November ASEAN Competition Conference November 2011, Bali, Indonesia The challenges in introducing competition law and policy in ASEAN Member States Hassan Qaqaya UNCTAD

November outline 1. ASEAN competition regime : a regional framework in the making 2. Five groups of countries; 3. ASEAN Needs and Challenges; 4. Key issues for considerations by ASEAN countries in the introduction of competition law and policy ; 5. UNCTAD technical assistance in preparing a competition policy and a law; 6. An ASEAN cooperative response the needs and challenges: 7. Concluding remarks

November ASEAN competition regime : a regional framework in the making By adopting the AEC Blueprint in November 2007, ASEAN Leaders have committed to « endeavour to introduce competition policy in all Member States by 2015 » At the time of the adoption of the AEC Blueprint in 2007 Indonesia (1999), Thailand (1999), Singapore (2004),Vietnam (2004) had already a competition law in place; Laos 2004 Decree on competition, unfair trade practices and price control, New draft in progress; Cambodia draft law since 2005; 2010 Malaysia ; 2011 Philippines Executive order no 45, 2011 DOJ is designated as the Competition Authority. Office for Competition responsable for duties and functions under the Office of the Secretary of Justice; Brunei (2011) preparartory process launched by Prime Minister, Mynamar (2011) request for TA

November At least five groups of countries Countries with a competition law with actual cases of enfoncement: Countries with a Competition Law and begining enforcement: Countries with a Competition Law but without enforcement: Countries without a competition law but with drafts already made and close to adoption: Countries without a competition law but draft laws at various stages: Others

November Asian countries: Needs and challenges Do all Asian countries face the same challenges? Does capacity building and technical assistance need to be calibrated to suit local circumstances? What should be the form of delivering capacity building and TA? How to assess the effectiveness of capacity building ? Impact ? Sustainability?

November Key issues for considerations by ASEAN countries in the introduction of competition law and policy Countries have to take into the follwing considerations: The economic circumstances; The Political and social choices; The legal environment ; -The relative roles of state and private sector in the economy; -The policy maker vision of competition policy

November UNCTAD approach to preparing a competition policy and a law Stage One: Preparation of an economic mapping; Preparation of a legal inventory of all laws and rules having a bearing on competition law and policy; Preparation of a competition policy framework report; Drafting the terms of reference for the scope, principles and institutional framework for the law; Layman draft of the competition law; Internal and external Consultations on the draft law;

November UNCTAD approach to preparing a competition policy and a law Stage two Stakeholders consultative meetings Finalisation of the competition bill

November UNCTAD stages of preparing a competition law Stage three Setting up an institutional framework for enforcing the law Preparing rules and regulations Communication how the agency intends to apply the substantive content of the law Appointing key staff ( Chief economist, legal advisor, etc,, Develpoing an advocavy and communication strategy Etc.

November The UN Set of Principles on Competition is a multilateral code addressed to governements and Multilational enterprises The UN Set of Principles om Competition Policy UN General Assemly resolution No. 35/63 ( ); Main features: - Includes among its objectives the development dimension; Non binding norms; framework for voluntary cooperation including case specific consultations; Exemptions of state action. UNCTAD Model law on Competition; Provision of Technical assistance.

November

November Capacity building in the area of enforcement Advocacy Cartel investigation Merger control Anti-competitive agreements Abuse of dominance Cooperation with sector regulators Handling multiple criteria Judicial review

November Common challenge: Formulation of a competition Policy Priorities have to be defined to formulate national competition policies to ensure coherence between competition law and other public policies and remove unjustified state sponsored cartels and monopolies; increase the level of awareness of the benefits of competition for effeciency and consumer welfare. -Develop a phased-in approach where competition authorities are not able to cope with liberalization to avoid social costs, regulatory » or political capture by firms; -Develop a cooperative response.

November A Cooperative Response Competition Authorities have common goals; Increased informal contacts between competition authorities; Technical consultations – competition authorities learning from each other; No one country has all of the answers; Each competition agency brings unique insight and experience based on our own economic development experiences; Competition agencies learn from each other; Share a common goal – competition for the benefit of their fellow citizens. -Develop common pools of expertises and systems of knowlegde management at the national, bilateral and AESAN level,

November Forms of capacity building

November Concluding remarks Although there is an agreement about the fundamental principles of an effective Competition agency No one country has all of the answers; Each competition agency brings unique insight and experience based on its own economic development experiences; Competition agencies learn from each other; Capacity building should be calibrated to suit the circumstances of the beneficiary agency; National initiatives should be completemented by cooperative responses.