handcuffsLast week, an appeal by a French prisoner to the EU’s top court against his voting ban revived the debate about prisoner voting rights in the UK. Colin Murray writes that although the appeal was unsuccessful, the ruling did not foreclose the possibility of future successful challenges to bans on prisoner voting. He suggests that it is highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate to their crime in the run up to the 2019 European Parliament elections, indicating the issue will continue to be a thorn in the Conservative government’s side.

It has been eleven years since the Fourth Section of the European Court of Human Rights issued the Hirst v UK judgement. In that time, the issue of prisoner voting rights has become the touchstone for the fraught relationship between the UK and the system of rights protection under the European Convention on Human Rights (ECHR). Whilst other crises (such as Abu Qatada’s deportation to Jordan and the reviewability of whole-life sentences) have been resolved or defused, the Strasbourg Court’s demand that the UK modify its blanket ban on convicted prisoners voting has remained an intractable source of conflict, inflaming the Conservative’s manifesto pledge to replace the Human Rights Act with a British Bill of Rights.

For all of the political fulmination upon prisoner voting in the run up to the 2015 General Election, the UK’s showdown with Strasbourg has of late settled into an uncomfortable stalemate. The UK is in continuing breach of its Article 3, Protocol 1 obligations and as such is subject to regular censure before Committee of Ministers’ meetings for its failure to execute the prisoner voting judgments. At the same time, however, the Strasbourg Court has made it clear, in Scoppola v Italy, that minimal reform of the law to extend the vote to short-sentence prisoners would satisfy the UK’s obligations, and in Firth v UK has denied compensation to UK prisoners for the breach of their rights.

The Court’s first olive branch has been snubbed (with successive Governments failing to respond to a Parliamentary Committee’s recommendation, almost two years ago, that short-sentence prisoners should be enfranchised). But the UK Government’s refusal to meet the Court half way is unsurprising, given the Court’s refusal to press the issue. Strasbourg’s denial of compensation ensures that David Cameron does not have to justify make embarrassing payments to prisoners, effectively downgrading the clash from crisis to a running sore point.

The détente between Strasbourg and the UK makes last week’s judgement of the EU’s top court, the Court of Justice of the European Union (CJEU), even more intriguing. Serendipitously timed for release to coincide with David Cameron’s speech to the Conservative Party Conference (and the ten-year anniversary of the Strasbourg Court’s judgement in Hirst), the CJEU’s judgement in Delvigne v Commune de Lesparre-Médoc caused such consternation that Downing Street was obliged to deny that the UK would change its ban on prisoners voting even before the decision was known. The binding effect of CJEU judgments in domestic law means that its intervention on the issue would be much harder for the UK Government to side-step (at least with regard to European Parliament and local elections) than Strasbourg’s rulings.

In the end, Cameron’s speech was not upstaged, with the Court accepting that EU law was not breached in the ongoing denial of the vote to a convicted murderer in France over a decade on from the end of his incarceration. But if the judgment isn’t exactly headline-grabbing, is Joshua Rozenberg nonetheless right to argue that it means that the UK Government should act now on prisoner voting?

In many respects, the Delvigne reference was easy for the CJEU to resolve. The reference by the French Court was poorly constructed, with the Court being supplied with much less background information to the question of EU law its opinion was being sought on than it would usually expect (opening the possibility of ruling the reference inadmissible). The claimant had not attempted to follow the process which existed in French law to lift his disenfranchisement. Moreover, as a convicted murderer, France could make arguments about the seriousness of his offence warranting the additional punishment of disenfranchisement. The Court accepted that in some cases disenfranchisement was compatible with the EU’s Charter of Fundamental rights. Two years earlier, in Chester and McGeoch, the UK Supreme Court had reached the same conclusion on the limitations of the right to vote under EU Law:

I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting, in relation to European Parliamentary and municipal elections, thereby making all convicted prisoners eligible to vote pending fresh legislation found to conform with European Union law … under [EU law] a ban on eligibility will be justified in respect of a very significant number of convicted prisoners.  (Lord Mance, para.73)

And yet, in spite of these unpromising aspects of this case, the CJEU did not foreclose the possibility of future successful challenges to prisoner disenfranchisement using the Charter. The Court rejected the argument of the UK Government, intervening, that EU law was not engaged by criminal law sanctions or was not a live issue because the case involved a French national challenging French Law, and therefore involved no “cross-border” element. The Court affirmed that Article 39(2) of the Charter, by which “Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot”, did not need any cross-border element to generate a fundamental right enjoyed by EU citizens.

This means that in certain cases, claims for votes by prisoners will engage a Charter right. In the run up to the European Parliament elections in 2019 it will be highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate, given that the ban on voting applies automatically irrespective of the level of criminality which triggered imprisonment (which can be much lower than the serious criminality at issue in the Delvigne case) and there is no avenue to challenge the ban (as there was in the Delvigne case). These factors were determinate in the CJEU finding that French law involved a proportionate restriction of the right to vote. Such claims will be hard for the UK courts to dismiss out of hand, and could at the very least trigger a reference to the CJEU for consideration (as they previously refused to do in Chester and McGeoch, because of the serious criminality of the claimants in that case).

“Victories” like this one are therefore hard for the UK Government to crow over, even if they do help to kick the issue into the long grass for a few more years. It may ultimately be better for the UK Government to respond when it is not being forced to by pressure from a European Court (not that successive Governments have not revelled in the image of “standing up to Europe”). But perhaps the most interesting aspect of the case is the degree to which the CJEU staunchly refused to engage with any of the ECHR jurisprudence on prisoner voting. The Advocate General’s Opinion, released this summer, reached broadly the same conclusion as the CJEU (that EU law was engaged, but that the ban was proportionate), but did so based on extensive reliance upon Strasbourg jurisprudence.

The CJEU, however, continues to fear that it might lose out to Strasbourg as the ultimate arbiter where EU law engages human rights questions. Last year, it refused to allow the EU to accede to the ECHR and in Delvigne, as with other recent cases, it has shunned any mention of Strasbourg in its decisions out of concern over letting Strasbourg’s influence grow by the back door. Prisoner voting rights are becoming a central feature of yet another intractable struggle over Europe’s institutional architecture for protecting human rights.

Colin Murray is Senior Lecturer in Law at the University of Newcastle

HRAThe Conservative Party’s concept of a “British Bill of Rights” has long rankled in Northern Ireland. Seemingly in the interests of alliteration such fundamental proposals were titled in a way that carried with it thinly veiled disregard for sensibilities in what is supposedly a constituent part of the UK. Not a UK Bill of Rights, but one for Britain. British rights, not Irish rights. Beyond putting noses out of joint, it also spoke to a lack of consideration of the legal framework put in place by the Belfast/Good Friday Agreement. As the Coalition Government’s Bill of Rights Commission had warned (p.15):

[R]espondents, in particular in Northern Ireland … were also concerned that any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK, particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland

Nonetheless, with last week’s General Election victory the Conservative Party stands on the brink of being able to fulfil its manifesto promise:

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.

The latest reports suggest a draft Bill is near ready for release. The appointment of Michael Gove as Minister for Justice suggests that David Cameron is positioning a minister who certainly holds himself out as a public intellectual to lead the debate over this reform. But any thought that Gove’s appointment marks a softening of the Tory position on the Human Rights Act seems wide of the mark. The most prominent appointment in Gove’s ministerial team is Dominic Raab, a vocal opponent of the HRA and a minister intended to assure the right-wing of the Conservative Party that there will be no back sliding on this issue. And indeed, how could there be? If Cameron is to hold the Tory party together in support of his “renegotiation” of the UK’s EU membership, even if this results in insubstantial concessions over the UK’s position, and subsequent referendum, this faction will have to have blood, and quick.

So, in this context, are the implications of repeal for devolution (particularly in Northern Ireland) a genuine stumbling block or wishful thinking? Will a British Bill of Rights have to alter the Good Friday Agreement? Much will depend on the extent of the Tories’ intentions. Gove’s team could unveil plans which just involved the replacement of the Human Rights Act in England. This would negate any need to negotiate with hostile devolved administrations in Scotland or Wales or tamper with the wiring of the Good Friday Agreement. This would certainly save political capital, allowing the Conservatives to portray themselves as responsive to the will of devolved legislatures and to concentrate on getting the legislation into place as swiftly as possible (as it would constitute the fulfilment of a manifesto pledge the Salisbury Convention would also prevent opponents of the proposals from fighting a delaying action through the House of Lords). Doing so might well not satisfy the Tory Party’s right wing, as the Human Rights Act would continue to operate in three of the UK’s constituent countries, but in terms of addressing the demands of Conservative voters in England (the vast majority of Conservative voters) David Cameron could argue that he had fulfilled his pledge to scrap the Bill.

But a new measure which applies only in England doesn’t make for much of a British Bill of Rights. So assuming a proposal is introduced to Westminster with the intention that it should apply throughout the UK, what might happen next? The first difficulty that the UK Government would encounter is that human rights are a devolved competence. The Welsh Assembly Government, for example, has gone some way towards incorporating the UN Convention on the Rights of the Child into Welsh law, imposing a duty upon Welsh ministers to have due regard to the Convention in their decision-making. This means that the Sewel Convention is triggered, by which the devolved legislatures must consent to Westminster legislation that impacts upon their competences (explained here). Furthermore (as Aileen McHarg explains here) the devolved legislatures in Scotland and Wales would be able to re-enact the Human Rights Act’s terms, and would likely do so to thumb their noses at Westminster. In any event, the ECHR would still be able to apply directly to cover legislation and decisions by Scottish and Welsh ministers because of the terms of the devolution legislation.

Which brings us to Northern Ireland, which, as ever, is even more complicated. Under the Good Friday Agreement the UK Government agreed to the ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’. The Human Rights Act itself is immune from alteration by the Assembly (s.7(1)(b) Northern Ireland Act 1998). As Aoife O’Donoghue and Ben Warwick argue in a timely article in the Northern Ireland Legal Quarterly (see also here), if the Act was repealed then just as with the other devolved legislatures, ‘Northern Ireland could introduce an order that implements the ECHR for Northern Ireland alone’. The problem is that with the main Assembly parties at loggerheads on rights and equality issues (particularly around the Ashers Bakery case) and with the Unionist parties always ambivalent towards human rights, no such legislation would be forthcoming. Repealing the HRA as it applies to Northern Ireland would therefore undermine a key element of the Agreement. Oddly enough the Human Rights Act was merely intended to fulfil the role of placeholder legislation whilst a Northern Ireland Bill of Rights was drafted, but the inability of the Northern Ireland political parties to reach an agreement over such legislation now means that the Human Rights Act will likely soldier on in this corner of the UK at least.

The smart money would therefore appear to be on some form of compromise by which the Human Rights Act is repealed insofar as England is concerned, but remains in place in the remainder of the UK. Martin Howe QC, a key behind-the-scenes figure involved in drafting the Conservatives’ proposals is quoted in The Guardian as saying that ‘you could have significantly different standards of human rights across the UK’. The problems with attempting to impose a British Bill of Rights across the UK, although not insurmountable, would turn a relatively straightforward “win” for the Tories into a protracted fight. Any effort by the Conservatives to go further, and withdraw from the European Convention altogether, would likely descend into a pitched constitutional battle between the UK’s legislatures.

Written by Colin Murray

Colin Murray is a senior lecturer at Newcastle Law School where he specialises in national security law, legal history and public law. Alongside Roger Masterman (Durham University) he is the author of “Exploring Constitutional and Administrative Law”, a textbook on UK public law. You can contact him at colin.murray [at] ncl.co.uk or (+44) 191 2225805

Image from Stop Revenge Porn Scotland Campaign

Image from Stop Revenge Porn Scotland Campaign

Dr. Nikki Godden (Lecturer in Law, Newcastle Law School) – nikki.godden@newcastle.ac.uk

This post was first published on Inherently Human: Critical Perspectives on Law, Gender and Sexuality 

Chris Grayling, the Justice Secretary, has announced that the Government is ‘very open to having a serious discussion’ about the problem of revenge porn, in response to the call from Maria Miller, former Culture Secretary, for a change in the law to address the ‘appalling’ practice ( Justice Questions, House of Commons, 1 July 2014 : Column 745). This ‘appalling’ practice, whereby men (most commonly) distribute intimate and sexual images or videos of women (usually partners or ex-partners) on the internet without consent, is becoming more prevalent in the UK. And the effects of revenge porn upon its victims can be significant. Media reports highlight that victims have experienced personal and professional degradation and humiliation which have, in some cases, led to suicide.

The gender dimensions to revenge porn cannot be ignored. First, revenge porn is typically not an isolated abusive incident in a relationship but rather is one – albeit relatively new – method of control and violation in a wider context of domestic violence (see Scottish Women’s Aid’s Briefing Stop Revenge Porn on this point). Secondly, the fact that it is by far more common for men to distribute images/videos of women and girls contributes to and entrenches the sexual objectification of women, the sexualisation of young people, and gender inequality more generally. As such, it is important that the Government address this growing problem. It seems that the way it will do so is to consider creating a new criminal offence, or amending existing sexual offences to capture all instances where pornography is distributed without the subject’s consent. However, while further criminalisation may be helpful, the focus should be on preventing revenge porn by better regulating internet behaviour, which is a dimension of resolving this developing problem that has typically been absent from public discussions and proposed responses.

It is fair to say that current criminal laws do not properly capture revenge porn, although some can and have been used to tackle the problem. For example, victims can pursue a criminal and civil case against the person who uploaded/published the image for harassment (Protection from Harassment Act 1997). Or, where the victim is a child, the published, distributed or possessed image/video will be classed as child pornography which attracts criminal liability (Protection of Children Act 1978, s 1; Criminal Justice Act 1988, s 160). However, current offences are not designed to address the problem of ‘revenge porn’, leading to doctrinal difficulties (eg proving a ‘course of conduct’ for harassment (Protection from Harassment Act 1997, s 7(3), (4)), and conceptual issues (for example, the offences of distributing or possessing child pornography do not capture the abuse the individual suffers). Stemming from similar concerns, new criminal offences have been created in some states in America (for example, New Jersey, Texas, Utah, Wisconsin, New York, Maryland, and California), Israel, and some Australian jurisdictions, while other countries, such asCanadaBrazil, and Japanare currently considering similar solutions.

Nevertheless, there are significant limitations to existing and new criminal offences where the remedy is directed at the person responsible for uploading the image. It is likely that in many cases it will be difficult to prove that a particular individual posted the image or video on the website, meaning a criminal or civil case may be unsuccessful. Evidence is lacking to prove that crime and punishment have a deterrent effect; and in relation to gender-based crimes, scholars and activists have argued for a long time that law reform alone is insufficient to prevent such crimes. Another point here is that women will be reliant on police taking complaints of revenge porn seriously, and responding appropriately. But as with rape, for example, it is likely that victim-blaming attitudes will influence decision-making in the criminal justice system, inhibiting the effective implementation of laws addressing sexual abuse. The view expressed by Hunter Moore, founder of IsAnyOneUp, a (now obsolete) revenge-porn website, may be shared by others:

‘Oh the girl crying because she sent titty pics to some fool who put it on the internet … Why would you protect those people… How about this, you take responsibility for your actions and stop pointing the finger at other people.’

This is not to say that further criminalisation is unnecessary or futile, but it is to say that, unfortunately, it is going to be of limited value. What needs to be paid serious thought is the possibility of regulating and creating remedies against the websites which host and propagate the images.

Regulations and remedies targeting websites are central. The websites in question tend to be run for profit – typically through the display of advertisements – and are often extremely profitable, with revenues in the order of thousands of dollars per month. They are, in other words, exploiting these images – and their female subjects – for their personal financial gain. For instance, according to Moore, his website was earning around $10,000 per month from advertisement revenue. Equally, from the point of view of the victim, what is far more important is preventing websites from publishing these images, and providing a quick and easy ‘take down’ process to have them removed. Consequently, the websites sometimes advertise takedown processes – but they often charge hundred of dollars for the service, and are frequently run by the site owners themselves.

The contrast with commercial and intellectual property law is stark. Regulations and mechanisms in these contexts are directed at the website hosts and which are focused on making it simple to compel websites to remove infringing material. As such, it needs to be investigated whether similar mechanisms could be used to tackle revenge porn. In addition, as it is spread across the world wide web, an international conversation is needed. The Coalition Government focusing on localised criminal offences is insufficient. The message must be conveyed that a wider view of the problem and solutions are essential.

 

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Derek Whayman (PhD  Law, Newcastle University) d.r.whayman@newcastle.ac.uk

Supreme Court TV has been live since May 2011, running on the same infrastructure that brings Sky Sports to your computer or mobile device. But does it have any practical use to the student of law? If the sheer number of members of the public coming in but leaving quickly is anything to go by, it’s a minority interest. Moreover, court hearings have a reputation for being slow and difficult. Some would even say boring. But sometimes, a case will come up of intense interest to the would-be viewer. After all, the test for permission to appeal is whether the case is of public interest or if it might ‘raise an arguable point of law of general public importance which ought to be considered by the Supreme Court’. In other words, if it is one’s hobby-horse.

That attracted me to the appeal of FHR European Ventures LLP v Cedar Capital Partners LLC. I watched the 2½ day hearing from 17–19 June 2014, before an expanded, 7-judge court on account of its importance, naturally. Yes, it is possible to take a number of useful things from it, both in terms of legal argument, strategy, as well as – perhaps – how the Court is minded to develop the law. To assist anyone who is thinking of using this resource, here follows a report, guide and analysis of this experience.

FHR v Cedar is the latest instalment of the long-running saga as to whether the claim for taking a bribe or secret commission in breach of fiduciary duty yields a personal or proprietary remedy, following Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd, A-G for Hong Kong v Reid and Lister & Co v Stubbs (1890) 45 Ch D 1 (CA). Issues included whether a proprietary remedy was available at all, under what circumstances, and whether there was a personal disgorgement remedy in its absence. By ‘disgorgement’ what is meant is access to profits made by the wrongdoer above and beyond the principal sum extracted, for instance by investing the bribe profitably. The proprietary remedy does this but has other ramifications.

The secret commission in question was the €10m taken by Cedar when brokering the sale of a hotel to FHR. FHR were upset, supposing very reasonably that they had paid €10m more than they ought to have, and wanted the €10m for themselves. A proprietary remedy would make it much easier to enforce the judgment already obtained – FHR had already won the trial on liability.

So, what can one expect?

First, you need to know the applicable law inside out. You do not have the written Case (on which see Paterson) and the advocates will not take you through their arguments fully. Or they might try, but there is so much judicial intervention that they will not be able to. Ideally, you should be able to name cases before they do. You will see debates over particular steps in the arguments. So you will not understand these debates unless you already know the arguments.

Second, you might well find that both sides are shy of some arguments. Matthew Collings QC, for Cedar, insisted that there should never be a proprietary remedy. It was contrary to principle, he said. Christopher Pymont QC, for FHR, argued that when the wrong was within the scope of the engagement a proprietary remedy was automatic – and since the duty was to get the best price, this was the case. Yet in Sinclair – and repeated constantly by the justices in this appeal – the court wanted to develop a principled way to decide the matter. Presumably both sides were scared that the court might adopt a more nuanced test they advanced and then find against them on the application of the facts. The client wouldn’t be pleased. Indeed, Lord Sumption complained that ‘we might go off on our own frolic.’ So it’s down to us academics to map the law. The court was very interested in the articles by Roy Goode, Sarah Worthington, Peter Watts (2012) 129 LQR 527 and was pointed to James Edelman (2012) 129 LQR 66.

Third, you might want to facepalm on behalf of the defendants’ learned counsel. If what you are arguing for (no proprietary remedy) would rob the court of its power to disgorge profits from wrongdoers in other cases, do remember to think bigger than the current case and work very hard to demonstrate that such an remedy exists. Mr Collings QC evaded the issue in the face of constant demands to discuss it and eventually got down to business during his right to reply. He relied on a single case, Tyrrell v Bank of London (1862) 10 HL Cas 26, 11 ER 934. It is, however, extremely unfortunate that in the more recent Court of Appeal judgment in Novoship (UK) Ltd v Nikitin, handed down after the hearing, many more supporting cases were mustered in support of this remedy. Oopsie. Opportunity missed.

Fourth, you can enjoy watching some judicial feuds. Lord Millett, now retired, was manifestly unimpressed by Lord Neuberger’s judgment in Sinclair v Versailles and wrote a spectacularly grumpy article criticising it. Lord Millett then arranged for some materials (from Maitland’s lectures) to be presented by the advocates. Popcorn.

Fifth, you can pick up some advocacy tips. Mr Collings QC employed a stratagem when advancing a point which really did not impress the court. By this I mean the point did not impress the court. It was from the case of Bulkley v Wilford (1834) 2 Cl&F 102, 6 ER 1094 which was flagged as important by Lord Millett. When a justice asked sharply ‘Why did Lord Millett think we needed this?’ Mr Collings QC replied ‘What Maitland says in his lectures supported by my learned friend’s approach. We suggest no use.’ Tricking the court into rubbishing the other side’s points is entertaining, but perhaps a very risky strategy. On the other hand, see point four. Lord Neuberger appeared to wake up: ‘Is this the Millett bundle?’ he replied sardonically. Ire deflected. More popcorn.

Sixth, you might find some useful arguments. A genuine debate raged around the Tyrrell case. The judgment, like many of the time, is characterised by an absence of legal reasoning. Therefore the modern lawyer is forced to ‘reverse engineer’ the judgment and order via inductive reasoning to determine the applicable principles. Mr Collings QC insisted that the monies repaid were in respect of a personal remedy of disgorgement. Mr Pymont QC insisted that they were ‘netting-off’ costs the defendant was allowed (what is often called counter-restitution).

Seventh, you can find solace in judicial humour. If, like Mr Pymont QC, you advance cases from 1805 (Ex p Bennett (1805) 10 Ves Jr 381, 32 ER 893), no matter how gingerly, you can expect comments like ‘During the Napoleonic wars’ (Lord Mance) followed by laughter. Better to make the justices laugh with you, not at you, though. Try to find something like Carter v Palmer (1842) 8 Cl & Fin 657, 8 ER 256. There, Palmer was burdened by an expensive debt in the form of a bond. He wished to obtain a settlement of it in order to escape the high dividend payments. Palmer engaged Carter, his attorney, to buy the bond as cheaply as possible for him so he could redeem it at low cost. Well, Carter did buy the bond as cheaply as possible – but for himself, and then sued Palmer for the dividends due. With friends like this, eh? What a complete … constructive trustee.

Eighth, you might not have to wait as long for judgment as with other controversial cases. For instance, it was 14 months from hearing to judgment for Foskett v McKeown. In FHR, judgment was handed down on 16 July 2014, less than a month after the hearing ended, or to put it another way, the morning after this blogpost was apparently finished. A proprietary remedy was awarded, so FHR won in the end. Lord Neuberger apparently overruled own judgment in Sinclair (para 50). Maybe Lords Neuberger and Millett can now kiss and make up.

And that’s pretty much it. The most part of the hearing was the rehearsal of familiar arguments and an inordinate amount of judicial intervention. To quote learned counsel elsewhere: ‘why would I want to go to London just to be mugged by seven old men?’ The rewards are there, but they are scanty. The nuances and subtleties keep you going, but these are real insiders’ rewards. Don’t try to take anything from Supreme Court TV without being prepared – being very prepared. It won’t give away anything easily. On the other hand, once prepared, it is possible to see legal argument in action that is very relevant to writing a good essay. Just remember to write more formally if you decide to take ideas from this piece – it’s a gossipy blogpost, not an academic essay.

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– Phuong D. Nguyen (LLB Law, Newcastle University) p.d.nguyen@newcastle.ac.uk

Undoubtedly, competition law is moulded to assure the process of competition in terms of consumer welfare maximisation and the efficiency of the market. Accordingly, on the process of achieving a perfectly competitive market, firms are required to properly compete with concentrations on price, quality, and innovation of products and services. However, there has been no subsistence of ‘perfect competition’ in several developing countries due to the failures of the market. Firms ‘in concentrated industries’ or firms ‘protected by barriers to market entry’ have a proclivity to exploit their market power to arbitrarily constrain the productivity, raise the price, or reduce the quality of products to pursue their monopoly profits. Evidently, such conduct happens in different geographical markets and jeopardises the stability of the market, and consequentially, consumers’ benefit. Developing economies are the most susceptive subjects. Hence, in resistance to anti-competitive conduct and forestall in its detrimental impacts, the adoption of a robust competition law regime in the realms of both developing and developed countries has been proposed. Nonetheless, in practice, it is apparently difficult to implement a general competition law regime due to a vast array of disparities between developing and developed countries. Unfortunately, in this essence, some challenges would be inevitably engendered towards developing countries

The embryonic development – whether the convergence emanated from the actual desideratum of developing world?

Recently, there have been a large number of issues derived from microeconomic conducts triggering repercussions towards domestic markets and the global market. Thereby, such behaviours nowadays have not been the ‘prerogatives of sovereign nation states’ but viewed as ‘legitimate objects of attention by the international community’. Accordingly, there is an extraordinary spread of competition law witnessed in developing countries adopting, or attempting to adopt, competition policy to ameliorate the adverse impacts that stemmed from the explosion of ‘monopolisation’ and ‘international cartels’ in the 1990s. In the previous period, the preciousness of competition and competition policy had not been the pivotal concentration of the developing world. However, nowadays, due to the propensity of economic transformation, many developing countries have modified their economies based on the economic theories of comparative advantage and liberalisation, replacing ‘centrally planned economies’. Correspondingly, competition has taken into account the need of progressing competition policy with appropriate facilitation.

Nonetheless, this trend has been criticised as immature and ‘simply a response to international pressure’. The beginning of the developing world’s conversion into the developed world mainly arises from the requisite of counteracting devastating effects generated by microeconomic conducts of local individuals, households and firms. Thereby, the pressing of globalisation has persuaded policy makers of developing countries to enact competition laws, rather than the competition laws themselves being inherently formed on the basis of the real growth of developing economies.

Divergences between developed and developing world causing obscurities in achieving a general competition law regime.

There is a plausible existence of a convergence between developing countries and developed countries reflected by the International Competition Network (ICN) in its report on the Objectives of Unilateral Conduct Laws. According to the report, both developed and developing states ‘are common to the competition regime as a whole’ to systemise an ‘effective competitive process, enhancing efficiency and protecting consumer welfare’. However, it is stated that ‘Spokespeople for developing countries often express the need for an antitrust paradigm different from that of the developed world. Spokespeople for the developed world tend to argue for universal norms, which may apply differently when facts are different.’ Thereby, in spite of attaining ‘basic’ goals of competition law, it is still a huge challenge for developing countries to reflect the aims and targets of competition law equivalent to those of developed countries. Since the developing world and the advanced world are not regarded as being on ‘equal footing’ in the level of development. The competition law system of the developed world has been entirely fashioned and progressed pursuant to competition-specific considerations and patterns in the line with international agreements and general growth of international economy whereas the developing world arrives at the urgency of globalisation through international commitments.

On the other hand, regarding the ICN report, ‘ensuring an effective competition process’ can be regarded ‘either as a goal as such or as a means to achieve other goals such as consumer welfare and efficiency’ as it has been recognised by 32 out of 33 agencies from both developed and developing countries as ‘a stand-alone’ to ‘achieve different and related competition law goals.’ Hence, the aspirations of ‘ensuring an effective competition process’ might be variedly discerned in developed and developing countries. In addition, with regard to conceivable vindications of convergence, it might be argued that the onset of competition law in developing countries is merely ‘the cut and paste’ strategy or legal transplant’ from developed countries to developing countries. The competition policies of the developing world have a Western-approach but they have different purposes in the context of competition. For instance, the competition policy of South Africa is on the far side of economic objectives when pondering non-economic objectives with the aims of ‘correcting social inequalities resulting from its history, promoting employment, advancing social and economic welfare, ensuring to SMEs an equitable opportunity to participate in the economy and increasing the economic opportunities of historically disadvantaged persons’. Another example is the Chinese Anti – Monopoly Law (AML), setting up benchmarks to focus on ‘national economic development’ with an uncertainty of how this ‘open criteria’ shall be interpreted. Accordingly, this has resulted in the issue of overriding nationalist protection of China in some cases, typically, in Coca Cola/Huiyuan; Mofcom, the Chinese merger control agency had blocked the merger between Coca Cola and Huiyuan with the core concern of consolidating domestic beverage manufacturers. Nonetheless, this decision has received heavy denunciation regarding its substance and the absence of translucency as argued in The Economist ‘The most benign interpretation of the rejection…is that it reflects a political response to critical comments by America’s new administration. The more worrying interpretation is that, even as China publicly urges other countries to commit to open their markets to Chinese investment and trade, it is imposing yet another barrier to outsiders.’

On the other hand, there has been an inclination of several developed economies demanding that developing countries adopt competition policy as a prerequisite for entering into bilateral free trade agreements. Thus, this might put the developing world in an exigent situation with more harm than good. The first obstruction for developing countries lies inherently in the role of government in the economy. Some developing countries’ governments may go beyond and extend their interference such as in cases of expropriation – stringent trade barriers, which might potentially pose risks towards the economy – instead of leaving economic affairs to be operated by private corporations according to principles of the market. Typically, the lack of credibility of commitments in both ‘vertical’ and ‘horizontal’ has entailed market failures, low standards of equilibria and output. Additionally, the reaction of major developing governments is trying to reduce by ‘self-help’ remedies which are superficially anti-competitive when the government’s capability of administration is circumscribed as its judges and regulators are prone to pressure and corruption.

In respect of governance, the lack of independence of competition authorities subsisting as ‘investigating’ authorities has been mirrored in several segments of the developing world. In particular, those organs in some developing countries have short-time proliferation and have insufficient powers to efficaciously exercise their duties to reach legally binding decisions. A good example is Conselbo Administrativo Defensa Economica (CADE), the competition agency of Brasil, which is accountable to investigate cases of cartel and abuses of dominance. Albeit the advent of the Competition Act, the Law 8884/94 demonstrated the conception of autarquia federal to dictate that CADE was dependent, some provisions of the law have sabotaged the independence of CADE. Specifically, its existence was merely two years, ostensibly short, which accordingly pressed it to seek political support in terms of re-designation. Additionally, CADE also received assistance from Economic Law Office (SDE), part of the Ministry of Justice, and a Secretariat of Economic Surveillance (SEAE), part of the Ministry Finance. Thereby, it is readily understood that member of the authorities like CADE are politically assigned, and obviously have standard duties falling outside the field of competition law.

In addition, the significant peculiarity of convergence in competition law is indicated by the extraterritorial assertion of jurisdiction with plentiful vindications of this appeared in the major parts of the advanced world such as EU and the American regimes. Notwithstanding, there are inherent difficulties derived from the heterogeneous enforcement, externally-based information gathering and the refusal and none of cooperation from foreign firms and foreign competition authorities. For instance, in the case of Genco/Lonhro, two South African undertakings were proscribed by the Commission for their dereliction of dominant duopoly (collective dominance) in the markets of platinum and rhodium. However, in Gencor v. Commission, Gencor alleged that the regulation of the Commission could not applicable to economic activity conducted in a non-member country and granted by the government of South Africa in addition to the contravention of the fundamental principle of territoriality pursuant to international law. In addition, the Commission did not have jurisdiction under the EU Merger Regulation to prohibit activities in South Africa which, furthermore, the Government there had approved. Moreover, even in the developed segments such as EU and the USA, a contradiction in decisions by the competition agencies is unavoidable. A good example is the case of Boeing/McDonnell Douglas merger which represents a conflict in the co-operation agreements in practice. More specifically, in this case, the FTC reached a majority in deciding not to oppose the merger between the two undertakings, while the European Commission seemed likely, at one point, to prohibit it in its entirety.

It is necessary that with the growth of ample transnational transactions, the desideratum of a general competition law is demanding. However, on the basis of mentioned analysis and evaluations, when adopting such a competition regime, the developing world as the latter is evidently confronting with hindrances in comparison to the former, the developed world. Hence, this still seemingly surrenders and impedes the adoption of a sturdy competition policy mechanism in the both advanced and developing countries.