WORLD TRADE
ORGANIZATIONWT/WGTCP/W/192
28 June 2002
(02-3622)
Working Group on the Interaction
between Trade and Competition Policy
MODALITIES FOR VOLUNTARY COOPERATION
Background Note by the Secretariat
I. INTRODUCTION
1. This note has been prepared in response to the request by the Working Group during the
informal meeting that was held on 26 February 2002 that the Secretariat prepare a set of background
papers based on the discussions held and materials considered in the previous work of the Group.  The
papers were to deal, respectively, with each of the four substantive elements that are contained in
paragraph 25 of the Doha Ministerial Declaration, namely:  (i) core principles, including transparency,
non-discrimination and procedural fairness; (ii) provisions on hardcore cartels; (iii) modalities forvoluntary cooperation; and (iv) support for progressive reinforcement of competition institutions in
developing countries through capacity building.  The first in this series of notes, dealing with the
subject of support for progressive reinforcement of competition institutions in developing countries
through capacity building, was issued as document WT/WGTCP/W/182, dated 17 April 2002.  The
second, dealing with provisions on hardcore cartels, was issued as document WT/WGTCP/W/191,
dated 20 June 2002.
2. The present note deals with the third subject mentioned above, namely modalities for
voluntary cooperation, which is to be the subject of focused attention at the Working Group's meeting
to be held on 1-2 July 2002.  The aim of the note is to provide a synthesis of the issues raised and
points made by Members on the topic.  It has been prepared on the basis of the Working Group's
annual reports, which in turn rely upon the minutes of the Group's meetings, and of written
submissions by Members to the Group.
3. The subject of voluntary cooperation in the field of competition law and policy has been
discussed in numerous meetings of the Working Group during the past five years.  In 1997-98, it was
dealt with principally as an aspect of the Group's work on stocktaking and analysis of existing
instruments, standards and activities regarding tr ade and competition policy, including of experience
with their application, as called fo r by the Checklist of Issues Suggested for Study that was issued in
July 1997.
1  Beginning in 1999 and continuing through 2001, the topic of cooperation was dealt with
under the rubric of "Approaches to promoting cooperation and communication among Members,
including in the field of technical cooperation", as set out in the decision taken by the General Council
in December 1998 regarding the work programme of the Working Group (WT/GC/M/32, page 52).
                                                     
1 See Report (1998) of the Working Group on the Interaction between Trade and Competition Policy to
the General Council (WT/WGTCP/2), Annex I.  (Henceforth in this Note, documents issued in the seriesWT/WGTCP/1-5 are referred to as "Report (1997—2001)", as appropriate.  Documents issued in the seriesWT/WGTCP/W/__ are referred to as W/__.)This document has been prepared under the Secretariat's own
responsibility and without prejudice to the positions of Members
and to their rights and obligations under the WTO.WT/WGTCP/W/192
Page 2
4. The term "cooperation" has been used in a broad and a narrow sense in the Working Group.
In its broad sense, it has been used to refer to the full range of elements on which it has been proposed
by some Members that Members might undertake to work together in the framework of the WTO –
including technical cooperation and capacity building and possible commitments on hardcore cartels
in addition to narrower forms of cooperation such as notifications, consultations and mutual assistance
in particular cases.2  Clearly, in this sense, the term overlaps with other elements contained in
paragraph 25 (i.e., support for progressive reinforcement of competition institutions in developing
countries and provisions on hardcore cartels) which are the subject of other Secretariat papers
synthesizing the discussion on those topics.
5. Therefore, the present note focuses on modalities for voluntary cooperation in a narrower
sense.  As reflected in recent contributions by Members, cooperation in this sense has two main
elements:  (i) provisions to facilitate case-specific cooperation on anti-competitive practices having an
impact on international trade; and (ii) provisions relating to general exchanges of information andexperiences and joint analysis of global trade-related competition issues, to be conducted by a WTO
Competition Policy Committee.
3  These elements are discussed in detail in the remainder of this note.
The note does not address proposals concerning technical cooperation and capacity building which are
covered in the separate Secretariat note on this subject (W/181).  Nonetheless, the point has been
made in the Working Group that important synerg ies can arise between cooperation in the narrower
sense used in the note and wider aspects of cooperation such as technical assistance and institution
building.4  The potential for such synergies is noted at a couple of points in the paper.
6. The remainder of this note is divided into three sections that deal, respectively, with:
- The need for and importance of international cooperation in the field of competition
law and policy.  The focus here is on points made by Members concerning the variousfactors that underlie efforts to strengthen international cooperation in the field of
competition law and policy, whether at the bilateral, regional or multilateral levels.
- The discussion of existing cooperation mechanisms which has taken place in the
Working Group.
- The discussion of current proposals for international cooperation on competition
policy in the framework of the WTO, including a discussion of the benefits that could
accrue from such cooperation and of questions and concerns that have been raised in
relation to the current proposals and the responses that have been provided.
II. THE NEED FOR INTERNATIONAL COOPERATION IN THE FIELD OF
COMPETITION LAW AND POLICY
7. The need for and importance of international cooperation in the field of competition law and
policy has been discussed in numerous meetings of the Working Group.  Reference has been made, in
this regard, to the importance of international cooper ation as a tool of law enforcement, to address the
increasing incidence of anti-competitive activities with a cross-border dimension
5;  to the benefits of
expanded communication between competition authorities, as a means of minimizing jurisdictional
conflicts and promoting "soft convergence" of substantive approaches to competition law and policy
among Members6;  and to the contribution of case-specific and other specific forms of cooperation in
                                                     
2 See, e.g., Contribution of Japan (W/168) and Contribution by Australia (W/148).
3 See, e.g., Contribution of the European Community and its member States (WT/WGTCP/W/184).
4 Report (2001), paragraph 57.
5 Report (1998), paragraph 68 and Report (2000), paragraphs 41-47.
6 Report (2000), paragraph 41.WT/WGTCP/W/192
Page 3
reinforcing institution-building processes particularly in developing countries.7  Each of these points
is elaborated below, with appropriate references.  More broadly, the suggestion has been made that
expanded cooperation and communication between WTO Members in this area is necessary in the
light of falling trade barriers and the ongoing globalization of markets.8  Without a commitment to
expanded cooperation, anti-competitive practices may undermine the benefits of trade liberalization,
thereby also undermining confidence in the multilateral system.  The argument has also been madethat international cooperation can help to address an imbalance of power that allegedly exists between
transnational corporations and developing country governments, without which developing countries
may have practical difficulties in enforcing their laws against harmful conduct originating abroad.
9
8. More specifically, the following points have be en made regarding the benefits that can flow
from international cooperation in the enforcement of competition law and policy, depending on the
nature of particular cases and the scope of cooperation undertaken:  first, it has been suggested that
the procurement of information regarding markets, practices and the firms and individuals involvedcan substantially facilitate the enforcement of relevant laws in particular cases
10;  second, the
exchange of views between sister agencies on matters such as the delineation of relevant markets, the
assessment of alternative theories of a case and the pros and cons of alternative remedies can be of
great value to the enforcement process11;  third, cooperation can minimize and help with the
management of conflicts that can arise between jurisdictions in cases in which firms headquartered inone jurisdiction are the subject of investigation/possible prosecution in another
12;  fourth, cooperation
involving the coordination of remedies can minimize inconsistencies and maximize the resulting
benefits for economic efficiency and consumer welfare, in appropriate cases.13
9. To illustrate the potential usefulness of cooperation to address cross-border anti-competitive
practices, reference has been made in the Working Group to the problem of international cartels.Information has been brought to the attention of the Working Group which suggests that such cartels
are more widespread than was previously known, and that they impose heavy costs on consumers and
user industries in both developed and developing countries.
14  The enforcement of anti-cartel
provisions by those countries already having such provisions undoubtedly helps to mitigate this
impact, in that it acts as a general deterrent to intern ational cartel activity.  However, it is unlikely to
adequately address the impact of all such arrangements, particularly in the case of countries lacking
adequate competition laws and/or enforcement machin ery.  Consequently, the argument is made that,
unless countries are parties to international cooperation mechanisms that give them access to
information regarding the scope and operations of cartels when they are disclosed, they will continue
to be victimized by such arrangements.15  According to relevant submissions by Members, the
required cooperation may be as simple as the exchange and dissemination of basic information such
as legislation and enforcement guidelines or may extend to the exchange of information related more
specifically to particular cases (discussions in the Working Group have focused principally on the
benefits that might be achieved through more widespread exchange of non-confidential information
regarding relevant firms and cases as opposed to confidential information).16
                                                     
7 Report (1999), paragraph 61; see also Report (2001), paragraph 57.
8 Report (1999), paragraph 39.
9 Report on the meeting of 23-24 April 2002 (WT/WGTCP/M/17), paragraph 15.
10 Report (2001), paragraph 57.
11 Report (1999), paragraph 39; see also Contribution of Romania (W/181/Rev.1)
12 Report (2000), paragraph 41.
13 Contribution of the European Community and its member States (W/184).
14 See Secretariat Background Note on Hardcore Cart els (W/191), paragraph 9, and references cited
therein.
15 Secretariat Background Note on Hardcore Cartel s (W/191), paragraph 18; see also Contribution by
Japan (WT/WGTCP/W/168), paragraph 3.
16 Report (2000), paragraph 41; Report (2001), paragraph 68.WT/WGTCP/W/192
Page 4
10. The view has also been expressed that a fr amework for case-specific cooperation in the WTO
can substantially reinforce the process of institution-building in developing countries.  In particular,
by increasing awareness of other Members' experiences and by being exposed to best practices
through international cooperation, Members may gain valuable insights that strengthen domestic
reform efforts.17  In connection with this point, particular reference has been made to the importance
of cooperation for countries with limited resources, such as small island economies.18  Cooperation
mechanisms can also provide countries with na scent competition policy regimes with valuable
insights into the enforcement of competition law.19  In particular, cooperation can facilitate the
dissemination of information concerning best pr actices in applying competition policy and assist
countries with newly established regimes to identify priority enforcement areas so as to maximize the
effectiveness of their implementation efforts.20  A cooperation framework can also help to promote a
culture of competition, given that national competition agencies and competition legislation are
necessary but not sufficient to accomplish this objective.21
III. DISCUSSION OF EXISTING COOPERATION MECHANISMS IN THE FIELD OF
COMPETITION LAW AND POLICY
11. Reference has been made, in the Working Group, to various existing arrangements regarding
cooperation in competition policy and law enforcement.  These include:  (i) bilateral agreements
relating specifically to cooperation in competition law enforcement that have been adopted by anumber of countries;  (ii) provisions relating to cooperation in competition policy/law enforcement
that are incorporated into bilateral or regional tr ade agreements;  and (iii) existing arrangements of a
non-binding nature at the multilateral level.
12. With regard to bilateral agreements dealing specifically with competition law enforcement,
these arrangements are usually administered directly by the relevant competition agencies, acting onbehalf of their national governments.  Examples include, among others that could be cited, agreements
that have been in existence for some years between the European Community and the United States,
the United States and Canada, and Canada and the European Community.
22  The point has been made
in the Working Group that such agreements genera lly embody, in varying degrees, the following two
themes:  (i) cooperation in the law enforcement process; and (ii) the avoidance or management ofdisputes.  Typically, they contain provisions relating to notifications, consultations, avoidance of
conflicts and limited forms of mutual assistance, in appropriate cases.  In most cases, existing
cooperation agreements at the bilateral level do not provide for the exchange of confidential
information.  However, the exchange of such information is permitted under deeper cooperation
arrangements to which a small number of countries are party.  A further interesting feature of somebilateral agreements is "positive comity".  U nder this concept, cases involving anti-competitive
practices originating in one country but affecting another can be referred to the competition agency of
the country where such practices have originated for appropriate action.  Only a small number of
cases have actually been dealt with under positive comity procedures.
13. The point has been made in the Working Group that bilateral agreements on cooperation in
competition law enforcement have generated important benefits for the participating countries,
including specific assistance with the law enforcement process in a number of cases and widerbenefits in terms of the sharing of perspectives and know-how.
23  They have also been an important
                                                     
17 Report (2001), paragraph 57.
18 Report (2000), paragraphs 27 and 42.
19 Report (1999), paragraph 63.
20 Report (1999), paragraph 61.
21 Report (1999), paragraph 61.
22 For background, see Contribution of the United Stat es (W/48) and Contribution of the United States
(W/116).
23 Contribution of the United States (W/116) and Contribution of the European Community and its
member States (W/184).WT/WGTCP/W/192
Page 5
factor in helping with the prevention and management of disputes in particular cases.  The observation
has been made that cooperative relationships embodied in bilateral agreements tend to be
evolutionary:  whereas cooperation may begin with a relatively simple agreement, over time, the level
of obligation and of mutual benefit is likely to increase.24  The point has also been made that,
currently, participation in such agreements is limited to a fairly small number of countries.  In
particular, most developing countries remain outside the scope of such arrangements.25
14. With respect to cooperation at the regional leve l, a distinction has been drawn between three
types of cooperation arrangements.  First, it has been noted that some countries have been or are in the
process of establishing a competition regime at the regional level, as in the case of COMESA,
CARICOM and Mercosur.26  A second type of regional arrangement involves free trade agreements
containing competition provisions, such as the European Union, NAFTA, the Australia-New Zealand
Closer Economic Relations Trade Agreement (ANZCERTA) and the Canada-Costa Rica Free Trade
Agreement.27  Many of these arrangements aim, to a degree, at the harmonization of approaches to
competition in the region.28  A third type involves the sharing of experiences relating to the
implementation of a domestic competition regime at the regional level.29  Reference has been made, in
this regard, to meetings convened by APEC and in the context of NAFTA and the Free Trade Area of
the Americas in relation to competition issues.30
15. At the multilateral level, cooperation in the field of competition law and policy has often
taken the form of non-binding instruments and reco mmendations as well as policy advice, technical
assistance and the preparation of specialized studies.  UNCTAD and the OECD have been especially
active in this regard.  UNCTAD, in particular, is responsible for administering the United Nations Set
of Multilaterally Agreed Equitable Principles and Rules, a non-binding instrument of cooperation that
has received much attention in the Working Group.31
16. Reference has also been made in the Working Group to the usefulness of the 1995 OECD
Council Recommendation Concerning Cooperation Between Member Countries on Anticompetitive
Practices Affecting International Trade.32  The Recommendation provides for OECD member
countries to notify other member countries when undertaking competition law enforcement activities
which may affect other member countries' important interests, and for consultation, upon request, withregard to such activity.  It further exhorts member  countries to take into account, in their enforcement
activities, the significant national interests of other member countries that may be affected.  It calls
upon OECD member countries to cooperate with one another in the enforcement of competition law
and provides a mechanism for conciliation of disputes between member countries, if requested and
agreed by all the member countries involved.
33
                                                     
24 Report (1998), paragraph 68 and, for additional background, Contribution of the United States
(W/48).
25 Contribution of the European Community and its member States (W/184).
26 Report (2001), paragraph 54; Report (1998), paragraphs 69 and 70.
27 Report (2001), paragraphs 54 and 56; Report (1998), paragraph 69.
28 Report (1999), paragraph 46.
29 Report (2001), paragraph 54.
30 Report (1999), paragraph 46.
31 See Contribution of UNCTAD (W/17) and Backgro und Note by the Secretariat on the Fundamental
Principles of Competition Policy (W/127).
32 OECD Document No. C(95)130/Final (21 September 1995).  See references in Report (2000),
paragraph 41.
33 Report (2000), paragraph 41 and Contribution of the United States (W/48).WT/WGTCP/W/192
Page 6
IV. DISCUSSION OF CURRENT PROPOSALS FOR MODALITIES ON
COOPERATION IN THE FRAMEWORK OF THE WTO
A. NATURE OF THE CURRENT PROPOSALS
17. The discussions to date in the Working Group on the Interaction between Trade and
Competition Policy have emphasized two main elements constituting modalities on voluntary
cooperation that could be incorporated in a multilateral framework on competition policy:  (i) case-specific cooperation, including notifications, consultations and mutual assistance;  and (ii) cooperation
in the sense of the sharing of information and experiences and analysis/discussions of issues of
common interest.
34  Consistent with this approach, a recent contribution by a Member on this topic
highlights the following two elements under the heading of "modalities for international cooperation":
(i) provisions to facilitate case-specific cooperation on anti-competitive practices having an impact on
international trade;  and (ii) provisions relating to general exchanges of information/experiences and
joint analysis of global trade-related competition issues, possibly within a WTO Competition PolicyCommittee that would be established once a framework was agreed upon.
35
18. The above-noted contribution36 indicates further that the following elements would be
included under the rubric of case-specific cooperation:
- Exchanges of case-related information and evidence.
- Consultations and exchanges of views on cases affecting the important trade interests
of other WTO Members.
Expanding on these elements, the contribution suggests that WTO Members should inform other
Members whose important trade interests may be affected by ongoing investigations and proceedings
under its competition laws.  Similarly, under the proposed modalities, a WTO Member could bring to
the attention of another WTO Member evidence of an anti-competitive practice with an impact on itstrade or investment and seek information about any possible competition investigation relating to such
practices.  In the context of consultations, Members could also seek assistance from the home country
of a foreign multinational in relation to an ongoing competition investigation and/or seek information
which may be of value for enforcement activities in relation to international, import or export cartels.
Consultations would also provide an opportunity to  exchange views about relevant market analysis
and possible remedies.  As a final aspect of case -specific cooperation, the submission notes that a
WTO agreement could also include principles of  "negative comity" – meaning that WTO Members
would take into account the important and clearly stated trade interests of other Members before
action is taken in particular cases.
37
19. With regard to cooperation in the sense of general exchanges of information and experiences,
the above-noted contribution indicates that the following activities are contemplated:
− exchanges of information on domestic laws, practices and developments through the
establishment of "contact points" in the competition authorities of each WTOMember;
                                                     
34 Report (2001), paragraphs 55-57; see also Contribution of Switzerland (W/151), Contribution of the
European Community and its member States (W/152), Contribution of Canada (W/155), Contribution of Japan(W/156), Contribution of the Czech Republic (W/165), Contribution of Canada (W/174) and Contribution of the
European Community and its member States (W/184).
35 Contribution of the European Community and its member States (W/184), pp. 3-4.
36 Contribution of the European Community and its member States (W/184).
37 Contribution of the European Community and its member States (W/184), p. 4.WT/WGTCP/W/192
Page 7
− exchanges of experiences and discussions on competition policy issues having an
impact on international trade;
− voluntary "peer reviews" of WTO Members’ competition policies;
− joint analysis and discussion on global competition issues affecting international trade
and the global economy.  A possible tool to facilitate such analysis would be thepreparation of a periodic report on major competition policy developments with an
impact on international trade and the global economy.
According to the Member's proposal, the above functions would be carried out by or under the
auspices of a WTO Competition Policy Committee which would be established following the
conclusion of a competition agreement.38
20. Based on the discussions held thus far in the Working Group, four further observations can be
made regarding the nature and scope of the curr ent proposals relating to "modalities for voluntary
cooperation".  First, application of the proposed cooperation modalities would not be limited to cases
involving hardcore cartels.  Rather, the modalities would be available in respect of most or all types of
competition law violations, including cartels, exclusionary abuses of a dominant position and other
practices.39  Second, the cooperation envisioned would indeed be voluntary in nature and, therefore,
not subject to dispute settlement.
40  However, the framework would contain a commitment to consult
and to seek mutually acceptable solutions in ca ses involving anti-competitive practices with an
international dimension.41  Third, the provisions on cooperation would not require the exchange of
information that is confidential or subject to statutory protection.42  Fourth, the provisions on
cooperation that would be embodied in a multila teral framework on competition policy would be
intended to exist side by side with, and not replace, existing cooperative arrangements at the bilateral
and regional levels.  Parties to the proposed framewor k would remain free to enter into more intensive
cooperation arrangements with individual partners where they choose to do so.43
21. A related perspective on the current proposals relating to modalities for voluntary cooperation
is provided by the following excerpt from the Working Group's Report (2001):
"… cooperation in a WTO setting would be essentially incremental in nature, and would be
achieved in a step-by-step manner.  The first phase of the exercise would be largelyeducational, concentrating on the development of enforcement capacity.  The second phase
would have as its primary feature the development and implementation of notification
procedures.  A Member undertaking an investigation that might affect important interests of
another Member should notify the latter at an appropriate stage in the investigation.  More
meaningful steps towards enhancing interna tional cooperation would be the coordination of
enforcement actions against international cartels and the development of a common approach
with respect to procedural issues in merger review.  The latter step would aim at minimizing
the transaction costs involved in getting the requ isite approvals of a merger plan in different
jurisdictions …".
44
                                                     
38 Contribution of the European Community and its member States (W/184), p. 5.
39 Contribution of the European Community and its member States (W/184), p. 4.
40 Report (2000), paragraph 51.
41 Report (2000), paragraph 51.
42 Report (2000), paragraphs 47-50 .
43 Report (2000), paragraph 60; see also Contribution of the European Community and its member
States (W/184), pp. 3-5.
44 Report (2000), paragraph 44.WT/WGTCP/W/192
Page 8
22. As a further illustration of possible modalities on voluntary cooperation that could be
included in a multilateral framework on competition policy, reference has been made in the Working
Group to the competition policy chapter of the recent Canada-Costa Rica Free Trade Agreement.45
The Agreement contains provisions on general principles relating to competition law/policy;cooperation;  confidentiality;  technical assistance;  and consultations between relevant authorities.
The suggestion has been made that the Agreement provides a practical example of the types ofcooperation that are possible to address the detrimental effects of anti-competitive practices in relation
to trade and development, even between countries at different levels of development.
46
B. POTENTIAL BENEFITS OF PROPOSED MODALITIES FOR VOLUNTARY COOPERATION
23. The view has been expressed that a multilateral framework on competition policy could make
a distinct and valuable contribution to enhancing international cooperation in the competition policy
area by enabling Members of the WTO to deal more effectively with anti-competitive practices that
affect their trade and development.   More particularly, it has been suggested that modalities onvoluntary cooperation would facilitate the fight against anti-competitive practices that thwart trade
and development, for example by providing for:  (i) enhanced availability of information on cases
involving anti-competitive practices;  (ii) consultations among competition agencies in order to better
address anti-competitive practices of common concern and to manage jurisdictional conflicts through
the application of comity principles;  and (iii) new procedures for the exchange of national experienceand perspectives on competition policy such as pe er review.  The promotion of cooperation at the
multilateral level could also have a positive impact on domestic decision-making processes in relation
to the implementation of competition policy.  In  particular, by increasing awareness of other
Members' experiences and by being exposed to best practices, Members would gain valuable insights
that would strengthen domestic reform efforts.  Th e suggestion has also been made that a multilateral
framework could reinforce the effectiveness of institution-building programmes in the area of
competition policy by providing hands-on exposure to best practices in dealing with cross-border
cases.  Within such a framework, technical assistance programmes could receive higher priority and
be better focused on the needs of recipient countries.
47  A cooperation framework might also
contribute to the promotion of a culture of competition.48
24. The point has also been made that a multilateral framework on cooperation in this area would
certainly not render existing cooperation mechanisms redundant.  On the contrary, the view has been
expressed that, rather than being mutually exclusiv e, arrangements at the bilateral, regional and
multilateral levels are complementary in nature.   For example, bilateral and regional agreements can
be useful in facilitating more intensive levels of cooperation between countries with complementary
interests.  In this context, it has been suggested  that a WTO framework would enable the benefits of
existing bilateral and regional arrangements to be shared more broadly, particularly with developing
countries and would function as a "safety net" in that it would be available where alternative
agreements or arrangements are not.49
C. QUESTIONS /CONCERNS RAISED REGARDING THE PROPOSED PROVISIONS ON COOPERATION
AND RESPONSES PROVIDED
25. A number of questions and concerns have been raised in the Working Group and responses
provided regarding the proposed modalities for voluntary cooperation .  Some of these are as follows.
First, the question has been posed as to whether the proposed modalities on cooperation would require
the enactment of a national competition law and the establishment of a competition authority by each
                                                     
45 See Contribution of Canada and Costa Rica (W/173).
46 Report (2001), paragraph 56.
47 Report (2001), paragraph 57.
48 Report (1999), paragraph 61.
49 Report (2001), paragraph 53.WT/WGTCP/W/192
Page 9
participating WTO Member.  A number of objections have been posed to any such requirement,
including the view that such a requirement does not take due account of the divergence and diversity
of competition policy objectives and implementation instruments across WTO Members.50  I n
response, the point has been made that cooperation on competition policy matters is only possible
where there is a well-established competition regime, including a law and a domestic competition
authority with sufficient powers to effectively enforce the law.51  Nonetheless, the point has also been
emphasized that sufficient flexibility can be provided under the terms of the proposed multilateral
framework to accommodate differences in national approaches to competition policy and
institutional/constitutional structures.52  With regard to the specific situation of small island
economies, the point has been made that regional as opposed to national approaches to the
implementation of competition law have potential advantages that should be taken into
consideration.53
26. In relation to the proposed voluntary nature of the cooperation provisions to be contained in
the framework, a question has been posed as to whether voluntary tools of cooperation will effectively
address the problems and concerns of developing countries in the area of anti-competitive practices.54
In response, the view has been expressed that, even though cooperation would remain, ultimately,
voluntary in nature, the effect of the proposed framework would be to significantly enhance the
environment for and incentives to engage in cooperation among participating countries.55  If a request
for cooperation is reasonable and properly motivat ed, it is unlikely that participating competition
authorities would refuse to consider it in a favourable manner except in exceptional circumstances.56
The suggestion has also been made that the voluntary nature of cooperation is an important protectionfor competition authorities in developing countries, who might not have adequate resources to deal
with all the requests they might receive.
57
27. Doubts have been expressed about the usefulness of cooperation modalities that would be
limited to the exchange of non-confidential case-related  information.  In addition, the question has
been raised as to why an agreement is needed at  all if cooperation is limited to non-confidential
information that may already be publicly available, for example, on competition agencies'  websites.58
In response, the point has been made that distinct ions need to be drawn between different categories
of information:  non-public information such as business secrets which cannot be shared under most
existing cooperation instruments;  non-public information which can be shared under such
instruments and is helpful to law enforcement processes, such as legal or economic analysis
undertaken by an agency relating to the agency's assessment of particular practices or the simple fact
that an investigation is proceeding;  and public information such as that available on the Internetwhich is available to everyone.
59  There may be much valuable information in the second category –
i.e., information which is not confidential in a legal sense but is not widely available.  Experience with
the operation of existing cooperation agreements at the bilateral level suggests that these have been
valuable and have resulted in fruitful cooperation – notwithstanding that most such agreements do not
provide for the exchange of confidential information.60  The fact that, in many cases, even where they
                                                     
50 Report (2001), paragraph 78.
51 Report (2001), paragraph 79; see also Contribution of the European Community and its member
States (W/184), p. 2.
52 Report (2001), paragraph 79.
53 Report (2000), paragraph 27.
54 Report (2000), paragraph 52.
55 Report (2000), paragraph 51.
56 Report (2000), paragraph 53.
57 Report (2001), paragraph 71.
58 Report (2001), paragraph 67; Report (2000), paragraph 49.
59 Report (2001), paragraph 68.
60 Report (2001), paragraph 68.WT/WGTCP/W/192
Page 10
are not required to do so, cooperating parties may agree to a waiver to allow the exchange of
confidential information and the important benefits that this could provide have also been noted.61
28. Apart from questions about voluntariness and the nature of the information to be exchanged,
the issue has been raised as to how an agreement on international cooperation would apply to and
generate benefits for countries at different stages of development and with differing degrees of
experience and institutional endowments in this field.  In response, the view has been expressed thatthese considerations do not pose an obstacle to or detract from the desirability of the adoption of a
multilateral framework since:  (i) the proposed framework would not require a harmonized approach
and would place considerable emphasis on the need for flexibility and progressivity;  (ii) much
valuable cooperation can take place in this context;  and (iii) the proposed framework would also
embody important commitments on the technical assistance and institution-building, to address
disparities in institutional endowments over time.
62
29. The question has been posed as to whether cooperation in a bilateral or regional context might
be sufficient to address the perceived detrimental impact of anti-competitive practices on international
trade and/or development.  Possible advantages of these approaches that should be considered include
the shorter negotiation time and higher level of cooperation standards that could be applicable in a
bilateral or regional setting.63  In response, the view has been expressed that, while recognizing the
important benefits that can be attained through bilateral cooperation arrangements, there are importantpractical and substantive reasons for developing a multilateral agreement.  To begin with,
international cartels and other anti-competitive practices are unlikely to respect the neatly defined
territories covered by bilateral agreements.  Rather, they tend to act strategically and to seek out the
cracks that exist between relevant regional and bilateral agreements.  Only by having a proper
network that covers all potential areas, that is, a multilateral framework, can Members prevent suchbehaviour.  In addition, for many countries, there will be significant operational limitations on the
number of bilateral or other agreements into which they can enter.  In these circumstances, a
multilateral agreement could be an efficient tool to facilitate meaningful cooperation.  More intense
cooperation could still be pursued with individual partners, as desired.  The point has also been made
that bilateral agreements are limited in number and based on mutual interests and reciprocity.  In orderto encourage cooperation between countries at different levels of development, it is necessary to go
beyond a purely bilateral or regional approach.
64
30. Concerns have been expressed that the proposed system of notification of competition law
enforcement actions on a multilateral basis would be burdensome and unworkable.65  Further, it could
be inconsistent with national confidentiality requirements and could seriously impair the effectivenessof such actions.
66  In response, the suggestion has been made that a notification system can be
designed that would avoid any undue administrati ve burden.  Clearly, the system must also be
consistent with national confidentiality requirements.  However, much valuable information can be
exchanged without violating these.67  Nevertheless, the point has been accepted that the undue
burdens associated with the notification process should be avoided.68
31. The question has been raised as to how the MFN principle would apply to the cooperation
provisions if cooperation is to be voluntary.  In particular, the question has been posed as to whetherall requests for cooperation would have to be acceded to on the basis of this principle regardless of the
                                                     
61 Report (2001), paragraph 68; see also Report (2000), paragraph 50.
62 Report (2001), paragraph 75; see also Contribution of Japan (W/176) and Contribution of the
European Community and its member States (W/175).
63 Report (2000), paragraph 57.
64 Report (2000), paragraph 58.
65 Report (1999), paragraph 56; see also Report (2000), paragraph 73.
66 Report (1999), paragraph 56.
67 Report (1999), paragraph 57; see also Report (2001), paragraph 65.
68 Report (1999), paragraph 57.WT/WGTCP/W/192
Page 11
resources possessed by the requested competition agency and the resource requirements associated
with each request.69  In response, it has been stated that guidelines may be needed on this matter.70  In
principle, appropriate qualifications could be built into the proposed multilateral framework to ensure
that developing or other countries are not obliged to  cooperate in cases where this is inconsistent with
their important interests.71  Members would not be forced to seek cooperation in the WTO nor would
they be obliged to engage in cooperation against their own interests.72
32. Concerns have also been raised as to whether international cooperation would require a
narrowing down of differences in substantive competition laws, procedures and interpretations and,
therefore, entail an undesirable degree of harmonization of national approaches to competition
policy.73  In response, the point has been made that the experience of Members who are already party
to cooperation agreements at the bilateral or regional level indicates clearly that harmonization of
substantive laws and enforcement policies is not necessary for effective cooperation.  For example,
the point has been made that the competition authorities of the United States, the EuropeanCommunity and Canada have close working relationships with each other and engage in beneficial
cooperation in many cases notwithstanding the clear and significant differences that exist in the three
jurisdictions' substantive competition laws.
74  Nonetheless, the point has also been made that, over
time, cooperation tends to foster a degree of non-compulsory or "soft" convergence in substantive
approaches to competition policy based on shared e xperience with respect to particular issues and
cases.75
_______________
                                                     
69 Report (2001), paragraph 64.
70 Report (2001), paragraph 28.
71 Report (2001), paragraph 65.
72 Report (2001), paragraph 66.
73 Report (2000), paragraph 55.
74 Report (2001), paragraph 72; Report (2000), paragraph 56.
75 See Report (2000), paragraph 41.WT/WGTCP/W/192
Page 12
ANNEX
MEMBERS' CONTRIBUTIONS ON INTERNATIONAL COOPERATION
SYMBOL:
(WT/WGTCP/-)MEMBER/
OTHER SOURCEPARAGRAPH/
PAGE
REFERENCEMATTERS DISCUSSED
W/48 United States Whole
documentExperience with cooperation
especially at the bilateral level
W/116 United States Whole
documentObjectives of cooperation;
approaches at bilateral, regional and
multilateral levels
W/121 Japan Pages 1 and 2 International cooperation
W/124 Korea Whole
documentApproaches to cooperation at
bilateral, regional and multilateral
levels
W/125 Australia Page 1 Approaches to cooperation and
communication among WTO
Members
W/126 Zimbabwe on behalf
of WTO African
GroupPages 2 and 3 Competition policy and
development; role of international
cooperation
W/129 European Community
and its member StatesPages 9 to 13 Proposal for cooperation on
competition policy in context ofWTO
W/132 Romania Pages 1 and 2 Objectives of cooperation and
enforcement measures at national
and international level
W/140 European Community
and its member StatesPages 7 to 10 Key elements of a multilateral
framework agreement, and
perceived benefits for LDCs
W/143 Trinidad and Tobago Pages 2 to 6 Role of cooperation at multilateral
level; concerns of smaller countries
W/148 Australia Pages 2 to 5 Australia's experience with
cooperation agreements
W/151 Switzerland Pages 2 to 6 Possible elements of cooperation at
the multilateral level
W/152 European Community
and its member StatesWhole
documentMultilateral negotiations; elements
of possible future WTO agreement;
types of cooperation
W/154 Korea Page 2, para. 1 Effects of companies' anti-
competitive behaviour and
governmental measures; WTO as
appropriate forum
W/155 Canada Pages 3 to 7 Cooperation in a multilateral setting
W/156 Japan Pages 2 to 5 Role of international cooperation;
need for a multilateral agreement
W/160 European Community
and its member StatesWhole
documentElements of a WTO framework
agreement
W/161 Romania Paras. 3 and 5 Anti-competitive practices;
progressivity and flexibility in a
multilateral frameworkWT/WGTCP/W/192
Page 13
SYMBOL:
(WT/WGTCP/-)MEMBER/
OTHER SOURCEPARAGRAPH/
PAGE
REFERENCEMATTERS DISCUSSED
W/162 Colombia Whole
documentAnti-competitive practices and
cooperation in context of WTO
W/165 Czech Republic Sections B and
CObjective of international
cooperation;  principles for a
multilateral framework
W/167 Japan Sections II, III
and IVInternational cooperation and WTO;
relation to economic development
W/168 Japan Whole paper International cartels and WTO's role
W/169 Uruguay Pages 3 to 5 Dev elopment dimension and S&D
in a multilateral framework;
importance of comparative law
perspective
W/173 Canada and Costa Rica Page 2, para. 3 Cooperation on competition policy
in a bilateral trade agreement
W/174 Canada Pages 2 to 5 Nature of cooperation at different
levels
W/175 European Community
and its member StatesWhole paper Elements and benefits of a WTO
competition agreement
W/176 Japan Pages 1 to 3 Impact of anti-competitive practices
on developing countries
W/177 Japan Page1, para. 1 Progressivity and flexibility in a
multilateral framework
W/184 European Community
and its member StatesWhole paper,
especially
pages 2-5Modalities for voluntary cooperation
in a multilateral framework
__________