Competition Law in South Asia: Policy, Diffusion and Transfer
By Amber Darr
Cambridge University Press
ISBN: 978-1-009-24717-7
400pp.

Competition law is having a Renaissance moment worldwide, as legislatures struggle to keep pace with the rapid advancement of technology and the new world of massive conglomerates. It is now the norm for corporations’ earnings to outstrip the GDPs of most countries and a consensus is appearing in the public to reign in anti-competitive practices and boost consumer protection.

With the bullish Lina Khan heading the Federal Trade Commission in the US, what was once an obscure and highly technical field of law is now constantly seen in the news.

The subject is no different here in Pakistan. When the Competition Commission of Pakistan (CCP) was established several years ago, it was given sweeping powers that it promptly used. The layman saw several sweeping judgments against various cartels reported widely in the media.

However, the nuances behind those judgments and the lack of subsequent enforcement have left many in the public wondering about the role of the CCP in the region. Thus, there was a pressing need to conduct research and produce a narrative that removed some of the misconceptions surrounding the subject.

Based on her PhD dissertation, a book by a legal scholar surveys competition legislation across South Asia and provides insights into why its enforcement has been lax in countries like Pakistan while it has been more muscular elsewhere

In her book Competition Law in South Asia, Dr Amber Darr does exactly that. The book is a prescient, concise and easy to understand look into the current status of competition laws in the region. Dr Darr is a meticulous researcher and does her infallible reputation justice by laying out the ins and outs of the current regime. Competition Law in South Asia is a pioneering text of its cannon.

As a professor of competition law at the Lahore University of Management Sciences (Lums) for many years, I yearned for a local text of this depth and breadth that I could assign to my students. Even apart from its utility as a text for students, Pakistan (and the region as a whole) was missing a deep, well-thought-out look into local competition laws and the current enforcement scenario. The book is a useful guide for practitioners and students alike.

The book begins with some interesting personal anecdotes from Dr Darr’s days as a legal practitioner in Pakistan. She then sets the premise for the rest of the book, which has grown out of her PhD research. Dr Darr argues that, while competition legislation was adopted in India after debates for well over two years in a range of democratic institutions, the adoption in Pakistan was largely a World Bank-led effort. This has facilitated the implementation of competition laws in India whereas, in Pakistan, competition enforcement has all but petered out.

Dr Darr argues that “for either country to achieve meaningful competition outcomes and to realise the economic benefits of a competitive society, it would have to strike an appropriate balance between the international and domestic legitimacy of its competition legislation.”

On further reading, we find out that, while Pakistan may have made efforts with regards to its international benefactors, the legislation clearly does not enjoy the domestic legitimacy that it should have.

Interestingly, efforts to adopt competition protection measures in various forms have proceeded almost concurrently in most countries of the region. Although some regimes may be more robust than others, as it stands, India, Pakistan, Bangladesh, Nepal, Sri Lanka, Maldives, Bhutan and even Afghanistan have all adopted some form of antitrust legislation.

The book starts off with an in-depth look into the laws governing India and Pakistan, their history, drafting and subsequent implementation. It then provides a brief look at the same process for the remaining South Asian countries.

While Dr Darr does an excellent job in providing context and guidelines for the current competition scenario in South Asia, a more in-depth look is needed for countries other than India and Pakistan for the book to truly encompass the entire region.

The book is a prescient, concise and easy to understand look into the current status of competition laws in the region. Dr Darr is a meticulous researcher and does her infallible reputation justice by laying out the ins and outs of the current regime. Competition Law in South Asia is a pioneering text of its cannon.

I was personally interested to learn more about Bangladesh’s enforcement scenario at the moment, given its rapid advancement and large industrial conglomerates. This may be because the ‘South Asian six’ — as Dr Darr calls them — have not fully operationalised their competition regimes until the point of writing.

However, underlying enforcement through various intellectual property, consumer protection and/or contractual laws would have been interesting to read about and useful as a multinational legal practitioner.

Towards the end, Dr Darr also takes a brief look at competition in the digital age, which is the hot topic worldwide these days, and one would be interested to read a more in-depth offering for that subject. Briefly summarising the e-commerce laws in the region, she then outlines the significant competition challenges raised by digital e-commerce platforms.

Competition authorities worldwide are struggling with defining markets in this particular field and more cutting-edge research, both from an economics and a legal perspective, needs to be undertaken to find the best pro-consumer solutions.

At the end, the book briefly provides solutions for bridging the implementation gap, by outlining the economic profiles and challenges of South Asian countries. It analyses whether such multilateral packages of economic and institutional reform address development. The argument is that, for developing countries to fully enforce rather than merely “adopt” competition legislation, a convincing argument must be made that such implementation would spur domestic productivity.

Dr Darr notes that “In the South Asian context, it may also be important to make governments appreciate that rigorous competition enforcement would break up old, politically supported market power, attract fresh capital investment and entrepreneurship and encourage both investors and entrepreneurs to adopt innovative and process strategies.”

And therein lies the rub. For the mafia-infested economies in countries such as Pakistan, are we ready to break the mould and step forward into the new decade with a revitalised economy? Or are we so beholden to the political chokehold on our industries that policymakers and courts alike would merely sit back and watch the industries wither to dust?

Considering the size of the various South Asian economies and the prevalence of deep-rooted corporations and industries, the lack of such scholarship into antitrust laws was surprising at best and pitiful at worst.

Dr Amber Darr has always been a beacon of light in the often murky waters of disinformation regarding the competition scenario in Pakistan. Through her PhD dissertation, and now this book, she sheds some light on the subject, making it clear to understand, not just for practitioners but also for laymen who have an interest in the topic.

The reviewer is a barrister, who read law at Cambridge University. She has advised multinationals and major conglomerates on competition laws across South Asia and the Middle East and taught competition and anti-trust law at Lums. She can be reached at maria.khan@irfanandirfan.com

Published in Dawn, Books & Authors, June 16th, 2024