This project makes a significant original contribution to the existing body of knowledge by filling an important gap in our understanding of developing countries’ experience with the extraterritorial application of competition law.
Conceptually this project sits at the intersection of international and competition law. Extraterritorial application of law (extraterritoriality) is the competence of a State to apply its laws to foreign entities in relation to their, often purely foreign, conduct. It is a reasonably new phenomenon slowly embraced by the leading jurisdictions in the last few decades. Some States have done so by interpreting existing provisions (eg, the US and the EU), whilst other jurisdictions have introduced explicit statutory provisions to that effect. Currently, extraterritoriality in competition law enforcement is widely recognised. It emerged as, de facto, the only tool available to all States, carrying the potential of dealing with inbound competitive harm.
Although numerous scholars have analysed extraterritoriality in competition law in the United States and the European Union, little work has been done on this issue from the perspective of developing countries. It is unclear to what extent extraterritoriality is recognized, embraced or embedded in competition laws and policy of developing countries. If recognised, it is largely unknown in what circumstances such domestic legislation can be applied extraterritorially and on what basis. The decisional practice of competition agencies and courts in developing countries on this matter is largely unknown. Data on this issue has not been collected and studied in a comprehensive manner. The developing world’s growing significance, increasing interconnectedness and lack of access to multilateral institutions or instruments addressing transnational competitive harm, emphasise the need to better understand developing countries’ rules and policies.
This project will fill the existing gap by collecting and analysing data on developing countries experience with extraterritoriality in competition law. The collaboration through the UNCTAD Research Partnership Platform offers a unique opportunity to collect such data by means of a questionnaire. The UNCTAD membership will be asked, in essence: 1) whether their domestic competition legislation applies to foreign entities and if so—on what legal basis and in what factual circumstances; 2) to outline any successful or unsuccessful accounts of such enforcement efforts; 3) explain that state of affairs (what may be valuable in validating or disproving hypothesis presented by scholars as to the nature of the challenges faced by antitrust agencies based outside the developed world.
The gathered data will be reviewed, systematised and analysed, with particular attention directed to the identified legal bases (whether textual or not) and any obstacles (both formal and extralegal) encountered in enforcement.
Dr. Marek Martyniszyn
Senior Lecturer, Queen’s University Belfast, School of Law