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IndentureIt can be difficult to find ideology in the dry world of private law. Undergraduates are often attracted to the more controversial parts of the law – for instance, public law – where ideology is overt. The only real difficulty is, however, the need to look a little bit harder.

The case of M&S v BNP Paribas concerned the exceedingly dry topic of the implication of terms into a contract. This case in effect overturned the previous leading case, Belize Telecom. It was a commonly-held view that the effect of Belize Telecom was that the court could imply terms that were not expressly put in a contract simply with reference to the process of construing the parties’ intentions. The law was not constrained by the restrictive ‘officious bystander’ and ‘business efficacy’ tests. It was a case of determining what was agreed. But this was said to be ‘wrong in law’ in BNP Paribas.

What possible ideological change could this have wrought? I suggest that it reflects acceptance by the senior judiciary, contrary to previous trends, that the private law cannot be made wholly subordinate to what persons and institutions want it to be without reference to external norms and community standards – what Alastair Hudson calls ‘autopoiesis’. Instead, the courts are recognising that private law, to some extent, has to be subordinate to external norms and standards. In short, private law cannot be privatised.

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Northern Ireland Assembly Votes to Legalise Same Sex Marriage” proclaimed the headline in The Guardian. Few headlines have promised so much more than the subsequent story delivers. For in spite of the one-vote majority in favour of a change in the law in Northern Ireland in the Assembly on Monday, the DUP’s invocation of a “petition of concern” (POC) on the issue meant that it was able to veto the introduction of same-sex marriage in Northern Ireland. As Gerry Lynch put it, ‘it still felt like a punch in the plexus to finally secure a democratic majority through years of hard work only for it to be vetoed undemocratically’. With rich irony the Northern Ireland Act provisions designed to protect minority groups against predatory applications of majority power have been turned into a means of stymieing reform aimed at delivering marriage equality.

It wasn’t supposed to be like this. With the spectre of the Northern Ireland Parliament’s permanent Unionist majority dominating the drafting of the arrangements for the Northern Ireland Assembly at the time of the Good Friday Agreement, POCs were intended to maintain consociationalism within Stormont by requiring a super-majority and cross-community support where Northern Ireland’s Unionist or Nationalist parties considered that a measure threatened the interests of their community. The ability of POCs to block any legislative change has instead seen them increasingly applied as a strong-arm tactic to prevent changes to the law with the aim of preserving the status quo or extracting concessions in return for a POC being lifted. DUP measures, indeed, appear to be block signed by party MLAs with the issue to which they are to be applied being added to the form at a later stage. Public confidence in the Stormont Assembly’s ability to address the needs of society in Northern Ireland has plummeted.

Whilst the DUP’s stance on gay marriage might be out of step with opinion polling across Northern Ireland, it remains popular with its own core supporters and so the political incentive to wield a POC (ahead of next year’s Assembly elections) remains strong. But if the democratic institutions in Northern Ireland remain so dysfunctional, will the courts intervene to permit gay marriage? Legal challenges to the limitations are already underway in the Northern Ireland High Court. The UUP leader Mike Nesbitt, whilst describing opposition to gay marriage as being on the “wrong side of history” (whilst maintaining his own vote against change), has told his party conference that he expects the new law to be forced upon law makers through the courts.

Forcing law reform through judicial decision could unblock this particular impasse. The need to react to an adverse court decision might help the Unionist parties to soothe the evangelical elements amongst their support base, being “saleable” as a long-resisted reform that was forced upon the parties. All the better if the judgment is not issued until after the Assembly elections. And for people who want to get married, a win is a win, and they are not likely to sniff at the courts forcing the pace of change.

So should the courts intervene? Under section 6 of the Northern Ireland Act the legislation of the Northern Ireland Assembly is not valid law if it is outside the legislative competence of the Assembly (a concept which includes making a law which breaches ECHR rights). But as the Northern Ireland Assembly has not made a law banning Gay Marriage, just failed to enact one allowing it, the general provisions of the Human Rights Act (and its incorporation of the ECHR into UK Law) will apply.

Whilst the ECHR includes a right to marry (Article 12) the Strasbourg Court has to date refused to rule that it is discriminatory for states not to apply this right to homosexual couples. In July, in its latest judgment on the issue,Oliari v Italy, the Court maintained that as only 11 of the 47 states signatory to the Convention had to date accepted same-sex marriage, there was no European consensus in favour of reading such a right into the terms of the ECHR. Many Unionist politicians picked up on this point in Monday’s debate:

The European Court of Human Rights has ruled that same-sex marriage is not a human right, so this is not a rights issue. (Gordon Lyons, DUP)

There is no human right recognised by the European Convention on Human Rights or the European Court of Human Rights to same-sex marriage. It therefore cannot be and is not a rights issue, nor is it an issue of equality. Rather, there is a worked-up, phoney demand for rights where none does or should exist. There is no equality issue here. (Jim Allister, TUV)

These same politicians will eagerly and angrily decry any effort by the Northern Ireland courts to change the law on human rights grounds. But Article 12 is not the only applicable ECHR right. The Court has established that the relationship of a cohabitating same-sex couple living in a stable partnership falls within Article 8 ECHR’s protection of “family life” (Schalk and Kopf v Austria), this might provide a basis for arguing that, as same-sex marriages concluded in other parts of the UK are treated as Civil Partnerships within the Northern Ireland jurisdiction, the awkward legal transformation of a marriage into a civil partnership as soon as someone steps off a ferry or plane amounts to discrimination.

Moreover, the definition of marriage in Northern Ireland law – “the voluntary union for life of one man and one woman to the exclusion of all others” – rests on a nineteenth century judicial decision, Hyde v Hyde (backed up by secondary legislation – the Matrimonial Causes NI Order 1978). By altering this definition the courts cannot be accused of tossing aside legislation enacted by elected lawmakers, a fact which might embolden any judge concerned about the political backlash resultant from such a decision. They also have a much freer hand in terms of their powers under the Human Rights Act than they would have had if the definition of marriage was contained in primary legislation, if they can be persuaded to move ahead of Strasbourg on the issue of Article 12.

This room for manoeuvre makes the gay marriage cases crucial tests for the role of the courts in Northern Ireland’s system of government. On a range of issues from gay marriage, to the ban on gay blood donations to the strict limitations on abortion, judges in Northern Ireland are increasingly being confronted with cases which highlight the blockages in the Assembly’s law-making process. Some might decide that the time has come to chivvy the Assembly along.

Colin Murray.

handcuffsLast week, an appeal by a French prisoner to the EU’s top court against his voting ban revived the debate about prisoner voting rights in the UK. Colin Murray writes that although the appeal was unsuccessful, the ruling did not foreclose the possibility of future successful challenges to bans on prisoner voting. He suggests that it is highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate to their crime in the run up to the 2019 European Parliament elections, indicating the issue will continue to be a thorn in the Conservative government’s side.

It has been eleven years since the Fourth Section of the European Court of Human Rights issued the Hirst v UK judgement. In that time, the issue of prisoner voting rights has become the touchstone for the fraught relationship between the UK and the system of rights protection under the European Convention on Human Rights (ECHR). Whilst other crises (such as Abu Qatada’s deportation to Jordan and the reviewability of whole-life sentences) have been resolved or defused, the Strasbourg Court’s demand that the UK modify its blanket ban on convicted prisoners voting has remained an intractable source of conflict, inflaming the Conservative’s manifesto pledge to replace the Human Rights Act with a British Bill of Rights.

For all of the political fulmination upon prisoner voting in the run up to the 2015 General Election, the UK’s showdown with Strasbourg has of late settled into an uncomfortable stalemate. The UK is in continuing breach of its Article 3, Protocol 1 obligations and as such is subject to regular censure before Committee of Ministers’ meetings for its failure to execute the prisoner voting judgments. At the same time, however, the Strasbourg Court has made it clear, in Scoppola v Italy, that minimal reform of the law to extend the vote to short-sentence prisoners would satisfy the UK’s obligations, and in Firth v UK has denied compensation to UK prisoners for the breach of their rights.

The Court’s first olive branch has been snubbed (with successive Governments failing to respond to a Parliamentary Committee’s recommendation, almost two years ago, that short-sentence prisoners should be enfranchised). But the UK Government’s refusal to meet the Court half way is unsurprising, given the Court’s refusal to press the issue. Strasbourg’s denial of compensation ensures that David Cameron does not have to justify make embarrassing payments to prisoners, effectively downgrading the clash from crisis to a running sore point.

The détente between Strasbourg and the UK makes last week’s judgement of the EU’s top court, the Court of Justice of the European Union (CJEU), even more intriguing. Serendipitously timed for release to coincide with David Cameron’s speech to the Conservative Party Conference (and the ten-year anniversary of the Strasbourg Court’s judgement in Hirst), the CJEU’s judgement in Delvigne v Commune de Lesparre-Médoc caused such consternation that Downing Street was obliged to deny that the UK would change its ban on prisoners voting even before the decision was known. The binding effect of CJEU judgments in domestic law means that its intervention on the issue would be much harder for the UK Government to side-step (at least with regard to European Parliament and local elections) than Strasbourg’s rulings.

In the end, Cameron’s speech was not upstaged, with the Court accepting that EU law was not breached in the ongoing denial of the vote to a convicted murderer in France over a decade on from the end of his incarceration. But if the judgment isn’t exactly headline-grabbing, is Joshua Rozenberg nonetheless right to argue that it means that the UK Government should act now on prisoner voting?

In many respects, the Delvigne reference was easy for the CJEU to resolve. The reference by the French Court was poorly constructed, with the Court being supplied with much less background information to the question of EU law its opinion was being sought on than it would usually expect (opening the possibility of ruling the reference inadmissible). The claimant had not attempted to follow the process which existed in French law to lift his disenfranchisement. Moreover, as a convicted murderer, France could make arguments about the seriousness of his offence warranting the additional punishment of disenfranchisement. The Court accepted that in some cases disenfranchisement was compatible with the EU’s Charter of Fundamental rights. Two years earlier, in Chester and McGeoch, the UK Supreme Court had reached the same conclusion on the limitations of the right to vote under EU Law:

I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting, in relation to European Parliamentary and municipal elections, thereby making all convicted prisoners eligible to vote pending fresh legislation found to conform with European Union law … under [EU law] a ban on eligibility will be justified in respect of a very significant number of convicted prisoners.  (Lord Mance, para.73)

And yet, in spite of these unpromising aspects of this case, the CJEU did not foreclose the possibility of future successful challenges to prisoner disenfranchisement using the Charter. The Court rejected the argument of the UK Government, intervening, that EU law was not engaged by criminal law sanctions or was not a live issue because the case involved a French national challenging French Law, and therefore involved no “cross-border” element. The Court affirmed that Article 39(2) of the Charter, by which “Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot”, did not need any cross-border element to generate a fundamental right enjoyed by EU citizens.

This means that in certain cases, claims for votes by prisoners will engage a Charter right. In the run up to the European Parliament elections in 2019 it will be highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate, given that the ban on voting applies automatically irrespective of the level of criminality which triggered imprisonment (which can be much lower than the serious criminality at issue in the Delvigne case) and there is no avenue to challenge the ban (as there was in the Delvigne case). These factors were determinate in the CJEU finding that French law involved a proportionate restriction of the right to vote. Such claims will be hard for the UK courts to dismiss out of hand, and could at the very least trigger a reference to the CJEU for consideration (as they previously refused to do in Chester and McGeoch, because of the serious criminality of the claimants in that case).

“Victories” like this one are therefore hard for the UK Government to crow over, even if they do help to kick the issue into the long grass for a few more years. It may ultimately be better for the UK Government to respond when it is not being forced to by pressure from a European Court (not that successive Governments have not revelled in the image of “standing up to Europe”). But perhaps the most interesting aspect of the case is the degree to which the CJEU staunchly refused to engage with any of the ECHR jurisprudence on prisoner voting. The Advocate General’s Opinion, released this summer, reached broadly the same conclusion as the CJEU (that EU law was engaged, but that the ban was proportionate), but did so based on extensive reliance upon Strasbourg jurisprudence.

The CJEU, however, continues to fear that it might lose out to Strasbourg as the ultimate arbiter where EU law engages human rights questions. Last year, it refused to allow the EU to accede to the ECHR and in Delvigne, as with other recent cases, it has shunned any mention of Strasbourg in its decisions out of concern over letting Strasbourg’s influence grow by the back door. Prisoner voting rights are becoming a central feature of yet another intractable struggle over Europe’s institutional architecture for protecting human rights.

Colin Murray is Senior Lecturer in Law at the University of Newcastle

Image from Stop Revenge Porn Scotland Campaign

Image from Stop Revenge Porn Scotland Campaign

Dr. Nikki Godden (Lecturer in Law, Newcastle Law School) – nikki.godden@newcastle.ac.uk

This post was first published on Inherently Human: Critical Perspectives on Law, Gender and Sexuality 

Chris Grayling, the Justice Secretary, has announced that the Government is ‘very open to having a serious discussion’ about the problem of revenge porn, in response to the call from Maria Miller, former Culture Secretary, for a change in the law to address the ‘appalling’ practice ( Justice Questions, House of Commons, 1 July 2014 : Column 745). This ‘appalling’ practice, whereby men (most commonly) distribute intimate and sexual images or videos of women (usually partners or ex-partners) on the internet without consent, is becoming more prevalent in the UK. And the effects of revenge porn upon its victims can be significant. Media reports highlight that victims have experienced personal and professional degradation and humiliation which have, in some cases, led to suicide.

The gender dimensions to revenge porn cannot be ignored. First, revenge porn is typically not an isolated abusive incident in a relationship but rather is one – albeit relatively new – method of control and violation in a wider context of domestic violence (see Scottish Women’s Aid’s Briefing Stop Revenge Porn on this point). Secondly, the fact that it is by far more common for men to distribute images/videos of women and girls contributes to and entrenches the sexual objectification of women, the sexualisation of young people, and gender inequality more generally. As such, it is important that the Government address this growing problem. It seems that the way it will do so is to consider creating a new criminal offence, or amending existing sexual offences to capture all instances where pornography is distributed without the subject’s consent. However, while further criminalisation may be helpful, the focus should be on preventing revenge porn by better regulating internet behaviour, which is a dimension of resolving this developing problem that has typically been absent from public discussions and proposed responses.

It is fair to say that current criminal laws do not properly capture revenge porn, although some can and have been used to tackle the problem. For example, victims can pursue a criminal and civil case against the person who uploaded/published the image for harassment (Protection from Harassment Act 1997). Or, where the victim is a child, the published, distributed or possessed image/video will be classed as child pornography which attracts criminal liability (Protection of Children Act 1978, s 1; Criminal Justice Act 1988, s 160). However, current offences are not designed to address the problem of ‘revenge porn’, leading to doctrinal difficulties (eg proving a ‘course of conduct’ for harassment (Protection from Harassment Act 1997, s 7(3), (4)), and conceptual issues (for example, the offences of distributing or possessing child pornography do not capture the abuse the individual suffers). Stemming from similar concerns, new criminal offences have been created in some states in America (for example, New Jersey, Texas, Utah, Wisconsin, New York, Maryland, and California), Israel, and some Australian jurisdictions, while other countries, such asCanadaBrazil, and Japanare currently considering similar solutions.

Nevertheless, there are significant limitations to existing and new criminal offences where the remedy is directed at the person responsible for uploading the image. It is likely that in many cases it will be difficult to prove that a particular individual posted the image or video on the website, meaning a criminal or civil case may be unsuccessful. Evidence is lacking to prove that crime and punishment have a deterrent effect; and in relation to gender-based crimes, scholars and activists have argued for a long time that law reform alone is insufficient to prevent such crimes. Another point here is that women will be reliant on police taking complaints of revenge porn seriously, and responding appropriately. But as with rape, for example, it is likely that victim-blaming attitudes will influence decision-making in the criminal justice system, inhibiting the effective implementation of laws addressing sexual abuse. The view expressed by Hunter Moore, founder of IsAnyOneUp, a (now obsolete) revenge-porn website, may be shared by others:

‘Oh the girl crying because she sent titty pics to some fool who put it on the internet … Why would you protect those people… How about this, you take responsibility for your actions and stop pointing the finger at other people.’

This is not to say that further criminalisation is unnecessary or futile, but it is to say that, unfortunately, it is going to be of limited value. What needs to be paid serious thought is the possibility of regulating and creating remedies against the websites which host and propagate the images.

Regulations and remedies targeting websites are central. The websites in question tend to be run for profit – typically through the display of advertisements – and are often extremely profitable, with revenues in the order of thousands of dollars per month. They are, in other words, exploiting these images – and their female subjects – for their personal financial gain. For instance, according to Moore, his website was earning around $10,000 per month from advertisement revenue. Equally, from the point of view of the victim, what is far more important is preventing websites from publishing these images, and providing a quick and easy ‘take down’ process to have them removed. Consequently, the websites sometimes advertise takedown processes – but they often charge hundred of dollars for the service, and are frequently run by the site owners themselves.

The contrast with commercial and intellectual property law is stark. Regulations and mechanisms in these contexts are directed at the website hosts and which are focused on making it simple to compel websites to remove infringing material. As such, it needs to be investigated whether similar mechanisms could be used to tackle revenge porn. In addition, as it is spread across the world wide web, an international conversation is needed. The Coalition Government focusing on localised criminal offences is insufficient. The message must be conveyed that a wider view of the problem and solutions are essential.

 

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– Phuong D. Nguyen (LLB Law, Newcastle University) p.d.nguyen@newcastle.ac.uk

Undoubtedly, competition law is moulded to assure the process of competition in terms of consumer welfare maximisation and the efficiency of the market. Accordingly, on the process of achieving a perfectly competitive market, firms are required to properly compete with concentrations on price, quality, and innovation of products and services. However, there has been no subsistence of ‘perfect competition’ in several developing countries due to the failures of the market. Firms ‘in concentrated industries’ or firms ‘protected by barriers to market entry’ have a proclivity to exploit their market power to arbitrarily constrain the productivity, raise the price, or reduce the quality of products to pursue their monopoly profits. Evidently, such conduct happens in different geographical markets and jeopardises the stability of the market, and consequentially, consumers’ benefit. Developing economies are the most susceptive subjects. Hence, in resistance to anti-competitive conduct and forestall in its detrimental impacts, the adoption of a robust competition law regime in the realms of both developing and developed countries has been proposed. Nonetheless, in practice, it is apparently difficult to implement a general competition law regime due to a vast array of disparities between developing and developed countries. Unfortunately, in this essence, some challenges would be inevitably engendered towards developing countries

The embryonic development – whether the convergence emanated from the actual desideratum of developing world?

Recently, there have been a large number of issues derived from microeconomic conducts triggering repercussions towards domestic markets and the global market. Thereby, such behaviours nowadays have not been the ‘prerogatives of sovereign nation states’ but viewed as ‘legitimate objects of attention by the international community’. Accordingly, there is an extraordinary spread of competition law witnessed in developing countries adopting, or attempting to adopt, competition policy to ameliorate the adverse impacts that stemmed from the explosion of ‘monopolisation’ and ‘international cartels’ in the 1990s. In the previous period, the preciousness of competition and competition policy had not been the pivotal concentration of the developing world. However, nowadays, due to the propensity of economic transformation, many developing countries have modified their economies based on the economic theories of comparative advantage and liberalisation, replacing ‘centrally planned economies’. Correspondingly, competition has taken into account the need of progressing competition policy with appropriate facilitation.

Nonetheless, this trend has been criticised as immature and ‘simply a response to international pressure’. The beginning of the developing world’s conversion into the developed world mainly arises from the requisite of counteracting devastating effects generated by microeconomic conducts of local individuals, households and firms. Thereby, the pressing of globalisation has persuaded policy makers of developing countries to enact competition laws, rather than the competition laws themselves being inherently formed on the basis of the real growth of developing economies.

Divergences between developed and developing world causing obscurities in achieving a general competition law regime.

There is a plausible existence of a convergence between developing countries and developed countries reflected by the International Competition Network (ICN) in its report on the Objectives of Unilateral Conduct Laws. According to the report, both developed and developing states ‘are common to the competition regime as a whole’ to systemise an ‘effective competitive process, enhancing efficiency and protecting consumer welfare’. However, it is stated that ‘Spokespeople for developing countries often express the need for an antitrust paradigm different from that of the developed world. Spokespeople for the developed world tend to argue for universal norms, which may apply differently when facts are different.’ Thereby, in spite of attaining ‘basic’ goals of competition law, it is still a huge challenge for developing countries to reflect the aims and targets of competition law equivalent to those of developed countries. Since the developing world and the advanced world are not regarded as being on ‘equal footing’ in the level of development. The competition law system of the developed world has been entirely fashioned and progressed pursuant to competition-specific considerations and patterns in the line with international agreements and general growth of international economy whereas the developing world arrives at the urgency of globalisation through international commitments.

On the other hand, regarding the ICN report, ‘ensuring an effective competition process’ can be regarded ‘either as a goal as such or as a means to achieve other goals such as consumer welfare and efficiency’ as it has been recognised by 32 out of 33 agencies from both developed and developing countries as ‘a stand-alone’ to ‘achieve different and related competition law goals.’ Hence, the aspirations of ‘ensuring an effective competition process’ might be variedly discerned in developed and developing countries. In addition, with regard to conceivable vindications of convergence, it might be argued that the onset of competition law in developing countries is merely ‘the cut and paste’ strategy or legal transplant’ from developed countries to developing countries. The competition policies of the developing world have a Western-approach but they have different purposes in the context of competition. For instance, the competition policy of South Africa is on the far side of economic objectives when pondering non-economic objectives with the aims of ‘correcting social inequalities resulting from its history, promoting employment, advancing social and economic welfare, ensuring to SMEs an equitable opportunity to participate in the economy and increasing the economic opportunities of historically disadvantaged persons’. Another example is the Chinese Anti – Monopoly Law (AML), setting up benchmarks to focus on ‘national economic development’ with an uncertainty of how this ‘open criteria’ shall be interpreted. Accordingly, this has resulted in the issue of overriding nationalist protection of China in some cases, typically, in Coca Cola/Huiyuan; Mofcom, the Chinese merger control agency had blocked the merger between Coca Cola and Huiyuan with the core concern of consolidating domestic beverage manufacturers. Nonetheless, this decision has received heavy denunciation regarding its substance and the absence of translucency as argued in The Economist ‘The most benign interpretation of the rejection…is that it reflects a political response to critical comments by America’s new administration. The more worrying interpretation is that, even as China publicly urges other countries to commit to open their markets to Chinese investment and trade, it is imposing yet another barrier to outsiders.’

On the other hand, there has been an inclination of several developed economies demanding that developing countries adopt competition policy as a prerequisite for entering into bilateral free trade agreements. Thus, this might put the developing world in an exigent situation with more harm than good. The first obstruction for developing countries lies inherently in the role of government in the economy. Some developing countries’ governments may go beyond and extend their interference such as in cases of expropriation – stringent trade barriers, which might potentially pose risks towards the economy – instead of leaving economic affairs to be operated by private corporations according to principles of the market. Typically, the lack of credibility of commitments in both ‘vertical’ and ‘horizontal’ has entailed market failures, low standards of equilibria and output. Additionally, the reaction of major developing governments is trying to reduce by ‘self-help’ remedies which are superficially anti-competitive when the government’s capability of administration is circumscribed as its judges and regulators are prone to pressure and corruption.

In respect of governance, the lack of independence of competition authorities subsisting as ‘investigating’ authorities has been mirrored in several segments of the developing world. In particular, those organs in some developing countries have short-time proliferation and have insufficient powers to efficaciously exercise their duties to reach legally binding decisions. A good example is Conselbo Administrativo Defensa Economica (CADE), the competition agency of Brasil, which is accountable to investigate cases of cartel and abuses of dominance. Albeit the advent of the Competition Act, the Law 8884/94 demonstrated the conception of autarquia federal to dictate that CADE was dependent, some provisions of the law have sabotaged the independence of CADE. Specifically, its existence was merely two years, ostensibly short, which accordingly pressed it to seek political support in terms of re-designation. Additionally, CADE also received assistance from Economic Law Office (SDE), part of the Ministry of Justice, and a Secretariat of Economic Surveillance (SEAE), part of the Ministry Finance. Thereby, it is readily understood that member of the authorities like CADE are politically assigned, and obviously have standard duties falling outside the field of competition law.

In addition, the significant peculiarity of convergence in competition law is indicated by the extraterritorial assertion of jurisdiction with plentiful vindications of this appeared in the major parts of the advanced world such as EU and the American regimes. Notwithstanding, there are inherent difficulties derived from the heterogeneous enforcement, externally-based information gathering and the refusal and none of cooperation from foreign firms and foreign competition authorities. For instance, in the case of Genco/Lonhro, two South African undertakings were proscribed by the Commission for their dereliction of dominant duopoly (collective dominance) in the markets of platinum and rhodium. However, in Gencor v. Commission, Gencor alleged that the regulation of the Commission could not applicable to economic activity conducted in a non-member country and granted by the government of South Africa in addition to the contravention of the fundamental principle of territoriality pursuant to international law. In addition, the Commission did not have jurisdiction under the EU Merger Regulation to prohibit activities in South Africa which, furthermore, the Government there had approved. Moreover, even in the developed segments such as EU and the USA, a contradiction in decisions by the competition agencies is unavoidable. A good example is the case of Boeing/McDonnell Douglas merger which represents a conflict in the co-operation agreements in practice. More specifically, in this case, the FTC reached a majority in deciding not to oppose the merger between the two undertakings, while the European Commission seemed likely, at one point, to prohibit it in its entirety.

It is necessary that with the growth of ample transnational transactions, the desideratum of a general competition law is demanding. However, on the basis of mentioned analysis and evaluations, when adopting such a competition regime, the developing world as the latter is evidently confronting with hindrances in comparison to the former, the developed world. Hence, this still seemingly surrenders and impedes the adoption of a sturdy competition policy mechanism in the both advanced and developing countries.