CREATING AN EFFECTIVE COMPETITION AUTHORITY IN MYANMAR - By Pradeep S Mehta

Mingalar par OUTLINE Science for institutional building Key institutional design questions Criteria for evaluating competition law institutions Sequencing of competition law enforcement Challenges faced by young competition agencies Way Forward: Need to create competition culture

Science of Institution Building for Competition Regimes Crafting a competition law appropriate to the country’s economic circumstances, regional commitments, legal environment and the socio-cultural situation Establishing the priorities of the competition authority Building the competition agency, including recruitment and training of staff, development of case-handling expertise, etc Developing a competition culture, including through relevant public education activities Developing support from the public and the highest authority in the country.

Who would investigate and initiate proceedings What body would adjudicate contested competition proceedings Is there any role for political review by elected officials of competition authority decisions To what extent would competition decisions be reviewed Which branch of government would conduct investigation Key Institutional Design: Questions

Criteria for evaluating competition law institutions (i) Independence-Accountability: Free from political interference; institutional independence for appointments, performance review etc (ii) Expertise-Detachment: High level expertise required for sector specific industries, interpretation of empirical data, etc (iii) Transparency-Confidentiality: High level of transparency in performing investigative enforcement and adjudicative function; sensitive issues to be kept confidential, etc

Criteria for evaluating competition law institutions (iv) Administrative efficiency-due process: Many matters with which a competition law authority may be seized are time-sensitive (Eg. merger review) (v) Predictability-Flexibility: Significant value is placed on the predictability and consistency with which laws are applied.

Sequencing of Competition Law Enforcement: Different Stages StartEnhancementAdvancementMaturity Competition Advocacy and Education Merger ControlRegulationSecond generation: international arrangements Control of Horizontal Restraints Vertical RestraintsInternational co- operation Pro-active competition advocacy Checking Abuse of Dominance Development: effects doctrine Exceptions and Exemptions Technical Assistance Regional cooperation

Challenges faced by new competition agencies I. Borrow heavily from developed countries in designing their respective laws: does not effectively address the realities of the jurisdiction II. Young agencies commonly report a lack of cooperation and coordination of policy: particular government ministries and other regulatory bodies lack coordination III. Obstacles in dealing with cross-border anticompetitive conduct: lack formal and informal cooperative mechanisms with other countries’ authorities and immersion in a potential regional law

Challenges faced by new competition agencies IV. Overlapping jurisdiction of the competition authority and the judiciary: lack of specialized competence 0f public prosecutors, attorneys and judiciary V. Extreme financial and human resource constraints: lack of specialized human capital within agencies and complementary educational and professional institutions VI. Lack of a competition culture: lack of awareness among business community, government/non-government agencies, judiciary, public, etc

Way Forward: Need to Create Competition Culture Building strategic alliances with other economic actors/stakeholders in the country and region: sector regulators, government agencies, media, legislature, academia, bar associations, trade unions, consumer organisations, chambers of commerce; Doing or getting research done into possible areas of economic governance and activity which reduces competition and diminishes consumer welfare, and disseminating the results widely as both academic outputs and reader- friendly briefings; Conducting public meetings and seminars for all stakeholders to demonstrate the benefits of enforcement actions, and build institutional credibility; Undertake other measures that enhance transparency and public appreciation of competition policy and actions, including a media strategy which can reach out to a large audience.

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