The Contribution of the United Nations to the Emergence of Global Antitrust Law

Abstract

This Article examines the contribution of the United Nations Conference on Trade and
Development (UNCTAD) to the emergence of an international framework for antitrust. It is the
first systematic analysis of UNCTAD’s contribution to international antitrust since the 1980s—
when the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive
Business Practices (the Set) was adopted. The Set still constitutes the only universally applicable
instrument in the area of antitrust and its validity has been constantly reaffirmed by international
conferences organized by UNCTAD, the most recent one being held in 2005. However, the Set’s
existence has also been shadowed: first, by its weak legal effect and, second, by the emergence of
new international fora for competition policy, such as the Word Trade Organization and the
International Competition Network (ICN). This Article re-examines the legal effects of the Set,
taking into account the evolution of the legal and political context of global antitrust; the adoption
of a significant number of international, regional, and bilateral trade agreements containing various
aspects of competition law provisions; and numerous antitrust cooperation agreements. It
concludes that even if it is unlikely that the Set produces, by itself, any binding effect, it may
eventually contribute to the emergence of a customary international norm against restrictive
business practices. Nor is the importance of UNCTAD’s Set limited to the issue of its legal effect;
by providing a balanced approach to the relationship between competition law and the specific
needs of developing countries, the Set may provide a model for a future international agreement on
antitrust that could address the interests of both developed and developing countries.