11
magazine
ALRAQABA
healthy competition. All of that
in order to increase the perfor-
mance of the market and achieve
economic efficiency, which would
greatly, benefit the economy of
the country and the society.
The Competition Protection Authority assumes
its mandate of controlling the freedom of com-
petition through three main directions:
The first trend is controlling listed agree-
ments for competition between projects:
Economic agreements that regulate competi-
tion refer to every arrangement in behavior be-
tween projects, any implicit or explicit contract
or deal, whatever the type of the deal. If the
consequences would forbid, restrain or deviate
the competition, which is represented by alli-
ances between two or more projects that prac-
tice an economic activity in a certain market,
and that it is aimed at deviating or changing the
natural rules of the market in a way that makes
the market not subject to supply and demand.
The legislator specified in articles (4) and (7) of
Law No.10/2007 examples of forbidden prac-
tices on every normal or legal person. It is no-
ticed that in the beginning of article (4), there is
a general clause that speaks to all competitors
in a certain market. The clause is “it is prohibit-
ed to make deals, contracts, practices or deci-
sions that harm free competition”. This prohibi-
tion is a general one that include all competitors
to stop deals, contracts, decisions or practices
that are harmful to competition. Whether they
had a controlling position or not.
Furthermore, article (7) of the same Law stated
that the provisions of competition protection
law applies on the misuse of intellectual prop-
erty rights, commercial trademarks, invention
and publication patents, if they cause harm-
ful effects to competitions and free commerce
protection. It should be noted that national
laws protect these rights. Therefore, Kuwaiti
legislator took into account that
the legal protection enjoyed by
the owner of the intellectual prop-
erty and invention patent does
not suffer from consequences
that harm the competition. So
that if the damage happened, the
Competition Protection Au-
thority can interfere in order to
stop any practices that harm
the competition.
The second trend is con-
trolling the misuse of the dominant posi-
tion:
The legislator did not define the dominant po-
sition in Law No.10/2007. However, they de-
fined dominance, which is position through
which a person or group of people can work
together, directly or indirectly, and be able con-
trol the product’s market by controlling 35%
of the market. In the definition, it is noted that
the Legislator took the legislative methodology
when defining market share. Unlike some leg-
islations which assigned the mission of defin-
ing the criteria of a dominant position to the
judiciary, which has an independent estimation
according to the inputs of each case.
Having a dominant position on the market can
be realized through a single project that has
control over the market, or it can be done in a
collective manner in a way that a set of projects
have the dominant position, i.e. having legal fi-
nancial or economic relations together.
It is worthy to note that enjoying a dominant
position is a legitimate thing, and it is illegal to
misuse that position.
Kuwaiti Legislator mentioned in article (4) of
Law No.10/2007, an example of the prohibited
practices by the ones with control only. Many
opinion went to that these examples were
made for the purpose of exclusivity, but about
the general content of the introduction of ar-
ticle (4) that included a general prohibition that
included all competitors to stop agreements,
contracts, decisions or practices that harm
competition. Therefore, what was mentioned
regarding prohibited practices by controlling
parties becomes as an example and not exclu-
sive. Types of harmful practices mentioned by
the Legislator can be divided
into 3 categories:
1- Harming the competition
by actions and practices re-
late to products.
The legislator gave huge im-
portance to products avail-
The objective of the
Legislator from these
provisions was to
protect businesses as
a transferable moral
with financial value
it is prohibited
to make deals,
contracts, practices
or decisions that harm
free competition
