Daniel Sokol has posted "Limiting Anti-Competitive Government Interventions that Benefit Special Interests" on SSRN. From the abstract:
And from the conclusion:
Anti-competitive public restraints play a distortive role in the global economy. Antitrust
immunities are one such case in which public restraints hurt consumers. Though anticompetitive public restraints plague each country, domestic institutions seem ill- equipped to adequately limit these restraints. International institutions can assist domestic antitrust institutions to create better outcomes to address anti-competitive public restraints.
Benchmarking through soft law and bottom-up harmonization based upon domestic
approaches on competition advocacy can help domestic institutions to limit some of the effects of public restraints. However, there are limitations to the soft law approach in improving domestic antitrust capacities. Where substantive coordination is difficult, such as with public restraints, binding rules may be the most effective way to address the global nature of the problem. This implicates the WTO as the most appropriate institutional choice to combat public restraints. Because the WTO considers global welfare, the WTO disciplines countries that fail to reduce international spillover and market access policies.335 However, the WTO contains significant limitations in its adjudicatory ability to adequately identify and remedy antitrust public restraints.
All institutions have weaknesses, but in the case of public restraints, international hard
law through the WTO (properly reformed) can help address these problems in ways that create few domestic overlaps and new distortions of their own. Creating an antitrust panel for WTO antitrust public restraints that would be deferential to domestic antitrust solutions is a first step to improving the adjudicatory capacity of the WTO. Hard law will work with soft law to improve the domestic institutions so that over time, domestic institutions need much less of the international institutions to do this work, because many of the cases will be decided in the shadow of the law. In a world of imperfect alternatives, this proposal has fewer costs and
greater benefits than domestic or international soft law solutions.