This slim yet insightful volume of essays explores, broadly, the task of establishing competition law systems worldwide. Originally a relatively niche, almost exclusively American (and latterly European) concern, competition law has experienced a rapid and rather remarkable upsurge in terms of acceptance and implementation in recent decades. The essays contained in this book provide an account of the adoption and development of competition regimes in six geographically – and economically – diverse countries worldwide. These are supplemented by contributions discussing aspects of the existing global legal framework aimed at supporting the expansion and harmonisation of competition law at the domestic level. In its approach, the book is primarily descriptive of differing efforts to date rather than prescriptive of any optimal approach to be adopted. Nonetheless, the preface begins with an observation garnered from development economics to the effect that “institutions matter” (p. viii), and this collection is particularly valuable to the extent that it reveals, albeit somewhat indirectly, the range of factors – political, economic, historical – that influence the direction and potential success of any new competition law system in addition to its formal legal text and enforcement context.
The volume begins with a short introduction by the editor, David Lewis, setting out the contents to follow. The book is posited as a companion piece to another work by the editor, entitled Enforcing Competition Rules in South Africa: Thieves at the Dinner Table (Cheltenham: Edward Elgar Publishing, 2013), a central conclusion of which is the need to understand the content of discrete competition systems within their particular domestic context. This idea is one that is echoed to a degree in the contributions that follow, although perhaps a more noticeable theme is the extent to which these factors can influence the acceptance – by government, the judiciary, industry, and/or the general public – of competition law as a whole, and thus the likelihood for its successful implementation. Despite its relative brevity, this introductory section raises a number of perceptive and interesting points about the role of competition law within society, particularly with respect to developing economies. Although the editor rejects expressly any impulse to “summarise or synthesise” (p. x) the material that follows, the ideas that he hints at within the introduction are, in themselves, rather compelling, and thus may deserve more detailed consideration, even in view of the choice to eschew editorialising.
The core of the collection comprises five essays that address experiences of developing competition law in six countries, namely Mexico, Hungary, South Africa, Thailand with a comparative assessment of South Korea, and Zambia. The breadth and diversity of social, economic, and political conditions that are reflected within this relatively small, and thus manageable, sample of competition jurisdictions worldwide is one of the true strengths of the work. In the course of just over 150 pages, the contributing authors consider the adoption of competition laws across four continents, in countries that have experienced significantly different degrees of economic development, and in respect of a range of diverse market and political circumstances, from the post-apartheid context in South Africa, to the post-Communist context in Hungary, to a market control measure adopted by a military regime in Thailand.
The general approach in each of these contributions is one of description mixed with a degree of analysis, covering historical origins as well as the contemporary competition law framework within each jurisdiction. A notable feature is the consistently high quality of each of the essays contained within the volume. As is the case with many edited collections, however, the particular focus of each of the individual contributions differs slightly.
The chapters covering Mexico, by Eduardo Pérez Motta and Heidi Claudia Sada Correa, and Hungary, by Csaba Kovács and Andreas P. Reindl, each focuses, specifically, on the manner in which history, politics, and economics have shaped the evolution of competition law within these jurisdictions. In this regard, readers may be reminded of the approach adopted by David Gerber with respect to the evolution of competition laws within Europe, in his influential work, Law and Competition in Twentieth Century Europe: Protecting Prometheus (Oxford: OUP, 2001, 2nd ed.) By contrast, the chapter on South Africa, by Janice Bleazard, focuses more narrowly on the challenge of realising a legislative ambition to use competition law as an instrument of macroeconomic policy in the face of judicial opposition. A comparative chapter by Deunden Nikomborirak, addressing both the Thai and South Korean experiences, examines the reasons why these countries have such differing levels of success with respect to the implementation of competition law in practice, despite relatively similar origins. Finally, the chapter on Zambia, by Thula Kaira, takes as its focus the relationship between competition law and small businesses, particularly within the informal economy – an often-overlooked issue of great relevance with respect to developing countries.
As noted, from the outset, the editor has resisted any urge to synthesise or generalise about the discrete experiences discussed in these essays. Thus, it is left largely to the reader to draw his or her own conclusions as to what these half-dozen examples tell us about the task of building new competition law regimes in general. This reader was struck perhaps most forcefully by the vivid accounts of the wide range and types of obstacles that a new regime may encounter in practice. These include judicial hostility, as in South Africa; diminishing public support for market-focused reforms, as in Hungary; residual structural market problems resulting from inadequate liberalisation or flawed privatisations, as have been encountered in both Mexico and Hungary; and a more basic problem of general legal ineffectiveness, resulting from a lack of both political backing and public understanding, as has been the case in Thailand. The Zambian experience poses fascinating questions about the appropriate role, if any, for competition law within developing economies: for example, should competition law protect small traders from more efficient competitors in circumstances where the former play a vital social role in maintaining the fabric of society in the face of inadequate provision by the State, or, conversely, should the informal economy itself be viewed as counter to antitrust principles insofar as such traders receive an unfair advantage by operating outside normal legal constraints?
An issue that is given less detailed direct consideration in these contributions is the question of why these countries have chosen to adopt competition law in the first place. In many instances – Mexico, Hungary, Zambia – it appears that competition law is viewed simply as an inevitable component of the shift towards a more open, less dirigiste, market-based economy. The difficulties that may stem from the lack of political, public, and industry “buy-in” resulting from such a passive approach to competition law are illustrated perhaps most clearly by the Thai example: although Thailand enacted its competition rules more than three decades ago, these provisions have never been applied to find an infringement. As Nikomborirak notes, the Thai experience demonstrates that “simply having a competition law does not guarantee effective enforcement” (p. 128). Thus, the task of building a new competition law regime, as the title of the book describes, appears to involve rather more than simply enacting competition prohibitions into law.
Conversely, efforts to use competition law more purposively as an instrument of industrial or social policy bring their own difficulties and dangers. In her contribution discussing the South African experience, Bleazard describes the initial ambition to use competition law as a means by which to reorient society by redistributing wealth and economic power in the post-apartheid era. Yet the considerable degree of judicial resistance to this approach, from a court system that is focused principally on protecting the rule of law, suggests that competition law may not always be the optimal or acceptable means by which to achieve such social goals. Similarly, portions of the original Mexican legislation were declared unconstitutional on the grounds of vagueness.
Moreover, in spite of its initial contention that the substance of competition law is conditioned by its distinct national context, another recurring theme within these essays is the extent to which both the goals and methods of applying competition laws, as they mature, have tended to embrace a more explicit economics-based focus. So, for example, the Mexican rules were amended in 2006 to provide that efficiency gains may provide an objective justification for otherwise anticompetitive unilateral practices, while, in Hungary, the law has moved from a “dominance test” to a “substantial lessening of competition” standard in merger review. Other common themes are the use of increasingly sophisticated analytical tools, and the strengthening of the enforcement framework to provide more effective investigative mechanisms and tougher sanctions for breach.
The country contributions are rounded out by two essays that consider various examples of what the editor describes as “multinational issues” (p. x) within competition law. Whereas the preceding essays enable the reader to draw common, potentially universal themes from individual experiences, the latter section provides a more overarching perspective on coordinated supranational efforts to encourage and support the growth of competition law globally.
The first such essay, by Eleanor Fox, John Fingleton, and Sophie Mitchell, addresses two interrelated themes. These are, first, the continuing divergences and gaps in the coverage of competition law worldwide and, second, the extent to which international organisations working in, or close to, this field – specifically, the Organisation for Economic Cooperation and Development, the United Nations Conference on Trade and Development, the World Trade Organisation, and the International Competition Network (ICN) – may serve to harmonise and extend the ambit of competition law. In particular, the essay focuses on the role of the ICN as a “grass-roots provocateur” (p. 180) in providing soft-law network-based solutions to many existing convergence problems. Although covering a topic on which much has already been written, including by these authors, the essay itself is succinct, well written, and insightful.
The second “multinational” essay, by Alberto Heimler and Frédéric Jenny, examines the use of regional agreements to further facilitate the development of competition law. Taking the European Union as the archetype of regional cooperation in this regard, the authors examine a series of such agreements involving developing nations in various parts of South America and Africa. They conclude that the institutional design of such agreements is crucial to their potential success, noting, in particular, the need for an effective competition enforcement framework.
Taken together, the essays contained within this collection provide a compelling account of the potential challenges – internal and external, legal and political – that a country may face as it endeavours to implement an effective system of competition law. Given that, to date, more than 100 countries have adopted antitrust regimes, the coverage of this work is decidedly non-exhaustive, at times almost impressionistic, in nature. Yet, despite this obvious limitation, this thoughtfully curated collection has much to offer, providing nuanced insights into an increasingly global phenomenon that has, as these essays demonstrate, inescapably local components nonetheless.
