Promoting Convergence in ASEAN Competition Laws and Practice

Promoting Convergence in ASEAN Competition Laws and Practice

In 2010, only four of the Association of Southeast Asian Nations (ASEAN) Member States (AMSs) (Indonesia, Singapore, Thailand and Viet Nam) had enacted competition laws, and of these only Singapore and Indonesia were actively enforcing their laws. By December 2015, when the ASEAN Economic Community (AEC) came into effect, all AMSs (with the exception of Cambodia), had introduced legislation addressing competition law and policy. In addition, competition law enforcement across the ASEAN jurisdictions had dramatically increased.

ASEAN and its Member States have made the choice not to have one regional competition framework, enforced by one supranational authority, but instead to have national competition laws enforced by national authorities. This raises the inevitable question of whether convergence of competition law and policy in ASEAN is achievable. The extent to which laws are drafted using similar language and substantive tests will be an important element in achieving a high degree of convergence (we call this ‘hard’ convergence). As competition law is highly dependent on complex legal and economic analysis and interpretation, the approach taken by the AMSs to interpreting those laws will also have a significant effect on the potential for convergent outcomes (we call this ‘soft’ convergence). With diverse historical backgrounds and a mix of civil and common law legal systems, there is a risk that the AMSs will take diverse approaches to competition law and policy implementation.

This chapter argues that continuing efforts are needed in relation to both hard and soft convergence if convergence is to be achieved. Convergence is mostly likely to occur if there is coordination and cooperation between the ASEAN competition authorities. To support this discussion, the chapter focuses on the text of the AMSs’ competition laws and policies as well as the available published guidance. Insofar as is possible, the chapter also considers decided cases to determine where reliance on established jurisprudence exists in the interpretation of the law and policies. The institutional structures of the ASEAN competition authorities are consid- ered as they will greatly influence the likelihood of convergence. If interpretation of the law and the powers and priorities of the regulators and competition authorities differ too greatly, convergence will be more difficult.