| All the international organisations in the area of competition law""Unctad, the International Competition Network, CUTS, OECD, World Bank, ADB, etc""have done a huge amount of work on this subject in developing countries. Of these, Unctad leads in its work, and could have been an excellent source for useful material for the Indian readers, if that is the targeted audience. |
| Here I am reminded of a very recent candid comment by this newspaper's economic commentator, T C A Srinivas-Raghavan, in his Okonomos column "Inflation and exchange rate management," (March 16): " ... [M]ost of our policy-oriented economists tend to think that what works in the west is exactly the same (as) ... in India. The 'stages of development' problem completely escapes them. Second, because of this aping, Indian economic research is sadly lacking in microeconomic strength. It is mostly what is called hawa mein baten (talking in the air)." |
| Vinod Dhall is no policy-oriented economist, but a generalist, a retired civil servant. Admittedly, the efforts made by him in learning about competition law over the last two plus years have been good, and thus this effort is a step forward. The overview written by him reflects his learning and is a good piece. Alas, he does commit a few mistakes, one by stating that the US was the first country in the world to adopt a competition law in 1890 through the Sherman Act. In fact, Canada was the first country in the world to adopt a competition law in 1889: The Act for the Prevention and Suppression of Combinations in Restraint of Trade. The triggers for both the North American laws were the exploitation of agrarian interests by monopsonistic farm goods traders. |
| One part of the book deals with competition laws in various developed country jurisdictions, save South Africa and Mexico, which don't really count for much in India, and is part of the continuing tragedy of relying upon jurisdictions where the political economy is quite different. Rather, some substance on developing country jurisdictions would have helped the reader. These could have included some regulatory failures as well, such as in Thailand, when similar conditions prevail in India. There is a huge amount of literature in the realm, and it would not have been difficult at all for the editor to have delved into them or asked researchers from such developing countries to write them. |
| I speed-read through the whole book to see if there was anything which might help the Indian regime, but did not find anything. In fact, one chapter on the "abuse of dominance", which is going to be a big thing in India due to the thrust of the new law, did contain a reference to developing countries in the title, but a close look exhibited no analysis of a likely situation in India, neither did it contain any prescriptions for India or even other developing countries. It is otherwise a good essay. |
| If it is part of the advocacy agenda of the Competition Commission of India (CCI) to educate Indians, it is quite disappointing. As stated before, all the knowledge is available in various texts, and thus nothing new has been contributed to the rich literature on competition law. The CCI personnel have also worked behind the scenes, while two of them have contributed a chapter each. But these two chapters have not carried any analysis. If the authors felt hamstrung about being critical, the editor could have asked other Indian scholars to write and thus do justice. What the CCI has not been able to do for the last two plus years of its advocacy phase is to publish reader-friendly pamphlets or even a newsletter which could have helped educate Indians and themselves. |
| The writer is the Secretary General of CUTS International, a leading research, advocacy and networking organisation working on trade and regulatory issues, and can be reached at psm@cuts.org |
| COMPETITION LAW TODAY CONCEPTS, ISSUES AND THE LAW IN PRACTICE |
| Oxford University Press Vinod Dhall (ed.) Price: Rs 875; Pages: 561 Reader Response: Unfair criticism I read Pradeep Mehta's book review of Competition Law Today edited by Vinod Dhall. I have carefully read the book, and like many others, have found it one of high standard and immense use. Hence, I must admit that the quality of the review, coming from a person of Mehta's stature, was disappointing. In his review, Mehta has tried to trash the book on the basis only of an admitted "speed reading" of 561 pages plus 24 pages of prelims! He has not dwelt on any individual chapter, and has mentioned only two""Overview by Vinod Dhall, and Abuse of Dominance by Anderson/Heimler; in both cases he was constrained to admit that these are good essays. A galaxy of distinguished persons have acclaimed the book. The Foreword has been written by the distinguished Dr C Rangarajan, Chairman, Economic Advisory Council to the Prime Minister; he has stated that the book "contains contributions from... professionals who have witnessed or influenced the growth of competition law over the last few decades...a formidable collection of expert opinion". Mehta has made three specific adverse observations, and I believe the same are unwarranted. First, he has written: "most of the chapters are rehashed with a little tweaking. This has been honestly admitted by some authors, though not by all". The authors are globally reputed professionals in the field. They include judges, professors and other scholars from prestigious universities, chairpersons and other members/senior officers of competition authorities, professional staff of multilateral organisations, and partners of reputed law firms. They are aware of the rules and practices of authorship. Only two authors have mentioned in their chapters that these are based on/ drawn from their earlier works. What is wrong with that? Knowledge and scholarship continuously undergo updating and evolution. Mehta has stated/implied that the material in the book is readily available on the websites of organisations like the UNCTAD. Going by that argument, there is never a need to write a book, since material on almost every subject is available on the internet! Second, Mehta has opined that the book does not contain material on developing countries and on India! Competition Law Today brings out "state of the art" modern competition law in the world. It starts by providing an excellent Overview of the competition law; thereafter, in Part I, the book gives a detailed generic treatment of all the substantive provisions and key issues in competition law. In Part II, it describes the competition law and practices in important jurisdictions in the world, including the US and EU. Part III specifically explores the integral relationship between economics and competition law. Part IV analyses at length the competition law in India and its evolution over time. Since the basic tenets of competition law have universal application, this interdisciplinary and comparative treatment of the subject holds important lessons for every country, including India. Nevertheless, the book specifically includes discussion of issues of special relevance to developing countries, including India. This is discussed in several chapters, such as Vinod Dhall's Overview, and the chapters on Abuse of Dominance (Anderson and Heimler), Intellectual Property Rights (Valentine Korah), Exemptions, Exceptions and Differential Application (Khemani), Conflicts, Convergence and Cooperation (Eleanor Fox). Besides, the chapters on developing countries, South Africa (Lewis), Mexico (Motta), and even Korea(Youngjin) and Australia(Bhojani), hold lessons for India. In Part IV, two chapters deal exclusively with competition law in India; the chapter by Dhall explains in great detail the provisions of the Indian act, and again and again, draws parallels and comparisons between the Indian law and the laws of other countries with the view to better explain the provisions of the Indian law. I find that the total coverage on developing countries or on issues relevant to them adds up to nearly 130 pages! This includes about 62 pages exclusively on India. Finally, I would like to comment on the so called "few mistakes" alleged by Mehta in Dhall's chapter "Overview: Key Concepts in Competition Law". The only "mistake" quoted by him is that "the chapter wrongly states that the US was the first country to have a competition law in 1890, whereas Canada was the first country in 1889." This observation is wholly incorrect. Footnote 1 on page 1 of the book clearly states that "Canada enacted its first law in 1889 and some states of the United States too had earlier laws, but on account of their limited effectiveness, they have not acquired comparable significance in antitrust history." Besides, the chapter only says, "The history of modern competition law is generally traced to the United States" "" this is the commonly accepted view amongst competition authorities. The book has received critical acclaim from experts and is bound to be virtually compulsory reading for stakeholders in India. |
| H S Chandhoke, Partner Luthra & Luthra Law Offices |
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