[1] FORGIONI, Paula A. Os fundamentos do antitruste. 5.ed. São Paulo: Editora Revista dos Tribunais, 2012, p. 351.
[2] DOMINGUES, Juliana O. Defesa da concorrência e comércio internacional no contexto do desenvolvimento: os cartéis de exportação como isenção antitruste. 2010. Tese. (Doutorado em Direito) - Pontífica Universidade de São Paulo, São Paulo, p. 140-141.
[3] BECKER, Florian. The case of export cartel exemptions: between competition and protectionism. Journal of Law and Economics: Oxford: Oxford University Press, v.3, 2007, p. 99.
[4] ORGANIZAÇÃO PARA A COOPERAÇÃO E DESENVOLVIMENTO ECONÔMICO. Glossary of Industrial Organisation Economics and Competition Law. Disponível em: <http://www.oecd.org/regreform/sectors/2376087.pdf> Acesso em 22 jul 2013. No original: “An agreement or arrangement between firms to charge a specified export price and/or to divide export markets. Many competition law statutes exempt such agreements from the conspiracy provisions provided that the cartel does not lead to injurious effects on competition in the domestic market, e.g., give rise to price fixing agreements or result in reduction in exports. The rationale for permitting export cartels is that it may facilitate cooperative penetration of foreign markets, transfer income from foreign consumers to domestic producers and result in a favourable balance of trade.”
[5] AMATO Fillipo. International antitrust: What future? Journal of World Competition. 2001, v.24, n.4. Disponível em: <http://www.kluwerlawonline.com/toc.php?area=Journals&mode=bypub&level=5&values =Journals~~World+Competition~Volume+24+%282001%29>. Acesso em 10 jul. 2013.
[6] ORGANIZAÇÃO PARA A COOPERAÇÃO E DESENVOLVIMENTO ECONÔMICO. Export Cartels, Report of the Comittee of Experts on Restrictive Business Practices. Paris. 1974. p. 30.
[7] EVENETT, S.J. LEVENSTEIN, M.C. SUSLOW V.Y. International Cartel Enforcement: Lessons from the 1990s. Disponível em: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=265741> Acesso em 12. jul. 2013 p. 03.
[8] ORGANIZAÇÃO PARA A COOPERAÇÃO E DESENVOLVIMENTO ECONÔMICO. Recommendation of the Counsil concerning Effective Action against Hard Core Cartels. 1998, p. 4. Disponível em: <http://www.oecd.org/competition/cartels/2350130.pdf> Acesso em: 12 jul. 2013. No original: “a “hard core cartel” is an anticompetitive agreement, anticompetitive concerted practice, or anticompetitive arrangement by competitors to fix prices, make rigged bids (collusive tenders), establish output restrictions or quotas, or share or divide markets by allocating customers, suppliers, territories, or lines of commerce”
[9] Ibidem, loc.cit. No original: “the hard core cartel category does not include agreements, concerted practices, or arrangements that (i) are reasonably related to the lawful realization of cost-reducing or output-enhancing efficiencies, (ii) are excluded directly or indirectly from the coverage of a Member country’s own laws, or (iii) are authorized in accordance with those laws.”
[10] OMC apud DOMINGUES, Juliana O. Defesa da concorrência e comércio internacional no contexto do desenvolvimento: os cartéis de exportação como isenção antitruste. 2010. Tese. (Doutorado) - Pontifícia Universidade Católica de São Paulo, São Paulo, p. 132
[11]LEVENSTEIN, M.C. SUSLOW V.Y. The Changing International Status of Export Cartel Exemptions, p. 14-18. Disponível em: <http://deepblue.lib.umich.edu/bitstream/handle/2027.42/39155/897.pdf?sequence=1> Acesso em: 12 jul. 2013. No original: “We classify the legal treatment of export cartels into three groups: explicit exemptions, implicit exemptions and no statutory exemption. Explicit exemptions are created when a statute explicitly excludes export cartels from the substantive provisions regarding the scope of the antitrust law. (…) There are two types of explicit exemptions: those that require notification or authorization procedures, and those that do not. The notification procedures generally require businesses to apply for, and receive, permission from the government before, or concurrent with, participating in practices that may otherwise violate domestic antitrust law. (…) An implicit exemption for export cartels exists when a national antitrust statute applies only to anticompetitive conduct affecting the domestic market. Most countries (...), including almost all members of the EU, have implicit exemptions. Such an exemption is granted by negative implication, since the scope of the antitrust law is limited, and does not explicitly mention behavior affecting foreign markets. In some countries, there is no statutory exemption. (…) This occurs when price fixing is illegal, and there is not an implicit exemption, because the antitrust statute simply does not define the geographic scope of the market, nor is there an explicit exemption allowing price fixing for export-oriented activity. This category includes Luxembourg, Russia, Thailand, and Uruguay.”
[12]É o caso dos Estados Unidos, que exige a notificação pelas empresas associadas, ao lado de outros requisitos como a proibição de aumento, estabilização ou depreciação dos preços em seu território, para que, então, possam obter o U.S. Export Trade Certificate of Review e atuar livremente nos mercados estrangeiros. Existem, desde 2010, seis associações registradas perante o Federal Trade Comission, consoante informa o website da instituição. Disponível em: <http://www.ftc.gov/os/statutes/webbpomerene/index.shtm> Acesso em: 23 jul. 2013
[13]LEVENSTEIN, Margaret C. e SUSLOW, Valerie Y. The Changing National Status of Export Cartels Exemptions, p. 8. Disponível em: <http://deepblue.lib.umich.edu/bitstream/handle/2027.42/39155/89.pdf?Sequence=1>. Acesso em: 01 set. 2013. No original: “Since most countries do not require registration or notification, there is no way to measure whether the use of export associations themselves is declining, or whether they are still prevalent in countries where registration is not required.”
[14]ORGANIZAÇÃO PARA A COOPERAÇÃO E DESENVOLVIMENTO ECONÔMICO. Improving International Cooperation in Cartel Investigation. 2012. p. 47. Disponível em: <http://www.oecd.org/daf/competition/ImprovingInternationalCooperationInCartelInvestigations2012.pdf>. Acesso em: 23 jul. 2013 No original: “Often, these are not prohibited by their “home” jurisdiction, if the competition law only prohibits cartels which have an effect within its own territory. Several countries, including developed and developing countries, maintain explicit exemptions for export cartels, some requiring notification of their activities and a few others requiring official authorization. If the relevant documents are in the public domain, foreign competition authorities can obtain information about the cartels’ existence and membership. However, implicit exclusion of export cartels from domestic antitrust laws effectively cloaks their cartels from foreign authorities.”
[15]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO. Working Group on the Interaction between Trade and Competition Policy - Communication from Japan. 2000. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?Query=(@Symbol=%20wt/wgtcp/w/*%20)%20and%20(%20@DocumentDate%20%3E=%202000/01/01%2000:00:00%20)%20and%20(%20@DocumentDate%20%3C=%202000/12/31%2023:59:59%20)&Language=ENGLISH&Context=FomerScriptedSearch&languageUIChanged=true#> Acesso em: 23 jul. 2013. No original: “Since export cartels usually have a small impact on domestic markets, competition authorities, in general, are not in a position to regulate them. Even if they are, there still remains the problem of whether they are able to regulate, under national laws, practices that do not necessarily affect their domestic market.”
[16]O Sherman Act foi a primeira legislação efetiva de direito da concorrência com o precípuo objetivo de combate aos cartéis, nada obstante ter sido precedida pela legislação canadense em 1889.
[17]KIRSH Benjamin S. Foreing Trade Functions of Trade Associations: The Legal Aspect. University of Pennsylvania Law Review and American Law Register. Pennsylvania, University of Penssylvania Law School, vol. 76, n. 8. 1928, p. 894. No original “A more tolerant attitute than that evidenced by the American anti-trust policy is manifested by all of the governments of foreign nations. There are at present in no European country restrictive legal provision which embody the regulations and contain the drastic penalties of the American anti-trust laws”.
[18]KIRSH Benjamin S. Foreing Trade Functions of Trade Associations: The Legal Aspect. University of Pennsylvania Law Review and American Law Register. Pennsylvania, University of Penssylvania Law School, vol. 76, n. 8. 1928, p. 913.
[19]JONES Elliot. The Webb-Pomenare Act. Journal of Political Economy: The University of Chicago Press, Chicago, vol. 28, n. 09.1920, p. 757.
[20]ESTADOS UNIDOS DA AMÉRICA. Federal Trade Commission. Annual Report of the Federal Trade Commission for the fiscal year ended july 30, 1927. 1927, p. 23 Disponível em: < http://www.ftc.gov/os/annualreports/ar1927.pdf> Acesso em: 23 jul. 2013.
[21]GONTA, Cristina. Export Cartels – A Century of Fumble Attitudes. International Journal of Law and Jurisprudence Online Semiannually Publication. Jan.-Jun./2013, vol. 03, n. 01, p. 4-6 Disponível em: < http://www.internationallawreview.eu/fisiere/pdf/Cristina-Gonta---Export_Cartels_PUBL_14091_3.pdf> Acesso em: 18 jul. 2013.
[22]FOURNIER, Leslie T. The Purposes and Results of the Webb-Pomerene Law. Disponível em: <http://www.jstor.org/discover/10.2307/1807256?uid=2&uid=4&sid=21102603886133> Acesso em 18 jul. 2013.
[23]JONES, Elliot. The Webb-Pomenare Act. Journal of Political Economy: The University of Chicago Press, Chicago, vol. 28, n. 09. 1920, p. 766-767.
[24]Op. cit. loc. Cit.
[25]Op. cit. loc. Cit.
[26] Documento elaborado na Conferência de Havana, em 1948, com a assinatura dos cinquenta e três países, que culminaria com a criação da Organização Internacional do Comércio.
[27] ORGANIZAÇÃO DAS NAÇÕES UNIDAS. Carta de Havana, de 21 de novembro de 1947 a 24 de março de 1948. Disponível em: <http://www.wto.org/english/docs_e/legal_e/havana_e.pdf> Acesso em: 23 jul. 2013. No original: “ Article 46: Each Member shall take appropriate measures and shall co-operate with the Organization to prevent, on the part of private or public commercial enterprises, business practices affecting international trade which restrain competition, limit access to markets, or foster monopolistic control, whenever such practices have harmful effects on the expansion of production or trade and interfere with the achievement of any of the other objectives act forth in Article 1.”
[28] Ibidem, loc cit.
[29] EDWARDS Corwin D. International Cartels as Obstacles to International Trade. The American Review. Estados Unidos da América: American Economic Association, v.34, n.01. 1934, p. 331-333.
[30] EDWARDS Corwin D. International Cartels as Obstacles to International Trade. The American Review. Estados Unidos da América: American Economic Association, v.34, n.01. 1934, p. 331-333
[31] TAYLOR, C. apud GONTA, Cristina. Export Cartels – A Century of Fumble Attitudes. International Journal of Law and Jurisprudence Online Semiannually Publication. Jan.-Jun./2013, vol. 03, n. 01, p. 4-6 Disponível em: < http://www.internationallawreview.eu/fisiere/pdf/Cristina-Gonta---Export_Cartels_PUBL_14091_3.pdf> Acesso em: 18 jul. 2013, p.10.
[32] DRACHE Daniel. The Short but Significant Life of International Trade Organization: Lessons for our time. Disponivel em: <http://wrap.warwick.ac.uk/2063/1/WRAP_Drache_wp6200.pdf> Acesso em: 25 jul. 2013. p. 28.
[33] Ibidem, p. 23.
[34]DIAMOND Sidney A. The Webb-Pomenere Act and Export Trade Associations. Columbia Law Review. Columbia: Columbia Law Review Association Inc, v.44, nov./1944, p. 832.
[35]ESTADOS UNIDOS DA AMÉRICA. Export Trading Company Act of 1982 de 8 de outubro de 1982. Seção 3.03. Disponível em: <http://www.trade.gov/mas/ian/etca/tg_ian_002137.asp> Acesso em: 23 jul. 2013. No original: “A certificate of review shall be issued to any applicant that establishes that its specified export trade, export trade activities, and methods of operation will (1) result in neither a substantial lessening of competition or restraint of trade within the United States nor a substantial restraint of the export trade of any competitor of the applicant, (2) not unreasonably enhance, stabilize, or depress, prices within the United States of the goods, wares, merchandise , or services of the class exported by the applicant, (3) not constitute unfair methods of competition against competitors engaged in the export of goods, wares, merchandise or services of the class exported by the applicant, and (4) not include any act that may reasonably be expected to result in the sale for consumption or resale within the United States of the goods, wares, merchandise, or services exported by the applicant”.
[36]VICTOR, Paul A. apud MIURA, Maira Y. R. Os Cartéis de Exportação na Ordem Jurídica Brasileira – Uma Visão de Direito Comercial. 2010. Dissertação (Mestrado em Direito) - Faculdade de Direito da Universidade de São Paulo, São Paulo. p.135.
[37]Dados disponíveis em: <http://www.trade.gov/mas/ian/etca/tg_ian_002147.asp> Acesso em: 01 set. 2013.
[38]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO. Declaração Ministerial de Singapura de 13 de dezembro de 1996. Disponível em: <http://www.wto.org/english/thewto_e/minist_e/min96_e/wtodec_e.htm>. Acesso em: 01 set. 2013.
[39]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO Comunicação da União Europeia e de seus Estados Membros feita ao Grupo de Trabalhos sobre a Interação entre Políticas Comerciais e Concorrenciais de 26 de julho de 2001. Disponível em: <https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=69265,82 065,64539,42097,31528,77838,109216,34274,102275,65218,20795,108226,92076,68051,88954,76825,77842,80668,77613,84995,34053,2929,14139,19757,17906,8007,16238&CurrentCatalogueIdIndex=8&FullTextSearch=>. Acesso em: 01 set. 2013. “It is generally recognised that developing countries are particularly vulnerable to anti-competitive practices of an international dimension, such as international cartels, export cartels or abuses of a dominant position including by foreign-based multinationals. While many developing countries have recently established (or are in the process of establishing) a domestic competition law regime, their institutional capacity to tackle such anti-competitive practices is limited.”
[40]Neste contexto, tem-se as Comunicações do Japão ao WGTCP nº WT/WGTCP/W/53, WT/WGTCP/W/134, WT/WGTCP/W/156.
[41]Idem. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 30 de novembro de 2000. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009DP.aspx?language=E&CatalogueIdList=43538,42759,58169,18158,45943,19500,33826&CurrentCatalogueIdIndex=3&FullTextSearch=>. Acesso em: 01 set. 2013. No original: “Another view was expressed that the WTO was, very much, the appropriate body to consider issues concerning the interaction between trade and competition policy (…) the view was expressed that the WTO was certainly more than just an instrument for the balanced negotiation of concessions. It had a mandate to establish rules to govern international trade relations and to ensure that developing countries and other Members were not unfairly deprived of the benefits of liberalization. (…) The types of anti-competitive practices that had been discussed in the Working Group, including international cartels, export cartels and exclusionary practices with an international dimension, had clear distortionary effects on international trade as well as a harmful impact on development; accordingly, it was a bit strange to suggest that the WTO as an international organization should not concern itself with these practices.”
[42]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 8 de dezembro de 1998. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,58169,18158,45943,19500,33826&CurrentCatalogue
IdIndex=5&FullTextSearch=>. Acesso em: 01 set. 2013. No original: “Whereas competition policy focused on the effect of enterprise behavior on the welfare of consumers, trade policy tended to focus on producer interests, and was more amenable to capture by special interest groups. Competition policy was described as being more concerned with protecting competition and trade measures with protecting competitors. It was also stated that, in addition to providing a measure of protection, trade policy often had objectives which could lead to divergences from competition policy goals, such as raising revenue, promoting self-sufficiency and encouraging exports. Another difference referred to in this connection was that, whereas nationality was a key element in trade policy, it was not generally a consideration in competition policy. On the other hand, it was suggested that competition policy was susceptible to application in ways that gave excessive weight to the interests of national consumers and producers, to the neglect of the interests of consumers in other countries - as evidenced, for example, in the exemption of export cartels from many countries' competition legislation. Moreover, the point was made that competition policy sometimes encompassed producer-oriented goals such as the protection of small businesses or the pursuit of national industrial policy.
[43]Idem. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 11 de outubro de 1999. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,
58169,18158,45943,19500,33826&CurrentCatalogueIdIndex=4&FullTextSearch= > Acesso em: 01 set. 2013. No original: “The impact of import cartels, export cartels and international cartels on international trade and market entry by foreign firms was considered. It was said that the impact of import and export cartels was fairly obvious. Import cartels directly restricted competition in the domestic market between domestic and foreign suppliers by restraining imports of goods and services. Export cartels restricted competition in the foreign market to which exports were directed.”
[44]Idem. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 09 de dezembro de 2002. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,
58169,18158,45943,19500,33826&CurrentCatalogueIdIndex=1&FullTextSearch= > Acesso em: 01 set. 2013. No original: “A competition law should not discriminate between export and non-export firms. In other words, if bid-rigging and price or quantity-fixing agreements were prohibited in the national competition law, export cartels should be subject to the same provisions. The use of export cartels as a strategic trade policy to extract "rents" from foreign countries was unacceptable.”
[45]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 17 de julho de 2003. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,58169,18158,45943,19500,33826&CurrentCatalogueId
Index=0&FullTextSearch= >. Acesso em: 01 set. 2013. No original: “The point was made that so-called"export cartels" typically were conceived as mechanisms for domestic entities that lacked the resources to engage in effective export activity acting individually. As such, they often had pro-competitive effects in that they added additional players to the relevant markets and might bring innovation or lower prices. (…) If the effects of this kind of cartels were anti-competitive, there was no impediment today to any jurisdiction affected enforcing their competition law to prosecute their anti-competitive effects.”
[46]Ibidem, loc.cit. No original: “Responding to this point, the clarification was offered that the suggestion that had been put forward was simply that export cartels should not benefit from a blanket exemption from competition laws, which would exclude them even from scrutiny under a rule of reason (case-by-case) approach. In fact, most export cartels involved multinational companies, not small and medium-sized enterprises of the sort that might need to bind together for efficiency purposes.”
[47]Idem. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 8 de dezembro de 1998. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,
58169,18158,45943,19500,33826&CurrentCatalogueIdIndex=5&FullTextSearch=Acesso em: 01 set. 2013. No original: “It was said that the victims of export cartels would often include developing countries which were importing machinery or consumer products. Furthermore, it was suggested that the extent of such cartels and their deleterious effects on international trade and development might well be greater than was widely known, since most countries did not insist on registration of such cartels; they simply turned a blind eye to them”
[48]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 09 de dezembro de 2002. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,
58169,18158,45943,19500,33826&CurrentCatalogueIdIndex=1&FullTextSearch= > Acesso em: 01 set. 2013. No original: “Developing countries should be allowed to exempt national and international export cartels, since most developing countries' exporters or importers were mainly small scale and might need to bind together to counter the bargaining power of larger buyers or sellers from industrialized countries. As regards mergers and acquisitions, special and differential treatment should be provided for developing countries so as to enable their economies and their enterprises to achieve a critical mass, which could enable them to compete on an equal footing with enterprises of the same size on international markets. ”
[49]Idem. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 08 de outubro de 2001. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,58169,18158,45943,19500,33826&CurrentCatalogueId
Index=2&FullTextSearch=>. Acesso em: 01 set. 2013. No original: “In order to address such anti-competitivepractices in an effective manner, there was a need for both effective national competition policies and enhanced international cooperation at the bilateral, regional and multilateral levels.”
[50]Idem. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 11 de outubro de 1999. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,
58169,18158,45943,19500,33826&CurrentCatalogueIdIndex=4&FullTextSearch= > Acesso em: 01 set. 2013. No original: “Reference was made to measures to promote the progressive development of institutional capacities, including through enhanced international cooperation with developing countries, the existence of effective and transparent enforcement powers and the appropriate protection of confidential information. In addition, measures could be developed to support the competition advocacy role of competition authorities.”
[51]Ibdem, loc cit. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,
58169,18158,45943,19500,33826&CurrentCatalogueIdIndex=4&FullTextSearch= > Acesso em: 01 set. 2013. No original: “The point was made that positive comity tended to be a more useful tool in situations where competition agencies had developed a relationship of mutual trust and confidence, and where the agencies involved respected the principle of national treatment, had adequate investigative and remedial powers, and had a sufficient degree of independence. There was a risk of inaction, since it was up to the requested country to decide whether to initiate an antitrust investigation on behalf of the complaining country. The requested country might be reluctant to enforce its competition law at the expense of its own domestic industry and primarily for the benefit of the complaining country. Differences in the coverage and application of competition law could further constrain the role of positive comity.”
[52]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 17 de julho de 2003. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=43538,42759,58169,18158,45943,19500,33826&CurrentCatalogueId
Index=0&FullTextSearch= >. Acesso em: 01 set. 2013. No original: “The point was made that, as export cartels had little domestic effects, they could not be efficiently controlled or punished by the national authorities of the home countries. However, the countries that would be competent to pursue these cartels, namely those in whose markets the cartels operated, often lacked the necessary tools and information since the participating firms were located abroad. Given this, international cooperation was an appropriate means to fight export-related arrangements that had demonstrable anti-competitive effects”.
[53]Idem. Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council de 11 de outubro de 1999. Disponível em: < https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009DP.aspx?language=E&CatalogueIdList=43538,42759,58169,18158,45943,19500,33826&CurrentCatalogueIdIndex=4&FullTextSearch= > Acesso em: 01 set. 2013. No original: “Another suggestion was that the Group could consider developing a principle that would call for no less favorable treatment in terms of competition rights for citizens or firms of foreign countries than that accorded to firms or nationals of the host country. This could mean that national competition legislation could be applied to anti-competitive behavior that took place outside a country's borders, on the basis of minimum standards or principles which would be agreed through negotiations, for example on the treatment of hard-core cartels, cooperation to deal with export cartels or an agreed set of factors to be considered in the treatment of vertical market restraints.”
[54]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO. Decisão Adotada pelo Conselho Geral em 1º de agosto de 2004. Disponível em: < http://www.wto.org/english/tratop_e/comp_e/history_e.htm#julydec>. Acesso em: 01 set. 2012. No original: “In the “July 2004 package” adopted 1 August 2004, the WTO General Council decided that the issue of competition policy “will not form part of the Work Programme set out in that Declaration and therefore no work towards negotiations on any of these issues will take place within the WTO during the Doha Round”. The Working Group is currently inactive.”
[55]INTERNATIONAL COMPETITION NETWORK. Missão da Instituição. Disponível em: < http://www.internationalcompetitionnetwork.org/>. Acesso em: 01 set. 2013. No original: “The ICN's mission statement is to advocate the adoption of superior standards and procedures in competition policy around the world, formulate proposals for procedural and substantive convergence, and seek to facilitate effective international cooperation to the benefit of member agencies, consumers and economies worldwide”
[56]INTERNATIONAL COMPETITION NETWORK. Building Blocks for Effective Anti-Cartel Regimes. Disponível em: <http://www.internationalcompetitionnetwork.org/uploads/library/doc346.pdf>. Acesso em: 01 set. 2013.
[57]Para melhor compreensão sobre o tema: DOMINGUES, Juliana O. Considerações sobre os meios de combate aos cartéis internacionais de fixação de preço. Revista do IBRAC. 2004 e Defesa da concorrência e comércio internacional no contexto do desenvolvimento: os cartéis de exportação como isenção antitruste. 2010. Tese. (Doutorado) - Pontifícia Universidade Católica de São Paulo, São Paulo.
[58]JENSEN-ERIKSEN Nicolas. Predators or Patriots? Export Cartels as a source of power for the weak. University of Glasgow. Disponível em: < http://www.gla.ac.uk/media/media_168473_en.pdf >. Acesso em: 01 set. 2013, p. 01.
[59]MIURA, Maira Y. R. Os cartéis de exportação na ordem jurídica brasileira: Uma visão de direito comercial. 2010. Dissertação. (Mestrado em Direito) – Faculdade de Direito, Universidade de São Paulo, São Paulo, p. 71.
[60]MAGNUS, John R. apud JENSEN-ERIKSEN, Nicolas. Predators or Patriots? Export Cartels as a source of power for the weak .University of Glasgow. Disponível em: < http://www.gla.ac.uk/media/media_168473_en.pdf >. Acesso em: 01 set. 2013, p. 10. No original: “The cost sharing and economies of scale achievable through joint marketing of exports often yield dramatic savings. Companies serving international markets can reduce costs by pooling marketing expenses and sharing distribution infrastructure such as port facilities and ships. They can also share the cost of gathering and analysing trade information concerning, for example, foreign credit and market conditions, transportation opportunities and shipping requirements. These reduced costs result in market growth and lower final costs to consumers around the world. Risk sharing is important as well, as many areas of the world are simply too risky for individual producers –particularly small firms– to make the sustained investments necessary to sell there.”
[61]MIURA, Maira Y. R. Os cartéis de exportação na ordem jurídica brasileira: Uma visão de direito comercial. 2010. Dissertação. (Mestrado em Direito) – Faculdade de Direito, Universidade de São Paulo, São Paulo, p. 74.
[62]MIURA, Maira Y. R. Os cartéis de exportação na ordem jurídica brasileira: Uma visão de direito comercial. 2010. Dissertação. (Mestrado em Direito) – Faculdade de Direito, Universidade de São Paulo, São Paulo, p. 75.
[63]DESMARAIS, Frédéric. Export Cartels in the Americas and the OAS: Is the Harmonization of National Competition Law the Solution? Manitoba Law Journal Online. 2009. v.33, n.01. p. 10. Disponível em: < http://robsonhall.ca/mlj/content/export-cartels-americas-and-oas-harmonization-national-competition-laws-solution>. Acesso em: 01 set. 2013.
[64]ORGANIZAÇÃO PARA A COOPERAÇÃO E DESENVOLVIMENTO ECONÔMICO. Export Cartels, Report of the Committee of Experts on Restrictive Business Practices. Paris. 1974. p. 30. No original: “[E]xport cartels may maintain or create barriers to trade by forcing customers to pay high, non-competitive prices or by limiting the quantity of exports. In such cases they lead to a deliberalisation of international trade, which jeopardizes important economic goals, such as increasing economic efficiency and the optimum supply of commodities to consumers.”
[65]MARTINEZ, Ana Paula. Isenção antitruste relacionada a cartéis de exportação: Qual o caminho? In: Revista do IBRAC, nº 17, São Paulo: 2010. p. 42
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[67]Karel Van Miert. The WTO and competition policy: the need to consider negotiations. Palestra conferida em Genebra 1998
[68]ORGANIZAÇÃO MUNDIAL DO COMÉRCIO. Working Group on the interaction between trade and competition policy. Communication from Japan, WT/WGTCP/W/156, 2000
[69]SCHERER, Frederic M. Competition policies for an integrated world economy. 1994, p. 91-97.
[70] SHULTZ, Christian. Export Cartels and Domestic Markets. Disponível em: <http://link.springer.com/article/
10.1023%2FA%3A1021584524920#page-1>. Acesso em 01 set. 2013.
[71] ORGANIZAÇÃO PARA A COOPERAÇÃO E DESENVOLVIMENTO ECONÔMICO. Export Cartels, Report of the Committee of Experts on Restrictive Business Practices. Paris. 1974, p. 50. No original: “It is easy to conceive that the efforts to achieve a common export policy and the exchange of information on prices, costs, production lines, capacities, sale policies, etc., may influence the domestic competitive conduct of participating firms. Thus, the “side effect” of most pure export cartels may be a restraint of domestic competition mainly through conscious parallelism. This is all the more likely when it is realized that many export agreements probably impose a cost on the parties concerned in the form of exports foregone. Not only will price rigidity imposed by an export agreement tend to prevent member firms from meeting foreign competition but the agreed price level itself will tend to reflect some average of the costs of all members rather than those of the most efficient members. If the more efficient firms incur losses in export markets the assumption must be made that they obtain compensating advantages on the domestic market by means of the restraints of competition previously mentioned.”
[72]SWEENEY, Bernard. Export Cartels: Is there a Need for Global Rules. Social Schience Research Network. Disponível em: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1147445>. Acesso em: 01 set. 2013. No original: “some exemption for developing states seems justified. However, the exemption should only apply in so far as the export cartel is exporting to a developed state. Where the cartel is trading with another developing state, no exemption should apply”.
[73]ORGANIZAÇÃO PARA A COOPERAÇÃO E DESENVOLVIMENTO ECONÔMICO. Export Cartels, Report of the Comittee of Experts on Restrictive Business Practices. Paris. 1974. p. 30.