Global Governance of Antitrust and the Need for a BRICS Joint Research Platform in Competition Law and Policy

Abstract

In May 2016 the BRICS competition authorities signed a Memorandum of Understanding (MoU), which puts in place an Institutional Partnership between BRICS jurisdictions in the area of competition law through a general framework for multilateral cooperation. The paper takes stock of these recent developments and suggests the establishment of a BRICS Joint Research Platform which, in addition to its task to improve the quality of decision-making within BRICS’ competition authorities, will also serve as an alternative forum in the constitution of a global deliberative space in the area of competition law. The paper offers a critical analysis of the call for policy convergence in competition law, which merely emanates from the global business community and enables established competition law regimes, such as that of the US and Europe, to influence the convergence point and more generally to take ownership of the process of global convergence of competition law. The paper criticizes this state of affairs for not taking into account the different patterns of diffusion of competition law and consequently the variety of competition law systems emerging out of the original US antitrust law model and its EU competition law “spin-off”. In particular, it castigates the lack of participation in this global deliberative space of emergent and developing economies and the inability of various affected interests, beyond global businesses and to a limited extent consumers, to be considered. The study takes a broader perspective and puts forward a “participation-centred” approach that would seek to avoid both majority and minority biases, the ultimate objective being not policy convergence as such, but increasing levels of total trust between competition authorities and between competition authorities and their stakeholders. The BRICS Joint Research Platform may play an important role in contributing to the establishment of this new architecture of global governance of competition law.