Perspective of Competition Law Enforcement In The ASEAN Community

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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

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• 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
• IPR
• Infrastructure Development
• Taxation
• ECommerce

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• 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

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• Few issues that we have to deal with the
  enforcement of Competition Law among ASEAN
  Countries
• 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

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• Introducing the Commissions role and functions
• 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 MNC

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• Common questions in dealing with new self
  regulatory agency such as
• Institution problems
• Publics 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 Commission?

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• 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 orders prohibitions are
  not sufficiently clear and precise
• Procedural law issues
• Execution of administrative sanctions
• Deference from other institution or law
  enforcers

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• What Would be the highlights issues for ASEAN?
• The question on extraterritorial jurisdiction of
  the law and to include Commissions 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

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• Some thoughts
• Regional advocacy on Competition Law among member
  states
• 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..

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• Terima Kasih
• ningrum_at_indosat.net.id