Harmonization of competition policy in Southern Africa
Loading...
Date
2005
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Abstract
In the light of globalization, the establishment of the World Trade Organization WTO) in 1995, and the establishment of the Southern African Development Community (SADC) in 1992 and the Southern African Customs Union of 1969 (SACU), this research examines the approach (both internationally and regionally) towards one of the important disciplines, namely, competition policy
While the WTO-GATT Agreement of 1995, does not contain a chapter on competition law, Article 25 of the SADC Protocol on Trade, which came into force in 2000, only calls on Member States to implement measures within the Community that prohibit unfair business practices and promote competition. Similarly, Article 40 of the Final SACU Agreement requires all its members to have competition policies and to cooperate with each other with regard to the enforcement of competition laws and regulations. Noting these obligations of member states, the research studies the viability of harmonization of competition law in the Southern Africa region, considering the fact that all SACU members (Namibia, South Africa, Botswana and Swaziland) are members of SADC too and both institutions (SADC and SACU) have more or less the same objectives (although there are notable differences, such as while SACU is a "customs union" SADC is a "development community"), which can be captured to be 'the free movement of goods between member states and economic development of the region.'
There are no guidelines at SADC and SACU levels on what amounts to unfair business practices (althoughone may assume that these practices are similar to those recognized in developed countries, see Article 85(81) of the EC Treaty compared to the approach taken by South Africa and Namibia) or on the nature and content of the measures to be undertaken. Should such measures be the same in all Member States, or should whatever measures adopted have the object of prohibition of unfair business practices and the promotion of competition? How should state trading enterprises be handled and to what extent, if at all, should social and political considerations play a role in the nature of competition policy in Southern Africa? Lastly, is there room for the establishment of a SADC Competition Commission to oversee the proper implementation of competition rules (direct application of self-executing nature of the rules) in the region? In sum, it is submitted that the SADC and SACU provisions dealing with competition law are empty in many respects and it is these lacunae that this research wishes to address
One can afford to overestimate the value of this research, not only at multilateral level, but also at regional level in Southern Africa. The research will help carve the best model of competition policy that Southern Africa should adopt and will as such contribute towards the realization of general goal and poverty eradication and economic development in the region. The disciplines of trade and competition are interrelated and ought to complement each other for a successful regional market. Different competition laws in the region, and the absence of a credible institution to administer competition law may run counter to the good intentions or objectives of both SADC and SACU
Apart from defining competition and competition law in Chapter 1, this paper briefly introduces in Chapter 2, SADC and SACU, and reviews the state of competition law in this region. Chapter 3 contains the theoretical debate around harmonization of competition law at international level, while Chapter 4 contains a comparative study of other models of integration like the European Union, the Common Market of the Southern Cone (Mercosur), the North American Free Trade Area with a view of noting the strengths and weaknesses of each model and so to extract those qualities that SADC and SACU should consider at regional level. The research also discussed the United Nations (UN) efforts of harmonizing competition law in this chapter. The conclusions and recommendations are contained in Chapter 5, which is analytical in nature. It concludes that harmonization of competition policy in Southern Africa is a viable project
The nature of the multilateral agreement that may be negotiated at the WTO level is a constraint that this research has noted. However, an attempt to make SADC/SACU Agreement1 on competition law at least compatible with the existing WTO Agreements is made in the last part of this research. It is there where consideration is also given to the United Nations Conference on Trade and Development's Model Law on Competition of 2000.
Description
Keywords
Competition law, International trade, Southern Africa, Law and economics