Although law was placed at the centre of the development process in the Law and Development movement launched in the 1960s, there was limited understanding at the time of the factors necessary for borrowed laws to succeed in the adopting country. This chapter investigates the theoretical links between adoption and implementation of borrowed competition laws and integrates strands from comparative law, literature on policy diffusion and transfer, and new institutional economics to develop a framework for examining competition law transplants as they proceed along the deliberation–adoption–implementation continuum. This chapter argues that a borrowed law may be considered successful if it is understood, utilised, and applied in the borrowing country and continues to grow in and become a part of its pre-existing legal system. It further argues that this is only possible if the borrowed law is compatible with the context of the adopting country and enjoys a degree of legitimacy in it.

An analysis of the orders of the CCI and the CCP suggest that each national competition authority has its own distinct interpretive strategy which reflects the extent of compatibility and legitimacy generated for the competition legislation in the adoption stage. This chapter examines and compares the CCI and CCP’s interpretation of provisions for horizontal and vertical anti-competitive agreements to extrapolate some understanding of their overall interpretive strategies. The chapter demonstrates that despite the comparable antecedents of the relevant provisions of the Indian and Pakistani Acts, the CCP relied more heavily on foreign precedents in interpreting these provisions than the CCI. The chapter further demonstrates that the disparate interpretive strategies of the CCI and CCP may be explained by the disparity in the compatibility and legitimacy of the acts and to the CCP’s need to leverage foreign precedents to assert its international legitimacy, which in turn helped it to enhance its domestic legitimacy. The chapter finally argues that in addition to reflecting the compatibility and legitimacy generated at the adoption stage, the interpretative strategies adopted by the CCI and the CCP also shape the competition and legitimacy of the acts and chart their implementation trajectory.

Since 2002 besides India and Pakistan, Sri Lanka, Nepal, Bangladesh, and Maldives have also enacted modern competition legislations while Bhutan has adopted a competition policy and Afghanistan has prepared a draft which is yet to be enacted. This chapter examines the state of competition enforcement in these remaining South Asian countries and explores how the adoption processes through which each of these countries have adopted their competition legislation has impacted their enforcement efforts. In the case of countries that are still to adopt competition laws, the chapter predicts their implementation prospects. The chapter also explores how countries that have not made progress towards implementation, may learn from the Indian and Pakistani experience, and ends with discussing the patterns of diffusion and transfer and implementation of competition legislation throughout the region. The chapter identifies a hiatus stage in the adoption–implementation continuum, and argues that countries whose legislations allow for independent competition authorities and have actually established these may be better poised to utilise this hiatus stage to promote a competition culture and facilitate future enforcement than those that embed enforcement entirely within the government.

After formally adopting their competition laws, India and Pakistan were faced with the task of implementing them. However, although both countries established their national competition authorities, the CCI and the CCP, almost immediately after adopting their respective legislations, the enforcement of these legislations has not been without complications. This chapter compares the structures, mandates, and compositions of these authorities and their decision-making strategies, and provides a comparative overview of implementation of competition laws in the two countries by reference indicators derived from the orders issued by the CCI and CCP in respect of anti-competitive agreements and abuse of dominance. The chapter also links the performance of the CCI and CCP and their interactions with their countries’ pre-existing legal systems to the mechanisms and institutions employed by the countries in the adoption stage and the compatibility and legitimacy generated through them.

Chapter 4 builds upon the legalization assessment by focusing on the latest (and current) iteration of the AIR: the 2009 ASEAN Comprehensive Investment Agreement (ACIA). What is distinct about the ASEAN investment project – and potentially transformative – is the evolution in objectives surrounding the role of treaty disciplines. By the time of the ACIA, those treaty constraints would no longer be used as part of a simple BIT-style project of delivering investment protection with the hope that this would somehow translate into greater flows of foreign investment. Instead, the ASEAN members now seek to strategically position their region as an integrated production base for foreign investment, thereby leveraging one of the fastest and most dynamic aspects of the global economy. Yet, clearly, the AIR continues to exhibit a low degree of legalization measured against conventional benchmark indicators. Chapter 4 seeks to contextualize and explain this low degree of legalization through both the ASEAN Way and negative social learning. The adaptation and reimagination embedded into the AIR calls into question universalist assumptions underpinning the concept of legalization and highlights the idiographic nature of legalization from a comparative law perspective. We argue instead that delegalization can be an independent and entirely legitimate mode of legalization.

Chapter 5 synthesises our analysis and identifies targeted normative reforms. ASEAN leaders will eventually need to defy political demands for protectionism to establish a stable foundation for economic growth as they harness the development potential within the ASEAN region. The inauguration of the Regional Comprehensive Economic Partnership Agreement (RCEP) provides a golden opportunity for ASEAN members to deepen trade and investment liberalization among themselves to maximize the RCEP’s true potential: the synthesis of extra-ASEAN and intra-ASEAN economic flows. What seems essential in soliciting cooperation from ASEAN members is to gradually expand shared grounds and consolidate the ASEAN identity pronounced in the ASEAN Charter. By embracing a constructivist logic, ASEAN members need a new paradigm of integration based on trust and confidence in their common market project. Touting human agency and soft law, ASEAN leaders can rebalance domestic political economy and collective economic interests, thereby synthesizing global and regional (ASEAN) value chains and linking a single ASEAN market to the global market.