Report and Proceedings from the Competition Law and Policy Roundtable 16–17 May 2006 • New Delhi, India

LAW AND POLICY REFORM AT THE ASIAN DEVELOPMENT BANK Report and Proceedings from the Competition Law and Policy Roundtable 16–17 May 2006 • New Delhi, India 07-0103Law&PolicyPrelim.pmd 1 17/05/2007, 1:23 PM This volume was edited by V.S. Rekha and Christine V. Lao of the Office of the General Counsel, Asian Development Bank © 2006 Asian Development Bank All rights reserved. Published 2006 Printed in the Philippines Cataloging-in-Publication Data Available ISBN No: 978-971-561-621-8 Publication Stock No: 031407 Asian Development Bank. Report and Proceedings from the Competition Law and Policy Roundtable. 1. Asian Development Bank. 2. Competition Law and Policy The views expressed in this paper are those of the authors and do not necessarily reflect the views or policies of the Asian Development Bank or its Board of Governors or the governments they represent. The Asian Development Bank does not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of their use. Use of the term “country” does not imply any judgment by the authors or the Asian Development Bank as to the legal or other status of any territorial entity. ii Law and Policy Reform at the Asian Development Bank 07-0103Law&PolicyPrelim.pmd 2 17/05/2007, 1:23 PM Preface Competition and Competitiveness V.S. REKHA Senior Counsel, Asian Development Bank V.S. Rekha Senior Counsel, Asian t is commonly believed that competition law and policy relate to matters of competition Development Bank and competitiveness; with the result, among others, that goods and services are sold at competitive prices and that consumers have a choice as to the products they wish to purchase. But that would not be all. Competition would also be a matter of larger application—that of overall governance and development of economies, that of better Iregional and global balances in trade and development. The International Institute of “Different Management Development (IMD), which ranks countries according to competitiveness, assesses a country’s competitiveness by considering not only its economic performance, government countries have and business efficiency and infrastructure but also factors spanning various sectors including education, technology, health, and social services. IMD’s most recent report is indicative that different policy some Asian economies have moved up in their competitiveness ranking by considerable notches; India, for instance, moved up by 10 notches and the People’s Republic of China by 12 concerns and notches.1 From deliberations at the Roundtable, it is clear that different countries have different policy needs. There concerns and needs. In other words, it appears there is no one-standard approach in determining the type of competition laws or policies that may prove beneficial to all countries. It may well is no one- be that one rule may not fit all given the ground realities and different stages of economic development in different countries. standard Accordingly, some basic principles that could be generally applicable to each country, notwithstanding variances in the existing regimes, are relevant. Such principles need to be approach in relevant from the vantage point of competition agencies and regulators. After all, it is the representatives of competition agencies and regulatory agencies, who implement competition determining law and policies; who also would thus better understand the policy debates waged on the ground, and are sensitive to local realities. the type of Debates exist even in the most basic areas of defining key concepts and tools in implementing competition law and policies. For example, there are many views on what competition constitutes “market power.” Countries may consider different factors in determining whether market power exists; such as market shares, barriers to entry and expansion, barriers to exit, laws or policies buyer power, etc. However, it may well be argued that reality does not present clear cut situations where market shares alone can be determinative of market power; where one can clearly that may prove identify what constitute barriers to entry and expansion, or barriers to exit. It may very well illustrate that in a country specific context, buyer power may not always be undesirable as far beneficial to all as promoting competition is concerned, but arguments to the contrary would also hold good. It was useful to observe and learn from the roundtable deliberations on the various aspects countries.” of competition matters. These deliberations not only enriched the discussions, but also allowed Q 1 The Financial Express. 2006. India moves up 10 notches in competition. (12 May). Preface iii 07-0103Law&PolicyPrelim.pmd 3 17/05/2007, 1:23 PM articulation of relevant issues, needs and concerns, as also helped identify possible best practices on competition matters. I do hope that the Roundtable deliberations were potentially useful to participating countries and agencies in identifying and implementing solutions and policies that take into consideration existing development in the local, regional and perhaps even global context. I would like to thank the Government of India for supporting the roundtable held in New Delhi, and its participation in the roundtable deliberations. I also express my gratitude to the resource speakers, panelists, facilitators, and participants from over 13 countries, for their presence and the wisdom they have shared at the roundtable. I am grateful to the Asian Development Bank’s (ADB’s) General Counsel Mr. Arthur M. Mitchell, and Deputy General Counsel Ms. Eveline Fischer, for their guidance and active support for this roundtable. I also thank Mr. Tadashi Kondo, ADB’s Country Director for India, and ADB’s India Resident Mission, for fully supporting this endeavor. Finally, I extend my sincere appreciation to my team for putting in long hours in organizing this roundtable: Ms. Christine Lao, Ms. Amabelle Asuncion, Ms. Mary Jane David from ADB headquarters; and Mr. C.T. Abraham, Ms. Meenu Lalit, Mr. Rupes Dalai, and Mr. Sudhir Nair from ADB’s India Resident Mission office. iv Law and Policy Reform at the Asian Development Bank 07-0103Law&PolicyPrelim.pmd 4 17/05/2007, 1:23 PM Contributors Philippe Brusick heads the United is the Dean of the Australia and New Zealand Nations Conference on Trade and School of Government, a new institution Development (UNCTAD)’s Competition and established by the Governments of Australia, Consumer Policies Branch and, as such, is New Zealand, Victoria, New South Wales, responsible for UNCTAD’s technical Queensland, and Western Australia, and 12 assistance, advisory, and training programs in universities and business schools (The this field. Mr. Brusick graduated with a degree University of Melbourne, Monash, Melbourne in Economics from Geneva University, and Business School, Australian National University, joined the United Nations Economic Canberra, Queensland, Griffith, Sydney, New Commission for Europe in 1971. A staff South Wales, and the Victorian University of member of the UNCTAD since 1976, he actively Wellington, Curtin University of Technology, participated in that organization during the and University of Western Australia) for high- negotiations that led to the adoption of the UN level public sector managers. Professor Fels Set of Principles and Rules on Restrictive was also Dean of the Graduate School of Business Practices in 1980. Management of Monash University where he has been an Honorary Professor in the Faculty Ashok Chawla was appointed as of Economics and Business since 1996. He is Additional Secretary (Economic Affairs), also a Professorial Fellow in the Department Department of Economic Affairs, Ministry of of Political Science at the University of Finance, Government of India, in April 2005. Melbourne. Professor Fels has extensive Concurrently, Mr. Chawla is the Chairman and experience in competition policy formulation Managing Director, Security Printing and and implementation, having been Chairperson Minting Corporation of India Ltd.; Director of of the Prices Surveillance Authority from 1989 the Oil and Natural Gas Corporation Ltd.; and to 1992, Chairperson of the Trade Practices Member, Insurance Regulatory and Commission from 1991 to 1995, and Development Authority. Mr. Chawla has two Chairperson of the Australian Competition and Master of Arts degrees, in English Literature Consumer Commission from 1995 to 2003. and Economics. He also has a diploma in Micro-level Planning. He joined the State Bank Eveline N. Fischer, a Dutch national, is a of India as Probationary Officer in 1972, and graduate of the University of Leyden (the the Indian Administrative Service (Gujarat Netherlands) Faculty of Law. She holds a Cadre) in 1973. Master of Laws degree, with a major in Civil Law and electives in Economics, European Vinod Dhall is the only Member of the Law, and Industrial Property Law. She Competition Commission of India. Previously, practiced law for 12 years in Amsterdam, the he was Secretary to the Government of India. Netherlands, with the Dutch firm Loeff & Van During his tenure in the Indian Administrative der Ploeg. She has been with the Office of the Service, he held several important positions General Counsel at the Asian Development in the Central and State Governments. He Bank (ADB) since 1988, handling various legal specialized in the areas of industrial technical assistance projects in Viet Nam and development, foreign investment, financial Cambodia. She was also involved in the sector management and reforms, corporate preparation of a legal needs analysis and a governance, and competition law and policy. long-term framework for development of the legal system of Viet Nam. She is the Deputy Allan Fels, AO, is a well-respected General Counsel in charge of, among other academician and competition law expert. He things, the Law and Policy Reform Unit. Contributors v 07-0103Law&PolicyPrelim.pmd 5 17/05/2007, 1:23 PM Anurag Goel assumed charge as the Director General, World Trade Organization Secretary, Ministry of Company Affairs of the (WTO). Upon completing his tenure in 1999, Government of India on 1 May 2006.

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