Amber Darr on 'Role of courts in enforcing competition laws: a comparative analysis of India and Pakistan'

Cross-border legal transplantation is only useful if it is meaningfully enforced. This is the prism through which Darr examined the development and implementation of competition law in India and Pakistan.

Darr began her analysis by building the case for a comparative study. First, she explained that the legal systems of both countries display strong similarities due to their shared colonial past. Second, she noted that their competition legislations, in the form of the Indian Competition Act, 2002 (‘ICA’) and the Pakistan Competition Act, 2010 (‘PCA’), both came into force contemporaneously due to an external impetus in the form of the WTO reform process. 

Darr then shifted focus to the enforcement of the laws in both countries. In deconstructing the taxonomy of enforcement, she employed a useful heuristic by dividing the enforcing agencies into two categories: one, the ‘pre-existing’ judicial institutions comprised of the High Courts and the Supreme Court; and two, the ‘competition system’ constituted by the specialist adjudicatory bodies created by the new competition laws, namely the Competition Commissions of India and Pakistan (collectively, the ‘NCAs’). The interactions between the two categories are grounded in the writ jurisdiction conferred upon the High Courts – Article 226 of the Indian Constitution and Article 199 of the Pakistani Constitution allow for the High Courts in the respective countries to issue writs against any person or authority, thereby allowing a crossover from the second category to the first by permitting a challenge to the authority or orders of the NCAs before these fora. 

Against this backdrop, Darr outlined the treatment of these crossover interactions. In India, she observed that interim orders issued by the Competition Commission of India (‘CCI’) were challenged before the High Courts on predominantly procedural grounds with courts broadly reaffirming the authority of the CCI. In contrast, she pointed out that the Competition Commission of Pakistan’s (‘CCP’) interim orders were challenged on both procedural and substantive grounds, with courts leaning towards restricting the powers of the CCP.

Notably, Pakistani competition law was initially implemented through executive mandate as a presidential ordinance in 2007 and the PCA was only passed by the parliament in 2010. The drafting of the legislation was outsourced to a World Bank-led team, which entailed little to no stakeholder contribution. The Indian law however, was enacted pursuant to a government-commissioned report. Following a challenge before the apex court in 2002 and the resultant undertakings by the government to amend the law, the ICA came into force in 2009. 

In explaining the divergence in interactions, Darr attributed the differential treatment to the process employed in adopting these laws. She argued that India adopted a ‘socialisation’ process that facilitated the indigenisation of the legislation through engagement with all arms of government, specifically the judiciary, which directly impacted the positive attitude of the courts towards the CCI. In the same vein, the indirect benefits as in the case of the establishment of the Competition Appellate Tribunal, a key factor in reducing the interactions between the courts and the competition system, were due to the participation of the executive and the parliament in the legislative process. She compared this with the adoption process in Pakistan, which she argued adopted a ‘coercive’ method that engendered distrust on part of the judiciary since the initiative was predominantly executive-driven. Moreover, she emphasised that keeping the parliament at a distance weakened the compatibility of the ordinances with the system already in place and undermined the legitimacy of the PCA. 

The impact of this divergence, Darr further argued, lay not so much in the recovery of penalties by the NCAs, in which both countries fared more or less equally, but in generating a dialogue between the competition system and the pre-existing system. Favouring the Indian approach, she concluded that India succeeded in developing a body of indigenous competition jurisprudence, while Pakistan had failed on this front. 

The primary discussant, Jain, contested the presumption of similarity of legal systems on which the comparative study is based, by pointing to the different constitutional schematics in respect of writ petitions. Darr noted that although the rights sought to be enforced may differ, a comparative analysis is facilitated by the fact that the bills of rights are identical. Jain also suggested that the substantive challenges to the PCA and CCP are similar to the constitutional challenges made to the ICA in 2002, and that therefore the adoption process in Pakistan is now mimicking the process in India. Agreeing with Jain, Darr said she would incorporate this into her analysis. Jain additionally questioned to what extent Indian courts make substantive jurisprudential contributions, given that Darr had noted that most challenges were procedural in nature. Darr explained that in emphasizing due process, courts in India play a critical role in moulding the compatibility of competition law with the pre-existing system. 

The discussion was followed by a question and answer session, with an audience member asking Darr about the role played by stakeholders in the adoption of the PCA. Darr observed that the involvement of stakeholders in the promulgation of the PCA was minimal, since businesses were opposed to competition constraints. In response to a question about whether the law would have been better enforced if more stakeholders, including the judiciary, were involved in the promulgating the law, Darr explained that there was simply no impetus for the executive to include non-government stakeholders and thus, the likelihood of improved enforcement would have been low.