Abstract
The post-1980 global market reforms have created a massive wave of legal production. Competition and antitrust legislation — as well as agencies to oversee such laws — have been among the most important sediments of this wave of neoliberal institutional formation. In this article, I ask what we can infer about the declining import of territoriality given the institutionalisation of global, neoliberal competition regimes. Considering the practice of defining the ‘relevant market’ within competition law and economics, along with Michel Foucault’s conceptualisation of neoliberalism, I argue that the notion of ‘the market’ emerges as a discursive tool to organise a complex and fluid network of relations within neoliberalism. This, I argue, calls for a look beyond territoriality as a strategy of sovereignty, looking further to forms and institutional grids that capture and organise networks in their fludity. ‘The market’ is one such authoritative grid.
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Notes
There are various names given to the body of laws and practices that I study here. ‘Competition law’ is generally used in Europe, whereas ‘antitrust law’ is used in the United States. ‘Anti-cartel law’ may be used similarly. In this article, I will refer mainly to competition and competition law.
Sassen (2008: 237) also argues that ‘there has been a sharp increase in [the number of countries] that have adopted [competition] policies or reinvigorated inactive ones. By the late 1990s more than seventy countries had something resembling Western antitrust rules, compared to forty in 1970’. See Kronthaler and Stephan (2007: 140–41) for further details about the number of countries adopting competition laws and their timing.
Trying to define what competition laws are, or their function, is indeed a tricky enterprise due to their unavoidably political nature. These definitional endeavours are themselves in need of deconstruction at a moment in history when new technologies of governance and economic management are becoming widespread, creating their own legitimacy and justification. What is posited here is a working definition and deconstructive approach, one that reads competition law through sociological theory. For a recent critical study of competition law and economics, see Hubert Buch-Hansen and Angela Wigger’s (2011) study of the emergence of competition regulation in the European Union, which offers a critical political economy perspective and, as such, steps outside of the language and claims of competition law to analyse the body of legislation and its development. Gerber’s recent book, Global Competition: Laws, Markets and Globalization, while not as critical as the aforementioned source, offers a highly informative, well-researched resource for research into globalisation and competition law.
Also see Selby (2007) for a discussion of the ways Michel Foucault’s work has been appropriated in International Relations.
In fact, extra-territorial application of competition law has been analysed and debated within the world of competition law. In this article, I do not discuss these mostly technical works simply because such a discussion does not contribute to the analysis in this article. Interested readers can consult Buxbaum (2005, 2009) and Gerber (2010) for an overview of debates within the legal field.
Check Nguyen (2012) for a discussion of a number of such tests.
See Mitchell (2000: xiii; 2002) for an informative discussion of the representation and materialization of categories.
Such a statement, that law is losing to economics, is perhaps too broad and bold. But as James Boyd-White (2008: 12–15) makes clear, the relationship between the economic and legal discourses is a struggle for the hegemony of the former over the latter — a sort of disciplinary imperialism. For a lengthier discussion, see Boyd-White (2008). Lianos (2009) similarly discusses the ever-increasing occurrence of ‘economic transplants’ in the field of law, that is islands of technical, economic concepts and language within law that stay intact and are not translated into traditional legal language. See also Davies’ (2010: 71–76) discussion of the shift from legality to efficiency in this regard.
Such reaching out happens, for instance, when an American corporation like Microsoft or, more recently, Google, faces antitrust charges in places outside of their origin, such as in Europe. Similarly, companies engaging in mergers must generally get permission from the local competition authorities of all countries in which they have branches. Thus, competition authorities can be said to have a (little) say on how global corporations behave. But this is exactly one of the questions with which I suggest mainstream legal scholarship on competition law should try to grapple: the question of its extraterritorial application.
See Sassen (2008). Despite this methodological point, I do not fully concede to Sassen’s analysis. Sassen insists that territory will always be part of the organising logic of any system, including globalisation; even systems that appear to be wholly de-territorialised, like computer networks, have their territoriality. I suggest once again that while territory is always going to be important, we need to be open to thinking beyond territory.
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Türem, Z. ‘The market’ unbound: neoliberalism, competition laws and post territoriality. J Int Relat Dev 19, 242–262 (2016). https://doi.org/10.1057/jird.2016.5
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DOI: https://doi.org/10.1057/jird.2016.5