“Yayasan Dalam Perspektif UU No.16 Tahun 2001”

Perspective of Competition Law Enforcement
In The ASEAN Community
Ningrum Natasya Sirait
University of Sumatra Utara
The Asean Competition Conference
Bali, 15 – 16 November 2011
 Asean Community in 2015:
 Asean Economic Community:
Single market and production base;
Competitive Economic Region;
Equitable Economic Development;
Integration into Global Economy;
 Under Competitive Economic Region:
Competition policy;
Consumer Protection;
Infrastructure Development;
 Antimonopoly law place its primary reliance on market
forces to discipline economic behavior. This idea shared
by many countries with different response. Among
ASEAN members who have Competition Law:
Indonesia, Singapore, Thailand, Malaysia, Vietnam;
 Brunei, Philippines, Cambodia, Laos, Myanmar are in
various phases of adopting its competition law;
 The fact is that every member state has its own legal
history on why they decided to endorse the law such as:
Competition Law is being transplanted for the purpose of
legal reform or commitment for bail out to end economic
crisis as well as commitment for free trade consensus;
 Few issues that we have to deal with the
enforcement of Competition Law among ASEAN
 Different country response differently and influenced by
its own political economy.
 Different legal system treat the enforcement of
Competition Law differently;
 Others are factors relates to the substance of the law and
legal culture of each member states;
 The responses from the Government, business as well as
the Court are vary;
 Introducing the Commission’s role and
 Competition Commission: quasi judicial body?
 Independent Regulatory Agency assigned with
multifunctional powers – It is foreign to some countries
legal system;
 The dilemma in understanding the competency of self
regulatory independent body in the legal system;
 High exposure when the Commission handle cases
which related to big industry, state owned enterprises or
Common questions in dealing with new self
regulatory agency such as:
 Institution problems
 Public’s critics towards its performance;
 The need for developing its procedural mechanism
(transparency & accountability and clear rules);
 The need to adopt concepts from other legal system to
provide alternative to solve competition cases;
 Do we transplant, adopt, import directly?
 Inability to respond to all complaints & reports;
 How does Commission deals with penalties, damages,
consumer loss?
 How does Commission deal with execution of its own
decree or decision, this also relates to MNC which operates
in different countries;
 Trust from the business and the accountability of the
 The Court who also plays important role in
response to competition cases (deals with appeal
and execution of the Commission decisions)
 Question with the judges competency and ability to
understand the economic substance where Judges were
sufficiently exposed to the economy aspect of the law.
Legal and economic approach are different plus in the
same time Judges are required to understand competition
policy becoming another challenge.;
 Courts will intercede only if: the remedy bears no
reasonable relation to the unlawful practice found to exist
or the order’s prohibitions are not sufficiently clear and
 Procedural law issues;
 Execution of administrative sanctions;
 Deference from other institution or law enforcers;
What Would be the highlights issues for ASEAN?
 The question on extraterritorial jurisdiction of the law and
to include Commission’s decision and execution within
the member states;
 With many ASEAN MNCs expanding its operation among
the member states, it is important that deference should be
develop among the Commissions to respect the decisions
if it concerns another member states. The question lies in
the procedure plus deference and comity;
 Should we look for another possible recourse such as
Competition Tribunal? This agenda should be taken in to
consideration to welcome the AEC in 2015;
Some thoughts………
 Regional advocacy on Competition Law among member
 Further interaction among policy maker and law
enforcers on the Commission decision, this is to include
the Court/ Judges to share their experiences on how to
deal with the cases;
 Capacity building for the agency and the Court;
 Exploring the idea of Competition Tribunal if possible;
 Harmonization is the key factor……..
Terima Kasih