When the Going Get Tight: Institutional Solutions when Antitrust Enforcement Resources are Scarce
![handle is hein.journals/luclj41 and id is 441 raw text is: When the Going Gets Tight: Institutional Solutions
when Antitrust Enforcement Resources are Scarce
Michal S. Gal*
I. INTRODUCTION
The adoption of antitrust law is a necessary but insufficient condition
for it to affect social welfare. Laws remaining on the books will not
change the conduct of market participants unless other indirect
inducements for abiding by laws exist, such as moral incentives or legal
sanctions. Such laws will not enable jurisdictions to reap the benefits of
lowering private barriers to trade, which include reducing the ability of
market participants to reap supracompetitive benefits based on anti-
competitive acts and increasing the ability of others to participate in the
market game.
What, then, determines whether and how antitrust law will be
enforced? As elaborated elsewhere, antitrust is like a flower: in order to
bloom it needs soil (a supportive socio-economic ideology), pesticides
(tools to limit political economy influences), and water and sun
(efficient institutions).' Indeed, antitrust is not a stand-alone regulatory
tool; rather, it is part-and-parcel of a wider set of public policies in
pursuit of social welfare. As such, it is shaped and transformed by
existing socio-economic ideology and other policy tools that are
implemented. The experience of many jurisdictions clearly indicates
that it is only when the paradigms of public policy endorse market
functioning, rather than government action, as the cornerstone of
economic development, that antitrust begins to blossom.2 Antitrust is
* LL.B., LL.M., S.J.D. Associate Professor and Co-Director of the Forum for Law and
Markets, University of Haifa School of Law. Many thanks to Doron Rentsler for his excellent
research assistance.
1. Michal S. Gal, The Ecology of Antitrust: Preconditions for Competition Law Enforcement
in Developing Countries, in UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT,
COMPETITION, COMPETITIVENESS AND DEVELOPMENT: LESSONS FROM DEVELOPING
COUNTRIES 20,21 (Phillip Brunsick et al. eds., 2004) [hereinafter Gal, Ecology].
2. See, e.g., Ignacio De Le6n, A Market Process Analysis of Latin American Competition
Policy, UNCTAD Regional Meeting on Competition Law and Policy, San Jose, Costa Rica 1, 14
(August 2000) (stating that markets are flexible, evolving institutions that develop incentives](ViewImageLocal?handle=hein.journals/luclj41&div=21&collection=&method=preview&ext=.png&size=3)
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When the Going Get Tight: Institutional Solutions when Antitrust Enforcement Resources are Scarce
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