Competition Policy and Free Trade: Antitrust Provisions in PTAs

Dür, Andreas, and Manfred Elsig, eds. Trade Cooperation. 1st ed. Cambridge: Cambridge University Press, 2015, Chapter 10

30 Pages Posted: 27 Apr 2016

See all articles by Anu Bradford

Anu Bradford

Columbia University - Law School

Tim Buthe

Duke University

Date Written: January 2015

Abstract

Trade agreements increasingly contain provisions concerning ‘behind-the-border’ barriers to trade, often beyond current World Trade Organization (WTO) commitments (Dur, Baccini and Elsig 2014). Today’s preferential trade agreements (PTAs) may include, for instance, rules regarding ‘technical’ barriers to trade that go beyond the WTO’s Agreement on Technical Barriers to Trade (TBT Agreement), accelerating the replacement of differing national product safety standards with common international standards and thus reducing the trade-inhibiting effect of regulatory measures (Buthe and Mattli 2011; World Trade Organization 2012). Today’s PTAs may also go beyond WTO rules in prohibiting preferences for domestic producers in government procurement (Arrowsmith and Anderson 2011; Dawar and Evenett 2011), although here the effectiveness of the PTA provisions is in question (Rickard, Chapter 11 in this volume). PTA provisions concerning trade in services (Trebilcock and Howse 2005: 349ff.), restrictions on the use of trade remedies and anti-dumping (Bown 2011; Bown and Wu 2014) and provisions concerning the treatment of foreign investment (Buthe and Milner 2014; United Nations Conference on Trade and Development 2006) have similarly attracted substantial attention, as they often go beyond the rules in the multilateral trade regime. All of these measures involve governments committing to adopt – or to refrain from – particular policies. The stated objective of such commitments usually is to eliminate or at least reduce the trade-distorting effects of domestic policies (Bhagwati and Hudec 1996), though linking particular policy choices to trade might also serve other purposes. Linkage may, for instance, increase the bargaining space for ‘getting to yes’ on trade liberalisation (see Axelrod and Keohane 1986; Davis 2004) or reduce the bargaining space, arguably with the intent of retaining a higher level of protectionism (e.g. Salazar-Xirinachs 2000). PTA commitments on behind-the-border measures may also be adopted to ‘lock in’ policies by making it politically and economically more costly for the current government or its successors to depart from the policy choices specified in the trade agreement (Buthe and Milner 2008; Mansfield and Milner 2012; Moe 2005).

Keywords: competition policy, free trade, antitrust provisions, antitrust, PTAs, trade agreements, WTO

Suggested Citation

Bradford, Anu and Buthe, Tim, Competition Policy and Free Trade: Antitrust Provisions in PTAs (January 2015). Dür, Andreas, and Manfred Elsig, eds. Trade Cooperation. 1st ed. Cambridge: Cambridge University Press, 2015, Chapter 10, Available at SSRN: https://ssrn.com/abstract=2770695

Anu Bradford (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10009

Tim Buthe

Duke University ( email )

100 Fuqua Drive
Durham, NC 27708-0204
United States

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