Some critiques of the Competition Act, 2012

Bangladesh has planned to be a developed country within 2041. However, anti-competition or antitrust activities could hinder this mission. In the absence of fair competition in the market, this mission is not possible to achieve.

Bangladesh Competition Commission (BCC) was founded in 2016 to create equality in the market by creating sustainable competition in the economy, ensuring consumer interest and best practices in the market. It has both administrative and quasi-judicial powers to eliminate practices having adverse effects on competition, and to promote and sustain competition and freedom of trade in the markets of Bangladesh.

After coming into existence, the BCC has faced many challenges starting from the implementation of the laws. With the passage of time, our business practice has shifted to online platforms. As a result, the role of the BCC also expanded to issues involving the digital economy and e-commerce sector. It has now become a necessity for the BCC to move away from strategies used to examine a conventional business and include parameters of data accessibility, network effects, and multi-sided markets for getting a better grip on new-age areas like the digital economy and the e-commerce industry. It is expected that the BCC would take some measures to implement a framework for adequate transparency and define basic conditions for the e-commerce industry and digital market platforms. However, it is almost impossible to create such an environment under the present legal framework.

For a fair adjudication, there should be a separate judicial body consisting of judges. With the help of this procedure, the ongoing weakness of the BCC could be diminished largely. After the creation of a separate judicial body, there will be a balance between the pre-inquiry procedure and regular trial. In the present system, there is hardly any difference between regular trial and pre-trial action. Currently, many times the pre-trial procedure turns into a regular adjudicating procedure by the existing mechanism of the BCC. The normal procedure in our judicial system is that after an investigation by responsible agencies, the report is submitted before the court and then the regular trial commences. However, in the present mechanism, the BCC issues a notice and starts a regular procedure before conducting a proper investigation. This sort of activities is totally contradicting to our regular court procedure.

Photo: ccb.gov.bd

According to section 29 of this Act, an appeal against the order of the BCC shall lie to the government within 30 days from the date of such order. However, there is no definition of the term government for the purpose of this Act. As a result, it creates vagueness and confusion in case of filing an appeal against the order of the BCC.

A commitment in an anti-competition case is a recognised way by which a competition authority can terminate the investigation initiated against a party on the basis of certain behavioural remedies. However, there is no such procedure in our existing legislation. The government should enhance power of the BCC to add features of negotiated 'settlements and commitments', which are allowed in the European Union, Japan, and the United States, to quickly resolve cases through financial or non-monetary provisions to reduce litigation.

Commitment is a remedial measure in a case of anti-competitive practice not requiring admission of an infringement by an entity facing investigation, while settlement requires the company to admit it and is often allowed in cases of cartelisation. In countries where these provisions are allowed, regulators are able to facilitate resolutions over concerns relating to anti-competitive behaviour and bring in the required changes in corporate conduct without pursuing long-drawn procedures or litigation.

The competition law is a growing segment of law that is highly connected with our economy, market price, and fair competition. We should remove all gaps and update the existing legislation to ensure that businesses and companies compete fairly with each other. A separate judicial body should be set up as well as an appellate tribunal for quick settlement of the matter arising out of various actions of the BCC.

The Writer is an Advocate, Dhaka Judge Court.