With the exception of India and Pakistan, South Asian countries have yet to properly implement their competition laws and policies. This chapter explores ways in which the implementation gap may be bridged, focusing on factors which may motivate governments or competition authorities in these countries to engage more meaningfully with competition enforcement and also considering strategies for doing so. The chapter argues that governments and competition authorities are more likely to support competition enforcement in their contexts if they are convinced of its potential to help them realise their goals of economic and social developmental goals. It also observes these countries’ growing engagement in the digital economy for its potential for growth and development and explores the role of competition enforcement for regulating e-commerce platforms. Finally, the chapter considers how the South Asian countries may learn from each other, and strategies for competition enforcement.

India and Pakistan adopted modern competition legislations in 2002 and 2007 respectively. This chapter traces and compares the adoption of modern competition legislations in the two countries to understand how these shaped the schemes and ambits of these legislations as well as the extent of their compatibility with and legitimacy in their respective countries. The chapter appraises the pre-conditions of transfer in India and Pakistan focusing particularly on their legal and political institutional landscapes and evaluates their respective motivations for adopting modern competition legislations. It also identifies the transfer mechanisms and the nature and range of legal and political institutions engaged by these countries in the course of adoption, and examines how the interplay of these institutions impacts the compatibility, legitimacy, and content of the adopted legislations.

The extent to which a country succeeds in enforcing its competition legislation is dependent as much on the interaction between the adopted competition system and the pre-existing legal system of the country as it is on the performance of the competition authority established by the adopted legislation. This chapter examines the extent and nature of interactions between the adopted competition enforcement systems and pre-existing legal systems in India and Pakistan by evaluating the petitions filed from orders of the CCI and CCP before the general courts in their countries. The chapter demonstrates that the nature and quality of these interactions has a discernible impact on competition enforcement in these countries. It argues that the interactions between the Indian and Pakistani competition legislations and the pre-existing legal systems in India and Pakistan are largely shaped in part by the strategies, mechanisms, and institutions through which the countries had initially adopted their respective competition legislation and the compatibility and legitimacy generated in the process. It further argues that the nature of these interactions determines the extent of competition enforcement in the country and the pace at which the adopted legislation integrates with the country’s pre-existing legal system.

South Asian countries, i.e., Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka, are not only at similar stages of economic development and have comparable relationships with multi-lateral agencies, but are also connected to each other through their geographies as well as parallel and sometimes overlapping histories. Among them, besides India and Pakistan, Bangladesh, Nepal, Sri Lanka, and more recently Maldives have also enacted competition legislation, while Bhutan has a competition policy, and Afghanistan a draft competition legislation which is yet to be enacted. This chapter outlines the pre-conditions of transfer in each of these countries and charts the progress of their competition regimes along the deliberation–enactment–implementation continuum. In doing so, the chapter analyses the motivations, mechanisms, and institutions engaged by each of these countries and evaluates the compatibility and legitimacy generated, or where the adoption has not been completed, likely to be generated, in the course of adoption.

Sanctions are not only central to competition law enforcement for their punitive and deterrent value but are also important indicators of the successful performance of competition law authorities. The Indian and Pakistani competition legislations empower the CCI and CCP to impose both monetary and behavioural sanctions as appropriate, and in the years they have been operational, both authorities have utilised the full range of these powers, albeit with varying success. This chapter examines the penal strategies of the CCI and the CCP as manifested in the sanctions and penalties that they have imposed over time, and argues that these strategies as well as the extent to which the CCI and CCP have succeeded in recovering the penalties are directly impacted by the compatibility and legitimacy generated in the adoption process, and indirectly impacted by the establishment of success of these countries in adopting the competition enforcement infrastructure envisaged in the adopted legislations.

Although law was placed at the centre of the development process in the Law and Development movement launched in the 1960s, there was limited understanding at the time of the factors necessary for borrowed laws to succeed in the adopting country. This chapter investigates the theoretical links between adoption and implementation of borrowed competition laws and integrates strands from comparative law, literature on policy diffusion and transfer, and new institutional economics to develop a framework for examining competition law transplants as they proceed along the deliberation–adoption–implementation continuum. This chapter argues that a borrowed law may be considered successful if it is understood, utilised, and applied in the borrowing country and continues to grow in and become a part of its pre-existing legal system. It further argues that this is only possible if the borrowed law is compatible with the context of the adopting country and enjoys a degree of legitimacy in it.

An analysis of the orders of the CCI and the CCP suggest that each national competition authority has its own distinct interpretive strategy which reflects the extent of compatibility and legitimacy generated for the competition legislation in the adoption stage. This chapter examines and compares the CCI and CCP’s interpretation of provisions for horizontal and vertical anti-competitive agreements to extrapolate some understanding of their overall interpretive strategies. The chapter demonstrates that despite the comparable antecedents of the relevant provisions of the Indian and Pakistani Acts, the CCP relied more heavily on foreign precedents in interpreting these provisions than the CCI. The chapter further demonstrates that the disparate interpretive strategies of the CCI and CCP may be explained by the disparity in the compatibility and legitimacy of the acts and to the CCP’s need to leverage foreign precedents to assert its international legitimacy, which in turn helped it to enhance its domestic legitimacy. The chapter finally argues that in addition to reflecting the compatibility and legitimacy generated at the adoption stage, the interpretative strategies adopted by the CCI and the CCP also shape the competition and legitimacy of the acts and chart their implementation trajectory.

Since 2002 besides India and Pakistan, Sri Lanka, Nepal, Bangladesh, and Maldives have also enacted modern competition legislations while Bhutan has adopted a competition policy and Afghanistan has prepared a draft which is yet to be enacted. This chapter examines the state of competition enforcement in these remaining South Asian countries and explores how the adoption processes through which each of these countries have adopted their competition legislation has impacted their enforcement efforts. In the case of countries that are still to adopt competition laws, the chapter predicts their implementation prospects. The chapter also explores how countries that have not made progress towards implementation, may learn from the Indian and Pakistani experience, and ends with discussing the patterns of diffusion and transfer and implementation of competition legislation throughout the region. The chapter identifies a hiatus stage in the adoption–implementation continuum, and argues that countries whose legislations allow for independent competition authorities and have actually established these may be better poised to utilise this hiatus stage to promote a competition culture and facilitate future enforcement than those that embed enforcement entirely within the government.

After formally adopting their competition laws, India and Pakistan were faced with the task of implementing them. However, although both countries established their national competition authorities, the CCI and the CCP, almost immediately after adopting their respective legislations, the enforcement of these legislations has not been without complications. This chapter compares the structures, mandates, and compositions of these authorities and their decision-making strategies, and provides a comparative overview of implementation of competition laws in the two countries by reference indicators derived from the orders issued by the CCI and CCP in respect of anti-competitive agreements and abuse of dominance. The chapter also links the performance of the CCI and CCP and their interactions with their countries’ pre-existing legal systems to the mechanisms and institutions employed by the countries in the adoption stage and the compatibility and legitimacy generated through them.