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An Overview of
Competition Law in Southeast Asia
• Ian McEwin
• Director, Global Economics Group
• Visiting Professor of Law, National University of
Singapore and Chulalongkorn University, Bangkok
• Senior Advisor, Rajah & Tann, Singapore
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Copyright R. I. McEwin
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Population
(millions)
1990
2005
ASEAN
435.6
Population
Growth
(%)
Per Capita
Income (US $)
Per Capita
Income
Growth (%)
1990-2005
1990
2005
1990-2005
558.5
28.2
801
1581
97
CHINA
1143.3 1315.8
15.1
339
1709
404
INDIA
849.4
29.9
383
705
84
1103.4
SOURCE:
http://www.aseansec.org/19006.pdf
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ASEAN Statistics 2008
Country
Population
(thousand)
Land Area
(Sq Km)
GDP per
Capita (US $)
Brunei
Cambodia
397
14,656
5,765
181,035
35,623
756
Indonesia
228,523
1,860,360
2,237
Lao PDR
5,763
236,800
918
Malaysia
Myanmar
27,863
58,510
330,262
676,577
7,970
465
Philippines
Singapore
90,457
4,839
300,000
710
1,844
37,629
Thailand
Vietnam
66,482
86,160
513,120
331,212
4,117
1,053
ASEAN
583,651
4,435,830
2,577
Source: ASEAN Secretariat http://www.aseansec.org/publications/ACIF2009.pdf
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Asian legal systems and
Administrative Law
• Administrative law concerned with regulating government
conduct
• Distinguish
▫ Judicialization – the range of activities over which judges
exercise authority. As dyadic relations (i.e. a group of two
people) based on reciprocity breaks down, business is forced
to rely on a third-party to resolve disputes - leading to rules
etc to guide future conduct In Asia, relations between
individuals and individual/Govt.. tend to be dyadic.
However, judicialization is tending to replace relational
governance and so business will rely more on
regulatory/judicial processes for adjudication
▫ Juridification – the extension of legal reasoning and
procedures into social and political activities
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Chen (2009)
• Ginsberg, Tom and Albert H.Y. Chen Administrative
Law and Governance in Asia Routledge 2009
Country
Juridification
Judicialization
Hong Kong
Increasing
Increasing
Indonesia
Small increase
Even smaller increase
Japan
Significant increase
Limited
Malaysia
No increase
No increase
Philippines
Increasing
Increasing
Singapore
Low degree
Lower degree
South Korea
Increasing
Increasing
Taiwan
Increasing
Increasing
Thailand
Increasing
Increasing
Vietnam
Increasing (from low
base)
Increasing (from low
base)
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Competition Laws in South East Asia
• Jurisdictions that have introduced competition law who also
have industry or sectoral regulation – e.g.
▫
▫
▫
▫
▫
▫
Indonesia
Thailand
Singapore
Vietnam
Malaysia
LAO (but no agency yet)
• Others do not have a general competition law but have sectoral
regulators that handle competition issues e.g.
▫ Brunei (telecommunications)
▫ Cambodia – looking at regulating telecoms
▫ Philippines – at least eight different Acts that deal with
competition
• In 2007 all ASEAN countries agreed to introduce
competition law by 2015. Regional Guidelines were
produced in 2010 – which closely follow the EU
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Competition Institutions in Asia
• Some competition regulators are independent statutory
authorities while others exist within government
departments
• Independent regulators:
▫ Indonesia – Commission on Business Competition
Supervision (KPPU) – appeals to the District Court with a
final appeal to the Supreme Court
▫ Malaysia – Malaysian Competition Commission (MyCC)
with appeals to the Competition Appeals Tribunal
▫ Singapore – Competition Commission of Singapore with
appeal to a Competition Appeal Board (full merit review).
Further appeal to High Court and Court of Appeal on points
of law or size of financial penalty
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Competition Institutions in Southeast Asia
• Within Executive Government:
▫ Thailand – Trade Competition Commission is part of
the Ministry of Commerce (Chairman: Minister of
Commerce, Vice –Chairman: Permanent Secretary of
MOC
▫ Vietnam (???) – the Vietnam Competition Authority
investigates and determines the merits of a complaint
and reports to the Vietnam Competition Council who
adjudicates and decides on remedies
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Abuse of Dominance
Two Main Approaches
1.
Regulatory Abuse of Dominance: Clear threshold set for dominance and then
certain kinds of conduct prohibited ex ante
1.
Indonesia
2.
Thailand
3.
Vietnam
Ex-post Regulation: Criteria for dominance established, but no ‘bright-line
rules on conduct - ex ante. Instead evaluated ex post (usually with guidelines)
to determine anti-competitive effect (effects examined to varying degrees in
different jurisdictions)
2.
1.
Malaysia
2.
Singapore
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Mergers
• As with abuse of dominance there are two major
approaches to mergers
 Vietnam - a regulatory approach that prohibits mergers that
lead to market shares greater than a prescribed amount
 Vietnam – prohibits mergers if the combined market share is
greater than 50% - but exemption if one of the parties is at risk
of becoming bankrupt or if the merger promotes exports or
contributes to socio-economic development and/or
technological progress (Art 19)
 All other Southeast Asian jurisdictions with competition law
adopt a case-by-case assessment of the anti-competitive
impact of merger – but Note: Malaysia has decided not
to introduced a merger law initially