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;  IPR;  Infrastructure Development;  Taxation;  E’Commerce;

 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 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;

 Introducing the Commission’s 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;

 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 Commission?

 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 precise  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 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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