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The Role of Institutions in Generating Successful Legal Transplants: A Comparative Analysis of the Adoption of Competition Laws in India and Pakistan
Published online by Cambridge University Press: 27 May 2019
Abstract
In recent years, several developing countries have adopted regulatory laws to remain relevant in an increasingly globalized world and to make a successful transition from protected to market economies. Whilst developing countries and multilateral organizations supporting them are aware that in order to succeed adopted laws must be compatible with the context for which they are intended, there is less clarity as to the processes through which compatibility is generated. This article draws upon comparative law and development economics literature to argue that the compatibility of a transplant is shaped by the interplay of institutions through which it is adopted. The article also argues that in addition to compatibility, a transplant must enjoy a degree of legitimacy to be effective in the adopting country and the institutions which generate compatibility may also enhance such legitimacy. In order to understand the compatibility and legitimacy-generating potential of the interplay of adopting institutions in developing countries, the article examines and compares the adoption of competition laws by India and Pakistan in 2002 and 2007 respectively. The article also examines the impact of legitimacy on the post-adoption interpretation of competition law transplants and its significance for their implementation in either country.
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Footnotes
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PhD (University College London). Barrister, England & Wales. Advocate, Supreme Court of Pakistan. Senior Research Fellow, UCL Centre of Law, Economics and Society. The author is grateful to Professors Josef Drexl, Frederic Jenny, Ioannis Lianos, and Riz Mokal for their comments on earlier versions of this article.
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45. ibid 2.
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51. 1935 Act, s 5.
52. ibid s 9.
53. ibid s 7.
54. ibid s 18.
55. ibid s 30.
56. ibid s 42. An ordinance promulgated by the governor general took effect as an act of the legislature, but it lapsed unless ratified by the legislature within six weeks of its re-assembly.
57. ibid ss 46–90, 100.
58. ibid s 203.
59. ibid s 207.
60. 1950 Indian Constitution, arts 52–53, 76.
61. ibid art 79.
62. ibid arts 109–10.
63. ibid arts 107, 111.
64. ibid art 123.
65. ibid pt IV chs I–V.
66. ibid art 245. Whilst the federation had the power to legislate in respect of matters listed in the Federal and Concurrent Legislative Lists, the provinces had the power only to legislate in respect of matters listed in the Provincial Legislative List and an option to legislate in respect of matters listed in the Concurrent Legislative List.
67. ibid arts 130, 132–34.
68. ibid art 226.
69. ibid art 227.
70. ibid arts 123, 217.
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74. ibid ch 12.
75. The 1973 Pakistani Constitution came into force on 14 August 1973.
76. 1973 Pakistani Constitution, arts 51, 59.
77. ibid arts 70, 73.
78. ibid arts 50, 90.
79. ibid art 89.
80. ibid arts 101–40.
81. ibid art 142.
82. ibid arts 184–85.
83. ibid art 199.
84. ibid arts 189, 203. In 1980, Pakistan amended its Constitution to provide for the establishment of a ‘Federal Shariat Court’ with the limited mandate to examine whether a Pakistani statute or provision of law was ‘repugnant to the injunctions of Islam’. Decisions of the FSC are appealable to a specially constituted bench of the Supreme Court and do not interfere with mainstream law enforcement in Pakistan: ibid arts 203C, 203D, 203F.
85. ibid arts 175–76, 193.
86. Hamid Khan (n 73) chs 25, 36.
87. This doctrine was first utilized by the Federal Court in Federation of Pakistan v Maulvi Tamizuddin Khan PLD 1955 FC 435 (Federal Court of Pakistan, as it then was). See Wolf‐Phillips, Leslie, ‘Constitutional Legitimacy: A Study of the Doctrine of Necessity’ (1979) 1(4) Third World Quarterly 97 CrossRefGoogle Scholar , 100–102. Although the Supreme Court ‘buried’ the doctrine of necessity in Sindh High Court Bar Association v Federation of Pakistan PLD 2009 SC 789 (Supreme Court of Pakistan) and asserted its determination to uphold the constitution, the continued impact of the doctrine on political and judicial debate in Pakistan is unmistakable.
88. See eg Syed Zafar Ali Shah v General Parvez Musharraf, Chief Executive PLD 2000 SC 869 (Supreme Court of Pakistan) (the Supreme Court authorized the military chief to amend the Constitution).
89. Chief Justice of Pakistan, Mr Justice Iftikhar Muhammad Chaudhry v The President of Pakistan through the Secretary 2007 PLD 578 (Supreme Court of Pakistan).
90. Constitution (Amendment) Order 2007, President’s Order No 5 of 2007, 21 November 2007.
91. The President’s actions were in response to growing political unrest in the country and the need to ‘save’ the National Reconciliation Ordinance 2007 through which he had pardoned his former political rivals in a bit to harness their support for his continuing as the President. The Competition Law was saved simply for having been introduced in the same period as the National Reconciliation Ordinance and not for any inherent merit.
92. The leader of the majority party and the primary beneficiary of Musharraf’s National Reconciliation Ordinance 2007.
93. A possible reason for this continuing hostility may be that the elected government did not restore the judges until after a countrywide public protest demanding the restoration: Farhan Bokhari, ‘New Pakistan Promise to Restore Judges’ Financial Times (London, 16 April 2008) <www.ft.com/content/124b014a-0b40-11dd-8ccf-0000779fd2ac> accessed 15 February 2019.
94. Sindh High Court Bar Association v The Federation of Pakistan PLD 2009 SC 879 (Supreme Court of Pakistan), para 22 (vii).
95. The National Reconciliation Ordinance 2007 was a sensitive piece of legislation for the Zardari government because had it not been for the NRO, the corruption cases pending against President Zardari would not have been resolved. See ‘National Reconciliation Ordinance: Supremely divisive law called NRO revisited’ The Express Tribune (Karachi, 17 January 2012) <https://tribune.com.pk/story/322744/national-reconciliation-ordinance-supremely-divisive-law-called-nro-revisited/> accessed 20 February 2019.
96. The Sachar Committee 1977: Kumar, Amitabh, ‘The Evolution of Competition Law in India’ in Vinod Dhall (ed) Competition Law Today: Concepts, Issues, and the Law in Practice (OUP 2007) 486–489 Google Scholar .
97. The Raghavan Committee comprised Mr SVS Raghavan (Chairman), Ms Mala Banerjee, Dr S Chakravarthy, Mr KB Dadiseth, Dr Rakesh Mohan, Mr Sudhir Mulji, Mr PM Narielvala, Ms Pallavi Shroff, and Mr GP Prabhu. See PM Narielvala, ‘Competition Law for the New Millenium’ The Hindu (Chennai, 22 June 2000) <www.thehindu.com/2000/06/22/stories/0622000d.htm> accessed 15 February 2019.
98. Chakravarthy, S, Why India Adopted a new Competition Law (CUTS International 2006) 21 Google Scholar .
99. SVS Raghavan Committee, ‘Report of High Level Committee on Competition Policy and Law’ (National Law School of India University Centre for Competition and Regulation 2000), para 1.22 <www.ccr.org.in/uploads/2/1/9/6/21961628/report_of_high_level_committee_on_competition_policy_and_law.pdf> accessed 15 February 2019.
100. Chakravarthy (n 98) 22. The 2002 Act came into force in stages, with certain sections coming into force on 31 March 2003, and the rest on 19 June 2003. The government established the Competition Commission of India by Notification No SO 1198 (E) dated 14 October 2003.
101. Brahm Dutt v Union of India (2005) 2 SCC 431, 434(b)–(g), 435(h), 436(a).
102. The 2007 Amendment was also brought into force in stages: provisions relating to anti-competitive agreements and abuses of dominant position came into force on 20 May 2009 by Notifications No SO 1241 (E) and SO 1242 (E), both dated 15 May 2009, and provisions relating to mergers or ‘combinations’ came into effect only in 2011. On 15 May 2009, the government established the Tribunal by Notification No SO 1240 (E). On 26 May 2017, the Tribunal was abolished (in pursuance of the Finance Act 2017) and replaced by the National Company Law Appellate Tribunal; nevertheless, this development does not impact the present discussion.
103. SVS Raghavan Committee (n 99) paras 4.8.4(4), 6.1.8.
104. ibid para 4.8.4.
105. ibid paras 6.3.3–6.3.4.
106. 2002 Act ss 8(1), 9.
107. Pakistan became a World Trade Organization (WTO) member on 1 January 1995: see WTO, ‘Members and Observers’ (World Trade Organization) <www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm> accessed 15 February 2019.
108. Even after the Doha Ministerial Conference, Pakistan’s ambitions were limited capacity building and technical assistance within the existing infrastructure: see UNCTAD, ‘Communication Submitted by Pakistan’ (20 June 2002) <http://siteresources.worldbank.org/INTCOMPLEGALDB/Resources/unpak.pdf> accessed 15 February 2019.
109. Pakistan had recently completed the first-generation reforms under the guidance and with the technical assistance of the World Bank. By 2005, it was once again engaged with the World Bank for the second-generation reforms, which were geared inter alia towards improving Pakistan’s ‘international competitiveness in an increasingly globalized world’: see Eric David Manes, Pakistan: A Framework for a New Competition Policy & Law (World Bank 2007), iii <http://documents.worldbank.org/curated/en/875361468283497835/pdf/684680ESW0WHIT0etition0Policy000Law.pdf> accessed 15 February 2019.
110. ibid ii (Acknowledgment).
111. Manes (n 109).
112. ibid ch 1 paras 1.15, 1.16, 1.17.
113. ibid para 2.2 fn 8, 8. The team also consulted the competition models of Brazil, Canada, Italy, India, Mexico, Republic of Korea, and Russia.
114. ibid.
115. ibid Acknowledgments. The persons consulted included Dr Asad Sayeed (The Collective for Social Sciences Karachi, Pakistan), Paolo Coerra (The World Bank) who formally reviewed the World Bank Report, Anjum Ahmed, Guiliana Cane, Mark Dutz, R Shyam Khemani, Peter Kyle (The World Bank), John Preston, Karen Ellis, Haroon Sharif, and Tim Hatton (DFID). Interestingly, Mr Khemani had also been consulted by the Raghavan Committee.
116. Manes indicated that there were some consultations: ibid ii. Although the exact number of consultations held is not known, these could neither have been too many nor too wide ranging given that the report suggests that these were all held in the month of May and in the same city.
117. Joseph Wilson, ‘Crossing the Crossroads: Making Competition Law Effective In Pakistan’ (2011) 8 Loyola University Chicago International Law Review 105, 111. See also UNCTAD, ‘Voluntary Peer Review of Competition Law and Policy: Pakistan’ (UNCTAD 2013), ch 1, para 5, 1 <http://unctad.org/en/PublicationsLibrary/ditcclp2013d4_overview_en.pdf> accessed 15 February 2019.
118. UNCTAD, ‘Voluntary Peer Review’, ibid ch 1A, para 7, 2.
119. David Rohde, ‘Musharaf Declares State of Emergency’ The New York Times (New York, 3 November 2007) <www.nytimes.com/2007/11/03/world/asia/04pakistan.html> accessed 20 February 2019; Constitution (Amendment) Order 2007. See also text to n 94.
120. See text to n 94.
121. ibid.
122. ‘Pakistan enacts anti-trust law’ The Express Tribune (Karachi, 7 October 2010) <https://tribune.com.pk/story/59442/pakistan-enacts-anti-trust-law/> accessed 20 February 2019. See also text to n 95.
123. Manes (n 109) para 4.6.
124. 2007 Ordinance, ss 12(2), 14(1).
125. Manes (n 109) paras 4.6, 6.38.
126. 2007 Ordinance, s 14(5); Competition Commission (Salary, Terms and Conditions of Chairman and Members) Rules 2009.
127. 2007 Ordinance, s 14(6).
128. ibid s 19.
129. In 2013, the government had an opportunity to rectify the appointment mechanism provided in the 2010 Act when the Pakistani Supreme Court directed the government to establish an independent commission for selecting persons to be appointed to regulatory bodies: Khwaja Muhammad Asif v The Federation of Pakistan 2013 SCMR 1205 (Supreme Court of Pakistan). The government first resisted this decision and later challenged it on the grounds that directions of the Supreme Court were tantamount to interference in the government’s constitutional duty to exercise the ‘executive authority’ of the state, and that the statutes under which a number of regulatory bodies had been established did not require appointment through a commission. In deciding this second challenge, the Supreme Court clarified that its direction in the first case was discretionary rather than mandatory, and allowed the government to proceed with making appointments in accordance with the parent acts of these regulatory bodies, ie, at the government’s discretion. The CCP was included in the list of authorities in which the government was allowed to retain its powers to make appointment as conferred upon it under the 2010 Act: Ghulam Rasool v Government of Pakistan PLD 2015 SC 6 (Supreme Court of Pakistan).
130. 1973 Pakistani Constitution, art 89.
131. 2002 Act, s 3(1).
132. 2010 Act, s 4.
133. See eg CCI’s order in Case 33/2011 decided 03.07.2012 Automobile Dealers Association v Global Automobiles & others; Case 3/2011 decided 25.08.2014 Shri Shamsher Kataria v Honda Siel Cars India Limited & Others.
134. See eg the CCI’s order in Case 33/2011 decided 03.07.2012 Automobile Dealers Association v Global Automobiles & others.
135. See eg the CCI’s orders in Case 5/2009 decided 02.12.2010 Neeraj Malhotra v Deustche Post Bank Home Finance Ltd & Others; Case 1/2009 decided 25.5.2011 FICCI v United Producers/Distributors Forum & others; MRTP Case No C-127/2009/DGIR (4/28), decided 11.06.2012 Varca Druggist & Chemist and others v Chemists & Druggists Association Goa and others; and Case 38/2011 decided 03.04.2014 Indian Sugar Mills Association & Others v Indian Jute Mills Association & Others; Case 24/2011 decided 19.03.2013 Shri Sonam Sharma v Apple Inc. USA & Others.
136. See particularly the CCP’s decisions dated 10.04.2008 in Pakistan Banking Association & Others; 04.12.2008 in Institute of Chartered Accountants of Pakistan Case; 18.03.2009 in Karachi Stock Exchange Case; 23.04.2009 in All Pakistan Newspaper Society and Others and 27.08.2009 in All Pakistan Cement Manufacturers Association (orders re price fixing agreements), 13.05.2011 in PESCO Tender Order/Amin Brothers Engineering et al Case (for bid rigging agreements), and 30.04.2013 in LDI Operators Case (for market allocation orders).
137. See the CCP’s order dated 23.07.2010 in Dredging Companies Case.
138. It may be argued that the CCP prefers the orthodox approach of the EU Commission and the narrow interpretation of ‘object’. However, even if this were true, it is likely that it prefers this approach because of its apparent similarity with the per se rule.
139. See the CCP’s order dated 10.04.2008 in Pakistan Banking Association Case (n 136).
140. For early exceptions in this regard, see the CCP’s decision in Case 5/2009 dated 02.12.2010 Neeraj Malhotra v Deustche Post Bank Home Finance Ltd & Others; Case 43/2010 dated 16.4.2012 A Foundation for Common Cause & People Awareness v PES Installations Pvt Limited; and Case 6/2011 dated 16.4.2012 Coal India Limited v Gulf Oil Corporation & Others.
141. See eg the CCI’s decision in Case 29/2010 decided 20.06.2010 Builders Association of India v Cement Manufacturers Association & Others); Case 24/2011 decided 19.03.2013 Shri Sonam Sharma v Apple Inc. USA & Others (n 135) (IT sector); and Case 3/2011 decided 25.08.2014 Shri Shamsher Kataria v Honda Siel Cars India Limited & Others.
142. See CCI’s decision in Case 43/2010 decided 16.4.2012 A Foundation for Common Cause & People Awareness v PES Installations Pvt Limited.
143. See the CCI’s decisions in Case 33/2011 dated 03.07.2012 Automobile Dealers Association v Global Automobiles & others and Case 24/2011 dated 19.03.2013 Shri Sonam Sharma v Apple Inc. USA & Others.
144. See eg the CCP’s decisions dated 10.04.2008 in Pakistan Banking Association & Others; 18.03.2009 in Karachi Stock Exchange Case; 28.06.2012 in 1-Link Guarantee Limited & Member Banks Case; and 23.07.2010 in the Dredging Companies Case (n 137).
145. See eg the decision dated 23.07.2010 in the Dredging Companies Case (n 137), which was followed in several other cases also.
146. See the CCP’s decision in the PESCO Case (n 136).
147. The CCP decided the Dredging Companies Case (n 137) on the basis of the rule of reason (albeit without economic analysis), whilst in the PESCO Case (n 136), it categorized bid rigging as a per se violation.
148. In the LDI Operators Case (n 136), CCP engaged in a rule of reason style analysis for market allocation after having identified the infringement as a per se violation in earlier orders.
149. Whilst in most cases CCP did not allow defendants to avail of a s 5 exemption in the main case (for instance, the Dredging Companies Case (n 137) and PESCO Case (n 136)) and directed them to keep these two proceedings separate, in others it not only allowed for the possibility of a hearing under s 5 to be held alongside the main case, but also granted an exemption on the basis of such an application: eg GCC Approved Medical Centres case File 2(2)/JD(L)/POEPA/CCP/2011 decided 29.06.2012.