Washington University Global Studies Law Review
Considerable effort has gone into the drafting and enactment of competition laws throughout East Asia during the past decade. Skeptics might say that much of this effort has been wasted. The problem, they might argue, is misplaced reliance on inappropriate models. Simply stated, the legislative paradigms used for national competition legislation throughout the region do not adequately address the basic underpinnings of monopoly power and barriers to free and competitive markets in East Asia or in most other developing states. Nor, some might add, can these models be reasonably transplanted into legal systems that lack the institutional and cultural infrastructures necessary for their effective implementation. The models themselves originated in the United States and Europe over a half-century ago. Indeed the history of antitrust in the United States, and the development of competition law in Japan and Europe, raise questions whether these models have any applicability to China and other parts of East Asia. Enacted under conditions and circumstances that simply do not apply to China, or much of East Asia today, these models were designed to deal with problems in advanced capitalist states in which the influence of private actors in national and international markets often seemed to outmatch the role of the state. The primary aim of these models was to regulate private actors in order to restore and maintain competition. None were concerned with state power or the need of the state to create conditions for effective market competition.
Many may agree with this or similar assessments of the applicability of American and European competition law models to China and East Asia, but still disagree that the effort has been fruitless. The proliferation of competition law in East Asia beginning in Japan over a half-century ago has had at least one overriding benefit. These legislative efforts have stimulated interest in and active concern for effective competition policy throughout the region. Such interest has in turn provided in each country that has enacted legislation the catalyst for study and research, and ideas and expertise on competition policy, regardless of how meaningful or effective such legislation ostensibly may appear. As awareness of the social and economic gains of effective competition policy grows, expertise will continue to expand and more meaningful approaches are apt to be considered and even more effective competition legislation enacted.
John Owen Haley,
Competition Policy for East Asia,
Wash. U. Global Stud. L. Rev.