1. 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 1

2. Copyright R. I. McEwin 2

3. 3 Population (millions) 1990 2005 Population Growth (%) 1990-2005 Per Capita Income (US $) 1990 2005 Per Capita Income Growth (%) 1990-2005 ASEAN435.6 558.528.2801 158197 CHINA1143.3 1315.815.1339 1709404 INDIA849.4 1103.429.9383 70584 SOURCE: http://www.aseansec.org/19006.pdf

4. 4 CountryPopulation (thousand) Land Area (Sq Km) GDP per Capita (US $) Brunei Cambodia 397 14,656 5,765 181,035 35,623 756 Indonesia228,5231,860,3602,237 Lao PDR5,763236,800918 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 ASEAN583,6514,435,8302,577 Source: ASEAN Secretariat http://www.aseansec.org/publications/ACIF2009.pdf ASEAN Statistics 2008

5. 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 5

6. Chen (2009) Ginsberg, Tom and Albert H.Y. Chen Administrative Law and Governance in Asia Routledge 2009 CountryJuridificationJudicialization Hong KongIncreasing IndonesiaSmall increaseEven smaller increase JapanSignificant increaseLimited MalaysiaNo increase PhilippinesIncreasing SingaporeLow degreeLower degree South KoreaIncreasing TaiwanIncreasing ThailandIncreasing VietnamIncreasing (from low base) 6

7. 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 7

8. 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 8

9. 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 9

10. 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 2.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) 1.Malaysia 2.Singapore 10

11. 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 11