Description

Nepal adopted a competition law in 2007 in the form of Competition Promotion and Market Protection Act, 2007. However, despite being a very important piece of legislation to ensure fair competition in the market in a country adopting a market economy in practice, the Act has not been implemented at all even after the lapse of 18 years since its enactment and formally coming into force. The very anti-competitive activities that the Act prohibits have been reported to be widespread, and no single case seems to have ever been investigated under this Act. Against this background, the main purpose of the research is to find out the institutional reasons behind such a dismal situation of competition law enforcement in Nepal and suggest the possible institutional reforms to ensure the effective enforcement. To this end, it focuses only on the design of competition law institutions and look into the institutional choices made by the major Asian jurisdictions for the enforcement of competition law in their respective jurisdictions and evaluate whether or not Nepal can learn from their experiences.
Most of the Competition or Anti-monopoly Acts in Asian countries and around the world have created a specialized agency, such as the Competition Commission of India in India, and staffed it with experts from relevant fields to carry out necessary investigations and make appropriate enforcement decisions. Nepal’s Competition Act has not created any such specialized agency and assigned the duty to investigate competition related matters to general administrative officers who have other responsibilities as well and who may not have even the basic knowledge of competition law and economics. Leading competition law scholars Professors Eleanor M. Fox and Michael J. Trebilcock have reported that that there is a remarkable degree of consensus on the basic procedural requirements and institutional performance norms of competition law institutions, and that such procedure/process norms can be fulfilled within a number of institutional designs. They have identified three basic models: the bifurcated judicial model (the competition authority goes to court for enforcement), the bifurcated agency/tribunal model (the agency goes to a specialized tribunal for enforcement), and the integrated agency model (a commission within the agency makes the first-level adjudication). Drawing upon the advantages and disadvantages of each of such models, the proposed research suggests an appropriate institutional model for Nepal. While doing so, it examines the institutional models adopted by Japan, India and Singapore and their perceived advantages and then looks into the issue of whether or not Nepal can learn any lessons from their choices and experiences in designing appropriate competition law institutions in the country.