Bruce Wardhaugh | The University of Manchester (original) (raw)

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Papers by Bruce Wardhaugh

There is a well-recognised link among trade, trade liberalisation, an effective competition regim... more There is a well-recognised link among trade, trade liberalisation, an effective competition regime and development. A common view to the promotion of development of Least Developed Countries is to assist their economic growth through trade-facilitating measures. The trade liberalisation regime of the WTO is a prime example of this. An effective competition regime can also help a country’s development. However, the implementation of a competition regime is costly, and there are significant opportunity costs associated with expenditure on such a regime: the choice may be between competition and public health or education.

This article considers a trade related means which can assist developing countries with the financial burdens of a competition regime. The article’s insight is the use of a generalised system of preferences (GSP) to extend tariff concessions to developing countries in exchange for their undertaking to develop such a competition regimes. Under certain circumstances, WTO law permits GSP regimes as exceptions to the Most Favoured Nations cornerstone of the GATT. The first part of the article considers the links among trade, trade liberalisation, development and the need for an effective competition regime to ensure that gains from trade are appropriately distributed in a society. The second part considers the conditions under which a GSP system is legal under WTO law. The third part demonstrates how a WTO-legal, competition-focused GSP system can be developed. This article does not advocate for a particular regime. Rather the article noted that designing a regime to the specific circumstances of a beneficiary country is not only a requirement for WTO-legality, but is also prudent given the need for an effective regime to garner popular acceptance.

The growth of competition regulation in the twenty-first century will occur in those jurisdictio... more The growth of competition regulation in the twenty-first century will occur in those jurisdictions which at present do not have or are just developing their own competition regime. The experience of developed competition regimes in their choice of rule-making institutions, status if the rule in the jurisdiction’s legal order, and the content of the competition rules can be useful for developing regimes in shaping their institutions..

This paper considers what lessons can be learned from these experiences. It uses the mobile telecommunications market as an example of a market which developing regimes must regulate wisely. This is due to the link between mobile telephony and economic development. But, as is also shown, if this market is poorly regulated, any benefits which may accrue to the consumer (or be beneficial to economic development) can be diverted to dominant or monopolistic entities.

The conclusion of the paper is that any lesson learned from other jurisdictions must be taken with care. Competition rules are a product not just of their legal systems, and they are also products of the market for which they are designed to regulate. Hence transplantation must be done with care. But of perhaps greater significance is the need for independence of the regulatory agency.

Keywords: Telecommunications, Competition, Development, Sector Regulation,
Competition Agency Design

This paper considers the use of non-economic considerations in 101(3) analysis of industrial rest... more This paper considers the use of non-economic considerations in 101(3) analysis of industrial restructuring agreements, using the Commission’s Decisions in Synthetic Fibres, Stichting Baksteen, and the recent UK Dairy Initiative as examples. I argue that contra to the Commission’s recent economics-based approach; there is room for non-economic considerations to be taken into account within the framework of the European Treaties. The competition law issue is whether the provisions of Article 101(3) can save such agreements.

I further argue that there is legal room for non-economic considerations to be considered in evaluating these restructuring agreements, it is not clear who the appropriate arbiter of these considerations should be given the institutional limitations of courts (which have no democratic mandate), specialised competition agencies (which may be too technocratic in focus) and legislatures (which are susceptible to capture by rent-seeking interest groups).

Loyola Consumer Law Review , May 2014

In recent years, the US Supreme Court has rather controversially extended the ambit of the Federa... more In recent years, the US Supreme Court has rather controversially extended the ambit of the Federal Arbitration Act to extend arbitration’s reach into, inter alia¸ consumer matters, with the consequence that consumers are often (and unbeknownst to them) denied remedies which would otherwise be available. Such denied remedies include recourse to class action proceedings, effective denial of punitive damages, access to discovery and the ability to resolve the matter in a convenient forum.

The court’s extension of arbitration’s ambit is controversial. Attempts to overturn this extension have been made in Congress, but to no avail. In contrast to American law, European consumer law looks at pre-dispute agreements to arbitrate directed at consumers with extreme suspicion, and does so on the grounds of fairness. In contrast, some argue that pre-dispute agreements in consumer (and employment) matters are consumer welfare enhancing: they decrease the costs of doing business, which is then passed on to the consumer. This Article examines these latter claims from both an economic and normative perspective.

The economic analysis of these arguments shows that their assumptions do not hold. Rather than being productive of consumer surplus, the use of arbitration is likely to have the opposite effect. The industries from which the recent Supreme Court cases originated not only do not exhibit the industrial structure assumed by the proponents of expanded arbitration, but are also industries which exhibit features that facilitate consumer welfare reducing collusion.

The normative analysis addresses the fairness concerns. It is explicitly based upon John Rawls’ notion of “justice as fairness,” which can provids a lens to evaluate social institutions. This Rawlsian analysis considers the use of extended arbitration in consumer matters in the light of the earlier economic results. It suggests that the asymmetries present in the contractual allocation of rights serve as prima facie evidence that such arbitration–induced exclusions are prima facie unjust/unfair. However, as asymmetry is only a prima facie test, a generalized criticism of the arbitration exclusions (of the sort found in Congress and underlying the European regime) is overbroad.

Cambridge University Press, Feb 2014

Journal of International Economic Law vol 16 no 4, Dec 2013

The recent judgment in Pfleiderer exposes a tension between two goals of European cartel control ... more The recent judgment in Pfleiderer exposes a tension between two goals of European cartel control policy: the ex ante desire to prevent and deter the formation of cartels, and the ex post desire to ensure an effective means by which victims of such conduct can have their harms redressed. The former goal is advanced by way of the administrative enforcement enhanced by a leniency programme, the latter by actions for damages at a decentralised, member state level. Leniency programmes are used to facilitate the acquisition of information by public agencies, but they have the effect of potentially providing information to private parties which can enhance cartel members' exposure to damages. This paper considers Pfleiderer and other European and national court decisions which follow it, along with the recent Proposed Directive which aims to not just the enhance relationship between public and private enforcement, but also to improve the efficacy of private damages schemes in Europe.

Legal Studies

Although cartel behaviour is almost universally (and rightly) condemned, it is not clear why cart... more Although cartel behaviour is almost universally (and rightly) condemned, it is not clear why cartel participants deserve the full wrath of the criminal law and its associated punishment. To fill this void, I develop a normative (or principled) justification for the criminalisation of conduct characteristic of ‘hard core’ cartels. The paper opens with a brief consideration of the rhetoric commonly used to denounce cartel activity, eg that it ‘steals from’ or ‘robs’ consumers. To put the discussion in context, a brief definition of ‘hard core’ cartel behaviour is provided and the harms associated with this activity are identified. These are: welfare losses in the form of appropriation (from consumer to producer) of consumer surplus, the creation of deadweight loss to the economy, the creation of productive inefficiency (hindering innovation of both products and processes), and the creation of so-called X-inefficiency. As not all activities which cause harm ought to be criminalised, a theory as to why certain harms in a liberal society can be criminalised is developed. It is based on JS Mill's harm to others principle (as refined by Feinberg) and on a choice of social institutions using Rawls's ‘veil of ignorance.’ The theory is centred on the value of individual choice in securing one's own well-being, with the market as an indispensable instrument for this. But as applied to the harm associated with cartel conduct, this theory shows that none of the earlier mentioned problems associated with this activity provide sufficient justification for criminalisation. However, as the harm from hard core cartel activity strikes at an important institution which permits an individual's ability to secure their own well-being in a liberal society, criminalisation of hard core cartel behaviour can have its normative justification on this basis.

Can. JL & Jurisprudence, Jan 1, 1989

Plato&#x27;s dialogue Crito, as is well known, presents Socrates&#x27; response t... more Plato&#x27;s dialogue Crito, as is well known, presents Socrates&#x27; response to the question why must one obey the law. The facts surrounding Socrates&#x27; trial, imprisonment and subsequent execution are all well known. I shall not repeat them here. Rather my present task will be ...

Me. L. Rev., Jan 1, 1989

There has been an alleged&quot; revolution&#x27;2 in American conflict of laws du... more There has been an alleged&quot; revolution&#x27;2 in American conflict of laws during the past sixty or so years. Yet, like most revolutions in intellectual pursuits, this revolution did not arise ex nihilo. Indeed, the revolution can be correlated with a change in the manner in which both ...

Philosophy in Review, Jan 1, 2011

... Christine Sypnowich, The Concept of Socialist Law Reviewed by. Bruce Wardhaugh. Bookmark and ... more ... Christine Sypnowich, The Concept of Socialist Law Reviewed by. Bruce Wardhaugh. Bookmark and Share. This journal is published under the terms of the Creative Commons Attribution-Noncommerical 3.0 Unported license. ...