The importance of economic integration and market access in the convergence of international trade and competition law.

摘要

The reform of countervailing duty practices represents an enduring problem. It raises questions as to the relationship between the two disciplines of competition and international trade law and the possible convergence thereof within the World Trade Organization Agreements.; An analysis of the two disciplines indicates that trade law is concerned with producer welfare, and competition law is primarily concerned with consumer welfare in the form of price competition. The difference in orientation is not justified within the context of CUSFTA and NAFTA, the shared objective of which was to eliminate by January 1, 1998 virtually all tariff and non-tariff barriers to trade between Canada and the United States. Countervailing duty practices should be eliminated within NAFTA as American domestic subsidies are exempt from review under antitrust law and the Commerce Clause. No principled distinction can be made between Canadian and American domestic subsidies within an integrated market, unless some regulatory barrier to trade continues to exist. Antidumping duty practices should be eliminated.; In the circumstances of the WTO Agreements, trade and competition law can converge by reorienting trade law remedies from an inward-focus upon “distortions” in export markets, to a concentration upon the hybrid public and private practices which deny market entry in the home market. Market access should be the common objective of both disciplines and broader international competition law principles do not necessarily have to be developed. A Market Access Code should be negotiated which includes a dispute settlement mechanism in which existing countervailing duty and antidumping practices are preserved only insofar as they might reflect a denial of market access.; NAFTA Chapter 19 should be amended such that binational panels will hear market access complaints between NAFTA members. Complaints should only be permitted in circumstances where some regulatory or equivalent restriction denies access and subsidies should not constitute such a restriction. No complaint should be permissible in the absence of such a restriction.