Competition Advocacy as an Effective Tool for Emerging Competition Agencies International Conference hosted by the Kazakhstan Antimonopoly Authority icon

Competition Advocacy as an Effective Tool for Emerging Competition Agencies International Conference hosted by the Kazakhstan Antimonopoly Authority



НазваниеCompetition Advocacy as an Effective Tool for Emerging Competition Agencies International Conference hosted by the Kazakhstan Antimonopoly Authority
Дата конвертации22.04.2013
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Competition Advocacy as an Effective Tool for Emerging Competition Agencies

  • International Conference hosted by the Kazakhstan Antimonopoly Authority

  • 10 October 2011

  • Charles Webb


Competition Advocacy as an Effective Enforcement Tool for Emerging Competition Agencies

  • Brief Speaker Biography:

    • Partner, Antitrust and Competition Law Practice, Baker Botts L.L.P.
    • Executive Director (2007-2010) and Legal Adviser (2005-2007) to the Jersey Competition Regulatory Authority ("JCRA") in Jersey, Channel Islands
    • Involved in International Competition Network ("ICN")
      • Member (2006-2010)
      • Non-Governmental Advisor (2010 - present)
  • Presentation based on my experience as a government enforcer and private advocate, informed by work in the ICN



What is Competition Law Advocacy?

  • Prospective exercise (ex ante persuasion versus ex post enforcement)

  • Seeks to promote increased competition

  • Utilizes non-enforcement mechanisms



Exercise in "Soft" Law

  • Competition authority's ability to engage in advocacy efforts often not expressed in national competition law

  • Advocacy efforts often pursued on a voluntary basis, using non-compulsory process

  • Can result in an opinion, recommendation or advice, but most often not a binding decision

  • Just something competition agencies "do"



How do they do it?

  • Tools of Competition Advocacy

    • Market reviews/sector studies, issuing reports
    • Surveys/stock taking exercises
    • Public workshops, seminars
    • Briefings with parliamentarians, civil servants
    • Government testimony, public submissions
    • Participations on cross-government task forces
    • Issuing guidelines, interpretations, educational materials
    • University partnerships
    • Publishing in academic journals
    • AND MORE!!!!!!


Target Audiences

  • Government bodies

    • Civil servants, government departments, public undertakings, sector regulators
  • Parliamentarians, other elected officials

  • Regional authorities

  • Judges

  • Business community (including trade associations)

  • Legal community

  • Media

  • Academia

  • The public (including consumer groups)



Sectors

  • In 2009, the ICN's Competition Advocacy Working Group surveyed the advocacy efforts of 32 ICN member agencies

    • Most common sectors targeted in advocacy efforts:
      • Energy (incl. supply of electricity, natural gas, oil, and petrol) -- 21 agencies
      • Telecommunications -- 16 agencies
      • Transportation (incl. road, rail, sea, ports) -- 15 agencies
      • Financial Services and banking -- 14 agencies
      • Health Services, Pharmaceuticals -- 10 agencies
      • Professional Services -- 9 agencies
      • Agricultural goods, fertilizers and retail networks -- 8 agencies
      • Postal Services -- 6 agencies
      • Environment, sustainable development, water & sanitation -- 5 agencies
      • Real Estate -- 5 agencies
      • International Trade -- 2 agencies


Recent Areas of Focus

  • Educate government officials on bid rigging in public procurement and how to detect it

    • Chile, Japan, Mexico, South Africa
  • Review and eliminate trade association rules that restrict competition in professional services (law, notary, engineers, architects, pharmacists, accountancy)

    • European Commission and many EC Member States
  • Competition Impact Assessment of new and existing government laws, policies, regulations, and practices

    • 2009 OECD Recommendation on Competition Assessment
    • Guidelines adopted in Australia, Bulgaria, South Korea, Spain, UK, and recently endorsed in India as part of the draft National Competition Policy


Advantages for Emerging Competition Authorities

  • Build competence, industry expertise

  • Extend contacts within government, business communities, the media, consumer organizations

  • Build political capital

  • Effective advocacy efforts can be used as an enforcement mechanism

    • Example: Voluntary elimination of restrictive trade association rules in Jersey, under threat of formal enforcement action (UK, too)
  • Also, market information discovered through advocacy efforts could itself lead to enforcement initiatives

    • EC infringement investigations in energy and pharmaceutical sectors arising from sector reviews
    • You never know what you'll find if you look under the rock!


Challenges Faced by Emerging Agencies in Competition Law Advocacy Efforts

  • Government authorities not fully aware of competition law principles

  • Lack of political capital/influence compared to established interests

  • Benefits of competition not fully recognized by consumers, businesses, the media

  • Resource allocation

  • Untested procedures

  • Target selection



There is Help!

  • Resources for Emerging Competition Agencies



Recommendations

  • Competition advocacy efforts extremely useful for emerging competition agencies

  • Do not get frustrated by lack of competition culture, protected interests, or other obstacles

    • Effective competition advocacy itself can help to address these issues
  • Successes may take time

    • Maybe useful to target "low hanging fruit" first
    • Perhaps trade association rules (lawyers, real estate), bid rigging in public procurement
    • Also work with sector regulators to instill competition principles
  • Neither Rome, nor the Treaty of Rome, were built in a day!







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