Director Bimal Patel address on the occasion the Conference of the Post-Doha Linkage between International Trade and Competition: Policy and Practice of Developed and Developing Countries, GNLU, Saturday, 05 March 2011
International Competition Law Convention (ICLC) can hardly be a distant but most and only viable option for the world policy-makers to prevent continuous collapse of the world trade and prevent trade conflicts. For a long time, the world trade community afforded to de-link the trade and competition and ensured that the North-South divide, dominated by the MNCs and covered by protectionist practices respectively, grows disproportionately.
Multilateral trade and developmental institutions, the World Bank, the WTO, UNCTAD and similar other bodies, have started pursuing, although very late, a coordinated and cohesive strategy to create understanding of competition issues having direct impact on the promotion of world trade and avoidance of trade conflicts. Not only their efforts would alleviate problems arising from the practices of powerful multinational corporations, often supported by the developed countries, international cartels but also give viable options to emerging firms and trade houses of developing nations, especially emerging economic players like Brazil, China, India and South Africa.
These efforts of multilateral institutions need to be complimented by research and academic institutions across the world. Their role would be (a) to bring together policy-makers and executives as well as judiciary to discuss the solutions provided by synergy of reconciling trade and competition policy and issues, (b) to propose practical and feasible recommendations and practices, (c) to draft guidelines for such policies, and most importantly, (d) to monitor the practices of stakeholders and report to the same to identify their responsibility for breaches of their obligations. Till now, such a holistic and integrated approach, among research and academic institutions has been found lacking for the reasons unknown.
We need to address issues not just on the basis of theories but empirical surveys. We must see whether the developing countries who are caught in a globalization process leading to a liberal trading environment try to compensate with laxist competition policies. Does India or for that matter other developing countries need to harmonize their competition policies with heavy weight powers or regional powers, for example South American countries with USA? Whether competition policies should be delegated to some supranational authorities at regional or global level? As the number of contentious issues are on rise, donot we need a supranational agency for antitrust policy?
When India is moving forward with trade liberalization policies, can we believe that these policy measures will also achieve some results which the competition policy aims at – to put a check on the ability of domestic producers to exploit consumers. We need to analyse what do we mean by harmonization of competition policies – is it cooperative determination of individual nations’ domestic competition policies, is it convergence towards some common principles or delegating authority to a multinational agency as I mentioned above.
For developing countries, it is important to work for direct technical assistance through the WTO and UNCTAD for general training on competition issues, specific training for economists, lawyers and judges, development of sound competition authorities, a lot of capacity building is required before developing countries could become ready for proper competition policy framework. Developed countries shall provide necessary assistance towards this effect.
Why WTO needs to discuss competition policy in a more integrated manner because while liberal trade, by promoting competition, can sometime act as a substitute to a procompetitive regime, in most cases a high degree of complementarity between trade and competition policies can be identified. The WTO Competition Agreement is the order of the day for developing countries. Developing countries need to use the current environment to promote basic competition principles and practices and to stimulate the development of their economies.
There are umpteen number of issues which can be clubbed together in comprehensively addressing the link between trade and competition without losing sight of paying full attention to an individual sector based issue.
We need to assess bilateral and regional free trade agreements, for example, in case of India, not less than 30 such agreements need to be examined. For example, how economic and trade issues bundled with competition issues circumscribe the prosperous relations between India and other nations.
At global level, there is a strong need to reform international economic and financial structures and ways to reduce the friction in the investment markets.
Role of international chamber of commerce and Incoterms about national and international business practices is equally important. The problems and prospects in the application of ICC Incoterms in compliance with other international instruments – the overlapping of the concept of passing of risk under CISD, and ICC Incoterm has been a great challenge in its application, this needs to be addressed.
One of the most important sectors is medicine – generic drugs and competition law. Can we say that Indian laws are geared to provide patented medicine to common man at affordable price. Factors preventing better access to essential drugs in developing countries are inadequate financial resources, weak healthcare structure, lack of drug legislation and policy and the prevalence of self-medication. Is not it the case that the effect of all TRIPS-plus provisions is that they complicate or delay the marketing of generic pharma products. Thus, the health sector need to be alert and remind the negotiators. We need policy measures to ensure that generic competition remains possible in India
Competition law not only ensures the establishment of competition mechanism in the market place but also obviates the ill-effect of unfair competition being thrust on the innocent populace in developing countries at large. Does Indian Competition Act need to have a relook to see whether it is able to protect competition and consumers, whether its provisions are fully suitable and relevance in the prevailing legal and economic landscape of India. While amending the act, we shall have examination of competition law and policy of nations in similar situations
To address the above issues and provide a platform to policy-makers, executives, judiciary, intellectuals and scholars alike, the Gujarat National Law University (GNLU), has taken in organizing conference on international trade and competition law. The conference aims to address, perhaps the most pertinent and burning issues in an integrated manner. The conference will seek to further a belief in the strengthening of national policies and developing global trust through common understanding of competition issues for promoting world trade and prevent trade conflicts at large. Furthermore, the Conference will also witness our solid commitment to the issue as we launch the Developing World Review on Trade and Competition – a research scholarly journal written by the stakeholders. This also reinforces our approach to legal research which is multi as well inter-disciplinary. GNLU Journal on Law, Development and Politics is an example of this kind.
Friends, GNLU aspires to contribute at grass-root, state, national and global level by operating at these levels in coordination with stakeholders. GNLU aims to contribute to the reduction of backlog of cases and I am pleased to inform this intellectual gathering that nearly 450 students have been helping the Public Sector Undertakings, courts at district level and the High Court as partner in reducing the backlog of cases. GNLU students have been doing classification, clubbing of legal issues, entering data, preparing synopsis, meeting with panel of advocates, judges, preparing templates – in the process, GNLU students have been able to appreciate the problems faced by our departments and PSUs, lower judiciary and High Court, therefore, when they will be employed by law firms or corporate, the grass-root level training will become the most handy for the senior partners of the law firms or legal counsels. Not less than 24 GNLU students were helping as legal assistants to Hon’ble Judges of the Supreme Court – a distinct achievement. They have brought laurels not only in the moots but we feel deeply touched when Hon’ble Judges, partners of law firms and counsels of corporate compliment them for their hard-work, commitment and sincerity. GNLU faculty and staff, at large, nurture these values along with teaching by setting their own example.
Harvard or Yale Law Schools are not known globally for their contribution to the global education but their services to the grass-root institutions of law and judicial governance. Theirs has been an approach to contribute to the strong institutions at state and federal level and transmitting the messages of these institutions across the world. GNLU aims to work on these fundamental strengths of these law schools for the socio-economic-political-cultural development of the nation and the world at large.
GNLU does not want to create only best lawyers or legal advisors but it aims to contribute to the enhancement of legal education in the entire state and we are pleased that the Government of Gujarat has mandated GNLU as a nodal agency to improve the standards of legal education, research, extension and training for all 32 law colleges. Uniform curriculum, availability of latest literature, regular subject and administrative training, organization of conferences and moot, giving exposure to law college faculty and students to international events organized by GNLU, publication of Gujarat Law Journal, access to GNLU electronic and print library, are some of the essential steps taken by GNLU. It is not perhaps an exaggeration to say that we get overwhelmed when the principals and faculty of these law colleges compliment and congratulate us for our holistic approach to legal education.
Exposure to basics of legal and judicial system of nations which are important economic partners of India is another training which is being provided to final year students every semester. Professors from Europe, USA and Asia have been visiting the GNLU and engaging GNLU students and faculty on the essential understanding of their legal and judicial system. In addition to training, we are able to enter into sustainable partnership with them. To compliment this training, GNLU has started mandatory foreign language program under which students get subsidized training in Arabic, Chinese, Russian, Japanese, Swahili, German, Spanish, French.
To boost the legal research, GNLU has been implementing various programs and activities, such as publication of its journals, review of books by GNLU students, group publication by GNLU faculty, writing of research papers to help policy-makers.
We are privileged and grateful to the Government of Gujarat for enabling us to become academic partner in true sense of the term by undertaking research on various projects such as drafting of bills, legal documents, legal opinions in many areas of governance. We deeply appreciate the continuous support provided by the Hon’ble Chief Minister Mr Narendra Modi, the Hon’ble Law Minister Mr Dilip Sanghani, the Hon’ble Education Minister Mr Ramanlal Vora, the senior officials of all government departments, Hon’ble Chief Justice Mr Mukhopadhya and all his brother and sister colleagues of the entire Gujarat judiciary, and I must say we are indeed privileged to receive support from all stakeholders, law firms, corporate houses, members of bar, academic institutions at large.
Once again, I welcome Hon’ble Mr Justice Deepak Verma, Hon’ble Mr Justice Tripathi, all our distinguished guests and participants of this conference. GNLU consisting of 38 full-time faculty and hundreds of budding brilliant law graduates in the fields of BALLB, BComLLB, BScLLB, BBALLB and BSWLLB, having clarity of vision and focused approach to holistic education welcomes you all.
It is indeed therefore a great pleasure and sense of satisfaction to organize the conference and present the recommendations emanating from the conference to the world community for its understanding of the issues.
Bimal N. Patel