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Journal of International Economic Law Advance Access originally published online on July 24, 2007
Journal of International Economic Law 2007 10(3):707-724; doi:10.1093/jiel/jgm016
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© Oxford University Press 2007, all rights reserved

Competition Law and the WTO: Rethinking the Relationship

David J. Gerber*

*Distinguished Professor of Law in Chicago-Kent College of Law, Chicago, Illinois. Email: Dgerber{at}kentlaw.edu. The author would like to thank Sungjoon Cho for his comments on an earlier draft of this article and for his many insights into the issues treated here.


  Abstract

This essay identifies obstacles to the inclusion of a competition law regime in the WTO and suggests changes that are likely to be necessary if competition law is to become an effective part of the WTO. Two obstacles have impeded inclusion of competition law in the WTO's legal regime and are likely to continue to do so. They are (i) a lack of confidence that the norms, practices and procedures of the WTO rest on a robust conception of community and (ii) uncertainty and concern about what form of competition law might be included and what its role in the WTO would be. In order to reduce the first of these obstacles, the institutions and members of the WTO will need to develop a conception of community that engenders widespread confidence in the WTO's basic modes of operation. Eliminating the second obstacle would require clarification of the kind of competition law that would be acceptable within the WTO, and this, in turn, is likely to require development of a form of competition law that is specifically designed for the WTO and that can elicit the long-term support of all categories of members. The essay suggests that the competition law issue is intricately interwoven with the future of the WTO. The changes that would be necessary to introduce and successfully implement competition law in the WTO are to a large extent the same as those that the institution will need to make if it is to enrich its role as an institution.


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