The Decriminalization of Cartel Activity in Kuwait: A Regulatory Framework

Abstract

The Kuwaiti policymaker has never overlooked the protection of market competition. Anticompetitive practices have always been a concern in Kuwait; from the Kuwaiti Constitution 1962, which allows a legal monopoly for a certain time, and the Commercial Law Act 68/1980, to the Competition Protection Acts (CPA) of 2007 and 2020. However, the legislative responses to anticompetitive behaviours in Kuwait have varied, with criminal prohibition being historically dominant. Recently, with the introduction of the CPA 2020, Kuwait has decriminalized cartel activity. Although it may have been expected that the criminal nature of cartel activity should have been maintained, the major shift in Kuwait was contrary to the global trend towards criminalization. Cartel activity is now being dealt with within a regulatory framework, with only administrative sanctions. This paper suggests that the decriminalization in Kuwait weakens the argument that the global trend towards criminalizing cartel activity has always been driven by a top-down process. This paper has three aims: the first is to explore this inadvertently ‘neglected’ research area in Kuwait; the second is to discuss why cartel activity has been decriminalized, with a focus on the problem of ‘moral ambiguity’ as an explanation; and the third is to argue for the re-criminalization of cartel activity. Competition, Cartel Activity, Decriminalization, Moral Ambiguity, Kuwait