In the past twenty years, the landscape of global political economy has dramatically changed with the rise of a number of economic and political powers beyond the sphere of influence of OECD countries. While the so-called BRICS countries (i.e. Brazil, Russia, India, China and South Africa) are currently the most popular label for this phenomenon, such countries have gradually become a broader group of nations understood as “emerging powers”, which have been seeking cooperation in many fronts in order to influence the directions of global economic governance and, consequently, to give rise to competing models in economic regulation.
With the aim of understanding one of the many facets of this influence, this project explores the growing evidence of a distinctive competition law and policy taking place among emerging powers that has been challenging the principles established in the OECD competition policy guidelines. This research is mainly performed through a systematic and critical analysis of the case law practice by some of the most representative competition authorities in that group (particularly in the BRICS area), with the use of the OECD legal framework (mainly represented by the US and EU) as a comparative reference.
This research argues that competition law has become a growing object of interest among emerging powers, mainly as an institutional tool of industrial policy. Being an important instrument for government intervention in market structures, competition policy has been used by those countries in order to promote a range of political and economic agendas, in a sharp contrast with the traditional use of competition policy tools by OECD countries. While developed economies have historically been a model for emerging economies with regard to the development and enforcement of competition laws, these have been modified and adapted for practical purposes, in the view of many factors such as insufficient knowledge, experience, as well as their use to promote and justify specific state interests.
In order to illustrate this argument, the project specifically observes how merger controls have been performed by competition authorities in BRICS countries since 2012, when most of their competition legislation were either enacted or significantly reformed. We find that the justifications and remedies adopted in such merger reviews show that these authorities, while predominantly following the standards and discourses originally developed in the EU/US, frequently do so in a manner to innovate in their outcomes. As a consequence, merger control remedies become, rather than a value in itself in BRICS countries, an instrument for meeting predefined political objectives and industrial policies, particularly according to the industry sensitiveness at stake, how issues of foreign discrimination and protectionism become relevant, as well as possible interests in the formation of national conglomerates.