Enforcing Abuse of Dominance Under a Sharia-Compliant Competition Law: A Consumer-Welfare Approach? Implications for MENA Competition Authorities
Global Competition Litigation Review, Issue 3, pp.145-154
Posted: 6 Oct 2017
Date Written: August 2017
We investigate the questions of whether and when should MENA Competition Authorities intervene in markets in relation to abuse of dominance in order to comply with Islamic law. We, moreover, address the category of abuses, which these authorities should prioritise for enforcement as well as identifying the most Sharia-compliant method of market analysis for these practices. The results suggest that both unfair high pricing and below-cost pricing in general are prohibited under Sharia. Nevertheless, in the case of excessive pricing, unlike certain margin squeeze strategies (or below-cost pricing in general), MENA Competition Authorities should not deem it an investigation priority. Since its enforcement may lead to type I errors, which are strictly condemned whilst being less tolerable than type II errors under Sharia. Instead, enforcement priorities should be to other forms of exclusionary abuse that may also lead to high pricing, aside from below-cost pricing. The results also pinpoint that an effects-based analysis in relation to abuse of dominance in Islamic countries would be the most Sharia-compliant approach since it mitigates the risks of type I errors. Indeed, employing the relevant Islamic principles on monopoly significantly contributes to the development of MENA economies.
Keywords: Abuse of dominant position; Enforcement; Islamic law; Middle East; National competition authorities; North Africa
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