Competition Law and the Possibility of Private Transnational Governance




Phan, Thanh Cong

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Houston Journal of International Law


Under economic globalization, anti-competitive acts transcend national borders and become a challenge for competition law as traditionally conceived. Most countries have been dealing with cross-border competition problems by using two basic methods: unilaterally extending national competition law’s jurisdiction to acts conducted in foreign territory and cooperating in enforcing competition law. However, while the unilateral enforcement of competition law harms international comity, international cooperation in this area is constrained by conflicting national interests. Given such limits of statist mechanisms to deal with global competition problems, this dissertation adopts a transnational legal perspective to examine whether multi-national corporations (“MNCs”) can help states govern cross-border competition problems. This dissertation argues that MNCs can play a role in the regulation and enforcement of competition law in cross-border transactions through the private transnational application of contractor codes of conduct. When an MNC internalizes competition laws of countries as standards for its behaviours, the corporation can provide a mechanism to project those national laws at transnational level by exercising its private power in a socially responsible way. In doing so MNCs can provide a form of regulation and enforcement of competition laws in an international context that national states are not likely to be able to provide in the foreseeable future.



competition law, transnational governance, corporate social responsibility, corporate codes of conduct, export cartels, extraterritorial application of law, international cooperation


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