Antitrust in Developing & Emerging Economies #1 Antitrust and Tech: Impact on the Developing World

1st Webinar of the 8th annual “Antitrust in Emerging and Developing Economies” conference organised by Concurrences, in partnership with the New York University School of Law and White & Case with Harry First (Professor, New York University School of Law), Robert Mahini (Senior Competition Counsel, Google), Pamela Mondliwa (Research Associate, Centre for Competition, Regulation and Economic Development (CCRED)), George Paul (Partner, White & Case), Viswanath Pingali (Associate Professor, Indian Institute of Management Ahmedabad) and Angela Zhang (Associate Professor, University of Hong Kong). The Webinar was opened by an Opening Keynote Discussion with Hassan Qaqaya (Senior Fellow, Global Competition and Consumer Law Program, The University of Melbourne).

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Hassan Qaqaya has covered a range of issues relating to competition law in developing countries. The increasing adoption of competition policies around the world is one of the most significant developments in the current economy. For example, the latest UNCTAD report indicated that 145 countries have completed their competition laws.

The first question will address what can be considered appropriate competition law and policy for developing countries. To do this, it is necessary to draw on comparative law, and more specifically on legal transplants. They then adopt a so-called parallel approach that has provided a different explanation for why legal and institutional changes occur in the systems. Research into the origins of competition law in developing countries also focuses on legal origins as an alternative explanation and attempts to explain the rise of competition law in developing countries to support the comparative law approach. Thus, the concept of the transplantation effect is what makes it possible to link the performance of a country’s legal system to the process by which it was acquired. This approach described therefore allows countries to be classified according to whether they are receptive to legal transplantation, which amounts to determining whether they have the capacity to make sense of the imported law in their own legal system. First, in receptive transplants, foreign laws are adapted to the local conditions of the country concerned. The latter are indeed able to adapt the imported legal system to reflect economic and legal circumstances. On the contrary, unreceptive transplants are those where the foreign law has not been able to adapt to local conditions. To determine the appropriate competition law for a developing country, it is necessary to define a competition system. A broad definition is used. It is a system that combines legislation, the organization that implements that legal system, the policy makers and the framework used for conduct and expected outcomes. This definition is used because it allows for multiple components and how they interact with each other. This definition also allows for the identification of exogenous factors, actors and institutions that may contribute to the relevant outcomes. Finally, it highlights that although the same law applies in different developing countries, this may lead to different outcomes. Thus, a competition regime rests on three pillars: the objectives of competition law and policy, the assessment and balancing exercise, and the command from the firm to the government. So, if you start with a generic law that is based on US or EU principles, when you reach the country that has transcribed and transplanted the law, you have a different implication.

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