This research considers the interface between the restraint of trade doctrine (hereinafter ROTD) and competition law in England and Wales (comprising the UK Competition Act 1998 and Articles 101-102 TFEU). The ROTD and competition law overlap in cases where both laws appear to be applicable to certain restrictions on professionals (e.g. non-competition clauses). It will be argued that the ROTD and competition are different legal regimes whose prima facie concurrent applicability creates an interface problem for some professionals who are precluded from relying on the ROTD to resist a particular restriction. The most acute problem, in cases of overlap, arises where a restriction does not infringe competition law but falls foul of the ROTD. By examining developments in UK law and in EU law this study analyses how the interface problem evolved incrementally. UK competition legislation may be interpreted so that the ROTD applies only in a residual fashion. Moreover, Art 3 of EU Reg. 1/2003 delineates the interface between EU competition law and national competition law. The High Court has interpreted Art. 3 so that once EU competition law is applied to a restriction the court cannot reach a different conclusion under the ROTD. For reasons of consistency, this conclusion may also hold true for the interface between the ROTD and UK competition law. The scale of persons affected by this problem becomes greater if some professionals in employment are classified as “undertakings” because such classification would increase the overlap and interface between competition law and ROTD. This thesis proposes fresh solutions for courts when applying the ROTD. The solutions aim to ensure the availability of the ROTD’s unique protection to professionals who are subject to restrictions to which competition law also applies.

This thesis is concerned with the question of whether the Korean competition authority is well prepared for the open market with regard to vertical restraints. This further brings some issues such as of whether the authority partially scrutinises enterprises without proper evidences based on economics. This question has come from the following, ‘what is the fundamental matter in competition laws of Asian developing countries which have different economic development backgrounds than western developed countries?’ This subject has brought a question, even now, to the point the relationship between macroeconomic and microeconomic policies in the middle of competition law. Most of competition scholars focus on microeconomic way of competition law and policy but, in fact, it often seems that macroeconomic concerns have influenced competition laws in developing countries such as the Republic of Korea. Because the Korean economy is still fledging and experiencing further challenges for development, the Korean competition law should be more experimented in order to adjust to the rapid changes in global economy. This task should be done in both macro- and microeconomic levels and also a critical analysis of competition law of the Republic of Korea with reference to the US and the EC since these regimes have diverse legal techniques. Furthermore, since the Korean competition law was heavily influenced by the Japanese antimonopoly law, a comparative study of the Japanese law is necessary. This thesis aims to develop the Korean competition law on vertical restraints through a critical assessment by economics and comparative studies. This is, therefore, the first means for testing concerning vertical regulation that is probably still controversial in the Korean market.

ASEAN aimed to create a highly competitive, single market, production-based AEC in 2015 by applying strategic measures set out in the AEC Blueprint. However, after seven years of its adoption, the deadline has become merely the beginning of the AEC, not the finished line. Since November 2015, ASEAN has adopted the AEC Blueprint 2025 which aims to create a competitive, innovative, and dynamic AEC by 2025. One of the measures ASEAN uses is ensuring effective competition policy through greater harmonisation and convergence of national competition law. The key concept of this thesis is competitiveness. It applies Professor Michael E Porter’s concept of competitive advantage and gathers 15 years of data on the ASEAN Member States’ competitiveness. And it questions whether competition law and policy attribute to a nation’s competitiveness. If yes, to what extent. Then it questions whether it is necessary for ASEAN to take a supranational approach to become a competitive region because ASEAN has its own norm of cooperation, the ASEAN way, which is ingrained in ASEAN since its establishment. And it is now formally recognised in the ASEAN Charter. The results show that competition law and policy is not a sole key determinant of competitiveness. Having a low degree of market concentration, effective competition law and policy, and efficient goods market does not necessarily correlate to high competitiveness. A country’s competitiveness is affected by its stage of development too. Additionally, the political economy of a country has a certain degree of effect on efficiency in competition law enforcement. However, the determinant factor of efficient competition law enforcement lies on political will rather than type of the government administration as in the case of Taiwan and South Korea. The disparities in the economic development of AMSs are obvious. Therefore, trying to harmonise AMSs’ competition law and policy using an all-sector approach is not recommended and proved difficult, if not impossible. Moreover, a supranational approach is not compatible with the ASEAN way. Hence, a sectoral approach is more likely to help ASEAN achieve its goal. ASEAN has already begun its own sectoral approach to competitiveness in the aviation market. The Aviation Agreements which the AMSs have signed between them provide much more details and commitments on competition rules concerning this industry than in the Regional Guidelines 2010. The application of sectoral approach alongside with the comprehensive approach to competition law and policy to enhance competitiveness of the relevant market is practiced in many countries. Examples of how regulatory body in electricity in the US, the UK, Australia, New Zealand, Japan, and South Korea collaborate with their competition agencies provide evidence that it is possible and efficient. Therefore, ASEAN does not need a supranational approach to improve its competitiveness regarding competition law and policy. This thesis suggests that ASEAN should pursue a sectoral approach in dealing with competition issues among member state the ASEAN way.

This thesis examines the current Brazilian oil sector's institutional and regulatory governance structure and its impact on four variables: investment, production, technology-innovation and the strategic control of oil. These variables are fundamental for the development of the oil industry and they are mentioned in Brazilian laws as central aspects to be continually developed. A prospective analysis of the 2010 reform in the Brazilian oil regulatory framework is a major part of the thesis because the alterations are relatively recent and have not as yet produced a set of consistent and statistically significant data. The research adopts a multidisciplinary perspective, using the institutional, reflexive and responsive theoretical frameworks and a methodology based on the examination of the legislation, semi-structured interviews and a historical comparative study of international regulatory governance in the oil sector to draw two main conclusions. First, the new Brazilian regulatory framework will have significant drawbacks in three of the four variables: investments, production and technology-innovation, essentially because of its excessively interfering and rigid approach, based on command and control regulations. Second, despite allowing an increasing strategic control over oil in some specific situations, this goal could have been attained in a manner that would have avoided the shortcomings in the other variables. Based on this understanding, the thesis makes recommendations to overcome the identified drawbacks. In line with the responsive and reflexive conceptual frameworks, the proposals consider that regulations in a dynamic and changeable sector as the oil industry should avert intrusiveness and imperative commands. They should rather advocate a versatile and interactive regulatory approach, steering and guiding the different stakeholders to socially desirable outcomes.

This thesis is an examination of the way dominance and monopoly are assessed in the EU and US antitrust law. In particular, it focuses on the two main factors which, in the view of this thesis, may play an important role in the application of antitrust rules. These factors are a firm’s size and bigness. With the main focus on these two factors, this thesis assesses whether the EU Commission holds an antagonistic approach to dominant firms as a way to promote consumer welfare and economic efficiency which are the main aims of antitrust law. As a matter of comparison, this thesis similarly considers the US approach to firms in a monopolistic position. This research is inclined to believe that ‘size’ and ‘bigness’ make a firm large in the context of antitrust law. Size is defined by the number of market shares a firm has in a relevant market. Bigness, on the other hand, is defined by a non-exhaustive list of all commercial and technological advantages a firm has over its rivals. Both elements, therefore, constitute dominance and monopoly, and place a firm into a privileged position over its competitors. The belief that dominant firms are inherently detrimental to the primary goals of antitrust may itself harm consumer welfare and economic efficiencies. This is explained by the fact that large firms have access to more resources which may be necessary for some industries. The obstacles for their growth may lead to the stagnation in the progression of markets which, in turn, will be reflected on the consumers and economy. Despite this being a common concern of various stakeholders, the Commission and the EU courts set low market share thresholds in order to measure a firm’s size and admit all firm’s privileges into the definition of a dominant position. It creates an impression that dominant firms are not welcomed in the EU internal market. US antitrust law, on the other hand, appears to have a less strict approach to firms in a monopolistic position by allowing firms to grow as long as there is no illegality behind it. The US market share threshold is much higher than in the EU and it has an almost complete disregard of a firm’s privileges and advantages. This thesis, therefore, came to the conclusion that EU competition law has a strong distrust toward dominant firms, whilst US antitrust law holds a neutral position. This research then proceeds to find an explanation of such a disparity between two leading antitrust regimes.

This thesis examines the rationale and on-going purpose of stabilisation clauses and the ways in which the clauses undermine the pursuit of sustainable development in developing countries. Two presumptions prevail in the literature on stabilisation clauses. The first is that developing countries compete for foreign investment on the basis of political risks. The second is that there are higher levels of political risks in developing countries. This thesis argues that neither presumption is true as such. The available evidence points to a more intense competition among foreign investors backed by their home governments for access to the extractive resources in developing countries. The political risks that stabilisation clauses are aimed at also exist, at least in equal measure, in developed countries. Nevertheless, stabilisation clauses are routinely recommended to developing countries as an ‘essential’ feature of an attractive investment climate. This recommendation is, however, not supported by any reliable evidence pointing to a link between stabilisation clauses and foreign investment inflow. The literature on the potential adverse impacts of stabilisation clauses has evolved in a compartmentalised way, focusing on their impact on the ability of host governments to enact environmental and/or human rights laws. This approach and focus are misplaced because in practice, stabilisation clauses rarely limit the ability of host governments to enact human rights and environmental laws. Rather, they limit their ability to alter their fiscal and economic laws and policies in other to integrate such laws and policies with their social and environmental objectives. The main implication of this limitation is that such governments are unable to mobilise the maximum of available funds to finance their sustainable development measures including those specifically directed at eradicating poverty, improving human rights standards and protecting the environment.

This thesis proposes a new understanding of Article 106(2) TFEU using composite legal and economic interrogative frameworks. Article 106(2) provides that under specified conditions, any Treaty rule may be disapplied with respect to services of general economic interest (‘SGEIs’). The underlying research tests two principal claims concerning Article 106(2). The first is that it is the central Treaty provision for reconciling EU and Member State interests concerning SGEIs, and the second, is that it is a strict exception. The purely legal component of the analysis comprises internal and external accounts of Article 106(2). The former concerns its operation on a standalone basis, with the latter dissecting its interaction with other TFEU derogation mechanisms. The internal analysis reveals the seeming volatility of the manifest error standard and considers the effects of enduring difficulties concerning proportionality review. The external account discloses the ubiquitous contingency of Article 106(2), resulting in it being side-lined in a variety of ways. In overall terms, Article 106(2) is shown not to be the central Treaty mediating mechanism for SGEIs that it may be capable of being. The combined legal and economic component of the thesis is based on deploying the theory of market failure and its analogue, government failure, in order to test whether Article 106(2) is a strict exception. Market failure is used to assess SGEI verification. Government failure is used to assess the disapplication of other Treaty provisions under Article 106(2). The market failure analysis reveals that manifest error control is strict for efficiency related market failures, for EU circumscribed distributional objectives, and occasionally, elsewhere. The government failure analysis discloses significant but avoidable weaknesses in disapplication review, but with pronounced change over time, including a relative recent partial revival of its strictness following Altmark. In the aggregate, the combination of legal and economic analysis shows Article 106(2) not to be a strict exception, except in limited circumstances. In the light of the findings on centrality and strictness, proposals for the reorientation of Article 106(2) are made.

This thesis considers the different understandings of what 'law' is and applies this to the specific area of international development law. Two central questions are addressed. Firstly, what is the basis of international development law? Put another way, in what sense can international development law be spoken of as 'real' or 'true' law? Secondly, and a precursor to the first question is the question of what is 'real' law. The following preliminary questions are also addressed: what is 'international development law'? What are the sources of international development law? Who formulates international development law? What characteristics or criteria can one use to identify law and thus identify international development law as true law? Paralleling growth of new areas of international law, and aspiring to a 'hard law', is a growing body of international development law. After World War II a distinct body of international development law emerged fostered by the newly independent countries of Africa and Asia. Despite the continued relevance of the legal aspects of the new international economic order (NIEO) debate of the 1970s, and the growing body of instruments, there is a dearth of current literature on the notion of international development law and its legal validity. This thesis addressed this gap. The questions are approached through a multiple grid of legal understandings. The thesis considers what stands as law in the positivist tradition, in the natural law or aspirational law tradition, and in the more recent tradition of legal process. Each of the types of law considered shows the different bases and varying status of international development law. Taken together, these also show the emergence of a legal structure consisting of norms, principles and rules. All this also points to increasing legalization of international development with a discernible movement towards hard law.

This thesis is an examination of the ASEAN’s prospects in establishing regional competition policy in the Southeast Asia region, a topic of contemporary relevance in light of the ASEAN’s recent foray into the economic integration field on 31 December 2015. It questions whether the current approach undertaken by the ASEAN could contribute to an effective regional competition policy under the regional market integration. In answering this question, the thesis first critically surveys the current terrain of regional competition laws and policies in order to determine the possible existence of an optimal template. It argues that although the EU model is oft used as a source of inspiration, each regional organisation conceives different configurations of the model in order to best adjust to the local regional contexts. The thesis makes an inquiry into the narratives of the ASEAN’s competition policy, as well as the ASEAN’s specific considerations in the development of competition policy, before comparing the findings to the actual approaches taken by the ASEAN in its pursuit of regional competition policy. This thesis reveals that the actual approach taken by the ASEAN demonstrates an important discrepancy from the economic integration goal. The ASEAN applies a soft harmonisation approach regarding substantive competition law while refraining from establishing a centralised institution or a representative institution. The sole organ with regards to competition policy at the regional level is an expert organ. The thesis also conducts an investigation into the reception of the ASEAN’s regional policy by the member states in order to ascertain the possibility of the achievement of the ASEAN’s aspiration of regional competition policy. The study reveals that despite some shared similarities in the broad principles of competition law amongst the member states, the various competition law regimes are not harmonised thus creating challenging obstacle to the ASEAN’s ambition. The thesis then concludes that the ASEAN’s approach to regional competition law is unlikely to be effective.

Joint ventures are a widely used form of interfirm collaboration, which possess some characteristics of both mergers, in which two or more firms come permanently under common control and cease to be distinct, and agreements, which impact the competitive behaviour of firms that remain independent of each other. Due to their hybrid economic nature, it has always been controversial what types of joint ventures should be regarded as mergers under competition law, and how the fact that the parent firms remain independent outside the cooperation should be incorporated into traditional merger analysis. In the EU, only full-function joint ventures are treated as mergers under the Merger Regulation. However, unlike amalgamations and acquisitions, these joint ventures are subject to an additional analysis under Article 101 TFEU to the extent that they lead to the coordination of the competitive behaviour of the parents. This thesis aims to critically analyse this approach to the substantive appraisal of joint ventures under the EU merger control regime, based on its consistency with the general rules of EU competition law and with relevant economic theories, in a comparative perspective with the US competition law regime. In this regard, the thesis shows that (i) the full-functionality criterion assuming that full-function joint ventures are autonomous from an operational viewpoint has some negative implications for the competition analysis of joint ventures; and (ii) the fact that the parent firms retain activities in the joint venture’s market, or in other markets, does not seem to be properly incorporated into the analysis under the Merger Regulation. This thesis seeks to propose some alternatives and solutions with respect to these problematic issues and, thereby, contribute to the body of knowledge and debate about joint ventures which have been, and will be, one of the most intricate and controversial topics of competition law.