Framing Competition through Law. Comparing Kuwait and UAE's Experiments in Transplanting Competition Law-Convergence or Divergence?

• Author: Mohammad Almutairi
• Position: Kuwait University Faculty of Law
• Pages: 417-438

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

framing ComPEtition through law

compariNg KuWait aND uae’s experimeNts iN

traNsplaNtiNg competitioN laW—coNvergeNce

or DivergeNce?

Mohammad Almutairi

Kuwait University Faculty of Law

E-mail: Mohammad.Almutairi@ku.edu.kw

ere is no denying the eort to introduce anti-competitive measures has been

one the most divisive issues in the area of international cooperation. In fact, the

eort to combat anti-competitive behaviors is the reason the Meeting of WTO

Ministers in Cancún, Mexico, has failed to produce any agreement. On its face,

this can be interpreted as a signpost that domestic entrenchment of competition

law may be stalled. Interestingly, competition law has become a xture of all

member states of the Gulf Cooperation Countries (GCC). Against that back-

ground, this paper argues the process of the domestication of competition law

is still possible, albeit modestly. To achieve that, it is important to rein in a host

of underlying conditions that might constitute a socio-cultural prole. For that

reason, this paper highlights the particularities of the receiving jurisdictions to

reveal the logic that can deepen the entrenchment of the legalization of anti-com-

petitive measures. To unfold the argument, this paper starts with the claim there

is a common aspiration among the GCC member states to embrace competition

as their primary means to achieve a diversied economy. is commonality is

undergirded by the fact all GCC member states share a similar cultural outlook.

To substantiate the claim further, the paper presents a contextualized and there-

fore intimate reading of Kuwait and UAE competition law.

Keywords: Comparative Law, Regionalism, Competition, Law and Business, Middle East.

VIII Indonesian Journal of International & Comparative Law 417-38 (October 2021)

418

Almutairi

INTRODUCTION

It seems clear the capitalistic-liberal legal order has been virtually

accepted as the most preferred path for many states to attain economic

development. One hallmark of the capitalistic-liberal legal order

is the existence of free competition. Clearly, the centrality of free

competition to the capitalistic-liberal legal order has something to

do with the conviction that ensuring a free and fair competition will

benet everyone. For that reason, today’s competition or antitrust for

the American is understood as “a body of law and policy designed to

promote, or at least to protect, economic competition.”1 Considering the

promotion and protection of economic competition is its overarching

goal, competition law is primarily, if not exclusively, in the realm of law

and economic analysis.2 To be sure, the conviction that the importance

of competition law is not simply about achieving economic values

or economic welfare is the supposedly neutral value. As a leading

commentator on the subject recognizes it, competition law can be an

indispensable tool to promote various agendas of the progressives,

such as introducing living wage.3 Going further, competition law that

emphasizes the importance of “product market antitrust” over “labor

market antitrust” presents “dangers to public welfare.”4 From this

standpoint, it is a veiled reference that the underpinning conviction of

competition is tied to a particular worldview, those of the egalitarian

societies. In a word, any attempt to understand the transplantation

of competition law beyond the West must consider the context of the

receiving jurisdictions.5

1. O B, C F  A 1 (2005).

2. For that reason, the only and most respected journal on competition is in

the tradition of law and economic analysis. See Journal of Competition Law

& Economics, J  C L  E (2022), https://

academic.oup.com/jcle/pages/About (last visited Apr 28, 2022).

3. E P, H A F W (2021).

4. Id. at 3.

5. To a limited extent, a recognition on the importance of culture to the success

of competition can also be inferred from a statement by the Secretary

General of CUTS and Co-chairman of International Network of Civil Society

Organizations on Competition. See Pradeep S. Mehta, Competition Cu lture

Key to Successful Competition Regime , https://www.cuts-ccier.org/pdf/