International Antitrust and the WTO: The Lesson from Intellectual Property

International antitrust issues have become important in current debates regarding international trade and international regulation. This Article addresses one of the central questions about international antitrust – the appropriate forum for negotiations. The Article argues that the combination of domestic antitrust policy and international trade makes a substantive multilateral agreement unlikely unless transfers are made from states that gain from such a deal to those that lose. The Article advocates bringing the issue of international antitrust within the WTO because that forum is the best suited to accommodate such transfers. The experience of efforts to negotiate an agreement in intellectual property (IP) is offered as a demonstration of the advantages offered by the WTO. Like antitrust, the realities of IP made an agreement without transfers virtually impossible. In the case of IP, the difficulty was that developing countries had little to gain from such an agreement. Once negotiations were brought within the WTO, however, an agreement was reached because developing countries were granted trade concessions in exchange for accepting the Trade Related Aspects of Intellectual Property (TRIPs) agreement. Like international IP, international antitrust needs to be negotiated in a forum that allows for transfers, making the WTO the best available forum.