problems that crop up in an effort to resolve that dispute amicably.

The current obligations under WTO do not contain substantive principles of competition law. Currently efforts are underway in order to introduce stronger obligations under WTO regarding competition law. However, there are various hurdles regarding the nature and substance of these obligations as there is a strong divide of opinion regarding the same. These negotiations have become the subject matter of a whole new debate entirely. But the reality is that there will be stronger competition obligations under WTO will be introduced soon.

The benefit of incorporating competition law under WTO is that the members will have to adopt their national laws to the new requirements and ensure that these laws are applied in accordance to the commitments that they have made.

The Dispute Settlement mechanism under the WTO has been used to resolve trade disputes and has also been specifically used for disputes wherein there has been violation of competition law obligations to the extent that it has been incorporated under the WTO. With a wider inclusion of competition law principles, the mechanism can be used to resolve competition law disputes as well. This will provide a more effective mechanism to resolve disputes.

Although there are deficiencies in the DSU, a review committee has been set up to make structural improvements to the panels and the appellate body. However even the current standard of review that is present in the DSB has proved to be effective in resolving disputes. Hence, as and when stronger obligations under the WTO are incorporated regarding competition, the jurisdiction of the DSB will increase, allowing them to effectively adjudicate competition law matters between members. This will lead to a more uniform and effective method of resolving international competition law disputes than before.

References:

[i] General Agreement on Tariffs and Trade, 1947, 55 UNTS 187.

[ii] The Final Act of 1986-1994 Uruguay Round of Trade Negotiations, available at  https://www.wto.org/english/ docs_e/legal_e/ursum_e.htm, last seen on 19/12/2016.

[iii] Ibid.

[iv] GATT Decision on Restrictive Business Practices: Arrangements for Consultations, 9 BISD 28 (1961).

[v] Report on Trade and Competition Policy OECD 1984.

[vi] Memorandum on Cooperation Between Competition Authorities, OECD, 1986.

[vii] Stephen Woolcock, International Competition Policy and the World Trade Organisation, available at https://www.lse.ac.uk/internationalRelations/centresandunits/ITPU/docs/woolcockintcomppolicy.pdf, last seen on 19/12/2016.

[viii] European Commission, Competition Policy and the New Trade Order: Strengthening International Cooperation Rules, Group of Experts, 1995.

[ix] General Agreement on Trade in Services, Annex 1B of the WTO Agreement.

[x] Kathy Y Lee, The WTO Dispute Settlement and Anti-Competitive Practices: Lessons Learnt from Trade Disputes, available at https://www.law.ox.ac.uk/sites/files/oxlaw/cclp_l_10-05.pdf, last seen on 19/12/2016.

[xi] As provided by Article 6 of the DSU.

[xii] As provided by Article 7 of the DSU.

[xiii] As provided by Article 10 of the DSU.

[xiv] As provided by Article 12 of the DSU.

[xv] As provided by Article 12.8 of the DSU.

[xvi] As provided by Article 12.9 of the DSU.

[xvii] As provided by Article 21.3 of the DSU.

[xviii]Kathy Y Lee, The WTO Dispute Settlement and Anti-Competitive Practices: Lessons Learnt from Trade Disputes, available at https://www.law.ox.ac.uk/sites/files/oxlaw/cclp_l_10-05.pdf, last seen on 19/12/2016.

[xix] Ibid,

[xx] Ibid.

[xxi] As provided by Article 17 of the DSU.

[xxii] As provided by Article 6 of the DSU.

[xxiii] Kodak Press Release. “Kodak Petitions US Government Under Section 301 of Trade Law.”

[xxiv] Barriers to Access the Japanese Market for Consumer Photographic Film and Paper, 61 Fed Reg 30929.

[xxv] William Barringer .Competition Policy and Cross Border Dispute Resolution: Lessons Learned from the U.S.-Japan Film Dispute, 1998, 6 George Mason Law Review 459.

[xxvi] DJ Gifford .Antitrust and Trade Issues: Similarities, Differences and Relationships, 1995, 44 De Paul L Review 1049.

[xxvii] John H. Jackson, Legal Problems of International Economic Relations- Cases, Materials and Text On the National and International Regulation of Transnational Economic Relations (3rd Ed., 1995).

[xxviii] Japan-Measures Affecting Consumer Photographic Film and Paper, Request for Consultations by the United States, WT/DS44/1, G/L/87,

[xxix] Ibid.

[xxx] Kathy Y Lee, The WTO Dispute Settlement and Anti-Competitive Practices: Lessons Learnt from Trade Disputes, available at https://www.law.ox.ac.uk/sites/files/oxlaw/cclp_l_10-05.pdf, last seen on 19/12/2016.

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