Having practised commercial law in Canada for more than 30 years, competition law was part of my transactional practice.

Not so much when I practised law in Bermuda.

On August 14, the Government of Bermuda published its consultation paper titled, Promoting Competition and Market Fairness in Bermuda, which asks for responses from industry and the public by September 15.

My first reflection on reading the paper was Mark Twain’s comments that Bermuda is “shaped like a fish hook, but not quite so big” and that it is “the biggest little place in the world”.

The introduction of competition law in Bermuda, as described in the paper, intends to include a focus on market concentration and monopolies. However, that focus may have a few conspicuous challenges that are unique to our economy.

First, a fundamental assumption of, and prerequisite for, the success of any competition policy is the existence of enough businesses with a large enough consuming market to allow multiple businesses to compete for shares of that market. Remember, we are a jurisdiction of about 64,000 people, and shrinking.

Imagine if Conway, Arkansas or Lowestoft in Suffolk or Medicine Hat in Alberta all decided they needed a robust competition law for their towns to reduce ownership concentration as the means to promote fair-trade practices.

Second, the challenge of Bermuda’s small market size is arguably exacerbated by its "Bermuda First” protectionist laws. Indeed, our robust immigration, employment and foreign investment legal restrictions may be necessary for many reasons, but those laws actually exist to intentionally dampen foreign competition in Bermuda.

Third, I am sure we have all noticed that the proverbial monopoly horse left the regulatory barn in Bermuda more than 100 years ago. While Canada (1889) and the US (1890) were introducing their first competition laws, Bermuda's family-owned land and commercial enterprises were busy taking our economy in the opposite direction.

High market concentration across many sectors of Bermuda’s economy is as endemic and culturally entrenched as it is arguably an organic result of our small economy and even smaller population. By comparison, Trinidad & Tobago’s population is 1.5 million, and Barbados has almost five times Bermuda’s population.

There are dozens of examples of high ownership concentration in Bermuda that generally work. We have a predominantly private sector healthcare system, and yet we have only one hospital. Bermuda's energy producer and distributor is a monopoly, and only two banks and only two local health insurers share dominant market positions in Bermuda. Even the production, processing and the sale of fresh cow’s milk is a monopoly in Bermuda. None of this is news; only a reminder.

In that regard, the consultation paper specifically discusses the current high concentration of ownership across Bermuda’s healthcare, grocery, electricity and media markets in the following terms: “… in each case, market concentration has increased without any public process to assess whether consumers are being served”.

So what is to be done in such a small and unique domestic economy in response to the Government’s findings, as expressed in the consultation paper, that the top three reasons people are leaving Bermuda are because of the high costs of food, housing and utilities?

The consultation paper does embrace the principle of “conduct over structure” and surely the ultimate goal of competition law isn’t to promote a more egalitarian economy. Isn't the ultimate goal of competition law to address unfair commercial conduct and abusive trade practices regardless of whether the perpetrators are monopolies?

Perhaps smaller economies and smaller consuming populations, which organically generate market concentration, should instead focus on the unfair and abusive commercial behaviours that are contrary to the most basic public and consumer interests.

Some monopolies behave well, and others don’t. The commercial behaviour of some monopolies and of some dominating enterprises can be successfully regulated in the same manner that the Regulatory Authority of Bermuda oversees both the communications and energy sectors.

In a jurisdiction like ours, where some market dominance is part of our pervasive cultural and organic economy, perhaps the exclusive focus should be on conduct over structure, and the unfair and abusive commercial behaviours themselves, rather than ownership concentration.

For example, what if a market-dominant car dealership in a small market such as ours decided to vertically integrate by owning a significant market share of petrol stations in Bermuda. Consumers might not notice or even care about that vertical integration unless that owner decided to charge consumers with cars not purchased from that owner a surcharge for fuel in an attempt to drive more petrol consumers to purchase their cars.

Arguably, market concentration on its own doesn’t matter much to consumers. However, when a dominant market owner leverages (or abuses) their dominant market position to change consumer behaviour outside of normal competitive market influences, then consumers may well feel wrongfully manipulated.

The discriminatory pricing behaviour in my hypothetical car and petrol example becomes an unlawful offence or civil violation when a seller charges different prices for goods or services to competing buyers for the same product with a view to either lessening competition or to enhance their dominant market position. As well, recent amendments to Canada’s competition law prohibits dominant market vendors from engaging in excessive and unfair selling prices as an abusive commercial practice.

The best news for future consumers in Bermuda is that the principles and standards of uncompetitive conduct and unfair trade practices are well entrenched in law and are well defined internationally.

The types of abusive commercial behaviours that competition law widely prohibits, often as offences, around the world include price discrimination; tied selling, otherwise known as “tying” or “bundling”; deceptive or misleading advertising; refusal to deal; bid rigging; bait-and-switch pricing; self-referencing; exclusive dealing; price maintenance or price fixing; and any restrictive trade practice that constitutes an “abuse of dominance” that lessens competition.

For example, the practice of “self-referencing” is a very well-established anticompetitive behaviour. Using financial incentives or penalties to steer consumer traffic exclusively to the dominant firm’s preferred or affiliated service providers and away from otherwise competitive goods or services may constitute an offence under most competition laws. Put simply, “self-referencing” occurs when those with market dominance treat their own vertically integrated products or services more favourably than those of rival competitors.

If a monopoly enterprise is behaving fairly and responsibly towards consumers, it is difficult to understand why that market concentration in a small economy is inherently contrary to public policy or national interest.

Of course, there are a raft of defences that might permit anticompetitive behaviour, and most competition laws spell those exceptions out in great detail, including economic efficiency, consumer safety, regulatory requirements, the allowance of intellectual property rights, or other valid and honest reasons that might outweigh the detrimental impact that such behaviour might have on consumers.

In the end, the Government will have to decide if our competition law is going to swim upstream against the 130-year tide of endemic and economically organic ownership concentration or focus, instead, on aggressively prohibiting any unfair conduct and abusive consumer practices that any business might impose on Bermuda’s consumers.

• Duncan Card is the chief executive of The Advisory Group in Bermuda (www.advisory.bm), which specialises in technology, cybersecurity, privacy, artificial intelligence, outsourcing and resilience regulatory compliance. This article is not intended to provide any advice