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  • Series: Research Handbooks in Competition Law series x
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Edited by Steven Van Uytsel, Shuya Hayashi and John O. Haley

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Steven Van Uytsel, Shuya Hayashi and John O. Haley

This book aims to elaborate on whether Asian competition laws converge with or diverge from the competition laws that have inspired their drafting. For this reason, the book chapters elaborate on the modelling process of the respective country’s competition law (which competition laws stood as a model for both the original version and, if any, its amendments) and to what extent and for what reason(s) the legislator or enforcer gave his or her own direction to their respective competition law. In other words, the aim is to identify specific characteristics of the respective competition law. This research is done for Cambodia, China PRC, Hong Kong, Indonesia, Japan, Korea, Malaysia, Myanmar, Philippines, Singapore, Taiwan, Thailand and Vietnam.

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Steven Van Uytsel

Over a period of five decades, the landscape for advice on adopting a competition law in Asian countries has drastically changed. This chapter highlights that there has been a growth in competition law models, whereas when competition law was first discussed in an Asian context there was only one model. With an increase on models, tension grew between converging or diverging on these models. Law and economic scholarship advocated for convergence, but soon had to acknowledge its inspirational limitations. As a result, divergence started to be recognized by enforcement agencies grouped in an international network. From a different angle, law and development scholarship advocated for divergence by adapting competition law to the local needs of developing countries. One document goes against the current idea of divergence, at least in content, and that is the ASEAN Guidelines on Competition Law. This document advocates taking inspiration from the European competition law provisions.

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Steven Van Uytsel

This chapter sets out the reasons why competition law spread in Asia. After detailing the forced adoption of competition law in Japan, which was the result of the post-Second World War economic policy of the United States, the chapter goes on to map out the different origins of the proliferation of competition law. Despite the fact that forced adoption, such as was seen in Japan, no longer occurs, pressure has been exerted on some countries to adopt a competition law. This pressure came through international organizations (International Monetary Fund or World Trade Organization) or through other countries’ foreign trade policies (free trade agreement). Some countries decided to embrace competition law for reasons that fit with their own economic reformation of the market. The last dash towards the proliferation of competition law in Asia has been through ASEAN, which suggested the adoption of competition law to achieve market integration within the ASEAN region.

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Shuya Hayashi, Kunlin Wu and Xiaoyu Ma

The Japanese competition law (AMA) has been developed and has changed under varying political and economic circumstances across time. Although the AMA was enacted and amended under the influence of US and EU competition laws, Japanese-style characteristics distinguish the AMA vividly from other competition laws. In order to better understand how Japan shaped its own view on the AMA, this chapter provides an overview of the history of the AMA enforcement, and points out major differences in the AMA when compared to the US or EU competition laws. It subsequently summarizes factors that triggered or influenced the recent AMA amendments, aiming to depict the uniqueness of the AMA in Asian competition laws.

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Yo Sop Choi

Over the past decades, the Korean competition regime has developed notably, highlighting the distinctive features that enable it to harmonize various goals of competition law for ensuring fair and free competition, in pursuit of economic democratization. Enquiry into whether diverse objectives can influence overall competition policy continues to be relevant because economic efficiency itself cannot be the sole goal in Asian countries like Korea. When examining the development of the Korean regime, it is clear that the skeleton of its competition philosophy is a blend of various concepts from the adoption of foreign legal theories and economic principles, which leads to convergence. Therefore, modern economics and politics in competition law often affect its development in a country, including the level of divergence and convergence. This chapter aims to examine the recent changes of the Korean competition regime as an example of localized harmonization.

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Andy C.M. Chen

This chapter reviews and analyses the political, economic and legal driving forces behind the competition legislation in Taiwan. We first highlight the legislative history of the Taiwan Fair Trade Act (TFTA) and demonstrate how democratization movements and economic globalization taking off in the 1980s triggered the debates and drafting of the Act. We then provide an overview of how foreign legislations influenced the TFTA legislation process. Against these backdrops, we examine the factors motivating subsequent TFTA revisions and their policy implications for future TFTA enforcement. The major finding from our study indicates that legal transplant and the legal tradition followed by a jurisdiction are the two most crucial factors for Taiwan. Nevertheless, we caution against unexamined embrace of legal transplant. For effective competition legislation, the legislative purposes of the transplanting jurisdictions and the impacts on domestic markets caused by transplant should be clearly understood and tested.

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Sih Yuliana Wahyuningtyas

The Indonesian Constitution of 1945 established the first premise for ensuring equal opportunities for everybody to take part in economic activities as the implementation of democracy in economic life, and an important pillar was established in 1999 in the embodiment of Indonesian competition law (Law No 5/1999). The law is the main tool for safeguarding a level playing field in the Indonesian market. Two decades after its enactment in 1999, an amendment of the law is needed. While the Draft of the Amendment of Law No 5/1999 maintains the multipurpose approach, the focus on the protection of consumer interests remains the main approach used by KPPU. Significant changes from the current Law concern the structure of the law, sanctions, the inclusion of a leniency programme and a shift from post to premerger notification. It remains to be seen whether the Draft will finally be adopted by the Parliament.

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Sakda Thanitcul

Thailand adopted a full-fledged competition law in 1999, after the Thai economy faced problems with automobile manufacturers halting imports of vehicles into Thailand and it was not clear whether the earlier adopted price laws could deal with this issue. Despite the efforts of the Thai government to draft a competition law based on the competition laws of South Korea and Germany, the government was not able pass an effective law. This chapter explains that the law has triggered 93 complaints, the majority related to unfair trade practices, but none of these complaints have led to a decision that the competition law was violated. The chapter purports that the ineffectiveness was mainly caused by the conceptualization of the enforcement institutions. To curb this situation, a new competition law was adopted in 2017.

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Ly Huong Luu

Vietnam revised its Law on Competition (VCL) in 2018 after 12 years of enforcement of its former VCL from 2004. The VCL 2018 was passed on 12 June 2018 and took effect as of 1 July 2019. The Vietnam Competition Administration Department, under the Ministry of Trade and Industry, one of the then two enforcers, took the lead in the VCL 2018 drafting process. Competition law in Vietnam has to a large extent been constructed by legal transplantation. The VCL 2018 heavily relied on the competition law of more developed jurisdictions, especially the EU, Australia and China. Whereas the EU stood as the model for most of the law, the provisions on unfair competitive practices were based on Australia’s Competition and Consumer Act 2010 and the provisions on administrative monopoly were inspired by China’s Unfair Competition Act 1993 and Anti-Monopoly Law 2007. Vietnam has incorporated elements specific to its political and economic situation, its legal thinking and, perhaps, its lack of expertise in competition law and economics.