Final Report - World Trade Organization

hand, in its policy on reforms, the Indian law was
diluted in 1991 to exclude merger control, and it
remained in the news mainly on its actions on unfair
trade practices. To that extent, and in spite of the
fact that the Indian Consumer Protection Act, 1986
too covers UTPs, it had developed a popular image
because of its actions on UTPs. However the new
2002 law has excluded UTPs from its coverage and
it has yet to be seen as to how it will gain popularity.
Other laws, such as in Zambia, Tanzania and Sri
Lanka cover UTPs, but the ones in South Africa,
Pakistan, Kenya and now in India, have not covered
UTPs. Many jurisdictions in the world, such as the
USA, Australia and others include UTPs, which help
in image building and thus public acceptance of their
pure competition related cases.
Most of the laws deal with structure rather than
conduct, except in the case of South Africa. India
had ‘structure’ as its main plank in the 1969 law, but
the new 2002 law has shifted entirely to ‘conduct’.
It was stated by the Finance and Company Affairs
Minister in the Parliament: “It is not dominance, but
abuse of dominance, which will form the bedrock of
the new competition law”.
Dealing with conduct is more complex than structure,
as unless the agency has sufficient resources it cannot
build up a good case for prosecution. That will be a
big challenge for the new authority in India, and indeed
all other developing countries.
The first phase of the 7-Up Project was designed to
compare the institutional framework of the project
countries’ competition regimes, as that would enable
a comparison which will be easy and objective.
Further, it could be done within a short time frame.
On the other hand, if one were to compare the
performance of the competition regimes, it would
entail subjective assessment. That would have been
rather difficult and politically problematic. Further, it
would have entailed a longer time frame. Even the
basic survey about the institutional setup took a
substantially longer time period. The survey
questionnaire is annexed at Annexure 4.
Secondly, in both the phases, the project had another
interesting component of a bottom-up approach by
involving a variety of stakeholders including policy
makers and competition authorities. This helped
immensely in raising the profile and the basic issues
of a competition regime and competition culture. The
2 nd phase of the project dealt with cross-border issues
that were dealt with (or not) by the competition
authority, and the awareness about them among an
aware cross section of stakeholders.
As part of the process, a multi-stakeholder national
reference group (NRG) in each country was
established to discuss the issues, the 1 st phase and
the 2 nd phase county reports. This helped to deliberate
on several issues, including subjective ones, which
included the approaches to competition cases. Thus
many dimensions of the competition regime in the
country were discussed, both in isolation and in
comparison with the countries in the project
specifically and other countries outside the project
area.
This chapter covers the inferences drawn from the
research. This includes the discussions at the NRG
and the project review meetings, which were held
over time. A brief report of the NRG meetings and
the review meetings are carried in appendices.
On the basis of the research, the learnings and
recommendations are divided into four parts:
l Operational issues
This part deals with the institutional framework
and implementation issues mainly
l Institution and capacity building
What type of institutional and capacity building is
required
l International cooperation
Speaks about cooperation on capacity building
and handling cross-border issues etc
l Scope and coverage
Best approaches in defining the scope and
coverage of the law
8.1 Operational Issues
Although in several countries the laws themselves
would benefit from some adjustments, the main
problems the 7-Up countries are facing concern their
implementation. In general, the competition agencies
in the project countries are understaffed, lack
resources, etc. See tables 7, 8 and 9 for a brief outline
presented in a matrix format.
1. Inadequate budgets, especially in the South
Asian countries.
Firstly, having the adequate amount of funding is one
of the most crucial factors for any arrangement to
be effective. Indeed the agency can be well funded
but, for example, if it doesn’t have the necessary
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