Professional Documents
Culture Documents
Introduction .............................................................................................3
I Background ........................................................................................3
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Introduction
This paper is a brief report about a path breaking research project done in seven
developing countries with some experience of a competition law, but little
awareness generally.
Among its various achievements, the process of the project helped to raise the ante
considerably through a bottom-up process by involving a whole spectrum of
stakeholders in each of the project countries. Secondly, by comparing the
competition regimes, sharing experiences about problems and solutions, or at least
approaches. Thus, capacity was strengthened in the concerned countries
considerably at all levels.
I. Background
A good competition law and policy is a pre-requisite for any market-based reforms. In
as much as reforms are brought about to rein in unnecessary command and control
measures, a competition law ensures the promotion of a fair market, which is not
exploited by dominant businesses. But it is one thing to have a competition law and
another to have an effective competition law. The effectiveness of a law depends on
several factors: drafting, control, budget, control & independence, research &
investigation support, institutional infrastructure support etc. The overall policy
environment of the country also matters substantially and most importantly the
political awareness and will.
Given this background, the CUTS Centre for International Trade, Economics &
Environment (CITEE) has designed and is implementing a two-year research and
advocacy project entitled “The 7Up Project” from September 2000 in seven
developing countries of the Commonwealth, therefore the stylised name: 7Up. The
countries are: India, Kenya, Pakistan, South Africa, Sri Lanka, Tanzania and Zambia.
The project is being supported by the Department for International Development
(DFID), UK.
As the first step, the project has developed a research base in each of the countries and
compared the findings, with very interesting results.
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The main objective of the project is to establish the best way for developing countries
to have effective competition laws even in the most adverse circumstances like
resource constraint, lack of capacity, less manpower etc. The project showed how the
developing countries learnt from their own experiences as well as from each other’s
experience, whenever the researchers gathered. Sharing such experiences also helps
them to suggest policy responses to overcome the drawbacks, which prevent their
countries from having a good and effective competition regime.
• assess capacity building needs of the government, its agencies and the civil
society;
The preliminary activities under the project started on September 01, 2000. It
involved identifying the partner organisation in each of the seven project countries. A
Project Advisory Committee (PAC) comprising internationally recognised
competition experts was formed to guide the project implementation. Furthermore, an
Operational Strategy Note (OSN) was prepared to guide the micro processes and
methodology involved over the period of two years of the project duration. Lastly, a
Programme Evaluation and Review Technique (PERT) Chart was prepared to keep a
track of the project. The OSN turned out to be an extremely useful tool for partners to
keep track of their areas of work under the project, and as a whole too.
The project was formally launched at a meeting held in Jaipur, India in December
2000. As a first step to achieve the goals of the project, the partners prepared a
preliminary country report to give a brief description of the existing competition law
and other regulations, market position, socio-economic characteristics, etc. in each of
these countries. This was not a blueprint of the competition scenario but helped to get
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a good flavour of the country’s political economic situation, as well as inform the
researcher as to what the related issues are.
The research methodology and strategy involved the division of the project into two
phases, where the first dealt with the institutional framework for the implementation
of competition regimes in the project countries. The second looked into the specific
details of how competition issues/cases are dealt (or not) with special reference to
cross border competition concerns.
During the first phase of the project, Phase-I Country Reports were prepared by the
researchers. The Phase-I synthesis report, which is a comparison and collation of the
individual Phase-I country reports, was also prepared. These Phase-I country reports
have been printed and are now available at CUTS on request. The synthesis report is
also being published and will be available for distribution by October-November
2002.
During the second phase, a case study approach was adopted. The researchers selected
three case studies and effort was made to do at least two similar cases in all these
countries in order to facilitate comparison. Three case studies from each of the
countries have been prepared. The researchers are now busy in preparing the second
phase country reports based on the case studies and a survey of the stakeholders.
Simultaneously a Phase-II synthesis report drawing lessons from all these case studies
is also being prepared. This too will be published and available in October-November
2002.
On the basis of the research and field surveys done so far, the following points of
concern have emerged in the Project Countries:
• Out of the seven countries of the Project, Tanzania, and Zambia have
relatively new competition laws, while South Africa has enacted a new
law, having had one for quite some time. On the same lines, India, Sri
Lanka and Pakistan are in the process of adopting a new law. In Kenya, the
need is being felt for a new competition law or at least a thorough review
of the existing law in the change economic scenario both at home and
outside.
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• Competition law should be able to address the issue of protecting domestic
firms from unfair competition from the foreign companies. In other words,
it should promote fair competition rather than unbridled competition.
• Foreign donors could support capacity building programmes and also offer
financial assistance as start up funding, to enable the funds-starved
competition agencies in many of the 7Up countries without compromising
their independence. This was seen very vividly in the case of South Africa,
which has received substantial support from Norway to establish a very
good set up. Tanzania has just received such aid to implement its dormant
law.
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IV. Direct Impact of 7Up
4.1 The project has been noted as the first such study in the developing world, thus
many in the world are keenly awaiting its final results. It has already started showing
significant impact in the 7Up countries, both direct and indirect. There has been a
very obvious increase in awareness on competition policy and law issues. What is
more interesting is that the effects of the study are not limited to the project countries
only. It is having spill over effects in other developing countries also. Some of them
who did not have a competition law are now contemplating the formulation of one.
4.2 The project has increased awareness about the existence of competition policy and
law in the project countries substantially. The major contributing factor to this has
been National Reference Group (NRG) meetings that were held in these countries.
The formation and meetings of NRG further strengthened the working linkages of
many economic actors who hitherto had no direct interaction with each other, while
their work is aimed at achieving the common goal of economic development. This
was the bottoms-up approach and helped many doubting Thomases to understand and
appreciate the role of a competition policy and law.
4.3 In fact in Pakistan, there was a strong demand from the NRG members to make it
a permanent body: the National Competition Policy Council that will act as a forum
on competition and consumer issues and advocate with the government. Although it
was one of the motives behind forming the NRGs, it is encouraging to note that such a
proposal came spontaneously in the meeting rather than being encouraged externally.
4.4 Pakistan, the project helped to bring the traditionally ignored issue of competition
and to some extent consumer protection to the centre stage. At the NRG meetings, the
academics present felt the need to have closer cooperation among the civil society and
media and promised to encourage their students to pursue issues like competition and
consumer protection during the course of their research.
4.5 With the implementation of the project, a debate has been initiated among the
concerned quarters in Pakistan to look at the weaknesses of the existing legislation. A
new competition law is being considered there and a draft Bill in this regard has
already been prepared. The concerned authorities have taken note of the country
report and the NRG discussions, which will influence the final shape of the law.
4.6 In India, CUTS has been providing inputs to the new Competition Bill, which is
placed before the Parliament. The bill was referred to the Parliamentary Standing
Committee, which has had detailed discussions with different groups of stakeholders.
Considering the experience gained from the project and CUTS’ work in the area of
competition policy, the Consumer Coordination Council (CCC), the apex consumer
organisation in India, requested CUTS to represent CCC before the committee. CUTS
used this opportunity to share the learnings of the project with the lawmakers of the
country. Due to this advocacy, the government has taken on board several
suggestions, including the cartel-busting leniency and whistle-blower protection
provisions in the Act which were not there in the original bill.
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4.7 The project process also, like in Pakistan, has generated a demand for a permanent
policy body, where all stakeholders are represented. In India, this demand is easier for
the government to concede in view of the tradition and culture of having multi-
stakeholder policy recommendatory bodies on various issues, including consumer
protection. Further, the Government of India has asked CUTS to do a proposal on
capacity building for the new authority as soon as it is set up.
4.8 In Sri Lanka, the NRG has been a breeding ground of ideas and contacts,
allowing the flow of information between sectors that may not have interacted but for
the project. The project has been a motivating factor illuminating the current problems
and shortcomings evident in Sri Lanka’s competition policy and consumer protection
framework and pushing those with the power to make a difference. A new
competition bill is under consideration in Sri Lanka. It is expected that the Sri Lankan
country report and the NRG discussions will influence the final shape of the Bill.
4.9 In another development, when researchers from the partner visited the Fair Trade
Commission (FTC), they were asked to provide some research assistance on a case in
the pharmaceutical sector, on which the FTC could not achieve progress due to lack
of information and analysis.
4.10 A concern has been raised in Kenya and people feel drastic changes are required
in the existing competition law. The NRG in Kenya has also raised the demands of a
comprehensive consumer protection law and better regulatory mechanisms. The
government is seriously considering them and has referred the matter to the Law
Reforms Commission. In July and August 2001, soon after the 2 nd NRG meeting, the
programme in-charge at the partner organisation: Institute of Economic Affairs (IEA)
was requested by Kenya Television Network (KTN), one of the leading TV channels,
to appear in their programme to discuss competition in the mobile telephony sub-
sector.
4.11 Furthermore, following the 3rd NRG meeting, there was a full coverage of the
meeting in the most widely read daily in Kenya, The Nation. A few days after the
meeting, The Nation had a full editorial entitled, “Abuse of Consumer Rights”.
Drawing from the NRG meeting, the editorial concluded, “Clamming down on the
abuse of consumer rights heavily depends, of course, on the consumer ability to detect
cheating and defend his rights. We know from experience that laws alone are often
not sufficient. If we are to get to the level where manufacturers and retailers feel
obliged to do their duty, we will first have to promote consumer awareness”.
4.13 In Tanzania, there has been slow and inadequate implementation of a good
competition law. The total absence of a consumer movement in the country has also
been recognised as on of the main factors. In this regard they have solicited technical
and other assistance from CUTS to launch a consumer movement in the country.
Some youths have formed a consumer group and CUTS has provided them some
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technical support. A member of the NRG group, who was from the NGO sector,
requested the Senior Research Fellow of Economic and Social Research Foundation
(ESRF), Dr Flora Musonda to give a talk at the NGO forum on consumer protection
and competition. She also appeared on TV to discuss competition and consumer
protection issues. The local press now finds these issues to be important and is
covering them on continuous basis.
4.14 Through interaction with the NRG, the competition authority realised that it was
not very well organised and is now in the process of reorganisation. Likewise in
Zanzibar, which is a part of Tanzania and yet has its own trade and investment
policies, there is a move to establish a more comprehensive consumer protection
watchdog.
4.15 Another notable development in Tanzania that took place as a result of the 7Up
project findings is that the Foreign Investment Advisory Service (FIAS) of the World
Bank has launched a project there to assist the government in its effort to attract more
foreign direct investment (FDI) and maximise its impact on the economy. The main
focus of the project would be to analyse the relationship between competition policy
and anti-competitive practices and FDI.
4.16 In South Africa, where a good competition law and enforcement mechanism is
already in place, the existing consumer movement, although not very strong, has
resolved to take up competition issues more seriously. A demand for a comprehensive
consumer protection law in the country is also being articulated.
4.17 The current form of technical cooperation put at the disposal of the project
beneficiaries in mixed teams of Indian and Kenyan experts has become a key to
achieving a good learning experience in South-South cooperation. The work and the
collaboration of Indian and other Southern experts are also contributing to building
lasting solid relationships and to facilitate the present and future mutually beneficial
professional dialogue amongst Southern professionals interested in competition
issues.
5.1 As already noted, the popularity of the project is not limited to the project
countries only. It was mentioned at an OECD competition conference held in Paris,
on October 17-18, 2001. At the conference, on a question whether any research was
going on competition policy in the context of developing countries, the Chairperson,
Prof. Frederic Jenny, informed the audience about the 7Up project. The project was
mentioned again at the OECD Global Competition Forum, held in Paris on February
14-15, 2002 by the Chairman and other participants, including by Phil Evans, the head
of the delegation of Consumers International. CUTS also participated in both these
important meetings as a member of this delegation.
5.2 Dr Taimoon Stewart, Fellow, University of West Indies, who is also a member of
the PAC wrote an article on the 7Up project for a Trinidad & Tobago newspaper,
Guardian Life Column. The article covers briefly the lessons to be learnt from the
experiences gained from the project so far. Similarly, she presented a paper at the
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WTO-UNCTAD Symposium on Competition Policy in Geneva, on April 22, 2002,
which also included findings from the project.
5.3 Phil Evans of Consumers’ Association, UK, who is a member of the PAC and
David On’golo, Research Adviser of CUTS and the Country Researcher from Kenya,
participated in the WTO NGO Symposium during April 30–May 02, 2002 in a panel
discussion on competition policy, and brought out learnings from the project.
5.4 As a result of the growing popularity of the project, CUTS has constantly been
invited for several meetings, conferences and workshops outside the ambit of the
project countries to talk about the project and share the experiences gained. More and
more countries and people are interested to know as to what is happening and how
they can utilise the knowledge in the respect of their country.
5.5 In few ways that CUTS responds to information requests is through two
newsletters: 7Update, a bimonthly e-bulletin and ReguLetter, a quarterly newsletter.
This is other than briefing papers and booklets. Further, it has is also operating an e-
discussion group: CompetitionOnlineForum, which is quite active. This platform is
also used to put out various views and news, including the progress of the project.
5.6 As a recognition of the 7Up project and CUTS’ capacity in the area of competition
policy, it was given the responsibility to organise an international symposium on
“Competition Policy & Consumer Interest in the Global Economy”, in Geneva on
October 13-15, 2001 by the International Development Research Centre (IDRC),
Canada. The objective was to develop a research agenda for developing countries.
The meeting attracted participants from more than 30 countries: civil society
organisations (CSOs) from developing countries, few competition experts and
representatives from the permanent missions of the WTO. An advocacy document
based on the outcome of the meeting and analyses derived from the same has been
published and disseminated widely. This document has become quite popular and is
generating much interest in the area of competition policy and law.
5.8 In view of a large number of civil society representatives present at the World
Summit on Sustainable Development, Johannesburg, a workshop on “Competition
and Development” was organised in association with the Consumer Protection
Association of Korea. On behalf of CUTS, Olivia Jensen spoke, while Dobarah Akoth
and Arjun Dutta assisted in organising. The workshop was very interesting as
discussions on ‘development’ issues centred on the issue of ‘public interest’ and how
this window relates to development. Furthermore, it was agreed that an international
competition policy is eminently desirable for coping with cross-border abuses.
5.9 CUTS researchers, Nitya Nanda, participated in the first annual conference of the
International Competition Network (ICN) held in in Naples, Italy, on September 27-
29, 2002. CUTS is a member of the Advocacy Working Group of the ICN, which is
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an influential membership organisation of competition authorities from several
countries. It is only one of two NGO members, who are in the working group, though
not members of the Network, which is open to only competition authorities. He
shared some of the findings of the 7Up Project in the conference, which was also
referred to by many other speakers.
5.10 CUTS’ Secretary General, Pradeep S Mehta, was invited by the Competition
Commission of South Africa to speak on the “Role of Competition Policy in
Development” at an international seminar organised by them in March 2002. The 7Up
project was also discussed and deliberated upon at length at the Research Scoping
Meeting on Competition Policy organised by IDRC in Montevideo, on April 18-19,
2002 where some members of the project team were also invited.
5.11 CUTS was invited for a regional conference on competition law & policy,
organised by the Common Market for Eastern and Southern Africa (COMESA) and
International Law Institute of Uganda, at the end of November in Kampala. The
agenda of this meeting was to launch the COMESA project on a regional competition
policy. A special presentation on the 7Up project was done at the conference, while
representatives of the COMESA secretariat publicly acknowledged the work and
sought assistance from CUTS in implementing the civil society component of their
project.
5.12 Some of the other important events where CUTS representatives shared
experiences of the project are:
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project, while adviser Phil Evans made a presentation on how the
Consumers Association handles the issue of M&As in the UK.
6.1 CUTS has been receiving requests from many quarters to provide assistance and
advice on both one time and continuing basis. For example, CUTS was commissioned
by the Royal Government of Bhutan to formulate a comprehensive consumer
protection and competition law for the country. A hybrid consumer and competition
law, which could serve as some sort of a role model for small economies, was framed,
and Programme for Action was also designed.
6.2 Tribuna Ecuatoriana de Consumidores, wrote to say that the work done on
competition law and policy by CUTS has been very useful to them as in Ecuador they
are working on a project of competition law, a draft of which is in their Congress at
present.
6.4 Various queries are received continuously from different places, on competition
issues in the context of developing countries. For instance, a request for assistance
was received from an International law firm, White 7 Case, LLP in Washington, D.C.
who are doing some work on worldwide Antitrust Price-Fixing Survey. The relevant
documents were made available to them in both printed and electronic versions. In
this sequence requests have also been received from the Indian Law Society’s Law
College, Pune; India, British Institute of International and Comparative Law, London
and may other institutions.
6.5 CUTS’ Secretary General, Mehta, serves on the Centre Advisory & Research
Group of the Manchester University’s Centre on Regulation and Competition. This is
a DFID sponsored research Centre, which is looking at the issues of regulation and
competition, with a focus on development and poverty reduction.
6.6 Mehta also serves on the International Advisory Body of the Institute for
Consumer Antitrust Studies at Loyola University, Chicago. The Board would be a
way to learn about developments around the world and communicate them in order to
promote a vision of competition policy that includes but goes beyond the narrow view
of allocative efficiency as the only goal for antitrust.
7.1 The project has been able to meet with the seven set objectives of:
• evaluating the effectiveness of the competition regimes in the project
countries;
• raise awareness all around;
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• enable their economic actors to ensure effective implementation;
• assess capacity building needs;
• share experiences from other countries;
• help build constituencies, and
• promote sustainable networks.
7.2 The first phase of the project looked at what is available and the problems, in a
quantitative manner. The second phase looks closely at the cross-border issues, at the
regional and international level. The purpose of conducting case studies during the
second phase of the project was to find out whether the competition authorities in
these countries had dealt with cases of cross-border nature adequately. Whether they
made adequate investigation in this regard and if not, what were the reasons for not
doing so. The existence of any cooperation with the competition authorities of other
countries was also looked into. This kind of research would be useful in learning from
‘each others’ experiences and making recommendations for effective enforcement of
the law.
7.3 The advocacy component of the project involves awareness generation and
capacity building of all relevant actors. One such effort in this direction of building
capacity among consumer organisations in few African countries is by asking them to
write simple booklets on ‘Competition and Consumer Protection’ on the basis of their
own experiences and complaints received from consumers. These are being written by
consumer organisations which should result in development of a good understanding
of the competition problems in their countries, build their capacity and promote a
healthy competition culture. A demand for this has come from some of these African
countries where a need has been articulated by the consumer movement.
7.4 The Phase-I reports that have been published would serve as advocacy documents
and similarly Phase-II country reports would also be published as national documents
and distributed widely. A final advocacy document will be published at the end of the
project, sometime in November 2002. This publication would draw inputs from
Phase-I synthesis report and the Phase-II case studies. The two synthesis reports
carrying more substantive information would be published in order to provide
adequate support for the people who are more actively involved in drafting and
implementation of competition policy and law.
7.5 Efforts will be made to make NRG a permanent forum for debate and discussions
on competition policy. CUTS proposes to intensify its advocacy efforts at the
international level through its network, which it is already doing now. The project
outputs will provide additional tools for such advocacy efforts.
7.6 An electronic online discussion forum on competition and regulatory issues has
already been launched. This is attracting much attention and active participation by
competition experts and consumer advocates. It is probably the first of its type of a
discussion forum.
7.7 The project has had a tremendous multiplier effect. Its design and experience has
been successful in raising awareness and stimulating debate on these issues and
helping in reforms in competition and regulatory policies in the project countries.
Furthermore, there has been a demand from many other countries, especially from the
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Eastern and Southern Africa (ESA) and Southeast Asia that the 7Up project be
replicated in their countries. CUTS is planning to take up similar activities in another
seven ESA countries to be named as 7Up2 project. One major divergence of the
proposed project from the ongoing one will be that it will take up a group of countries
that do not have a competition law or have adopted one very recently and hence have
very little experience. Plans are also afoot to take up another similar project in a group
of countries in South and Southeast Asia, where too there is either no law, or if there
is one, it is not being implemented.
7.8 A demand has also been articulated to organise follow up programmes on capacity
building in the existing seven countries. Being situated in India, there will most likely
be a project on capacity building to be launched with the support of DFID-India. The
proposals for these follow up projects are under formulation and subsequent
negotiations with donor agencies. Many donors including the World Bank have
shown interest in supporting this activity.
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