General Approaches to Dominant Market Position, Prohibition of Abuse of Market Power, and Market Structure Control Within the Brics Countries

• Author: K. Belikova
• Position: Peoples' Friendship University of Russia (Moscow, Russia)
• Pages: 7-33

BRICS LAW JOURNAL Volume III (2016) Issue 1

ARTICLES

GEnERa L aPPRoaCHES To DoM InanT MaRKE T PoSITIon, P RoHIBITIon

oF aBuSE oF MaRKET Po wER, anD MaRKE T STRuCTuR E ConTRoL

wITHIn THE BRICS CounTRIES

KSENIA B ELIKOVA,

Peoples’ Friendship University of Russia

(Moscow, Russia)

DOI:10.21684/2412-2343-2016-3-1-7-33

The article presents research on the general approaches taken by BRICS countries through

their legislation and legal orders to counteract anticompetitive market strategies such

as abuse of dominant market power and market structure control, as a means of both

global and regional governance in the legal orders of China, India, Russia, and South

Africa. The author pays particular attention to current legislation of the BRICS countries

in the eld of competition protection with regard to provisions related to (1) the criteria

for establishment of a dominant market position and (2) market structure control and

restriction of anticompetitive mergers & acquisitions, and ‘concentration’ of enterprises’

market power control xed by Asian (China and India), Euro-Asian (Russia), and African

(South Africa) legal orders and prohibition of abuse of market power. The article argues

that our society is interested in the engagement of the population in trade and industrial

activity. This is the general rule. Nowadays, however, this rule allows exceptions: restrictions

on freedom of trade can be justied by exceptional circumstances in certain cases and

under certain circumstances (e.g. an exemption necessary in the interest of security of the

state or public interest). The analysis of substantial contents of the laws on competition

and monopolies of the abovementioned BRICS countries and relevant case law shows

the existence of a number of conventional, generally acknowledged (unied) provisions

and norms. At the same time, there are specic features that make them dierent. These

generally acknowledged provisions and peculiarities are a focus of the article.

Key words: BRICS; protection of competition; restrictive business practices; market power;

dominant market position; abuse of market power; prohibition of abuse of market power;

market structure control; mergers & acquisitions.

BRICS LAW JOURNAL Volume III (2016) Issue 1 8

Recommended citation: Ksenia Belikova, General Approaches to Dominant Market

Position, Prohibition of Abuse of Market Power, and Market Structure Control within the

BRICS Countries, 3(1) BRICS Law Journal 7–33 (2016).

Abbreviations

AML – Anti-Monopoly Law of the People’s Republic of China of 2007

BRICS – Grouping of Countries Comprising Brazil, Russia, India, China, and South

Africa

M&As – Mergers & Acquisitions

MNCs – Multi-National Corporations

OECD – Organization for Economic Cooperation and Development

Table of Contents

1. Introduction

2. Discussion

2.1. General Сharacteristics of Sources of Competition Law Within the Legal

Orders of China, India, Russia, and South Africa

2.2. Criteria for Establishment of a Dominant Market Position Fixed by Asian

(China and India), Euro-Asian (Russia), and African (South Africa) Legal

Orders and Prohibition of Abuse of Market Power

2.3. Anticompetitive M&As and Market Structure Control Realized by the

Responsible Governmental Bodie s. General Prov ision on Rest riction

(Control) of ‘Concentration’ of Enterprises’ Market Power

2.4. BRICS Domes tic Competit ion Authoriti es Cross-Bo rder Coopera tion

and Interaction

3. Conclusions

1. Introduction1

Clubbing together is in the mainstream nowadays. Thus four major emerging

national economies – Brazil, Russia, India, and China – clubbed together in 2006 and

created BRIC. With South Africa joining in April 2011, the term BRICS has become

a widely used acronym for the shifting of global economic power from developed

economies to major developing countries.

Given their expanding economic size and increasingly active diplomac y, BRICS

countries are gradually gaining greater inuence over the international decision-

1 As for Brazil, see my research: Belikova K. La protección jurídica de la competencia en MERCOSUR, 26

BLC 59-73 (2010), at (accessed

Nov. 17, 2010).