Competition Chapter in the Trans-Pacific Partnership Agreement: Developing a Template for a Multilateral Framework

Abstract

The nexus between trade liberalization and regulation of competition has been long recognized. With a growing number of economies that have established national competition law, inclusion of competition policy provisions in most regional and bilateral trading agreements and incessant calls from the international business community for coordinated action against cartels and abuses of market dominance, the global trading environment appears auspicious for a multilateral framework on competition. This paper argues that the competition chapter in the TPP accord could serve as a leadoff. The chapter purports to set a standard for competition policy so as to prevent unregulated anticompetitive practices from undermining the gains expected from the removal of trade and investment barriers. It introduces progressive application of WTO core principles of nondiscrimination and transparency in competition law, stipulates rights and obligations of parties to ensure due process in enforcement, and promotes consumer protection by including unfair trade practices. Compared to the trailblazing pact on trade and investment contained in the rest of the TPP agreement, the competition chapter does not break as much new grounds. The provisions are respectful of the parties’ policy space and prosecutorial discretion. Nonetheless, they are sufficient to address concerns on divergent, and at times conflicting, application of national competition laws and to deter anticompetitive practices from supplanting trade liberalization measures.