14
magazine
ALRAQABA
Legislations
project distributes for hospi-
tals. Furthermore, the Legisla-
tor required that the aim of the
division is to harm the compe-
tition. In other words, to have
intent to affect competition.
- Suspension of a deal or
contract on the condition of accepting
commitments that are not related to the
original deal or agreement according to its
commercial use.
These deals are called linking deals. It means
rejecting the sale of a product or commercial
service if another product or commercial ser-
vice is not bought. The dominant competitors
seeks linking deals in order to expand his/her
control and possess dominance over a market
or service that he/she originally does not have
control over. In this case, the Kuwaiti Legisla-
tor did not require intention or effects of this
practice.
- Wasting equal opportunities between com-
petitors by distinguishing some over others
in the terms of selling and buying without
any justification.
Alternatively, by leaking information for the ben-
efit of one competitor over another. The issue
of discrimination between competitors by forc-
ing different prices on products and services
is considered the clearest form of discrimina-
tion in deals. In order to achieve this kind of
violation, one has to make a deal between
two competitors who are working in different
levels if the market i.e. on the vertical level.
In addition, the enforced terms of selling and
buying must be different based on the com-
petitor. For example, a wholesale trader who
enjoys a dominant position enforces terms on
a retail trader that are different from the terms
enforced on another retailer, without any justi-
fication for this discrimination. It is fine that the
terms and conditions to be enforced from the
higher competitor (the producer) to the lower
competitor (wholesale trader) in
the chain of production or the
other way around. The matter of
justification is matter to be esti-
mated by the judge examining
the case.
Whereas regarding leaking in-
formation, the general clause
includes leaking information
related to selling or buying
and information related to the
competitor. Such as leaking
the prices to be pad for prod-
ucts and information about competitors. In this
case, the Legislator followed the method of
absolute prohibition regardless of results and
consequences.
3- Harming competition by obstructing the
practices of anyone doing his/her economic
activity.
Item (4) of Article (4) of Law No.10/2007 states
“to prohibit the prevention or hindrance of any-
one practicing his/her economic activity in the
market, or stopping it at any time”. Freedom
to practice economic activity is guaranteed
for everybody. Therefore, any action done by
a dominant competitor that leads to the hin-
drance or prevention of another competitor
doing his/her economic activity, and preventing
them from entering the market or to continue in
it is prohibited.
There are different ways to obstruct competi-
tors from entering the market, and it differs
from one market to another. For example, pric-
es discrepancies from the customers’ point of
view. The trader may seek to make extensive
publicity for the commodity he/she is selling so
that it gains good reputation among consum-
ers. Whilst there are no real differences be-
tween it and other similar commodities in the
market. In addition, there are legal obstacles;
there are the obstacles that come from legal
systems. Such as, the inability to manufacture
a product due to being protected by a pat-
ent or intellectual property rights. Alternatively,
the private sector is doing a certain activity,
which entails the inability of the private sec-
tor to pursue the same activity. Furthermore,
there are the economic obstacles. They mean
the composition of the market
and its competition in terms of
dominant position. The domi-
nant competitor might do illegal
practices in order to eliminate
other competitors and obstruct
The dominant competitors
seeks linking deals in order
to expand his/her control
and possess dominance
over a market or service
that he/she originally does
not have control over
the private sector
is doing a certain
activity, which entails
the inability of the
private sector to pursue
the same activity
