David J. Gerber

Constitutionalizing the Economy: German Neo-Liberalism, Competition Law and the 'New' Europe

Despite its enormous importance in the evolution of competition law in Europe, ordoliberal thought — and German neo-liberal thought generally — has received little attention in the English-speaking world, and it remains all but unknown in the United States. Moreover, except in Germany, awareness of these ideas has been confined almost exclusively to economists, while lawyers and political scientists have seldom been exposed to them. Finally, there has been little modern study of the impact of these ideas on the development of European thought.In this article I address this critically important gap in our understanding of European thought and institutions. I seek to contribute to a fuller understanding of ordoliberal thought, particularly among non-German readers and among lawyers and policy analysts — to whom (together with economists) this body of thought has been addressed. In addition, I sketch the roles these ideas have played in the evolution of German and European legal thought and institutions, in general, and competition law, in particular.

The European Commission's GE/Honeywell Decision: US Responses and Their Implications

One way of gaining insight into differences between legal systems and assessing their significance is to examine what they — i.e., their representatives — say about each other. The European Commission’s prohibition of the proposed merger between GE and Honeywell in the summer of 2001 led to US responses that reveal much about differences between the US and EU merger laws. They also have potentially important implications for the development of US-European cooperation in the area of competition law. Although there has been general discussion of these responses, there have been few serious attempts to analyze them and to explore their implications for legal development. In this article, I suggest some lines of analysis that may provide insights into the US responses and their potential importance.

System dynamics: toward a language of comparative law?

Goals and methods define intellectual disciplines and the communities associated with those disciplines. Yet what happens when there is a disjuncture between goals and methods — when there are incentives to achieve new objectives, but the tools that have been fashioned to achieve existing objectives have little relevance to the new goals?I suggest in this essay that this is what has happened in comparative law — a developmental disjuncture has occurred in the relationship between objectives and methods. Certain “traditional” objectives of those thinking about and using comparative law have shaped its current methods, but new objectives have emerged and others have become more pressing, and current methods often have limited value for achieving them.I here sketch this disjuncture between objectives and methods and some of its implications, suggest an analytical framework for responding to it, indicate how such a framework might be developed into a language for comparative law, and describe some of the potential benefits of such a development.

Asia and Global Competition Law Convergence

Two topics have featured in discussions of transnational competition law over the last few years — the evolution of competition law in Asia and the global convergence of competition laws. The role of Asia, especially China, in global competition law development has attracted attention primarily because of the dramatically increased economic importance of the region and because of the resulting political and economic leverage that this economic importance has generated for the enforcement of the region’s competition laws. Convergence is a central topic because it represents what is widely considered to be the only currently viable strategy for global competition law development. Curiously, however, the relationship between these two topics is seldom a focus of examination. This chapter sketches elements of that relationship.My objective here is to identify some of the factors in the dynamics of Asian competition law systems that may influence Asia’s role in convergence as a global strategy and thereby impact both the success of such a strategy and its shape. We focus here on decisions and on decisional influences — that is, factors that can be expected to influence decisions by relevant decision-makers.

Competition Policy and Regional Integration in Developing Countries

Contents: Introduction Mor Bakhoum PART I: PROMISES AND CHALLENGES IN IMPLEMENTING REGIONAL COMPETITION POLICY REGIMES 1. The Harmonization of ASEAN: Competition Laws and Policy from an Economic Integration Perspective Lawan Thanadsillapakul 2. Competition Law and Policy in the Framework of ASEAN Anthony Amunategui Abad 3. Southern African Development Community (SADC) Regional Competition Policy Gladmore Mamhare 4. Competition Policy in SADC: A South African Perspective Kasturi Moodaliyar PART II: INSTITUTIONAL COHERENCE, REGIONAL INTEGRATION AND COMPETITION POLICY 5. Institutional Coherence and Effectiveness of a Regional Competition Policy: The Case of the West African Economic and Monetary Union (WAEMU) Mor Bakhoum and Julia Molestina 6. Regional Integration and Competition Policy in the Economic Community of West African States (ECOWAS) Region Mbissane Ngom 7. Andean Competition Law: Looking for the Private Sector, or the Quest for the Missing Link in Antitrust Javier Cortazar PART III: ECONOMIC STRUCTURE, REGIONAL INTEGRATION AND COMPETITION LAW ENFORCEMENT 8. Regional Integration in the Caribbean: The Role of Competition Policy Taimoon Stewart 9. Implementing Effective Competition Policy through Regional Trade Agreements: The Case of CARICOM Delroy S. Beckford 10. The COMESA Regional Competition Regulations George K. Lipimile PART IV: THE DEVELOPMENT DIMENSION OF REGIONAL INTEGRATION AND COMPETITION POLICY 11. Economic Integration and Competition Law in Developing Countries Josef Drexl 12. Regionalization, Development and Competition Law: Exploring the Political Dimension David J. Gerber 13. Competition, Development and Regional Integration: In Search of a Competition Law Fit for Developing Countries Eleanor M. Fox 14. Regional Agreements of Developing Jurisdictions: Unleashing the Potential Michal S. Gal and Inbal Faibish Wassmer Index

Idea-Systems in Law: Nineteenth-Century German Experience

The extent to which ideas within a legal culture are systematically related to each other may have a far greater influence on the characteristics of that culture than is generally supposed. Particularly, where a single system of legal concepts controls central elements of legal culture, that system is likely to have a major impact on goals, methods, and values within the culture and on the relationships between legal culture and political power. The characteristics and roles of idea-systems in law thus deserve the careful attention of scholars.Yet scholars seldom have focused on the role of idea-systems in law, except in regard to Roman laws influence on the development of civil law. In this essay, therefore, I explore this phenomenon in the course of reviewing two books that contribute significantly to advancing our understanding of legal idea-systems in general, and their roles in nineteenth-century German law in particular.

The Origins of European Competition Law in Fin-De-Siècle Austria

In this essay I explore the Austrian origins of European competition law in order better to understand the forces that have shaped the subsequent development of these ideas and continue to influence their operation today. Analysis of the origins of these ideas also provides a valuable perspective on current competition law policies. The initial conceptions of competition law were responses to a specific problem, and they were based on historically-conditioned values, perceptions and expectations regarding the economic process, the role of government, the utility and dependability of language and the capacities of legal processes to influence behavior. To the extent that these values and perceptions remain powerful, the legal norms and procedures based on them deserved continued support. To the extent, however, that new knowledge and experience have rendered them invalid or inapplicable, that legal framework required critical reevaluation.

A Global Adaptive System for Supporting Human Rights

We often fail to see important dimensions of international human rights (HR) protection because we use lenses that do not reveal them. This short article suggests a way of looking at HR protection that I believe has value in many contexts and for many—those who make decisions about human rights and those who suffer from deprivation of those rights. It reveals important factors and forces that influence HR protection, but that conventional lenses often fail to reveal. In doing so it opens up potential avenues for increasing the effectiveness of efforts to improve such protections.

Global Competition Law Convergence: Potential Roles for Economics

Discussions of the future of competition law on the transnational level often reflect assumptions about the role of economics. Perhaps the most pivotal of these assumptions is that economics can provide a basis for global competition law convergence. It is pivotal, because choices and strategies relating to competition law often depend on it. Moreover, many see convergence among competition law systems as the only viable response to the problems and weaknesses of the current legal framework for transnational competition, and this view reduces incentives to evaluate or pursue other strategies such as coordination among states. Yet the prospects for convergence rest on assumptions about the role of economics in the convergence process, and these assumptions therefore deserve careful attention.This chapter explores these assumptions. It clarifies some of the concepts involved and identifies some of the roles that economics can play in the context of competition law convergence. In particular, it explores the issue of how and to what extent economics can provide a basis for competition law convergence. Curiously, this ‘how’ issue is seldom explored carefully. Discussions of competition law convergence often proceed as if the science of economics will be central to global convergence, but they seldom explain how it can be expected to play this role.

Regionalization, Development and Competition Law: Exploring the Political Dimension

In discussions of the regionalization of competition law, the political dimension often leads a shadowy existence. Regionalization tends to be presented with a hint of a halo around it. States are presented as acting for a shared policy objective intended to benefit all, and political issues often sit uncomfortably with that image. This is particularly true when regionalization involves ‘developing countries’. Here there is often a further level of ‘common good’ discourse. Regionalization is portrayed not only as a communal experience and goal, but also as a tool for reducing poverty and aiding economic development. Where regionalization involves competition law, an additional veil often lies across the discussions. Competition law is about economics, it is said, and it serves the economic gains of the participating countries. This tends to distance the enterprise from any political factors. Each of these forms of discussion emphasizes safe, sanitized language and imagery.Yet few would actually argue that the political dimension is not central to the process of regionalization. A key issue, then, is how to view, analyze and discuss the political dimension that everyone knows exists, but that many find awkward or unpleasant to talk about. Finding a language for discussing the political dimension thus takes on a central role. This article explores that dimension.