The Rise Of Competition Law In Asia

SEA View, Article VII: October 2019

In our October (and seventh) issue of #SEAView, Adrian Emch looks at competition law in Southeast Asia (SEA). Adrian describes a competition framework which is new and full of nuance. His message is pervasive: international norms are arriving or settling into the area, but have local peculiarities which corporates must be attentive to.

The 21st century has been branded the "Asian century." That's also, or mainly, because Asian nations have embraced the market as the primary way to allocate resources.

As part of the growth of Asian market-based economies, there has also been a push to adopt a remedy against a certain type of market failure: anti-competitive practices. Indeed, over the past years, competition law has blossomed in Asia. Except for a few early birds, like Japan (which enacted the Anti-Monopoly Act in 1947) and South Korea (which adopted the Monopoly Regulation and Fair Trade Act in 1980), the competition laws of many Asian jurisdictions are far more recent.

The ASEAN Project

Let's take the Association of Southeast Asian Nations (ASEAN) as an example. Indonesia was the first ASEAN member state to adopt a competition law in 1999, closely followed by Thailand in the same year. Singapore and Vietnam adopted their competition statutes in 2004 and Malaysia in 2010. Somewhat of a gap followed until there was a concerted regional push: an ASEAN project whereby member states committed to adopting competition laws by 2015 to facilitate deeper integration of the ASEAN market. In 2015 - Brunei, Myanmar, Laos, and the Philippines passed their competition laws, complying with this informal commitment. Only Cambodia did not adopt a formal competition law by the 2015 deadline; it is still finalizing its draft law today. In short, the ASEAN project was largely successful. Nine out of 10 ASEAN member states have now enacted competition laws.

During the course of this ASEAN competition law push, some of the ASEAN member states with existing laws not only updated those laws, but also restructured their enforcement authorities.

For example, Thailand amended its law in 2017 and established the Trade Competition Commission in the same year. Similarly, in Vietnam, the new competition law, which took effect in July 2019, created the National Competition Commission.

If we look at the substance of the competition laws across the region, the scene is one of similarities rather than differences. Many Asian competition...