The question of SOEs’ regulation under competition law and competitive neutrality has been subject to divergent views and debates over time, maybe due to a lack of global consensus and approach under the national competition laws. For example, while jurisdictions like the UAE expressly exclude SOEs from competition law regulation, others like Nigeria, India, and Peru do not.
This may be because SOEs operation spread across a broad range of markets, particularly in the utilities and public services industries and their level of involvement in the national economy varies from one jurisdiction to the other. Due to the special relationship they have with the government, which confers several advantages on them, their conduct may present a competitive challenge with the private companies operating in the same market. To address this problem, competition authorities, especially those from emerging markets, face several challenges, some of which are most prevalent within the developing world.
The above points noted, this article undertook a critical analysis of this identified challenge by reflecting on the approaches adopted by the European Union (EU), the People’s Republic of China, and Nigeria under its new competition regime. In comparing these jurisdictions, this article hopes that emerging economies with new competition regimes like Nigeria could learn from the experiences of developed and more advanced competition regimes (EU and China), and avoid the pitfalls from their SOEs competition regulatory endeavour.
The article concludes that SOEs’ anti-competitive conducts and well as that of chief executive officers (CEOs) who facilitate the SOEs conducts should be fully regulated by competition law, to protect consumers in emerging markets from the effects of the anti-competitive conducts. However, it recommended that to balance the competing interest between competition regulation of SOEs and the attainment of state policy objectives via SOEs, emerging markets should adopt a hybrid approach which is similar to that of the EU, with the provision of a narrow exception which should be construed very remotely, to prevent the abuse of the exception.