World Bank

The book provides helpful examples of the challenges faced in terms of the financial and human capital needs for effective competition law enforcement as well as challenges of corruption and political pressure. Having set out these challenges, the authors document how some countries have very admirably dealt with them, showing how some competition authorities have risen to find effective solutions, making competition law worth much more than the paper it is written on.

The book provides illuminating insights on the contrasting historical and economic imperatives that drove the development of competition law and policy in the US, post World War II Europe and in selected countries on the African continent.  The authors explain that in the US, the development of antitrust law was a response to the industrial revolution and in its wake, large enterprises.  For almost a century, the US courts, interpreted antitrust law “to protect the weak from the strong.”  There was a significant shift in US antitrust law under the Reagan administration “away from economic democracy and towards efficiency” as the US focused on global competitiveness and economic power.

Local communities, for their part, consider investor responsibility a necessary part of the fabric of international law and politics. While the AU works towards framing business and human rights in Africa along with global developments regarding a treaty on business and human rights and treaties such as the Morocco/Nigeria BIT, African peoples and communities continue to adopt available mechanisms as avenues for communicating their positions on these important issues and exercising agency on a subject that is of utmost importance to their wellbeing.

Over the last decade, and especially in the mining sector, African state actors have begun to denounce unequal mining contracts, and are increasingly reviewing mining contracts accordingly. While African host states are seemingly taking it upon themselves to remedy real and perceived imbalances vis-à-vis investors in their mining contracts, a key question remains what structural reasons have led to such imbalances in the first place, and whose responsibility it is to address these structural issues: host states, investors, home states, international financial institutions, or all the above? This brief discussion contextualizes how responsibilities to redress unequal mining contracts may be shared.

Since TRIPS is extremely flexible on the PBRs regime to be adopted, they should obtain guidance from other balanced international instruments such as ITPGRFA. Further, they can obtain vital lessons from states such as India.