Testing the convergence of legal standards in antitrust investigations in BRICS

Abstract

The content of national competition laws is quite similar throughout the world while the interpretation of such norms and de facto enforcement across countries appears to vary significantly. In order to estimate the variation in enforcement we calculate Legal Standard indicators to measure the level and coherence of economic analysis in antitrust cases in leading developing countries, namely, Brazil, Russia, India, and South Africa (4 of 5 BRICS countries). The indicator reflects case-specific economic analysis undertaken by the competition authority when deciding a case (under administrative enforcement) or presented before judges (under prosecutorial enforcement). The indicator ranges from a pure object-based to an effects-based standard. Using this antitrust case by case indicator we explore the level, dynamics and convergence of legal standards in antitrust investigations in BRICS countries. Our results indicate that the countries differ in the legal standard used, even in the same type of conduct under investigation. There is no evidence of increasing trend or convergence in legal standard in antitrust investigations either between case types or between countries investigated. Resources may matter for the legal standard dynamics as more funding is associated with a higher legal standard in some countries and the consistency of the analysis decreases with workload.