ASEAN Competition Conference

1. ASEAN Competition Conference • 15-16 November 2011, Bali, Indonesia • The challenges in introducing competition law and policy in ASEAN Member States • Hassan Qaqaya • UNCTAD • Hassan.qaqaya@unctad.org • www.unctad.org/competition

2. outline • 1. ASEAN competition regime : a regional framework in the making • 2. Five groups of countries; • 3. ASEAN Needs and Challenges; • 4. Key issues for considerations by ASEAN countries in the introduction of competition law and policy ; • 5. UNCTAD technical assistance in preparing a competition policy and a law; • 6. An ASEAN cooperative response the needs and challenges: • 7. Concluding remarks

3. 1. • ASEAN competition regime : a regional framework in the making • By adopting the AEC Blueprint in November 2007, ASEAN Leaders have committed to « endeavour to introduce competition policy in all Member States by 2015 » • At the time of the adoption of the AEC Blueprint in 2007 Indonesia (1999), Thailand (1999), Singapore (2004),Vietnam (2004) had already a competition law in place; • Laos 2004 Decree on competition, unfair trade practices and price control, New draft in progress; Cambodia draft law since 2005; • 2010 Malaysia ; 2011 Philippines Executive order no 45 , 2011 DOJ is designated as the Competition Authority . Office for Competition responsable for duties and functions under the Office of the Secretary of Justice; • Brunei (2011) preparartory process launched by Prime Minister, • Mynamar (2011) request for TA

4. At least five groups of countries • Countries with a competition law with actual cases of enfoncement: • Countries with a Competition Law and begining enforcement: • Countries with a Competition Law but without enforcement: • Countries without a competition law but with drafts already made and close to adoption: • Countries without a competition law but draft laws at various stages: • Others

5. Asian countries: Needs and challenges • Do all Asian countries face the same challenges? • Does capacity building and technical assistance need to be calibrated to suit local circumstances? • What should be the form of delivering capacity building and TA? • How to assess the effectiveness of capacity building ? Impact ? Sustainability?

6. Key issues for considerations by ASEAN countries in the introduction of competition law and policy • Countries have to take into the follwing considerations: • The economic circumstances; • The Political and social choices; • The legal environment ; • The relative roles of state and private sector in the economy; • The policy maker vision of competition policy

7. UNCTAD approach to preparing a competition policy and a law • Stage One: • Preparation of an economic mapping; • Preparation of a legal inventory of all laws and rules having a bearing on competition law and policy; • Preparation of a competition policy framework report; • Drafting the terms of reference for the scope, principles and institutional framework for the law; • Layman draft of the competition law; • Internal and external Consultations on the draft law;

8. UNCTAD approach to preparing a competition policy and a law • Stage two • Stakeholders consultative meetings • Finalisation of the competition bill

9. UNCTAD stages of preparing a competition law • Stage three • Setting up an institutional framework for enforcing the law • Preparing rules and regulations • Communication how the agency intends to apply the substantive content of the law • Appointing key staff ( Chief economist, legal advisor, etc,, • Develpoing an advocavy and communication strategy • Etc.

10. The UN Set of Principles on Competition is a multilateral code addressed to governements and Multilational enterprises The UN Set of Principles om Competition Policy 1980 UN General Assemly resolution No. 35/63 (5.12.80); Main features: - Includes among its objectives the development dimension; Non binding norms; framework for voluntary cooperation including case specific consultations; Exemptions of state action. UNCTAD Model law on Competition; Provision of Technical assistance. 10

12. Capacity building in the area of enforcement • Advocacy • Cartel investigation • Merger control • Anti-competitive agreements • Abuse of dominance • Cooperation with sector regulators • Handling multiple criteria • Judicial review

13. Common challenge: Formulation of a competition Policy • Priorities have to be defined to formulate national competition policies to ensure coherence between competition law and other public policies and remove unjustified state sponsored cartels and monopolies; • increase the level of awareness of the benefits of competition for effeciency and consumer welfare. • Develop a phased-in approach where competition authorities are not able to cope with liberalization to avoid social costs , regulatory » or political capture by firms; • Develop a cooperative response.

14. A Cooperative Response • Competition Authorities have common goals; • Increased informal contacts between competition authorities; • Technical consultations – competition authorities learning from each other; • No one country has all of the answers; • Each competition agency brings unique insight and experience based on our own economic development experiences; • Competition agencies learn from each other; • Share a common goal – competition for the benefit of their fellow citizens. • Develop common pools of expertises and systems of knowlegde management at the national, bilateral and AESAN level,

15. Legal Framework Market Establishing laws, Preparation of Project procedures, guidelines . ) laws, etc (Support Enforcement of laws, procedures, Competition & Consumer Market Project Institutional ) studies Capacity building Protection Authorities (Support Associations, Project Institutional University Competition advocacy ) Capacity building (Support institutes, etc. Training Project Direct support to Enterprises Enterprises Enterprises ) formalization (Support • Forms of capacity building

16. Concluding remarks • Although there is an agreement about the fundamental principles of an effective Competition agency • No one country has all of the answers; • Each competition agency brings unique insight and experience based on its own economic development experiences; • Competition agencies learn from each other; • Capacity building should be calibrated to suit the circumstances of the beneficiary agency; • National initiatives should be completemented by cooperative responses.