1 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 April 2003

2 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

3 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

4 Internal Aspects of Competition Policy: Traditional Policies and Practices in the Control of Unfair Trade Practices: Consumer Protection Acts Standards Acts Regulated Industries Policy

5 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

6 Regulated Industries Legislation: price and tariff controls performance standards mixed with hotatory, rather than substantive anti competitive compliance requirements

7 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

8 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

9 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

10 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

11 Main Competition Policies: Chapter 8 Revised Treaty ;Art 177,178,179 Universal Coverage of all sectors Control behaviour not structures

12 Main Competition policies Prohibitions Approach : agreements :meaning horisontal and vertical decisions and concerted practices, abuse of dominance

13 Main Competition policies : Dominance conflicts: Prohibit abuse of dominance but; No interference with market structures Monopolies permitted : Art 35 No merger regulation

14 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

15 Main Competition policies: Certain Anti competitive agreements prohibited : price fixing, market division, limitation of production etc Art 177 but no mention of cartels specifically

16 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

17 Jurisdictional issues: between national authorities; competition vs regulated industries between Community and national authorities between disciplines in a CSME; dumping vs predatory pricing

18 Fundamental Principles Apply Article 171 Par. 5(4) : MFN National treatment Transparency Due process

19 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

20 External Dimension of Competition Policy Fundamentals contd : cooperation significant for enforcement but enforcement principally national not supra national act special and differential treatment addressed

21 Fundamentals applied in CARICOM Bilaterals/Plurilaterals : Dominican Republic Cuba Costa Rica ACP-EU (COTONOU) except ( Sand D) in FTAA Negotiations on Competition Policy

22 WTO core principles represented: especially non discrimination and transparency due process is constitutional requirement and well established judicial doctrine

23 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

24 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