Assessing Theories of Global Governance: A Case Study of International Antitrust Regulation

An effective, legitimate model of global governance must strike a delicate balance between national sovereignty and international cooperation. As such, governance on an international level is a constantly evolving discourse among multiple actors whose respective roles and influence vary across time and policy realms. The participation of multiple actors in global governance is widely recognized, but there is considerable disagreement as to the appropriate distribution of power among these participants and the optimal pattern for their interaction. We may never be able to construct an ideal global governance model. But the attempt to create such a model by examining the current needs of individual nations and the international community in key areas, such as global antitrust regulation, plays a critical role in promoting sound public policy

When the WTO Works, and How It Fails

This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate — specifically, intellectual property and antitrust regulation — it reveals more general principles about why the WTO can facilitate agreement in some situations and not in others. Comparing the successful conclusion of the TRIPS Agreement and the failed attempts to negotiate a WTO antitrust agreement indicates that international cooperation is likely to emerge when the interests of powerful states align and when concentrated interest groups within those states actively support cooperation. The comparison further suggests that the WTO provides an optimal forum for cooperation when states need to rely on cross-issue linkages to overcome existing distributional conflicts, when the underlying issue calls for an enforcement mechanism, or when both the net benefits of the agreement and the opportunity costs of nonagreement are high. Contrasting the key differences between IP and antitrust cooperation, this Article disputes the widely held view that the strategic situations underlying IP and antitrust cooperation are similar and that the conclusion of the TRIPS Agreement is a relevant precedent predicting a successful WTO negotiation of antitrust or a host of other new regulatory issues. Given the ongoing changes in the economic and political landscape, cooperation in the WTO is even more challenging today. It is possible that — absent institutional reforms — the WTO’s recent expansion may well have met its limits

Regime Theory

Regime theory is an approach within international relations theory, a sub-discipline of political science, which seeks to explain the occurrence of co-operation among States by focusing on the role that regimes play in mitigating international anarchy and overcoming various collective action problems among States (International Relations, Principal Theories; State; see also Co-operation, International Law of). Different schools of thought within international relations have emerged, and various analytical approaches exist within the regime theory itself (see Sec. F.3 below). However, typically regime theory is associated with neoliberal institutionalism that builds on a premise that regimes are central in facilitating international co-operation and constraining the behaviour of States. Thus, in international relations literature, regime theory is often used interchangeably with the terms ‘institutionalism’ or ‘neoliberal institutionalism’

Europe\u27s Digital Constitution

This Article uncovers the fundamental values underlying the European Union’s expansive set of digital regulations, which in aggregate can be viewed as Europe’s “digital constitution.” This constitution engrains Europe’s human-centric, rights-preserving, democracy-enhancing, and redistributive vision for the digital economy into binding law. This vision stands in stark contrast to the United States, which has traditionally placed its faith in markets and tech companies’ self-regulation. As a result, American tech companies today are regulated primarily by Brussels and not by Washington. By highlighting the distinctiveness and the global reach of the European digital constitution, this Article challenges the common narrative that portrays the European Union as a powerless bystander in a digital world dominated by the United States and China. By offering both a normative defense and a nuanced criticism of Europe’s digital constitution, the Article contributes to ongoing scholarly debates on whether digital regulation compromises innovation and technological progress and whether governments or tech companies take precedence in governing digital societies. It also asks whether the United States should welcome EU regulation of U.S. tech companies as exerting a positive externality protecting the digital rights of American citizens or resent it as imposing a negative externality that compromises the U.S. government’s democratic right to regulate — or refrain from regulating—its own tech companies. This Article also examines whether Europe’s digital constitution is fit for the current era of tech wars and geopolitical conflict or if the pursuit of European “digital sovereignty” ought to be woven into its tenets — even if such an evolution would risk veering Europe towards digital protectionism and further enshrining techno-nationalism as a global norm

When the WTO Works, and How It Fails

This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate—specifically intellectual property and antitrust regulation—it reveals more general principles about when and why the WTO can facilitate agreement in some situations and not others. Comparing the successful conclusion of the TRIPs Agreement and the failed attempts to negotiate a WTO antitrust agreement reveal that international cooperation is likely to emerge when the interests of powerful states are closely aligned and when concentrated interest groups within those states actively support cooperation. They further suggest that the WTO provides an optimal forum for cooperation when states need to rely on cross-issue linkages to overcome existing distributional conflicts, when the underlying issue calls for an enforcement mechanism, or when both the net benefits of the agreement and the opportunity costs of non-agreement are high. Contrasting the key differences between IP and antitrust cooperation, this Article disputes the widely held view that the strategic situation underlying IP and antitrust cooperation are similar and that the conclusion of the TRIPs Agreement is a relevant precedent predicting a successful WTO negotiation on antitrust or a host of other new regulatory issues Given the ongoing changes in the economic and political landscape, cooperation in the WTO is even more challenging today and it is possible that—absent institutional reforms—the WTO’s recent expansion may well have met its limits

The Brussels Effect

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Without the need to use international institutions or seek other nations\u27 cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable Europeanization of many important aspects of global commerce. The Article identifies the precise conditions for and the specific mechanism through which this externalization of EU\u27s standards unfolds. Enhanced understanding of these conditions and this mechanism helps explain why the EU is currently the only jurisdiction that can wield unilateral influence across a number of areas of law – ranging from antitrust and privacy to health and environmental regulation – and why the markets, other states, and international institutions can do little to constrain Europe\u27s global regulatory power

International Antitrust Negotiations and the False Hope of the WTO

Multinational corporations ( MNCs ) operate today in an increasingly open global trade environment. While tariff barriers have collapsed dramatically, several states and numerous scholars have raised concerns that the benefits of trade liberalization are undermined by various non-tariff barriers ( NTBs ) to trade, including the anticompetitive business practices of private enterprise. As a result, demands to link trade and antitrust policies more closely by extending the coverage of the World Trade Organization ( WTO ) to incorporate antitrust law have gathered momentum over the last decade. Most advocates of a WTO antitrust agreement base their normative claims on largely intuitive assumptions about the necessity or desirability of international rules. The existing literature contains few examinations of the strategic situation that characterizes international antitrust cooperation and, as a result, has either completely ignored or largely mischaracterized the collective action problem that has impeded the efforts to negotiate any multinational antitrust rules. With the help of insights developed in game theory, this Article seeks to fill the gap in the current debate by analyzing the strategic interactions underlying states\u27 attempts to seek convergence of their antitrust laws. Understanding why attempts to generate formal international antitrust cooperation have thus far been unsuccessful is a critical prerequisite for designing a normatively desirable international antitrust regime. By offering a more accurate descriptive account for the failure to reach a binding international antitrust agreement, the Article can also be expected to inform the normative debate on optimal international antitrust governance

When the WTO Works, and How It Fails

This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate — specifically, intellectual property and antitrust regulation — it reveals more general principles about why the WTO can facilitate agreement in some situations and not in others. Comparing the successful conclusion of the TRIPS Agreement and the failed attempts to negotiate a WTO antitrust agreement indicates that international cooperation is likely to emerge when the interests of powerful states align and when concentrated interest groups within those states actively support cooperation. The comparison further suggests that the WTO provides an optimal forum for cooperation when states need to rely on cross-issue linkages to overcome existing distributional conflicts, when the underlying issue calls for an enforcement mechanism, or when both the net benefits of the agreement and the opportunity costs of nonagreement are high. Contrasting the key differences between IP and antitrust cooperation, this Article disputes the widely held view that the strategic situations underlying IP and antitrust cooperation are similar and that the conclusion of the TRIPS Agreement is a relevant precedent predicting a successful WTO negotiation of antitrust or a host of other new regulatory issues. Given the ongoing changes in the economic and political landscape, cooperation in the WTO is even more challenging today. It is possible that — absent institutional reforms — the WTO’s recent expansion may well have met its limits

Antitrust Law in Global Markets

Multilateral corporations’ activities span across global markets. Yet antitrust laws regulating those activities remain national. Europeans can ban American companies from merging, tell American companies how to design their products, or determine what kind of discounts American companies are permitted to offer to their customers. Chinese can impose conditions on off-shore mergers. And Brazilians can insist on reviewing a transaction with minimal connections to the Brazilian market