1. Unfair Trade Practices: Conceptualisation, Significance and Regional Perspectives March 11, 2011

2. COMMENTS ON PRESENTATION Definition of an Unfair Trade Practice Relationship to Competition Law Harm to Consumers Implications in ASEAN Countries 2

3. DEFINITION OF AN UNFAIR TRADE PRACTICE? UTP are fraudulent, deceptive or dishonest practices between parties that often are not bargaining with each other in any normal sense. UTP may occur directly between competitors, between businesses at different levels of a supply or production chain, or may directly target consumers. UTP may involve the breach or misuse of another statute in order to obtain an “unfair” competitive advantage –e.g. abuse of intellectual property rights.

4. RELATIONSHIP TO COMPETITION LAW UTP are not and should not be a “basket clause” to cover issues not explicitly addressed by Competition Law. There are differing views of the goal of Competition Law, but, from my perspective, it is about protecting markets and competition as a whole – not specific competitors. In contrast, UTP often focus on specific competitors without concern for effects on markets or on traditional metrics of competition such as price.

5. RELATIONSHIP TO COMPETITION LAW Some UTP are addressed within a more general Competition Law: Overlaps with Abuses of Dominance, but UTP often includes actions by non-dominant competitors that may not otherwise infringe a Competition Law; Some Competition Laws include “fair competition” provisions or regulate specific conduct such as false advertising. However UTP may also be addressed within consumer protection legislation or other statutes.

6. HARM TO CONSUMERS Harm to competition is often measured as a harm to consumers in the form of artificial changes in price or other elements of competition. A specific UTP may not result in any measurable harm to competition within a market or to consumers. However widespread acceptance of such conduct would subvert the rules of a free competition established under Competition Law and other commercial statutes.

7. IMPLICATIONS IN ASEAN COUNTRIES Potential impact of UTP in ASEAN members: Many ASEAN members are developing economies or economies still transitioning to free market economies; Many ASEAN members have not fully developed or implemented the legal framework to ensure free market competition; Numerous factors may exacerbate effects of UTP that may have particular relevance in some ASEAN members including: Insufficient enforcement or lack of commercial legal framework; Corruption; Lack of available relevant information for consumers and businesses; Potential inability of small local businesses to defend against UTP.