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UNDP, Using Competition Law to Promote Access to Health Technologies: A Guidebook for Low- and Middle-Income Countries

Frederick M. Abbott, Sean M. Flynn, Carlos M. Correa, Jonathan Michael Berger, and Natasha Nayak, United Nations Development Program (ed. F. M. Abbott), 2014

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There are some important reasons why low- and middle-income countries (LMICs) may choose to make greater use of competition law and policy to reduce the cost of treatment. First, multilateral trade rules allow substantial flexibility in the development and application of competition law and policy, taking into account different perspectives and approaches in this field that can and do shift over time. There is considerable room to manoeuvre. Second, as a consequence of accommodating the variety of potential competition approaches, remedies available to address anti-competitive behaviour may permit a broader range of remedial action than some other public health-related flexibilities associated solely with patents. Third, competition law typically empowers a broad range of affected parties to request or initiate enforcement action. Intellectual property (IP) law, by way of comparison, may limit remedial or enforcement action to narrowly defined parties and interests. These limitations may exclude various parties that might otherwise seek to vindicate the public interest.

Measures against anti-competitive behaviour are not suggested to be the preferable launching pad in every case from which to pursue better access to health technologies, compared to other areas of law. But as a relatively underdeveloped yet promising mechanism for doing so, competition policy should be given greater prominence for its potential to complement efforts in other areas. The increased use of competition law and policy is not without its challenges. These include the relative novelty of these measures in many developing countries; the lack of a substantial body of precedent; underdeveloped competition law frameworks; and capacity constraints concerning enforcement structures in developing countries.

This guidebook includes five chapters, each of which addresses a different aspect of the competition law environment and framework. The executive summary presents a brief overview of the content of each chapter. The guidebook also includes several ‘model policies’ addressing different areas of competition law enforcement that may be adaptable and useful in the LMIC context, and two annexes containing case studies in the development of competition law frameworks in different countries and examples highlighting the results of competition law put into practise.

The objectives of competition law vary: promoting consumer welfare, increasing access to important commodities or as an industrial policy objective to increase local participation in a sector. These objectives will often overlap. A core objective around the protection of consumer welfare operates by restricting or regulating unfair business practices and anti-competitive concentrations of economic power. The objective of protecting consumer welfare is closely tied to the promotion and protection of human rights — in this particular context to the protection of the rights to life and health. For many LMICs, providing access to safe, effective and affordable health technologies is a major challenge that places a substantial burden on government and individual/family budgets.

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