Emerging WTO Competition Jurisprudence and its Possibilities for Future Development

Alvarez-Jimenez, Alberto | January 1, 2004

A new competition jurisprudence is emerging within the World Trade Organization (“WTO”) and its Dispute Settlement Body (“DSB”). WTO competition jurisprudence comprises all WTO Panel and Appellate Body rulings in cases where what is debated is the existence of a private anti-competitive behavior, the absence of the private competitive conduct that WTO law orders, or certain subject matters that fall within the traditional scope of domestic antitrust legislation, regardless of whether or not the decision provides a WTO solution. Part II of this article presents the WTO self-restraint approach regarding competition and trade before the new millennium, as set out in the Film Report. Part III attempts to untangle the new activist approach from the Panel and AB decision in United States – Anti-Dumping Act of 1916. Part IV postulates that the development of a WTO jurisprudence openly protecting private parties’ interests may be behind the new orientation. Part V posits that WTO competition jurisprudence evolves under the tension between the approaches in the Film Report and in the Anti-Dumping Act of 1916. Part VI analyzes the Bovine Hides Report, Part VII draws on the Act, the Bovine Hides Report, and on the new competition dispute, the Telecommunications Case, to present a detailed picture of the possibilities for the development of WTO competition jurisprudence. Part VIII evaluates the Telecommunications Case initiated by the United States to open up the Mexican telecommunications sector, in light of past WTO competition jurisprudence.