Confucian bureaucracy and the administrative enforcement of competition law in East Asia
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0743-1759
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North Carolina journal of international law, 2018, Vol. 43, No. 1, pp. 1-71
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MARQUIS, Mel, MA, Jingyuan, Confucian bureaucracy and the administrative enforcement of competition law in East Asia, North Carolina journal of international law, 2018, Vol. 43, No. 1, pp. 1-71 - https://hdl.handle.net/1814/60524
Abstract
The present article considers the cultural legacy that underpins certain shared features of administrative competition law enforcement in East Asia. The article focuses on points of continuity between centuries-old bureaucratic practices and modern administrative structures. While competition law and policy are today making important strides in some of the countries concerned, old traditions have sometimes impeded more complete faith in competitive, open markets. As we suggest, the traditional adherence of these countries to a Confucian model of administration helps to explain the historically comprehensive programs of industrial policy in this region. The article recounts the influence of the Confucian heritage on the relevant countries and discusses the bureaucratic characteristics that derive from that cultural tradition. The historical and cultural shaping of the administrative model of competition enforcement in East Asia can be seen in this light. We also question the desirability of this model and the soundness of its assumptions, such as the notion that the decisions of bureaucrats need not be closely controlled by an independent judiciary. In the absence of far-reaching reforms such as the abandonment of an administrative model, which would entail profound upheaval, less radical improvements are possible. In short, more effective enforcement of competition law in East Asia requires a modernization of national bureaucratic systems. The mere restructuring of a competition agency, though commonly advocated, is unlikely to suffice. The quality and effectiveness of law enforcement is more likely to be secured by adopting reforms which: (i) enhance formal and actual independence from government; (ii) increase accountability through legal and judicial checks and balances; and (iii) promote predictability and certainty through transparency in rules, policies and decision-making. The implementation of such reforms will require governments to re-think their conventional practices in hiring, training, rotating, and evaluating agency officials.