WORLD TRADE
ORGANIZATIONWT/WGTCP/W/205
15 August 2002
(02-4462)
Working Group on the Interaction
between Trade and Competition PolicyOriginal: English
COMMUNICATION FROM THAILAND
The following is the final text of a paper received from the Permanent Mission of Thailand
which was circulated as an advance copy for the Working Group's meeting of 1-2 July 2002.
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INTERNATIONAL COOPERATION IN COMPETITION POLICY
I. RECOGNITION OF THE NEED FOR MUTUAL ASSISTANCE
1. Thailand recognizes the potential damage associated with an international cartel and the
urgent need to eradicate these cross-border collusive practices.  We also recognize that these cartels
tend to operate in countries with weak enforcement of competition laws and thus support themultilateral efforts in providing mutual assistance in fighting these cartels.
2. We are concerned of the fact that closer cooperation in the enforcement of competition law
among more advanced economies may divert cartels' activities to economies with weak competition
law enforcement.  According to a background paper for the World Bank’s  World Development Report
2001 , cartel-affected imports contribute to approximat ely 6.7% of all imports by developing countries.
These estimates are based only on known cartels as revealed by competition authorities in the United
States and Europe.  The actual figures could be much higher.
3. Thailand believes that multilateral cooperation must guarantee  developing countries better
protection against international cartels.  In the past, only cartels affecting developed economies, in
particularly the United States and the European Union, have been exposed and subsequently,
prosecuted.  While the breaking up of such cartels may help impair their operations in developing
economies, other cartels that operate exclusively in developing countries may never be discovered orprosecuted.  The steel cartel is an example of a cartel that is known to be in existence for over a
decade but has never been prosecuted.
II. PROPOSITION ON THE MODE OF COOPERATION
4. Thailand believes that the bilateral co-operative arrangements that are currently in place are
helpful in enhancing capacity, but are not sufficient to protect developing countries from internationalcartels because countries with more advanced competition regimes would see no benefit from
cooperating with countries whose enforcement of co mpetition law is considered inadequate.  Thus, a
multilateral cooperation  would be a favourable alternative for developing economies.
5. We believe that the initial commitment  in multilateral cooperation in fighting hard-core
cartels  should consist of the following elements:WT/WGTCP/W/205
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- Notification, which requires authorities that are in the process of investigating and
prosecuting international hard-core cartel cases to promptly alert concerned
authorities in countries that the cartels may be operating.  The notification should
include, at a minimum, the background and the preliminary analysis of the particular
case.  Authorities should be kept up-to-date on a regular basis with regard to theprogress.
- Mandatory consultation, which requires governments that are investigating an alleged
cartel to engage in discussions with other Member countries whose interests may be
affected.
- Assistance, which requires competition authorities to co-operate in terms of providing
analytical assistance, sharing of experience, suggestions concerning enforcement
techniques, etc.  Requests for information gathering should also be facilitated.
6. Due to the overwhelming discrepancy in financial and technical resources between
competition authorities in developed countries and those in their developing country counterparts,
special and differential treatment  for developing members would be necessary in the case of
mandatory enforcement assistance.  We propose that competition authorities in developing countries
be financially compensated for delivering requested services and be allowed to cooperate to the extentpossible subject to technical and financial constraints.
7. We also propose that the medium term goal in cooperation should be focused on establishing
mutual legal assistance
1.  A plurilateral legal assistance treaty against cartels2 would help eliminate
the dual criminality requirement.  We believe that companies as legal entities can be criminals and
that companies act through people.  It is thus necessary to bring to trial those responsible for corporatecrime - just as any other crime - and to prosecute if found guilty.  While we recognize that the current
legal environment in some Member countries does not provide for extraterritorial jurisdiction based
on the "effects doctrine", it may be worthwhile exploring the possibility of a positive comity
agreement initially among Member countries where such an arrangement would be legally feasible.
8. We recognize that the exchange of confidential information  will be m ost useful in assisting
law enforcement.  Thailand has passed an administrative law with respect to the classification and the
handling of confidential information in 2001.  Our Public Information Act 1997 also guarantees
public access to government documents.  A committee has been established to consider requests for
disclosure of public documents.  Its decision is binding on all government entities.  While there are no
explicit prohibitions with regard to the exchange of confidential information in our law, the idea of
sharing confidential information on a multilateral basis at this point is hardly feasible considering the
legal and institutional constraints.  The exchange  of non-confidential information would be more
practical and appropriate.  However, the exchange of confidential information would be required in
the case of a positive comity requests, which we see as an essential element of an effective
cooperation that should be worked out in the medium term.  This issue will be addressed in more
details below.
9. We understand that differential sanctions and substantive procedural rules as well as leakage
of confidential information are major causes of concern.  Nevertheless, we believe that these elements
can be worked out if national industrial and trade policies do not get in the way.  Indeed, countries
that are eligible to participate would have to meet the minimum requirements in terms of the quality
                                                     
1 Thailand has established several bilateral treaties on mutual assistance in the enforcement of criminal
offence.  It should also be noted that violations of the competition law constitute a criminal act in Thailand.
2 Indeed, the definition of cartels and the elements that would constitute a violation would have to be
agreed upon.WT/WGTCP/W/205
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of the procedures and the handling of confidential information.  We would like to emphasize that
without a positive comity agreement, developing count ries would likely continue to be victimized by
international cartels' detrimental collusive practices.
10. Finally, we believe that the proposed cooperation modality is practical, feasible and can be
effective in fighting cartels in both developed and developing Member countries.  More importantly,such cooperation, which entails exchange of information, coordination, consultation and assistance,
would lay the ground for closer cooperation in the future.
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