Kovacic, William E. --- "The Role of Non-litigation Strategies: Advocacy, Reports and Studies as Instruments of Competition Policy" [2006] ELECD 536; in Marsden, Philip (ed), "Handbook of Research in Trans-Atlantic Antitrust" (Edward Elgar Publishing, 2006)

Book Title: Handbook of Research in Trans-Atlantic Antitrust

Editor(s): Marsden, Philip

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845421816

Section: Chapter 19

Section Title: The Role of Non-litigation Strategies: Advocacy, Reports and Studies as Instruments of Competition Policy

Author(s): Kovacic, William E.

Number of pages: 11

Extract:

19 The role of non-litigation strategies:
advocacy, reports and studies as
instruments of competition policy
William E. Kovacic1


Introduction
Assessments of competition agencies tend to measure good performance
by the prosecution of cases.2 This perspective embraces an unduly narrow
conception of how an agency can best promote competition. Properly
understood, competition policy encompasses a large collection of policy
instruments by which a country can spur business rivalry.3 In a significant
number of cases, the enforcement of prohibitions against anticompetitive
practices will be a second-best alternative to the direct correction of prob-
lems rooted in the design and operation of other regulatory policies.4 Of
the full set of possible responses to competition policy problems, antitrust
enforcement should not be viewed as the exclusive, or invariably superior,
solution. Instead the management and staff of a competition policy agency
should be aware of how tools other than litigation, or a mix of litigation
and non-litigation techniques, can provide the best result.
A single-minded focus on the volume and type of cases also obscures the
need for a competition agency to enhance the quality of the institutional
inputs that are essential to the development of good cases and other forms
of policy intervention. The observable outputs from a competition policy
programme are no better than the institutions that create them,5 and a
sensible standard for evaluating a competition agency must consider
whether the agency is making adequate investments to build its institu-
tional capability.
This chapter ...