The Global Diffusion of Competition Law and Policy - An Exploratory Workshop

Policy transfer consists in a form of policy diffusion and sometimes it is considered as a related concept.

One should distinguish diffusion from convergence, as the former concept pre-supposes the existence of interdependence, while convergence may be caused by interdependence but also by different factors, such as the fact that the specific units may react to similar, independent pressures. Hence, diffusion is a narrower concept than policy convergence.

The diffusion of competition law in different political settings and legal traditions illustrates its great malleability and the operation of various factors. The adoption and effective implementation of competition law is nevertheless characterized by a great degree of variability among jurisdictions, despite the considerable influence exercised by international actors aiming to generate different mechanisms of policy convergence: the ICN, UNCTAD, OECD, the EU and other regional integration models and the influence of common factors, such as the globalization of markets, the professionalization of economics, the development of technocratic government. 

This diversity is not only reflected in the adoption of different models of competition law across the various jurisdictions examined, but also in the way this area of law is effectively implemented. The implementation of competition law varies of course within each jurisdiction through time and often depends on the specific institutions in place, their capabilities, but also the policy area in which it is intervening (e.g. energy, telecommunications, healthcare services etc). There might also be some dissonance between the intended enforcement of competition law, as this is proclaimed in the foundational texts, guidelines, legislation, constitutional (or other) provisions that have put it in place in each jurisdiction, and its day-to-day operation in the specific jurisdiction.

Factors explaining the diffusion of various types of competition law implemented in various jurisdictions include, among others, the patterns of diffusion from one country to another (that is the mechanisms of interdependence that lead to the adoption and implementation of a specific policy by another unit), but also factors, such as the interaction of politics with expert knowledge, the relations between government and business, the role of other societal groups (consumers, labor unions), and the role of domestic struggles of power and influence (palace wars) in the specific jurisdictions.

Diffusion consists of: (1) adoption, and (2) implementation. Adoption refers to the formal introduction of the competition law regime into the legal system. Implementation may be conceptualized as referring to the stages after the decisional point of adoption or more generally to the “depth of adoption”, in essence through direct practical experience with competition law indicated, among others, by the frequency of its use, the scope of impacts covered, the quality of assessment, its role in the policy-making process and eventually its institutionalization, the latter concept referring to its permanence within an organization, enduring through elections and changes in government.

The process of implementation of the competition law regime into a specific organizational and institutional context is prolonged and has several phases. It should not be excluded that the transplantation of the competition law in political and legal systems that do not present functional equivalents to the system where the transplant originated may produce completely different outcomes, leading to situations of diffusion without convergence.

Diffusion may be vertical, horizontal, or both. Vertical diffusion operates through higher levels of governance, for example through the influence of international organizations or the federal level, when exploring intra-state processes of diffusion. The most important of the former are international organizations (OECD, UNCTAD, EU), international networks (ICN), regional economic integration organizations (e.g. EU). Horizontal diffusion involves interconnectedness of governments when elites communicate and interact, exchanging ideas, solutions, and experiences. There are different patterns of diffusion: 

• learning resulting from internal (e.g. the characteristics of public administration, legal and constitutional frameworks, administrative culture) or external (e.g. transnational institutional linkages, government decisional interdependence, epistemic communities) sources;

• externalities, providing incentives altering the cost-benefit ratios of domestic actors, such as competition among governments for “regulatory quality” (leading them to adopt and implement policy innovations);

• coercion (when the diffusion of the specific policy innovation results from the use of material or economic power, including asymmetric bargaining imposing conditionality for these reforms, or binding legal norms adopted by supranational institutions)/ Although some authors advance that coercion is not a proper form of diffusion as it results from the pressures imposed from above to the specific political unit, we consider that interdependence between units may take different forms, power being one of them and hence, coercion should be considered as a proper interdependence mechanism and a pattern of diffusion;

• contractualization (when diffusion results from some form of symmetric bargaining between states, or “soft” international organization influence);

• socialization among networks of experts and/or administrative elites leading to “the internalization of shared beliefs due to the interaction of actors”;

• emulation indicating the “desire (or need) of domestic actors to conform to internationally widespread norms” in order to “increase the legitimacy of policy choices.

Some recent studies have focused on the micro-foundations of trans-border policy diffusion, advancing the importance of the electorate in pushing for the adoption of “successful” policy innovations developed elsewhere (the voter information model or the democratic foundations of diffusion).

These various patterns of diffusion alter the material incentives domestic actors face, for example through the mechanisms of conditionality and competition, and through the mechanisms of learning and emulation. In some cases various diffusion mechanisms work in parallel.

The workshop aims to explain the phenomenon of diffusion of competition law by exploring diffusion patterns not only in terms of the adoption and implementation of a competition law regime in the specific jurisdictions, but also in the development of types/models of competition law regimes that could inspire other jurisdictions. Our focus will be the BRICS jurisdictions.

The purpose of the workshop will be to map the patterns of diffusion of competition law in the BRICS and to reflect on commonalities and dissimilarities between the different regimes with the purpose to understand the interaction between patterns of diffusion (various mechanisms of interdependence) and independent factors that may have influenced the process of expansion of competition law. Should one expect that jurisdictions sharing a similar pattern of diffusion, or a similar combination of diffusion patterns will develop closely related models of competition law? What can diffusion literature offer to understand why competition laws converge in some aspects and diverge in others? Is it possible to measure diffusion? How is it possible to develop research designs tailored to the analysis of specific diffusion mechanisms in the context of competition law? What can diffusion literature offer to the study of comparative competition law institutions and policies?

Programme 

Nota bene: Each speaker will dispose of no more than 8 minutes to make an initial statement in order to enable an interactive session with discussions among the panelists and between the panelists and the other participants, as well as eventually questions from the audience. Chairs should strictly implement this timing.