2012 Cambridge Business & Economics Conference
ISBN : 9780974211428
An Overview On The Application of Malaysian Competition Act 2010 In Air Transport
Industry
NORADURA HAMZAH
SAFINAZ MOHD HUSSIEN
MAHMUD ZUHDI MOHD NOR
Law Faculty
Universiti Kebangsaan Malaysia
43760 Bangi,
Selangor
MALAYSIA
Phone No: +690196580667 (Noradura Hamzah)
E-mail: q_ndura@yahoo.com
June 27-28, 2012
Cambridge, UK
1
2012 Cambridge Business & Economics Conference
ISBN : 9780974211428
An Overview On The Application of Malaysian Competition Act 2010 In Air Transport
Industry
NORADURA HAMZAH
SAFINAZ MOHD HUSSIEN
MAHMUD ZUHDI MOHD NOR
Law Faculty
Universiti Kebangsaan Malaysia
43760 Bangi,
Selangor
MALAYSIA
ABSTRACT
Competition Law is a new branch of law in Malaysian legal system. Malaysian
Competition Act 2010 (CA 2010) was gazette IN 2010 and is enforce starting from
January 1, 2012. Section 3(1) CA 2010 provides that CA 2010 applies to all
commercial activities both, within and outside Malaysia. Schedule 2 of CA 2010
listed multimedia and telecommunication as well as energy sector being sectors
excluded from CA 2010. Since there is no exclusion and exemption, CA 2010 is
enforce in the air service sector. Competition in air service sector in Malaysia is very
unique compared to other domestic transportation sectors. The framework in air
services sector is divided in accordance with its route of services offered i.e
international and domestic.
Both services have different framework. The
international air services rely on the international regime underpinning the principle
of state sovereignty over its air space. On the other hand, the domestic air service is
governed by policy and regulation. However, the competition framework in air
services is incompatible with the provision of CA 2010. It is opposed to the objective
of CA 2010,that encourages efficiency, innovation and entrepreneurship, which
promotes competitive prices, improvement in the quality of products and services
and wider choices for consumers. Therefore, this paper aim to provides an overview
on the framework of competition in Malaysian air transport sector and the application
of CA 2010 in order to indentify the anti competitive conduct exercise under the
current framework and to identify the anti competitive conduct recognized by law.
This study will also look at the difference between the frameworks of air services
sector with the provisions of the CA 2010. This is to prove that the existing
framework of the air transport sector is unclear, inadequate and not suitable to
promote efficient competition. Hence it is an impediment to CA 2010.
KEY WORD : Competiton Law, Malaysian Competition Act 2010, Competition In Airline
Sector
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INTRODUCTION
The system of modern competition law is a world phenomenon. It started with the enactment
of Sherman Act 1890 in the United States of America and later spread out through out many
countries in the world. Till date there are about 120 systems of competition law in the world.
It is evidence on the importance of the system to world economic development1.
On the 10th Malaysian Plan, Malaysian acknowledge that healthy competition is
needed to make the economy more efficient and dynamic2. Therefore, Malaysian
Competition Act 2010 (CA 2010) was introduced to provide a regulatory framework against
market manipulation and cartel practices that may affect market efficiency.
CA applies to all services sectors including the air transport industry3. Prior to the
enforcement of CA 2011, competition in the domestic transport and air services sector are
affected by regulations imposed under three ministries, namely the Ministry of Transport
(MOT), the Ministry of Works (MOW) and the Ministry of Entrepreneur Development
(MET)4. However with the existence of CA 2011, the services sectors are now bound by the
rules of competition in the CA 2010.
Sherman Anti-Trust Act (1890), Brief Info….,
http://www.ourdocuments.gov/doc.php?flash=true&doc=51
2 Portal Rasmi Unit Perangcangan Ekonomi, Jabatan Perdana Menteri,
Dokumen,Rancangan Malaysia Ke10,
http://www.epu.gov.my/html/themes/epu/html/RMKE10/rmke10_english.html (16
February 2012)
3 Competition Act 2010, Section 3(1)
4 Cassey Lee, 2004, Competition Policy In Malaysia, Centre on Paper Series, Paper No.
68, Institute for Development Policy and Management, University of
Manchester,Regulation and Competition, http://www.competitionregulation.org.uk/publications/working_papers/WP68.pdf (16 February 2012)
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The air services sector however is unique compared to other transport services sector.
Air transport sector is divided into two categories that is domestic and international services.
On the hand, other domestic transportation such as buses, taxis, trains and light rail freight
train only offered services within one jurisdiction. These differentiate the legal framework of
both the different transport services.
Prior to January 1, 2012, the Malaysian air transport services industry has no proper
legal framework on competition. Competition among airlines is based on the policy issued by
government. This is because, since independence, the economic sectors in Malaysia have
been regulated primarily at the sectoral level5. Economic regulation in these sectors mainly
took the form of government control over entry conditions (via licenses and permits) and in
some sectors, prices6. However, beginning January 1, 2012, the air transport industry in
Malaysia is subject to the general application of the Competition Act 2010.
Generally, the competition framework of the air services sector in Malaysia is divided
into two; based on the types of services offered by airlines, i.e the international and domestic
services. Framework of international air services sector in Malaysia depends on international
conventions to which Malaysia ratify. The main convention underpinning the framework of
international services is the 1944 Chicago Convention. However, the application of this
convention is not visualized into the form of legislative drafting. Malaysia also adopted the
rules and regulation advised by International Civil Aviation Organisation (ICAO) and
International Air Transport Association (AITA) to which Malaysia is a member. Meanwhile,
the domestic frameworks rely on the regulation and related policy.
5
6
ibid
ibid
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The basic principle underlying the 1944 Convention International Civil Aviation
(Chicago Convention) is the principle of sovereignty of a state's airspace7. It justifies the right
of a country to protect its airspace from encroachment by foreign aircraft. For this purposes,
schedule air services is permitted to operate into Malaysia if it is covered by either an Air
Services Agreement, a license issued in accordance with Civil Aviation Regulation 1996 or
other aeronautical arrangement8. The requirement mention above had limits market entry to
Malaysian air services industry. This principle is fundamentally contrary to competition
objective under CA 2010.
The competition process intended by CA 2010 should encourages efficiency,
innovation and entrepreneurship, which promotes competitive prices, improvement in the
quality of products and services and wider choices for consumers. Therefore, balance
cooperation between the government and the air services industry is essential to the
enjoyment of trade and economic prosperity. At the same time they need to work together to
protect their national territory and to liberalize air services between the countries.
However, the policy introduced by the government is incompatible with the provision
of CA 2010. Existing policy also minimize the solution to the issues that arise in global and
domestic competition. The lack of a clear competition provision for the international and
domestic air services in Malaysia may not cause any significant problems before. In fact,
imbalances and differences in the underlying principle of the framework in air transport
sector with CA 2010 was never been questioned.
International Convention On Civil Aviation (Chicago Convention) 1944, Article 1
Malaysia Integrated Aeronautical Information Package, AIP Malaysia, Gen. 1.2 Entry,
Transit And Departure of Aircraft, para 1.1
7
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However, with the enforcement of the CA 2010, the application of international
conventions, ICAO or IATA rules and regulation and, domestic policies and regulations are
now is barrier to the successfulness of CA 2010. The unclear policies have hindered the
process of more fair competition. Furthermore, the limited process of liberalization and
deregulation policies in aviation sectors will cause an imbalance in the implementation of CA
2010 in Malaysia.
Therefore, this study will look at the Malaysian air services sector’s framework in
order to indentify the anti competitive conduct exercise under the policy. This study will also
look at the provisions of the CA 2010 to identify anti competitive conduct recognized by law.
This study will also look at the difference between the frameworks of aviation sector with the
provisions of the CA 2010. This is to prove that the existing framework of the aviation sector
is unclear, inadequate and not suitable to promote efficient competition. Hence it is an
impediment to CA 2010.
It is important to identify the differences and shortcomings in the present framework
to ensure the success of CA 2010. Moreover, an empirical study in this field in Malaysia has
yet to be found. Therefore, this study contributes to the body of knowledge in this field and it
could be a stepping-stone to other relevant studies.
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THE BEGINNING OF COMPETITION AS IN 2006 AIR TRANSPORT SERVICES
RATIONALIZATION
Since the earlier year, the air services industry in Malaysia is dominated entirely by Malaysia
Airlines (MAS) which handles flights on behalf of Malaysia Airlines Bhd (PNB)9. However,
on March 27, 2006, the then, Prime Minister has announced a restructuring plan for its
domestic flight services10. This restructuring plan had affected the dominant position of
MAS.
The air services restructuring plan or batter phrase, as the rationalization of domestic
aviation sector was effective from August 1, 200611. It is made in accordance with the
emergence of Air Asia as the new air service operators in the domestic air transport industry
in Malaysia.
The rationalization process has been demonstrated ambiguity and confusion in the
policy formulated. It’s is a clear evidence to prove the government's intervention in the
competitive landscape of domestic aviation sector. The proportion of market reflected this
sentiment. Market was split into two different segmentation knows as market of routes based
and market based on the type of services offered.
Khairuddin Md Amin, 2006, MAS yakin catat untung – Di bawah penyusunan semula
sektor
penerbangan
domestik,
Utusan
Malaysia
Online,
29
Mac,
http://www.utusan.com.my/utusan/info.asp?y=2006&dt=0329&pub=Utusan_Malaysia
&sec=Muka_Hadapan&pg=mh_01.htm (16 February 2012)
10 Abdullah Haji Ahmad Badawi, 2006, Prime Minister Press Statement, Kenyataan
Media Mengenai Rasionalsasi Sektor Perkhidmatan Penerbangan Domestik, Pejabat
Perdana
Menteri,
Putrajaya,
27
March,
http://www.abdullah.cdc.net.my/malaysia/speeches/2006/2006-03-27.php
(13
February 2012)
11 Khairuddin Md Amin, 2006, MAS yakin catat untung – Di bawah penyusunan semula
sektor
penerbangan
domestik,
Utusan
Malaysia
Online,
29
Mac,
http://www.utusan.com.my/utusan/info.asp?y=2006&dt=0329&pub=Utusan_Malaysia
&sec=Muka_Hadapan&pg=mh_01.htm (16 February 2012)
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Market for the type of route has been sub-divided into two main sub-market-based;
comprising domestic trunk routes and domestic non-trunk route. Determination of major
trunk routes is based on international connectivity and business traffic12. It focus on the
ability of connecting flights from domestic routes to international routes and business-class
level. For that purpose, three airports had been appointed as a hub for major domestic routes.
Airports involved are the KL International Airport (KLIA), Kuching International Airport
and Kota Kinabalu International Airport. Nineteen sets of main domestic routes had also been
identified.
The market for fair competition is basically seen in the context of the market in
nineteen major trunk routes discussed above. In this context, competition exists when MAS
and Air Asia are allowed to operate in concert for the whole route. Both air transport
operators are also given freedom to determine their own capacity, frequency and type of
aircraft used13. This situation should be able to create a climate of healthy competition
between the two.
However, rationalization had also limit the competition which should exist in the
domestic trunk routes. This is because the market for all nineteen domestic trunk routes have
been arranged and sub-divided into two distinct market categories. The market is now seen in
terms of types of services rendered14. MAS had been instructed to offer premium-class flights
Abdullah Haji Ahmad Badawi, 2006, Prime Minister Press Statement, Kenyataan
Media Mengenai Rasionalsasi Sektor Perkhidmatan Penerbangan Domestik, Pejabat
Perdana Menteri, Putrajaya, 27 March,
http://www.abdullah.cdc.net.my/malaysia/speeches/2006/2006-03-27.php (13
February 2012), para 2.i.a
13 ibid, para 2.ii
14 ibid, para 2.iii
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and Air Asia is offering low-fare service15. The purposed of market segmentation based on
services rendered was intended to ensure healthy competition to create an efficient air service
and affordable in the domestic aviation sector16.
To achieve this goal, MAS is subjected to a price limitation set by government. MAS
is not allowed to set fares below full economy class fares available17. The pre-conditions are
meant to ensure the market remains on the type of services provided.
At the same time, the domestic airline industry has allowed Air Asia to have exclusive
rights to operate domestic non-trunk routes18. Air Asia became a dominant force and form a
monopoly to dominated all ninety-six domestic non-trunk routes without any competition.
The route also includes flight routes to social services in rural Sabah and Sarawak which was
taken over from MAS19.
Rationalization plan for domestic air route services as discussed above was intended
to ensure competitiveness between MAS and Air Asia. However, the policy is quite vague
and not consistent with the principles of competition. It is because market as the main
element in competition had not been identify. Therefore, relevant market has not been
clarified.
Market definition probably refers to the distribution of market sector inclusive of
domestic trunk routes and domestic non-trunk air routes. It can also be viewed in the context
ibid, para 2.iii
ibid, para 4
17 ibid, para 2.iii
18 ibid, para 2.ii
19 ibid, para 2.vi
15
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of market-based type of service offered consisting of premium service and low fares. In this
context the service type is not made clear whether it amounts to a market definition or merely
re-branding.
It can be said that in the event that market was define based to its diversion between
domestic trunk routes and domestic non-trunk routes, therefore the air services industry is
promoting fair competition when allowing MAS and Air Asia to compete in all domestic
trunk routes. However, routes based market definition is not balanced because competition
exists only in domestic trunk route. There is an imbalance in the competition when
rationalization allows dominance and monopoly of the market for the domestic trunk routes
by giving exclusive rights to Air Asia in all non-trunk route.
THE DEVELOPMENT OF COMPETATIVE CONDUCTS FROM THE YEAR 2006
TO 2011
Rationalization packaged done in 2006 as discussed above, has seen that MAS had surrender
its rural air services (RAS) in Sabah and Sarawak to Air Asia. Air Asia operates RAS via
FAX. However, in March 2007, Air Asia had withdrawn its RAS service on grounds of
focusing on its long-haul low-cost airline services20.
In 2007, MAS set up a budget airline known as Firefly21. Firefly focuses in offering
domestic air services via its two main hubs i.e International Airport in Penang and Subang
Alan Ting, 2007, MASWINGS Ambil Alih Perkhidmatan Udara Luar Bandar Secara
Berperingkat,
Bernama,
8
Jun,
http://www.kpdnkk.bernama.com/newsBm.php?id=266471& (16 Februari 2012)
21 Company Profile, http://firefly.com.my/about/company-profile (14 Februari 2012)
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Airport and three secondary hubs including Kuala Lumpur International Airport (KLIA),
Kota Kinabalu International Airport and Senai International Airport.
However, following the MAS latest network rationalization program announced in the
end of 2011, Firefly has restricted its services offerings in all domestic routes from its main
hub22. The Malaysian air services industry is now been introduced with another segmentation
of market, based to the type of aircraft. The Firefly is now restricting their market operation
based to the types of aircraft offered, i.e the ATR 72-500 turboprop23.
Meanwhile, between the years 2007 to 2011, there was growth in the development of
air services industry in Malaysia. Air Asia through AirAsia X had gained access to many
international routes. Almost 90% of AirAsia X international routes is said to has overlap with
MAS24.
Further, by the end of 2011, MAS and Air Asia has agreed to a comprehensive
corroboration framework (CCF)25. Under the CCF, shareholders of the two air services
operators swap each other shares in both airlines. The outcome of the CCF shows that both
shareholders are now hold interest in both airlines.
Shahrizan Salian, 2011, MAS ambil alih operasi jet Firefly, Berita Harian Online, 19
Oktober,
http://www.bharian.com.my/articles/MASambilalihoperasijetFirefly/Article/print_ht
ml (14 February 2012)
23 ibid
24 Tengku Datuk Azmil Zahruddin, 2011, MAS and AirAsia X should co-pilot efforts to
achieve
nation’s
aspiration,
The
Star
Online,
Saturday
May
1,
http://biz.thestar.com.my/news/story.asp?file=/2010/5/1/business/6168011
(16
February 2012)
25 Wong Sai Wan, 2011, Share swap deal: AirAsia's Fernandes to gain 20% stake in MAS,
The Star Online, Sunday August 7,
http://thestar.com.my/news/story.asp?file=/2011/8/7/nation/9255271&sec=nation
(16 February)
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The air service framework does not make clear as to whether the formation of Firefly,
the overlapping routes between AirAsia X and MAS and the CCF between MAS and Air
Asia as highlighted above create competition among the air services operators or its infringe
the process of competition.
On the other hand, CA 2010 (which at the time of rationalization had been gazette but
yet be enforced) through Malaysian Competition Commission (MyCC) establish a test for
market definition and relevant market to settle these issue26. Market under CA 2010 refer to
a market in Malaysia or in any part of Malaysia, and when used in relation to any goods or
services, includes a market for those goods or services and other goods or services that are
substitutable for, or otherwise competitive with, the first-mentioned goods or services27.
Relevant market for the purposed of CA 2010 refers to identifying all the close
substitutes for the product under investigation28. In order to indentify relevant market, MyCC
introduce the test of ‘Hypothetical Monopolist Test’ ("HMT”)29. HMT define relevant market
as the smallest group of products (in a geographical area) that a hypothetical monopolist
controlling that product group (in that area) could profitably sustain a price above the
‘competitive’ price i.e. a price that is at least a small but significant amount above the
competitive price30.
Malaysian Competition Commission, Guideline of Market Definition,
http://www.mycc.gov.my/272_216_216/Web/WebPage/Guidelines-on-MarketDefinition/Guidelines-on-Market-Definition.html (17 February 2012)
27 Competition Act 2010, Section 2
28 Malaysian Competition Commission, Guideline of Market Definition,
http://www.mycc.gov.my/272_216_216/Web/WebPage/Guidelines-on-MarketDefinition/Guidelines-on-Market-Definition.html (17 February 2012) para 1.4
29 ibid, para 1.6
30 ibid, para 2.2
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products can be substituted both on the demand and on the supply side. "the smallest group of
products (in a geographical area) that a hypothetical monopolist controlling that product
group (in that area) could profitably sustain a price above the ‘competitive’ price i.e. a price
that is at least a small but significant amount above the competitive price."
This test is commonly used in other jurisdictions with competition law31. However,
since the events occurred before the enforcement of CA 2010, therefore, the air services
framework omit to make clear and confirm on the definition of relevant market in order to
confirm the competition practice among air service operator.
MALAYSIAN COMPETITION ACT 2010
Malaysian Competition Act 2010 (CA2010) is a general competition law applicable to all
commercial activities both within and outside Malaysia32. Section 3(2) states that the
application of CA 2010 to any commercial activities outside Malaysian market is apply only
when it has an effect on competition in any market in Malaysia. It has specifically clarified
the description of commercial activities.
Commercial activities for the purpose of CA 2010 exclude any activity directly or
indirectly in the exercise of governmental authority; any activity conducted based on the
principle of solidarity; and any purchase of goods or services not for the purposes of offering
goods and services as part of an economic activity33.
ibid, para 1.6
ibid, Section 3(1)
33 ibid, Section 3(4)(a),(b),(c)
31
32
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The air services sector being international or domestic services are subjected to CA
2010. It is in line with the scope of application of force of CA 2010 mention above. Other
than the provision in Section 3, CA 2010 also allows exemption made individually for an
individual exemption or in block.
Individual exemption as provided in Section 6 refer to an application made by an
enterprise to Malaysian Competition Commission (MyCC) for an exemption with respect to a
particular agreement. In applying for an exemption under CA 2010, an enterprise must prove
that exemption is essential based on four grounds. An enterprise must proved that (a)
there are significant identifiable technological, efficiency or social benefits
directly arising from the agreement;
(b)
the benefits could not reasonably have been provided by the parties to
the agreement without the agreement having the effect of preventing,
restricting or distorting competition;
(c)
the detrimental effect of the agreement on competition is proportionate
to the benefits provided; and
(d)
the agreement does not allow the enterprise concerned to eliminate
competition completely in respect of a substantial part of the goods or
services34 .
MyCC may granted block exemption when it is in its opinion that a particular
category of agreement should be given relief from its liability35. The grounds for exemption
are similar as stated in Section 5 in applying for individual exemption.
34
ibid, Section 5
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To date, there is no exemption applied by or granted to air services sector. MyCC on
its own accord however has started to investigate the share swap and corroboration agreement
between Air Asia and MAS36. The step was taken based on brouhaha surrounding the Air
Asia and MAS deal37. So far, Schedule 2 of CA 2010 only exempts two sectors mention
earlier. Both sectors are legislatively exempted because they have their own competition
provision in their sectoral legal framework.
CA 2010 divides prohibited conduct into two categories comprising of anti
competitive conduct and abused of dominant position. These competition prohibitions differ
from other competition law in most jurisdictions around the world. In general, competition
law in other countries acknowledge anti competitive agreement, abused of a dominant
position and merger and acquisition as three main conducts prohibited under the law.
CA
2010 does not provide for merger and acquisition provision. This might be because the
provision for merger and acquisition has been provided under company law.
Section 4(1) states that anti competitive conduct includes any horizontal or vertical
agreement. The provision prohibits any horizontal or vertical agreement between enterprise
where the agreement has the object or effect of significantly preventing, restricting or
distorting competition in any market for goods or services. CA 2010 specify that horizontal
agreement between enterprises is deemed to have the object of significantly preventing,
ibid, Section 8(1)
B.K Sidhu, 2012, MyCC to investigate if Air Asia-MAS share swap has made air fares go
up, The Star Online, January 4,
http://biz.thestar.com.my/news/story.asp?file=/2012/1/4/business/10199177&sec=
business (16 February 2012)
37 ibid
35
36
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restricting or distorting competition in any market for goods or services when the agreement
is proved to has the object to—
(a)
fix, directly or indirectly, a purchase or selling price or any other trading
conditions;
(b)
share market or sources of supply;
(c)
limit or control production, market outlets or market access, technical or
technological development or investment; or
(d)
perform an act of bid rigging,
Further, Section 10(1) prohibits any enterprise from engaging, whether independently
or collectively, in any conduct which amounts to an abuse of a dominant position in any
market for goods or services. The act of an abuse of a dominant position may include—
(a)
directly or indirectly imposing unfair purchase or selling price or other
unfair trading condition on any supplier or customer;
(b)
limiting or controlling production, market outlets or market access,
technical or technological development or investment to the prejudice of
consumers;
(c)
refusing to supply to a particular enterprise or group or category of
enterprises;
(d)
applying different conditions to equivalent transactions with other trading
parties to an extent that may discourage new market entry or expansion or
investment by an existing competitor, force from the market or otherwise
seriously damage an existing competitor which is no less efficient than the
enterprise in a dominant position; or harm competition in any market in which
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the dominant enterprise is participating or in any upstream or downstream
market;
(e)
making the conclusion of contract subject to acceptance by other parties
of supplementary conditions which by their nature or according to
commercial usage have no connection with the subject matter of the
contract;
(f)
any predatory behaviour towards competitors; or
(g)
buying up a scarce supply of intermediate goods or resources required by
a competitor, in circumstances where the enterprise in a dominant
position does not have a reasonable commercial justification for buying
up the intermediate goods or resources to meet its own needs38.
CA 2010 also acknowledge the act amounting to abused of dominant position to
exclude any steps taking by an enterprise in a dominant position which has reasonable
commercial justification or represents a reasonable commercial response to the market entry
or market conduct of a competitor39.
CONCLUSION
Based on the analysis above, the framework of the air services sector in Malaysia in which
based on the policies, regulations and international regime clearly does not have a clear and
orderly competition framework. The competition conduct is unclear, inadequate and not
harmonized with the provisions of the CA 2010 that is now in force in this sector. It is not
suitable to promote efficient competition. To date, no explanation nor transition period is
38
39
ibid Section 10 (2)
ibid, Section 10(3)
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offered to the air services sector’s framework in order to rationalize the provisions of
competition law in CA 2010.
The omission in confirming a clear stand in competition indicates that Malaysia is not
fully ready to release its state protectionist status to a more liberal market. The state
sovereignty issue is sensitive. Proper consideration should be measured to ensure balance
between national sovereignty and the need of competition in air services framework.
A clear framework on competition in air services sector need to be establish before
CA 2010 can be enforce to air services sector. Therefore, given a circumstances, thought it
does not fall under one of the grounds in applying individual exemption under Section 6 or
block exemption under Section 8, the air services sector in Malaysia is not ready to commit
with CA 2010. It warrant an exception to the enforcement of CA 2010.
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REFERENCE:-
Abdullah Haji Ahmad Badawi. (2006). Prime Minister Press Statement. Kenyataan Media
Mengenai Rasionalsasi Sektor Perkhidmatan Penerbangan Domestik, Pejabat Perdana
Menteri.Putrajaya,
27
March,
http://www.abdullah.cdc.net.my/malaysia/speeches/2006/2006-03-27.php
(13
February 2012)
Alan Ting. (2007). MASWINGS Ambil Alih Perkhidmatan Udara Luar Bandar Secara
Berperingkat.
Bernama.
8
Jun.
http://www.kpdnkk.bernama.com/newsBm.php?id=266471& (16 Februari 2012)
Azran Osman Rani. (2010). AirAsia X backs a clear national aviation policy. The Star
Online.
6
May.
http://biz.thestar.com.my/news/story.asp?file=/2010/5/6/business/6197548&sec=busine
ss (16 February 2012)
Company Profile. http://firefly.com.my/about/company-profile (14 Februari 2012)
B.K Sidhu. (2012). MyCC to investigate if Air Asia-MAS share swap has made air fares go
up. The Star Online. January 4.
http://biz.thestar.com.my/news/story.asp?file=/2012/1/4/business/10199177&sec=busin
ess (16 February 2012)
Portal Rasmi Unit Perangcangan Ekonomi, Jabatan Perdana Menteri, Dokumen,Rancangan
Malaysia Ke10.
http://www.epu.gov.my/html/themes/epu/html/RMKE10/rmke10_english.html (16
February 2012)
Cassey Lee. (2004). Competition Policy In Malaysia, Centre on Paper Series, Paper No. 68,.
Institute for Development Policy and Management. University of Manchester.
http://www.competition-regulation.org.uk/publications/working_papers/WP68.pdf (16
February 2012)
Competition Act 2010 (MALAYSIA)
International Convention On Civil Aviation (Chicago Convention) 1944
Khairuddin Md Amin .2006. MAS yakin catat untung – Di bawah penyusunan semula sektor
penerbangan
domestik,
Utusan
Malaysia
Online.
29
Mac,
http://www.utusan.com.my/utusan/info.asp?y=2006&dt=0329&pub=Utusan_Malaysia
&sec=Muka_Hadapan&pg=mh_01.htm (16 February 2012)
Malaysian Competition Commission, Guideline of Market Definition,
http://www.mycc.gov.my/272_216_216/Web/WebPage/Guidelines-on-MarketDefinition/Guidelines-on-Market-Definition.html (17 February 2012)
Malaysia Integrated Aeronautical Information Package. AIP Malaysia.
June 27-28, 2012
Cambridge, UK
19
2012 Cambridge Business & Economics Conference
ISBN : 9780974211428
Khairuddin Md Amin. (2006). MAS yakin catat untung – Di bawah penyusunan semula
sektor
penerbangan
domestik,
Utusan
Malaysia
Online.
29
Mac.
http://www.utusan.com.my/utusan/info.asp?y=2006&dt=0329&pub=Utusan_Malaysia
&sec=Muka_Hadapan&pg=mh_01.htm (16 February 2012)
Shahrizan Salian. (2011). MAS ambil alih operasi jet Firefly. Berita Harian Online. 19
Oktober,
http://www.bharian.com.my/articles/MASambilalihoperasijetFirefly/Article/print_html
(14 February 2012)
Sherman Anti-Trust Act. (1890). Brief Info….,
http://www.ourdocuments.gov/doc.php?flash=true&doc=51
Tengku Datuk Azmil Zahruddin. (2011). MAS and AirAsia X should co-pilot efforts to
achieve
nation’s
aspiration.
The
Star
Online.
Saturday
May
1.
http://biz.thestar.com.my/news/story.asp?file=/2010/5/1/business/6168011
(16
February 2012)
Wong Sai Wan. (2011). Share swap deal: AirAsia's Fernandes to gain 20% stake in MAS.
The Star Online. Sunday August 7.
http://thestar.com.my/news/story.asp?file=/2011/8/7/nation/9255271&sec=nation (16
February)
June 27-28, 2012
Cambridge, UK
20