Against the background of the asymmetric distribution of powers in antitrust matters among the WTO, the OECD, the UNCTAD, and the ICN, this chapter explores the potential for the development of a WTO antitrust jurisprudence through legal transplants of antitrust substantive rules from the OECD, the UNCTAD, and the ICN. In view of the uneven compliance with procedural fairness standards by those antitrust institutions, this chapter argues that adherence to those standards should be regarded as a necessary precondition for the development of a WTO antitrust jurisprudence through cross-fertilization from other international antitrust institutions. Keywords: WTO, OECD, UNCTAD, ICN, Antitrust, Competition, Cross-fertilization, Legal transplants, Dispute resolution.
In the US, federal antitrust law may come into conflict both with federal regulation and regulatory schemes enacted by individual states. Similarly, in the EU, tensions can arise between EU antitrust rules, on the one hand, and either EU or member states' regulation, on the other. This paper seeks to examine the role played by legal tradition, in its manifold dimensions, in shaping the relationship between antitrust and regulation on the two sides of the Atlantic. To this end, Sections 2 and 3 will analyse the statutory provisions and doctrines governing the interplay between antitrust and regulation in the US and the EU. Sections 4 and 5 will explore each jurisdiction's legal traditions that may be relevant to the relationship between antitrust and regulation, such as the constitutional and political context of antitrust policy, the role of legal scholarship, and the antitrust enforcement culture. Section 6 will investigate possible connections between the divergences in the antitrust-regulation interface in the two legal systems and their different legal traditions.