Daniel Sokol has posted "Limiting Anti-Competitive Government Interventions that Benefit Special Interests" on SSRN. From the abstract:
When government regulates, it may either intentionally or unintentionally generate restraints that reduce competition (“public restraints”). Public restraints allow a business to cloak its action in government authority and to immunize it from antitrust. Private businesses may misuse the government’s grant of antitrust immunity to facilitate behavior that benefits businesses at consumers’ expense. One way is by obtaining government grants of immunity from antitrust scrutiny. This Article offers a new contribution to the extensive literature on the globalization of antitrust. The present Article focuses both on the processes of creating public restraints, as well as upon the negative impacts of these restraints. Government can exempt a company from antitrust regulation, which allows the firm unbridled discretion to monopolize and harm consumers.
The issue of government intervention in the economy and its competitive impacts has taken on renewed importance as the global financial crisis has led countries to provide various benefits to favored companies, which may distort competition. Distorting competition may keep the world in recession longer, as countries may retaliate with new distortions of their own, creating a downward spiral for the global economy. Thus, local “solutions” may cause international problems, and require international resolutions.
This Article addresses the important domestic and international institutional dynamics of how to reduce such anti-competitive immunities. It then provides a theoretical framework to identify potential domestic and international institutional responses to public restraints and the costs and benefits of these responses. The institutional framework developed in this Article proposes both substantive policies and institutional structures that can undertake these policies. The framework builds on both new institutional economics and international organization literatures, while recognizing the difficult limitations in design and capacity that existing institutions face. Part I of this Article explores the causes and effects of public restraints. Part II analyzes the potential institutional choices to address public restraints. In Part III, this Article undertakes a case study of the current inadequacies of existing institutional solutions to the problem of government restraints. Part IV then suggests a set of reforms to correct for the existing institutional shortcomings. The Conclusion suggests that a modified WTO is the least bad alternative to address international antitrust public restraints.
And from the conclusion:
Anti-competitive public restraints play a distortive role in the global economy. Antitrust
immunities are one such case in which public restraints hurt consumers. Though anticompetitive public restraints plague each country, domestic institutions seem ill- equipped to adequately limit these restraints. International institutions can assist domestic antitrust institutions to create better outcomes to address anti-competitive public restraints.Benchmarking through soft law and bottom-up harmonization based upon domestic
approaches on competition advocacy can help domestic institutions to limit some of the effects of public restraints. However, there are limitations to the soft law approach in improving domestic antitrust capacities. Where substantive coordination is difficult, such as with public restraints, binding rules may be the most effective way to address the global nature of the problem. This implicates the WTO as the most appropriate institutional choice to combat public restraints. Because the WTO considers global welfare, the WTO disciplines countries that fail to reduce international spillover and market access policies.335 However, the WTO contains significant limitations in its adjudicatory ability to adequately identify and remedy antitrust public restraints.All institutions have weaknesses, but in the case of public restraints, international hard
law through the WTO (properly reformed) can help address these problems in ways that create few domestic overlaps and new distortions of their own. Creating an antitrust panel for WTO antitrust public restraints that would be deferential to domestic antitrust solutions is a first step to improving the adjudicatory capacity of the WTO. Hard law will work with soft law to improve the domestic institutions so that over time, domestic institutions need much less of the international institutions to do this work, because many of the cases will be decided in the shadow of the law. In a world of imperfect alternatives, this proposal has fewer costs and
greater benefits than domestic or international soft law solutions.
