This presentation by Teresa MOREIRA, Head, Competition and Consumer Policies Branch, UNCTAD, was made during the discussion “Competition provisions in trade agreements” held at the 18th meeting of the OECD Global Forum on Competition on 5 December 2019. More papers and presentations on the topic can be found at oe.cd/cpta.

1. - Competition provisions in Trade Agreements -
Teresa Moreira,
Head, Competition and Consumer Policies Branch
OECD GLOBAL FORUM ON COMPETITION 2019

2. Outline
• Introduction;
• UNCTAD's mandate on Competition law and policy; the UN Set of
Principles and Rules on Competition (1980); the UNCTAD Model Law on
Competition (90s);
• UNCTAD's experience regarding developing countries' Regional Trade
Agreements and Competition provisions:
- the Africa Continental Free Trade Agreement;
- the UNCTAD-SELA (Latin American and Caribbean Economic System)
Working Group on Trade and Competition (since 2009).
• Concluding remarks.

3. •

4. •
UNCTAD is the focal point for Competition law and
policy since 1980 and for Consumer protection law
and policy since 2015, within the UN system

5. The only internationally agreed instrument in
the field of Competition (General Assembly
Resolution 35/63
of 5 December 1980)
UN SET ON
COMPETITION
UNITED NATIONS Set of Multilaterally
Agreed Equitable Principles and Rules
for the Control of Restrictive Business
Practices (1980)
Scope:
• Rules for the control of anticompetitive
practices,
• The development dimension of
competition law and policy,
• Framework for international cooperation
and exchange of best practices.

6. •
- Competition law and policy (2) -
UNCTAD Model Law on Competition (1993):
substantive possible elements for a
competition law, commentaries and
alternative approaches in existing
legislations.
It includes 13 chapters covering key
provisions (definitions, scope, relationship
with sectoral regulators, institutional aspects
- functions, powers, sanctions, appeals,
action for damages).
Plus a Part 2 with commentaries provided
by member States' reports, which are
regularly revised for update.

8. • AfCFTA: shows Africa’s progress towards regional integration;
• Market access to 55 economies;
• Large market of 1.2 billion people;
• Worth 2.5 trillion U$D;
• Prevalence of anti-competitive practices (cement cartel; fertilizer cartel; telecoms
abuse of dominance; vertical agreements in audio visual broadcasting rights for
sports events);
• Avoidance to erosion of gains of open markets and liberalisation.
Regional and Continental Dimensions of Competition in
Africa: The AfCFTA

9. Country Diversity & categories (4 categories)
 23 countries with both a Competition law in force
and an operational Competition Authority;
 10 countries which have enacted Competition law
but have NOT yet established a Competition
authority;
 4 countries where the preparation of Competition
legislation has reached a very advanced stage;
 Remaining countries have NO laws yet.
RECs overlapping memberships
 COMESA, EAC, SADC, SACU;
 WAEMU, ECOWAS, CEMAC, etc.
Landscape of African Competition regimes

10.  Market outcomes under the AfCFTA will depend on how well the markets
operate;
 Development in terms of increasing awareness-raising on the need to
regulate markets in Africa;
 Existence of anti-competitive conducts with cross-border effects is evident
from the case law from African Competition Authorities;
 EU example as a sucessful reference in cooperation in cases-handling both at
national and regional levels.
Rational and Justification for a Competition Protocol

11.  To improve market efficiency: enhance transformation and growth;
 To safeguard possible gains of open markets;
 To widen the scope and capacity to deal with cross-border cases;
 To set minimum standards for business conduct at continental level;
 To create a platform to consult, cooperate and coordinate continental policy issues;
 To enhance sectoral laws inter-relationship with competition law at the three levels;
 To enhance governance and transparency in competition matters across the continent.
Key Objectives of an AfCFTA Competition Protocol

12.  The Continental Competition Protocol has been drafted;
 African Union (AU) members states would be required to understand and align
with the protocol;
 AU members need to be involved in the process and be part of it;
 AfCFTA creates a 3-layer institutions system: national/regional/continental;
 AU to build on existing institutions at all levels;
 Allocation of competences or application of subsidiarity principle.
Implications for Competition Enforcement

13.  AU will be calling on member States to include AfCTA in their planning and
budget;
 Capacity-building programs are being factored as transitional measures;
 Phase II negotiations are due to commence before the end of 2019;
 AfCFTA Secretariat Offices to be established in Accra, Ghana.
Moving Forward

14. • Working Group on Trade and Competition for the Latin American and the Caribbean
Region (WGTC), in association with the Latin American Integration System (SELA):
- since 2010, annually gathers Trade and Competition experts to discuss issues of common interest:
in 2018,Trade and Competition policies regarding maritime transport and the use of port infra-
structures and services and in 2019, interaction between Trade and Competition policies to
promote increased productivity and innovation. In 2020, the topic will be the impact of digital
economy and e-commerce in Latin America and the Caribbean;
- the only regional meeting discussing trade and competition issues after the 2004 drop of WTO
discussions on trade and competition;
- The mandate covers sharing information and experiences and doing regional focused papers.
UNCTAD-SELA Working Group on Trade and
Competition

15. • Competition law and policy is crucial to achieve open markets, foster innovation and efficiency,
providing for a level playing field that offers SMEs and newcomers business opportunities;
• Competition policy complements trade policy, being instrumental for countries to secure gains
achieved through trade liberalization;
• Regional Trade Agreements have contributed to improve the understanding of Competition
provisions' role and to encourage the adoption of national Competition laws, while fostering
cooperation regarding cross-border anticompetitive practices;
• Regional Trade Agreements between developing countries (AfCFTA) and "ad hoc" regional
networks provide members with stronger and more effective instruments to tackle global
anticompetitive practices and lead to partnerships and regional and international cooperation:
at the same time, they feed into the international Competition law and policy setting.
CONCLUDING REMARKS

16. •
THANK YOU!
teresa.moreira@unctad.org
http://unctad.org/en/Pages/
DITC/CompetitionLaw/Competition-Law-
and-Policy.aspx