Competition Regim in Pakistan

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Competition law in Pakistan:

brief history, aspirations and

characteristicsSayyeda Fatima

a

aVrije Universiteit Brussel, Belgium and International

Islamic University , Islamabad , Pakistan

Published online: 29 Mar 2012.

To cite this article:Sayyeda Fatima (2012) Competition law in Pakistan: brief history,aspirations and characteristics, Commonwealth Law Bulletin, 38:1, 43-62, DOI:

10.1080/03050718.2012.646734

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Competition law in Pakistan: brief history, aspirations andcharacteristics

1

Sayyeda Fatima*

Vrije Universiteit Brussel, Belgium and International Islamic University Islamabad, Pakistan

This article highlights various aspects of competition law in Pakistan. It aimsto give an account of the historical evolution of competition law in Pakistanover time, underscoring the salient characteristics of legislation; to identifythe institutional structure in charge of applying competition policies, featur-ing its form, powers and functions; and to assess the effectiveness of the reg-ulatory agency as a principal authority for the application of competition

policies with the aim of preventing or remedying possible anti-competitiveconduct. This article comprises ve parts. Part I introduces the topic. Part IIfocuses on the different phases Pakistans competition law has passedthrough. Part III outlines salient features of the law. Part IV highlights theinstitutional framework with detailed working mechanism, powers and func-tions as revealed by the law. Part V contains concluding remarks necessaryfor effective enforcement of the law.

I. Introduction

The idea of competition law and policy is of great interest in developed anddeveloping countries alike, because a competitive economic environment is vital

to foster economic efciency. So this idea is at the core of discussions in the cur-rent scenario. Competition law is a highly complex area. It calls for a deep

understanding and application of the economics of competition on a case-by-case

basis. A high degree of economic and legal sophistication is a prerequisite on

the part of both the enforcement agency and the courts and/or specialised tribu-

nals with judicial functions in the implementation of competition law. The

sophistication required is critical as wrong evaluations can drive decisions the

wrong way. A powerful enforcement agency insulated from political, bureau-cratic, and budgetary constraints can make a real difference to the implementa-

tion of competition law. High levels of transparency, administrative and judicial

independence are other essential prerequisites. Adequate nancial resources are

essential to marshal the necessary technical and professional expertise in assess-

ing and prosecuting contravention of the law.

In the case of Pakistan, the government pursues the promotion of sustainable

economic development and improvement of well-being of all citizens, with an

emphasis on maximising the welfare of consumers and producers, by protecting

*Email: [email protected] of this article are excerpts from the authors PhD thesis at Vrije Universiteit Brusselfunded by EMECW.

Commonwealth Law Bulletin

Vol. 38, No. 1, March 2012, 4362

ISSN 0305-0718 print/ISSN 1750-5976 online

2012 Commonwealth Secretariat

http://dx.doi.org/10.1080/03050718.2012.646734

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and promoting competition in the economy.2 To accomplish these goals, barriers

that harm competition, such as cartels, abuses of dominance, etc, must be eradi-

cated so as to maximise the welfare of consumers and producers. Competition

policy in Pakistan is currently enshrined in the Competition Act 2010.3

This article aims to:

(1) give an account of the historical evolution of competition law in Pakistan

over time, underscoring the main points of legislation;

(2) identify the institutional structure in charge of applying competition poli-

cies, outlining its form, powers and functions;

(3) assess the effectiveness of the regulatory agency as a principal authority

for the application of competition policies, with the aim of preventing orremedying possible anti-competitive conduct.

This article comprises ve parts. Part I introduces the topic. Part II focuses on

the different phases Pakistans competition law passed through. Part III outlines

salient features of the law. Part IV highlights the institutional framework and

details of its working mechanism, powers and functions, as revealed by the law.

Part V contains concluding remarks necessary for the effective enforcement of

the law.

II. Competition law in Pakistan: phases of progression

A. First phase: 1960sroad to MRTPO

The Anti-Cartel Law Study Group4 was formed and tasked with examining and

suggesting worthwhile policies and measures to prevent the unreasonable growth

of monopolies and restrictive trade practices, at a time when there was a largeand ourishing private sector in the country.5 The then government encouraged

capital formation in the private sector and adopted policies that helped to full

such aims as industrial licensing, industrial credit, and scal concessions.6 This

resulted in economic power being largely concentrated in the hands of a few

family groups which dominated industrial, commercial, banking and insurance

2See Competition Policy Report, A Framework for a New Competition Policy and Law:Pakistan (The World Bank, August 2007) p iii accessed May 2011.3The Competition Act No XIX of 2010 (published in the Gazette of Pakistan, Extraordi-nary, 13 October 2010) (hereinafter CA 2010).4The Anti-cartel Laws Study group was set up by the Government of Pakistan in 1963in pursuance of announcement made by the Finance Minister in his budget speech forscal year 196364.5See accessed September 2011.6Ibid.

44 S. Fatima

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activities in the country.7 The trend for overall resources to be controlled by a

few created a general feeling of discontent in the country that was not advanta-

geous to the public interest.8 The Report of the Study Group therefore ascer-

tained the presence of cartels and monopolies in the country, and consequently

advocated the need for an anti-monopoly law.

B. Second phase: 19702007 (MRTPO)

The rst competition law became statutory in 1970, through the Monopolies and

Restrictive Trade Practices (Control and Prevention) Ordinance (MRTPO) 1970.9

The Monopoly Control Authority (MCA)10 became the organisation to adminis-

ter this ordinance. The Monopolies and Restrictive Trade Practices (Control and

Prevention) Ordinance was mainly based on the recommendations made by the

Anti-Cartel Laws Study Group.11

As a result, the government circulated the draftof the Anti-Monopoly and Restrictive Trade Practices Law for public opinion

with the budget for 196970. The draft law was widely commented upon by the

press, the Chambers of Commerce, industry and the public. Taking these com-

ments into account, the President and Chief Marshall Law Administrator of that

time promulgated the Monopolies and Restrictive Trade Practices (Control and

Prevention) Ordinance in February 1970.12

The ordinance was a modern piece of legislation at the time it was enacted.

It was divided into six chapters. However, as a result of the changing global and

national economic environment, the MRTPO 1970 proved inadequate in address-

7M Haq, The Poverty Curtain: Choices for the Third World (Columbia University Press,New York 1974).8For further details see GF Papanek, Pakistans Development: Social Goals and Private

Incentives (Harvard University Press, Cambridge 1967); see also R Amjad, Impact ofConcentration on Protability in Pakistan (1977) 13/4 J Devel. Stud.; further see LWhite, Industrial Concentration and Economic Power in Pakistan (Princeton UniversityPress, Princeton, NJ 1974).9Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance NO. V

OF 1970 (Published in the Gazette of Pakistan, Extraordinary, 26 February 1970) (herein-after MRTPO 70).10Ibid. s 8 (hereinafter MCA).11The Anti-cartel Laws Study group (n 3) submitted its report in April 1964.12The genesis of this legislative measure might be found in the Fundamental Rights andPrinciples of Policy enunciated in the then Constitution 1973 that reads as follows:Article 18: Subject to such qualications, if any, as may be prescribed by law, everycitizen shall have the right to enter upon any lawful profession or occupation, and toconduct any lawful trade or business:

Provided that nothing in this Article shall prevent

b) The regulations of trade, commerce or industry in the interest of free competition

therein.Article 38: The state shall

a) secure the well-being of the people, irrespective of sex, caste, creed or race, byraising their standard of living, by preventing the concentration of wealth andmeans of production and distribution in the hands of a few to the detriment ofgeneral interest and ensuring equitable adjustment of rights between employersand employees, and landlords and tenants.

See the Constitution of Pakistan 1973, Ar: 18 and Ar: 38.

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ing competition issues effectively and revealed certain chronic deciencies in the

law; some related to the lack of stafng and budget and others to the lack of

legal provisions such as on the spot search issues, not covered by the MRTPO

70. Only private monopolies came under the purview of the ordinance, while

state monopolies did not.13 Furthermore, the denition of services was limited:indeed, major areas of services fell outside the denition clause. Some services

were covered under sector regulators,14 such as the National Electric Power

Regulatory Authority established under the Regulation of Generation, Transmis-

sion and Distribution of Electric Power Act 1997 (XL of 1997), the Pakistan

Telecommunication Authority established under the Pakistan Telecommunications

(Reorganisation) Act 1996 (XVII of 1996), and the Oil and Gas Regulatory

Authority established under the Oil and Gas Regulatory Authority Ordinance2002 (XVII of 2002). Hence, the Monopoly Control Authoritys role in the sec-

tors regulated by sector regulators had been marginalised. The MCA could onlymake recommendations to the government for suitable governmental actions to

prevent or eliminate undue concentrations of economic power, unreasonable

monopoly powers, or unreasonably restrictive trade practices. However, in prac-

tice that function of giving advice and recommendations was hampered by the

fact that businesses lying outside the purview of the law were not bound to pro-

vide any information to the MCA, making it difcult to conduct any investiga-tions into the sectors concerned.

The MCA also had very limited penal powers. There were capacity issues

regarding the MCAs organisational setup that needed to be addressed. Yet thecapabilities of staff in any competition agency may depend on the economic con-

ditions and regulation requirements of the country. This aspect will also be

affected by the degree of priority competition law is given in the governments

agenda. Most of the agencies in the world utilise the skills of economists, accoun-

tants and lawyers to evaluate cases. The MCA on the other hand had been suffer-

ing from a lack of professional skills. Lack of human, nancial and other

necessary infrastructure was another problem that led to picking the issues for

analysis/cases on a random basis. That shows that competition law was not on the

priority list of the governments economic agenda. Steps were taken to improved

the way the MCA worked, including training staff abroad with assistance from

donors, reorganising the MCA, strengthening its staffs capacity to achieve a bet-

ter output, and streamlining its procedures. However, the 1970s ordinance was

outdated and in need of modernisation, so it could be synchronised with a rapidlytransforming market economy. The MCA simply failed to do anything worth men-

tioning. Whatever its powers, they were not sufcient to serve the public interest.

C. Third phase: 20072009 (Competition Ordinance 2007)

In 2005, the Government of Pakistan requested a technical assistance programme

to help it develop the new competition law and policy framework which itrealised were needed. These were to include a government policy statement, a

13See n 8, MRTPO 70, s 25.14The Ordinance of 1970 covered transport, provision of board, lodging, entertainmentor amusement, supply of electrical or other energy then with Sector regulator NEPRA,

purveying of news with Sectorial regulator PEMRA, banking, insurance or investment.See n 8, MRTPO 70, s 2 (1) (j).

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new competition law, and a structure for a new competition agency to implement

the law.15 Thus, the Ministry of Finance and the MCA worked with the World

Bank and the UK Department for International Development (DFID).16 As a

result of these efforts, Competition Ordinance 200717 replaced the MRTPO and

dissolved the MCA.18

The Ordinance 2007 provided for the establishment of the Competition Com-

mission of Pakistan (CCP) to enable the proper functioning of the law.19 The

regulatory authority was instituted on 12 November 200720 with a mandate to

work as an independent quasi-regulatory, quasi-judicial body aiming to create a

business environment based on healthy competition for improving economic ef-

ciency, developing competitiveness and protecting consumers from anti-competi-

tive practices.21 The Ordinance 2007 corrected those deciencies of the MRTPOrelated to aspects of denition, coverage, penalties, and other procedural matters.

In November 2007, a state of emergency was declared in the country. Thethen Government issued a Provisional Constitutional Order (PCO) in the Pakistan

whereby the Constitution of Pakistan 1973 was suspended.22 The validity of the

PCO was challenged in the Supreme Court of Pakistan, and endorsed by a

seven-member bench on 15 February 2008.23 On 31 July 2009 the Supreme

Court, in Sindh High Court Bar Association v Federation of Pakistan,24 passed a

judgment declaring the PCO to be unconstitutional. Inter alia, 36 ordinances pro-mulgated prior to 15 December 2007, including the Competition Ordinance

2007, required the approval of parliament25 within a period of 120 days. The

15See Competition Policy Report, A Framework for a New Competition Policy and Law:Pakistan (The World Bank, August 2007) p iii accessed April 2011.16Ibid.17The Competition Ordinance of 2007 (CO 2007) was promulgated by the President ofPakistan under art 89(1) of the Constitution of Pakistan, on 2 October 2007.18The Competition Ordinance No LII of 2007 (published in the Gazette of Pakistan,Extraordinary, 2 October 2007) (CO 2007).19Ibid. CO 2007, s 12.20

The federal government issued the noti

cation regarding the establishment of the CCPand appointment of its ve members, including the Chairman of the Commission. See SChaudhry, Government Proposes Five Names for CCP Chairman, Members The DailyTimes (19 October 2007) accessed 8 June 2011.21See accessed September 2011.22Provisional Constitutional Order of 2007 (PCO) exempted CO 2007 along with otherordinances, as per Clause 5(1) & (2), from any limitations as to duration prescribed inthe Constitution. See Provisional Constitution Order No. 1 of 2007, issued 3 November2007, amended 15 November 2007.23See Tikka Iqbal Muhammad Khan and others v General Pervez Musharraf [2008] PLDSC at 178.24[2009] PLD SC at 879.25Article 50 of the Constitution of Pakistan stipulates a Parliament of Pakistan consistingof the President and two Houses to be known respectively as the National Assembly andthe Senate. Senate is the Upper House and the National Assembly is the Lower House ofthe parliament. The bill relating to the Federal Legislative List can be originated in eitherHouse. If the House passed the bill through majority vote, it shall be transmitted to theother House. If the other House passes it without amendment, it shall be presented to thePresident for assent. See The Constitution of Pakistan, 1973 Article 50.


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Competition Ordinance 2007 was tabled in the National Assembly as the

Competition Bill in October 2009. However, it was deferred to November 2009

as the parliamentary session was suspended when its term was about to

expire.26

D. Fourth phase: 20092010 (Competition Ordinance 2009)

President Zardari revalidated the Ordinance on 26 November 200927 under

Article 89 of the Constitution of Pakistan 1973, which says that the President

of Pakistan can promulgate the ordinance if the Senate or National Assembly

of Pakistan is not in session, and the President is satised that circumstances

exist which render it necessary for him to take immediate action. The Ordi-

nance then needs to be approved by parliament within the next 120 days to

become law.28

On 27 January 2010 the National Assembly passed the Compe-tition Bill 2009, which was then tabled in the Senate on 24 February 2010.

The Senate in turn forwarded it to the Senates Standing Committee on

Finance to consider the bill in depth and recommend changes. Prior to that,

in March 2009 the CCP requested the Ministry of Finance to start again the

process of promulgation of the Competition Ordinance 2009, which was due

to lapse on 26 March 2010 and had not yet been approved by the Senate.29

Nonetheless, the Commission was defunct for 22 days because of the lapse of

the Ordinance.30

26

See

Competition Commission of Pakistan in Jeopardy

Dawn Editorial (20 November2009) accessed December 2010; see also E Zaidi, What Will be theFate of Competition Ordinance 2007? The Nation (24 November 2009) accessed September 2011.27In this way the Competition Ordinance of 2009 deemed to have taken effect on andfrom 2 October 2007 thereby all the decisions and acts of the commission stand vali-dated under the Competition Ordinance 2007. See the Competition Ordinance No XLVIof 2009 (Published in the Gazette of Pakistan, Extraordinary, 26 November 2009) (CO2009).28A Subohi, Will the Competition Bill be Amended? Dawn Editorial (11 January 2010) accessed 15 December 2010.29See Re-promulgation of Competition Ordinance: CCP Asks MoF to Start Process

Pakistan News Watch(11 March 2010) accessed September 2011; seealso Law Ministry Issues Notication The News (24 April 2010) accessed September2011.30D Hussain, Senate Body to Discuss Competition Bill The Dawn (22 April 2010) accessed May 2011.

48 S. Fatima

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E. Fifth phase: 2010 (Competition Ordinance 2010)

On 18 April 2010, the President of Pakistan once again promulgated the Compe-tition Ordinance 2010.31 On 5 May 2010, the Senates Standing Committee on

Finance unanimously approved the draft of the Competition Bill 201032 with few

amendments.33

The CO 2010 lapsed on 16 August 2010. CCP as the organisation had

become a defunct body after the lapse of the Competition Ordinance 2010. Since

the ordinance had been approved by the Senates Standing Committee on

Finance,34 only parliaments approval was required to grant the CCP legal status.

F. Final phase: transition from temporary to permanent (Competition Act

2010)35

Finally, on 23 September 2010, the Parliament of Pakistan unanimously passedthe Competition Act 2010.36 Thus the Competition Bill that was presented before

the National Assembly of Pakistan for parliamentary approval in October 2009

had passed through a transition from a temporary to a permanent phase. It was

designed to promote a competitive and fair economic playing eld for the entire

31The Competition Ordinance No XVI of 2010 (published in the Gazette of Pakistan,Extraordinary, 20 April, 2010) [CO 2010].32S Chaudhry, Senate Body Approves Competition Bill 2010 The Daily Times (6 May

2010) accessed September 2011; see further, K Ali, Reply to Senate Committees Objections:CCP Opposes Setting up of Separate Tribunal The Dawn (5 May 2010) accessed September 2011; see also The Senate of PakistanDebates(Ofcial Report 16 June 2010) (62nd Session) Vol VI, No 10 p 10.33

The Senates Standing Committee on Finance proposed that CCP three members com-petition tribunal would act as a court of appeal against the decisions of CCP. TheSupreme Court of Pakistan would hear appeals against the decision of the competition tri-

bunal. The proposal aimed to improve the relations between courts and competitionauthority. Regarding the CCPs power of dawn raids, the Committee recommended thatthe CCPs team would verbally inform the undertaking for search operation at the time

of visit and would also inform in writing reasons for the forcible entry into the of

ce ofthe business undertaking. It further suggested that revenue realised through imposition ofpenalties by the CCP would be deposited in the Federal Consolidated Fund (FCF). How-ever, CCP fund would remain intact and that would be nanced through contributionsfrom federal and provincial grants. In this manner factors that hamper the efcient work-ing of the competition authority, like insufcient resources, constraints in hiring the ser-vices of renowned legal experts and practitioners, can be overcome. See S Chaudhry,Senate Body Approves Competition Bill 2010 The Daily Times (6 May 2010) accessedSeptember 2011.34See n 31.35S Rahman, Competition Law Comes into Force The Dawn (7 October 2010) accessed May 2011; see also S Chaudhry, NationalAssembly Passes Competition Act, 2010 The Daily Times (24 September 2010) accessedMay 2011.36The Act received the assent of the President of the Islamic Republic of Pakistan on 6October 2010 and was published in the Gazette of Pakistan on Wednesday 13 October2010. See n 2, CA 2010; see also accessed September 2011.


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corporate sector, while securing economic efciency and protecting consumers

from anti-competitive attitudes and practices.37 The title adopted reects the

objectives and scope of the law, as the Competition Act 2010 is broader in scope

and has more extensive application than the MRTPO 70.

III. Contemporary law: an overview of signicant features

The quest to understand competition law has continued for decades. Questions as

to its genesis, underlying ideas, exact role in an economy, and desired benets

for society are signicant.38 Modern competition law seeks to ensure that the

individuals right: not to be harmed by violations of competition law, is well

protected.39 Attempts by different legal systems to provide individuals with free-dom to trade40 and to protect them from restrictions which damage this right41

became the basis of the development of the competition regime.Competition law is designed primarily to protect competition or the competi-

tive process so as to enhance consumer welfare, guarantee consumers and pro-

ducers considerable freedom of choice and action, facilitate a more competitive

market where innovation may bring in new products and processes, and result in

an efcient allocation of resources. Nonetheless, the enactment and implementa-

tion of effective competition regimes help to foster competition between rms,thus improving competitiveness. However, progress in this eld indicates that

this is not all. Competition has currently become instrumental in the overall gov-

ernance and development of economies for maintaining a balance in trade anddevelopment both regionally and globally. Accordingly, it is a subject of particu-

lar relevance.

In the case of Pakistan, the government seeks to promote sustainable eco-

nomic development and improve public welfare through its competition policy

agenda. To this end, the protection and promotion of competition in all spheres

of commercial and economic activity, primarily through free play of market

forces and efcient allocation of resources in the economy, are prerequisite.42

A. Rationale of the law

The Competition Act 2010 is a subset of broader competition policy. The objec-

tive of the act can found in the preamble: to enhance economic efciency; to

protect consumers from anti-competitive behaviour; and to gain the advantages

of productive and dynamic efciency.

37See Passage of Competition Bill a Good Initiative Daily Times (24 September

2010) accessed September 2011.38For details see M M Dabbah, International and Comparative Competition Law (Cam-

bridge University Press, Cambridge 2010) 12.39P Landolt, Modernized EC Competition Law in International Arbitration (Kluwer LawInternational, The Hague 2006) 19.40See for example The Constitution of Pakistan, 1973, Ar: 18.41See for example The Contract Act of Pakistan, 1872, s 27.42See n 2, CA 2010, p 645.

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The previous law was enacted with the aim of providing measures against

the undue concentration of economic power, the growth of unreasonable monop-

oly power, and unreasonably restrictive trade practices.43 As mentioned earlier,

guaranteeing free competition in all spheres of commercial and economic activ-

ity; boosting economic efciency; and safeguarding consumers from anti-compet-itive behaviour are the basic objectives of the new law44 which are much

broader in scope and seem to be more pro-competition in approach as compared

with the MRTPO 70.

B. Anti-competitive agreements

The Competition Act 201045 prohibits any agreement that reduces competition

within the relevant market,46 whether it is written or oral, formal or informal.

This includes any agreement, whether or not it is unreasonably restrictive47

orintended to be legally binding. There is a provision in the law that allows the

CCP to stipulate individual48 and block exemptions49 from prohibited agreements

on the grounds of efciency or economic merit.50 Where arrangements are in

writing, no legal controversy arises as to their existence. However, it is difcult

to establish the violation of the law for enforcement agencies in the absence of

written agreement.51 Enterprises, in most cases, refrain from entering into writtenagreements and maintain secrecy by forming cartels. Such informal or oral agree-

ments intensify the problem of proof, as there is no direct evidence available. As

a consequence such behaviours are proved on the basis of circumstantial evi-dence. A further and vital mode of establishing the existence of an oral agree-

ment is by the direct testimony of witnesses, since enforcement agencies need to

be able to determine that some form of communication or knowledge-sharing of

business decisions has taken place among enterprises, leading to the formation of

cartels.Over the years, the competition authorities have devised various tools and

methods to break cartels. However, the leniency programme is the most effective

worldwide tool, helping competition authorities to detect cartel infringements by

43For details refer to Part II (A) and (B) of this article; see also note 8, MRTPO 70, pre-amble.44See note 2, CA 2010, preamble.45Ibid. s 4.46Ibid. s 2(k); relevant market means the market with reference to product and geographi-

cal market as determined by the Commission.47The erstwhile law (MRTPO 70) prohibited only restrictive trade practices that unrea-sonably reduced competition but the new law has rebuffed this approach and came upwith a distinct dogma.48See n 2, CA 2010, s 5 read with ss 8 and 9.49Ibid. s 7 read with ss 8 and 9.50KA Mirza and FK Daudpota, Pakistan Competition The New Regime (2007) 11Comp L I 79.51R Dibadj, Conscious Parallelism Revisited (2010) 47 San Diego L Rev 591.


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providing cartel members with a strong incentive to inform on their co-conspira-

tors.52 The Competition Act 2010 authorises the Competition Commission of

Pakistan to initiate leniency provision in case of a breach of Chapter 2 stipulations

of the law by imposing lower penalties on the undertaking that is a party to a

prohibited agreement, but provides vital information to the commission regardingthe alleged violation that can help the commission to proceed against such anti-

competitive agreements.53 It is worth mentioning here that the law enforcement

environment is the key to a successful leniency programme, such that any business

entities that enter into or continue to engage in cartel activity recognise that they

are highly likely to be uncovered by the competition authority.

C. Abuse of dominance

The notion of abuse of a dominant position of market power refers to those anti-competitive business practices in which a dominant organisation may engage in

order to maintain or increase its position in the market.54 All developed competi-

tion jurisdictions such as the UK, Canada, France, Germany and the EU prohibit

such practices.

Such anti-competitive business practices are concerned with having a domi-

nant position in the market and the ability to exploit market power. However, itis a fact that a dominant position in itself is not anti-competitive. Concerns are

usually raised when a dominant organisation has the capacity to set prices inde-

pendently and abuse its market power. The abuse of a dominant position of mar-ket power leads to prices higher than competitive prices, reduced output, reduced

quality of service, lack of innovation in relevant markets, and loss of economic

welfare.

The Competition Act 2010 focuses on the abuse of dominance55 and does

not pursue how to curtail or reduce a dominant position. Although there is pre-sumption of dominance56 where the market share exceeds 40% of the share of

the relevant market,57 the presumption of dominance is not culpable as it does

not suggest in any way that dominance is being abused. It is worth mentioning

here that the clause dening dominant position under the Competition Act

2010 not only refers to a dominant position of market power of one business but

52V Zoghbi, Strategic Priorities of Competition and Regulatory Agencies in DevelopingCountries draft paper, First Research Cycle of CUTS Competition, Regulation and Devel-opment Research Forum (CDRF) (20052007) p 34 accessed June 2011.53See n 2, CA 2010, s 39.54Ibid. s 2(1) (e) denes dominant position of one undertaking or several undertakings ina relevant market shall be deemed to exist if such undertaking or undertakings have theability to behave to an appreciable extent independently of competitors, customers, andsuppliers and the position of an undertaking shall be presumed to be dominant if its shareof the relevant market exceeds forty per cent.55Ibid. s 3.56Ibid. s 2(e).57See n 45.

52 S. Fatima

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also to the situation where two or more businesses acting together might exercise

control.58 Such a situation requires analysis on a case-by-case basis in order to

establish whether the acts or behaviour of an organisation or organisations

involve abuse of a dominant position of market power in terms of their purpose

and effect on the actual situation.59

D. Mergers60

UNCTAD Model Law denes a merger as a: fusion between two or more enter-

prises previously independent of one another whereby the identity of one or

more is lost and the result is a single enterprise.61 Merger and acquisition activi-

ties are considered one of the biggest perils to competition, since they enable a

few or a single enterprise to control the dynamics of competition in the market.

However, not all mergers and acquisitions fall within the purview of the law.Most jurisdictions with merger control systems apply various tests to examine

the validity of mergers, such as the market share test. Generally these tests origi-

nate from the jurisdictions doctrines vis--vis dominance or restraint. Some juris-

dictions prefer to develop a separate test, keeping in view the actual or potential

effect of the merger on competition and the competitive process. Most systems

stipulate procedures for pre-merger notication to the enforcement authorities, inorder to identify and resolve any problems before the merger takes place. The

Competition Act 2010 also stipulates that beyond certain limits all the desired

combinations must be approved by the Competition Commission.

62

The Competition Commission of Pakistan under Competition (Merger Con-

trol) Regulations 2007 (Regulation 2007) prescribes a threshold beyond which

merger parties must get clearance from the Commission of any intended mer-

ger.63 As a result, every proposed merger does not need clearance from the Com-

mission unless the value of gross assets of the business is not less than300,000,000 rupees excluding the value of its goodwill; and/or the combined

value of the organisations whose shares are to be acquired or which are proposed

to be merged is not less than one billion rupees;64 or the annual turnover of the

business in the preceding year is not less than 500,000,000 rupees and/or the

combined turnover of such businesses is not less than one billion rupees.65 It

offers rules for pre-merger control with a rationale to ensure efciency, lucidity

and certitude in the merger control mechanism.66 It further stipulates comprehen-

58See n 53.59See n 2, CA 2010s 3 (2).60Ibid. s 11 of the law is designed after the OECD/World Bank Model Competition Law.61United Nations Conference on Trade and Development, Model Law on Competition

UNCTAD Series on Issues in Competition Law and Policy, TD/B/RBP/CONF.5/7/Rev2(United Nations Publications, New York and Geneva 2004) 47.62See n 2, CA 2010 s 11.63Competition (Merger Control) Regulations, 2007 vide order SRO 1188(I)/2007 (Islama-

bad, 20 November 2007) reg 4.64Ibid.65Ibid.66Ibid. The Competition (Merger Control) Regulations 2007 prescribes the proceduraldetails for implementation of merger provisions given in the law.


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sive procedures for review and clearance of mergers that meet the thresholds pre-

scribed by the Commission and notied under the rules.

E. Deceptive marketing practices

The law under Section 1067

prohibits deceptive marketing practices.68

Deceptioncan be in the form of misrepresentation, omission, or misleading practice in pro-

motional agendas, communications, advertising, and customer service, thus con-

taminating the entire market.69 The Ofce of Fair Trading (OFT) was set up

within the Competition Commission of Pakistan on 7 July 2008. The OFT has an

online complaint provision. A preliminary investigation is initiated upon receipt

of a complaint following the formal enquiry under Section 37 of the law, providedthe initial probe veries the matter to which the complaint relates.70 The outcome

of the enquiry determines initiation of proceedings under Section 30, i.e. a show

cause notice (where the commission gives notice to the parties concerned regard-ing its intention to make order, and which also includes the reasons on which the

order is based) followed by hearings and concluded through an order that is then

published in the ofcial Gazette for public information.71

IV. Enforcement agency its structural framework, powers and functions:

a new version and intrinsic challenges

A. Structural framework

The most efcient type of administrative authority for competition enforcement is

expected to be one that is quasi-autonomous or independent of the Government,with strong judicial and administrative powers for conducting investigations andapplying sanctions. . .72

The CCP is a legal framework principally liable for the implementation of com-

petition laws, providing aid to ensure healthy competition, and developing com-

petition culture within the country.73

67See n 2, CA 2010 s10. Section 10 prohibits certain marketing practices that includes;distribution of false or misleading information that is capable of harming the business

interests of another undertaking; distribution of false or misleading information to con-sumers, including lacking reasonable basis, related to price, character, method or place ofproduction, properties, suitability for use, or quality of goods; false or misleading com-parison of goods in process of advertising; and fraudulent use of anothers trade mark.68The Ofce of Fair Trading has been set up with the idea of building and enhancingthe bond between CCP and the consumer. It has a mandate to identify and providesolutions to issues that stem from false or misleading advertising and cause problemsfor the consumers; to create an environment that aids better functioning market for con-sumers and ensures fair dealing in business. See accessed May 2011.69RK Hassan, Deceptive Marketing Practices (speech delivered at seminar organised byHelpline Trust in Karachi, 5 October 2010) accessed May 2011.70See n 2, CA 2010 s 37.71Ibid.72

Independence and Accountability of Competition Authorities United Nations Confer-ence on Trade and Development, Intergovernmental Group of Experts on CompetitionLaw and Policy, Ninth Session 1518 July, TD/B/COM.2/CLP/67 (United Nations Publi-cations, Geneva 2008) 3.73See n 2, CA 2010 s 12.

54 S. Fatima

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Analysis of the structural framework of any organisation needs to satisfy spe-

cic queries regarding its internal transparency, external transparency, and the

impact of its structure on output. There are various approaches to designing the

competition authority. Some prefer to entrust the powers of the authority in a sin-

gle individual, for example in the Competition Bureau Canada where the formalpowers are actually exercised by the Commissioner of Competition.74

However, it has become generally standard to establish a commission consist-

ing of several individuals, or a corporate body with a board of directors or mem-

bers. Therefore, a different model is considered appropriate, rather than the

exercise of power by just one individual. In the UK, the Enterprise Act estab-

lished the OFT as a statutory corporation on 1 April 2003, headed by a board

consisting of a chairman, an executive director and ve non-executive mem-bers.75 There is also a Competition Commission in the UK that is an independent

public body vested with powers to conduct inquiries into mergers and furtherauthorised to take decisions in relation to certain matters, particularly in relation

to mergers.76 Members of the commission are not recruited directly, but are

appointed after an open competition by the sponsoring body, the Department for

Business, Innovation and Skills.77 In the European Union, the Commission is

both the institution and the college of commissioners, consisting of one commis-

sioner from each of the Member States, and they are collegiately responsible fordecisions.78

In the case of Pakistan, the law declared the Competition Commission a legal

personality

79

and emphasised its administrative and functional independence.

80

The manner in which members of the authority and staff are to be appointed,

their tenure and removal in addition to the mode of nancing the authority,

power and functions of the members, as prescribed by statute, usually signies

the authorities functional autonomy.81 Questions arise on the process for recruit-

ment and selection of members. The law claries the aspect of composition of

the commission by dening the upper and lower limit of its members.82 At the

same time the law authorises the federal government to increase or decrease the

number of members whenever it deems appropriate.83 But there is no clear pro-

74Competition Bureau Canada accessed September 2011.75See accessed July 2011.76See accessed July 2011.77See accessed July 2011.78

See accessed July 2011.79See n 2, CA 2010 s12(2); for a detailed description of the topic see JC Gray, The Nat-ure and Sources of the Law (Columbia University Press, New York 1909) 49; see alsoJW Salmond, Jurisprudence (5th edn Stevens and Haynes, London 1916) 262.80See n 2, CA 2010 s 12(3).81See n 71.82See n 2, CA 2010 s 14(1), that reads as The commission shall not consist of less thanve and more than seven members.83Ibid.


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cedure for recruiting and selecting members under the CA 2010. It is recom-

mended that a selection committee for making recommendations for selecting a

chairperson or members should be dened under the law.84 Moreover, authorities

are suggested who should invite applications from eligible candidates for engage-

ment as experts/professionals in the eld of law to assist the Commission in dis-charge of its functions.

Competition authorities are expected to maintain an unbiased and transparent

approach in a decision-making process that is possible only if the authority is

insulated from undue political interference. To this end, it is recommended that

the Government of Pakistan relinquish its control over the regular functions and

decision-making processes of the authority. The MRTPO 70 did not provide any

qualication criteria for the selection of the Authority, and as a result senior of-cers with no relevant background have been posted in the MCA.85 The leaders

in any organisation can create and sustain the sense of mission, passion and com-mitment to full the goals of that organisation, and the same is true for the com-

petition authority. If members from an unrelated background are posted to the

competition agency, they will not be able to contribute effectively to the building

process of the organisation, as they do not comprehend the essence of the organi-

sation that is to promote the competition culture. The Act 2010 lays down eligi-

bility criteria for the appointment of members of the board,86 but the decisivepowers regarding qualication, experience and mode of appointment of the mem-

bers are again conferred on the federal government.87

The lack of a systematic approach under the MRTPO 70 hindered the analy-sis of various sectors of the economy. As a result, there have not been many sec-

torial research work/studies, hence a systematic approach could not ourish.

However, the CCP has commenced sectorial research studies.88 The MCAs bud-

get met only the pay and allowances of the employees; therefore, their research

efforts remained limited in coverage. Due to funding constraints, the services of

high-prole legal experts could not be obtained to represent the organisation at

the level of appeal. Secure sources of income are a prerequisite for an indepen-

dent competition agency, insulated from political pressures, to perform its work

without having to resort to endowments from the government budget. The Com-

84This helps the government full its commitment to the competition law and to the sus-tainability of the CCP. It further helps strengthen the CCPs autonomy since the govern-ments role in appointment and extension of tenure of members will be diminished. Inthe past, delay in the appointment/extension of CCP members, by the concerned ministry,adversely affected the working of the commission. See S Chaudhry, Appointment, Exten-sion of CCP Members Delayed The Daily Times (1 December 2011) accessed September2011.85See n 8, MRTPO 70 ss 8 and 9.86See n 2, CA 2010 s 12(5) gives an inclusive list of areas wherein a person s expertise,eminence and experience make him eligible to be appointed as a member of the Commis-sion, i.e. industry, commerce, economics, nance, law, accountancy or public administra-tion.87Ibid. s 12(5) proviso.88For example, Competition Assessment on Polyester Staple Fibre Industry of Pakistan,Cooking Oil and Ghee Sector, Fertiliser Sector, Automobile Sector, Sugar Sector, Avia-tion Sector, Power Sector in Pakistan, Banking Sector. See accessed June 2011.

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petition Act 2010 permitted the establishment of the CCP Fund as part of the

CCP, and as a source of income utilised by the authority.89 This fund consists of

grants and funds allocated by the government, fees and charges levied by the

Commission, donors contributions, income generated by the authority from its

own investments, and a percentage of the fee and charges levied by other regula-tory authorities in Pakistan.90 The functional independence of the authority is

counterbalanced by strict standards of accountability. The law ensures the CCP is

accountable by making it obligatory upon it to produce an annual nancial state-

ment that is to be audited by the Auditor General of Pakistan or its authorised

nominee.91 In the same manner, the authority is required to prepare annual

reports.92 Both these documents must be sent to the Federal Government within

a specied time period, for publication in the ofcial gazette and to be placedbefore parliament.93 However, the biggest challenge is to maintain the optimum

balance between autonomy and control that is the key to facilitating the outputof an organisation.

B. Powers and functions

The MCA under the MRTPO 70 had no power to grant leniency or a reprieve,

which are being used as effective tools by the majority of developed competitionagencies in other countries. Nor could it conduct dawn raids to gather evidence.

The Competition Act 2010 authorises the Competition Commission to delegate

the power to any of

cer of CCP to enter and search premises

for the purpose ofenforcing any provision of the Law.94 However, entry into premises may be

subject to certain conditions. For example, in some jurisdictions a court order is

required for entry into private dwellings, while in others, searches can be con-

ducted without warrant, provided certain other requirements are fullled such as

if there is danger in delay. In the same manner the Competition Act 2010ensures that this power is not misused by the ofcials of the CCP, hence reason-

able grounds are required to be maintained in writing before taking action.95 In

case enterprise without reasonable cause hinders the CCPs ofcer or valuer

from exercising the powers under section 34 of the Act, the law allows aninvesti-

gating ofcer to enter premises forcibly.96 The law also provides a safeguard that

the provision is used in juridical manner by making it obligatory for the investi-

gating ofcer to get the written order of the Commission signed by any two

members.97 Where a person thinks himself aggrieved, he may le a complaint

against the investigating ofcer and if, by conducting an enquiry according to

the rules, it is found that the investigating ofcer acted vexatiously, in excess of

89

See n 2, CA 2010 s 20(1).90Ibid. s 20(2).91Ibid. s 21.92Ibid. s 22.93Ibid. s 22 (2).94See n 2, CA 2010 s 34(1).95Ibid.96Ibid. s 35(1).97Ibid. s 35(2).


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his powers or in bad faith, he will be dismissed from the service and bear other

consequences as mentioned in the law.98

As noted earlier,99 the law enforcement authorities often face difculties in

establishing the existence of cartels and proving that the law has been broken, as

a result of the nature of cartel agreements. Co-operation from businesses or indi-viduals implicated in cartels has emerged as a benecial mechanism which

enables the authorities to detect and prohibit such practices. Such businesses or

individuals are rewarded by being granted immunity from any ne where they

are willing to end their participation, independently of the rest of the organisa-

tions involved in the cartel. Thus, competition authorities operate leniency pro-

grammes effectively worldwide for detecting cartel infringements. In the same

manner, the Competition Act 2010 also explicates the leniency provisions.100

The Commission may offer full leniency as well as partial leniency, depending

on the case.101

Moreover, the substantive law does not provide any enabling pro-vision relating to the early resolution of matters by methods of settlements or

plea bargaining, as is used in some of the developed competition jurisdictions

such as EU.102 The Competition Act 2010 only stipulates granting of lesser pen-

alty or leniency.

The levels of the penalties under the MRTPO 70103 were very low compared

with those of other countries. At the same time, the MCA could only imposepenalties for not carrying out its orders. It was beyond the MCAs jurisdiction to

impose penalties for breaching competition law, thereby encouraging businesses

to pay the penalties and continue their abusive practices.

104

Penalties under theCompetition Act 2010 are not only comparatively higher,105 they also cover

instances of any breach of the competition law as well as any disregard of the

CCPs orders. The Competition Act 2010 has specied maximum106 sanctions

such as for non-compliance of any order, notice or requisition of the Commis-

sion an amount not exceeding one million rupees, as may be decided in the cir-

cumstances of the case by the Commission; for knowingly abuses, interferes

with, impedes, imperils, or obstructs the process of the Commission in any man-

ner, an amount not exceeding one million rupees as may be decided in the cir-

cumstances of the case by the Commission. Where it is ascertained that the

organisation has been involved in infraction of the law, the Commission is

authorised to impose penalties calculated on the basis of the facts of the case.

The maximum sanction for a contravention would not exceed an amount of

98Ibid. ss 35(3) and (4).99Refer to pt III (B).100See n 2, CA 2010 s 39. It is further covered in Competition Commission (Leniency)Regulations, 2007 vide order SRO 1190(I) 2007 (Islamabad, 20 November 2007).101See Competition Commission (Leniency) Regulations, 2007 vide order SRO 1190(I)

2007 (Islamabad, 20 November 2007) regs 3 and 4.102The EU adopted a formal settlement procedure for EU cartel cases that came into forceon 1 July 2008. The settlement procedures offer a means for all parties involved in such

procedures to resolve the matter more quickly by admitting liability rather than defendingthe case, thus avoiding legal complications and reducing cost and time.103See n 8, MRTPO 70 s 19.104Ibid.105See n 2, CA 2010 s 38.106See n 2, CA 2010 ss 38(2) (b) (c).

58 S. Fatima

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75,000,000 rupees or an amount not exceeding 10% of the annual turnover of

the organisation, as may be decided in the circumstances of the case by the

Commission.107 Thereby, the agency has a broader, progressive and wider

domain. The law clearly species the modes of recovery of the penalties.108

The Commission, under the Competition Act 2010, has the power to makerules, with the approval of the Government of Pakistan, for all or any of the mat-

ters in which it is required to make rules or for the purpose of implementation of

the law.109

C. Competition advocacy

Competition advocacy110 is a requisite for any manoeuvre to improve a countrys

competitiveness. Competition advocacy is dened by the World Bank as the

ability of the competition ofce to provide advice, inuence and participate ingovernment economic and regulatory policies in order to promote more competi-

tive industry structure, rm behaviour and market performance. The Interna-

tional Competition Networks (ICN) denition of competition advocacy is:

activities conducted by the competition authority related to the promotion of a

competitive environment for economic activities by means of non-enforcement

mechanisms, mainly through its relationships with other governmental entitiesand by increasing public awareness to the benets of competition.111 Advocacy

is an ongoing process, and can be used as an effective tool to apprise the desir-

ability of competition policies and advocate reforms in market disciplines. Suc-cessful advocacy contributes to the intensication of the agencys reputation

among stakeholders, promoting good competitive practices in the marketplace.

Such a culture is indeed an essential precondition for deriving the benets of

competition and its contribution to furthering economic development by ensuring

the efcient allocation of resources in an economy.

107The rate of penalties has been revised under the Competition Act 2010. Previously itwas rupees 50 million for businesses where annual turnover could not be determined. In

the case of businesses where annual turnover can be determined, the rate of penalty isreduced from 15% of the turnover to 10% of the annual turnover under the CompetitionAct 2010. See n 2, CA 2010 s 38(2) (a).108Ibid. s 40, CCP is able to recover penalties through a variety of means including theattachment of property, the appointment of a receiver, and recovery from any person whois due to make payments to the defaulter.109Ibid. s 57, the Commission using this power, sought the collaboration of consultantsengaged by the World Bank and drafted the rules approved by the government and noti-ed in the of cial Gazette. See accessed 3 June 2011.110Competition advocacy is to promote competition through providing information, edu-cation and motivation to the general public, the business community, the government andregulatory bodies on the need and implementation of competition law hence, building acompetition culture through assertive public relations and dissemination of information.See J Clark, Competition Advocacy: Challenges for Developing Countries [2005] 6OECD J Comp L & Poly 4 6980.111

International Competition Network, Advocacy and Competition Policy report pre-pared by the Advocacy Working Group (ICN Conference, Naples, Italy 2002) accessed July2011.


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benet of both businesses and consumers, and initiating a healthy culture of

compliance in the country.118

V. Concluding remarksCompetition law is generally needed to protect against anti-competitive practices

and to nurture free competition in the market, hence promoting the competition

in the market and to safeguard consumers against unfair means adopted by rms.

Competition legislation is therefore necessary to regulate business, ensure con-

sumer and producer welfare, and promote the healthy growth of the economy

and social justice. Accordingly, a system of competition law which shields the

process of competition entails establishing a powerful, robust and independentcompetition authority to ensure improved economic performance. The Competi-

tion Act 2010 sets out the principles and norms of sound competitive behaviouras well as the manner in which these norms are to be enforced. It provides a

legal framework in which a business environment based on healthy competition

towards improving economic efciency, developing competitiveness and protect-

ing consumers from anti-competitive practices is to be created.119

To improve the effective enforcement of the Competition Law 2010, this arti-

cle makes a few recommendations.

(i) There should be a transparent process of recruitment and selection of

members. Clear, qualitative criteria for the appointment of members of theauthority should be applied in a non-discriminatory manner.

(ii) It is valuable to design the appointment process in a manner that assists

the selection of fair and impartial people who can sustain political pres-

sures. The committee for making recommendations for the selection of

chairperson or members should be dened under the law, thereby securing

appointment on merit, independent of the political situation of the country,

as it is undesirable that the members can be removed from ofce in the

event of a change of government.

(iii) The government, learning lessons from the previous law, should relinquish

its control over the regular functions and decision-making processes of the

authority and allow it to work independently.

(iv) Experts/professionals in the eld of law should be engaged to assist the

Commission in discharging its functions on the basis of merit.(v) It is productive to familiarise students from economics, law, management

and nance with the Competition Law and its provisions, and to impart

training on competition and related issues.

(vi) An initiative should be undertaken to provide internships to students in

the eld of competition law and policy.

118Lahore Stock Exchange was the rst corporate entity in Pakistan to adopt the VCCC.See LSE Approves Adoption of VCC Code Pakistan Today (Lahore 4 June 2011) accessedJune 2011.119See accessed August 2011.


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(vii) Workshops need to be organised in association with different competition

authorities in the developed world regarding planning and conducting

investigations into the abuse of dominance, restraints of trade, mergers

and other aspects of competition law.

(viii) Adoption of a mandatory consultation mechanism with the competitionauthority in legislative and regulatory procedures would also be benecial.

Notes on contributor

Sayyeda Fatima is a PhD Researcher at Vrije Universiteit Brussel and a Lecturer in Lawat the International Islamic University Islamabad, Pakistan.

62 S. Fatima

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Competition Regim in Pakistan

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