Export Cartels: Is it Legal to Target Your Neighbour? Analysis in Light of Recent Case Law

Journal of International Economic Law, Vol. 15, No. 1, pp. 181-222, 2012

47 Pages Posted: 28 Feb 2012 Last revised: 24 Mar 2014

See all articles by Marek Martyniszyn

Marek Martyniszyn

Queen's University Belfast - School of Law

Date Written: March 29, 2012

Abstract

Despite the growing sophistication of antitrust regimes around the world, export cartels benefit from special treatment: they are almost universally tolerated, if not encouraged in the countries of origin. Economists do not offer an unambiguous policy recommendation on how to deal with them in part due to the lack of empirical data. This article discusses arguments for and against export cartels and it identifies the existing gaps in the present regulatory framework. The theoretical part is followed by an analysis of the recent case law: a US cartel challenged with different outcomes in India and South Africa, as well as Chinese export cartels pursued in the USA. The Chinese cases are particularly topical as the conduct at stake, apart from being subject to private antitrust actions before US courts, was also challenged within the WTO dispute settlement framework, pointing out to the existing interface between trade and competition. While the recent developments prove that unaddressed issues tend not to vanish, the new South–North dimension has the potential of placing export cartels again on the international agenda. Pragmatic thinking suggests looking for the solution within the WTO framework.

Keywords: Cartels, Export Cartels, Antitrust, Competition Policy, Competition Law, International Trade, WTO, Webb-Pomerene Act, Extraterritoriality, ANSAC

Suggested Citation

Martyniszyn, Marek, Export Cartels: Is it Legal to Target Your Neighbour? Analysis in Light of Recent Case Law (March 29, 2012). Journal of International Economic Law, Vol. 15, No. 1, pp. 181-222, 2012. Available at SSRN: https://ssrn.com/abstract=2012838

Marek Martyniszyn (Contact Author)

Queen's University Belfast - School of Law ( email )

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