Mor Bakhoum

Institutional Coherence and Effectivity of a Regional Competition Policy: The Case of the West African Economic and Monetary Union (WAEMU)

In the context of globalization the shift from the national to the global has become an economic reality and advanced the emergence of regional integration groups alongside regional competition policies. In the same vein, the West African Economic and Monetary Union (WAEMU) has adopted a regional competition law, which entered into force in 2003. WAEMU follows a centralized approach to its competition policy, in which the Union not only has the exclusive competence to legislate on anticompetitive practices, but also bears the exclusive decision-making power regarding the enforcement of the law. National competition-law authorities are mainly excluded from the decision-making process and limited to consulting or executive functions. However, the centralized approach is not flawless. The expected reforms in the member states are still pending, the collaboration of national structures and the community is not effective and the regional institutional level, which was supposed to constitute a strong authority, faces severe constraints in terms of resources and flexibility. The regional case law also remains limited. The effectiveness of the community competition law thus far has failed to live up to its expectations. This paper builds on WAEMU’s eight years experience of enforcement as well as other regional integration experiences, such as ECOWAS or the EU, and identifies a certain number of criteria, which should be taken into account when designing a regional competition policy. The so called “competition constraints” are the number of states and the level of integration of the regional market, the fluidity of trade between member states, the respective institutional capacities of the member states and the Union, the existence or lack of a competition culture in the member states and the time dimension.By analyzing the interaction between the competition constraints and the institutional design of a regional competition policy, one can extract certain principles of orientation regarding the applicable substantive law and the distribution of competences.Applying the lessons learned to the case of WAEMU, the insufficient involvement of the national competition law authorities appears as one of the main deficiencies of the institutional framework of WAEMU. Therefore, this paper calls for a “controlled decentralization”, which includes the installation of a new collaboration framework between the regional and the national level.

TRIPS and Competition Rules: From Transfer of Technology to Innovation Policy

The competition-related provisions in the TRIPS Agreement were very much influenced by the context in which the Agreement was concluded. The inclusion of competition provisions served a specific purpose. Competition law was basically seen as a tool to facilitate the transfer of technology. Twenty years after the entry into force of TRIPS, the legal landscape within which IPRs are exercised has experienced tremendous changes on the IP front, as well as on the competition law front. IP protection tends to be raised beyond the minimum standards of TRIPS, questionable protection has been granted specially in the field of patents, enforcement mechanisms and remedies have been strengthened and IP portfolios are strategically used in the markets. From an international perspective, higher IP standards have been exported through bilateral and regional trade agreements. Competition law is developing at a very fast speed, especially in emerging and developing economies. Moreover, competition law and IP laws are increasingly understood as being complementary to each other. A strict and “conflict oriented” reading of TRIPS’ competition provisions does not help to cope with the new strategies of innovation and the new forms of use of IPRs. We argue in this paper that a flexible reading of the competition-related provisions in TRIPS provides enough room for applying competition law as an innovation instrument. Hence, the application of competition law to combat IP-related restraints of competition that inhibit innovation would be covered by the rationale of the TRIPS Agreement just as much as an application of competition law aimed at enhancing access to and dissemination of IP-protected products.

Competition Policy and Regional Integration in Developing Countries

Contents: Introduction Mor Bakhoum PART I: PROMISES AND CHALLENGES IN IMPLEMENTING REGIONAL COMPETITION POLICY REGIMES 1. The Harmonization of ASEAN: Competition Laws and Policy from an Economic Integration Perspective Lawan Thanadsillapakul 2. Competition Law and Policy in the Framework of ASEAN Anthony Amunategui Abad 3. Southern African Development Community (SADC) Regional Competition Policy Gladmore Mamhare 4. Competition Policy in SADC: A South African Perspective Kasturi Moodaliyar PART II: INSTITUTIONAL COHERENCE, REGIONAL INTEGRATION AND COMPETITION POLICY 5. Institutional Coherence and Effectiveness of a Regional Competition Policy: The Case of the West African Economic and Monetary Union (WAEMU) Mor Bakhoum and Julia Molestina 6. Regional Integration and Competition Policy in the Economic Community of West African States (ECOWAS) Region Mbissane Ngom 7. Andean Competition Law: Looking for the Private Sector, or the Quest for the Missing Link in Antitrust Javier Cortazar PART III: ECONOMIC STRUCTURE, REGIONAL INTEGRATION AND COMPETITION LAW ENFORCEMENT 8. Regional Integration in the Caribbean: The Role of Competition Policy Taimoon Stewart 9. Implementing Effective Competition Policy through Regional Trade Agreements: The Case of CARICOM Delroy S. Beckford 10. The COMESA Regional Competition Regulations George K. Lipimile PART IV: THE DEVELOPMENT DIMENSION OF REGIONAL INTEGRATION AND COMPETITION POLICY 11. Economic Integration and Competition Law in Developing Countries Josef Drexl 12. Regionalization, Development and Competition Law: Exploring the Political Dimension David J. Gerber 13. Competition, Development and Regional Integration: In Search of a Competition Law Fit for Developing Countries Eleanor M. Fox 14. Regional Agreements of Developing Jurisdictions: Unleashing the Potential Michal S. Gal and Inbal Faibish Wassmer Index

Interfacing the 'Local' with the 'Global': A Developing Country Perspective on 'Global Competition'

This contribution was prepared for the “Global Competition Law Conference” held in Chicago-Kent College of Law in October 2011. It retraces the recent developments in competition law in Sub-Saharan Africa with a focus on the situation in West Africa. The legal, political, cultural and institutional dimensions which have influenced the development and effectiveness of competition law in the region are discussed. From an international perspective, the contribution retraces the African countries´ role, if any, in the debate pertaining a multilateral framework on competition law. The paper shares David Gerber´s view that “Africa has generally played at best a marginal role in global competition law development until very recently, but several factors suggest that that role may increase”. Amongst these factors are the potential derived from regionalizing competition policies in Sub-Saharan Africa and the increase cooperation and technical assistance in competition law enforcement as evidenced the recently created African Competition Forum (ACF). The proposals put forward in “Global Competition” by David Gerber are also discussed from the perspective of Sub-Saharan African countries. In particular, it is argued in this contribution that the “Commitment pathway” proposed by David Gerber is a beneficial approach for developing countries since it would help them fight cross border anticompetitive practices through a multilateral agreement. Moreover, the proposal respects the “diversity” of approaches in competition law and the need of developing countries to conceptualize their own competition law models. The phasing out of the norms on the multilateral level would give also developing countries “time” to learn and to contextualize their competition policies. The pertinence of a multilateral approach is also discussed in light of the recent developments, in particular the shift towards bilateral approaches in dealing with competition matters.