Competition Law in ASEAN: Transplanting legal frameworks
to prohibit abuse of dominance from Europe to South East Asia

【Special Features】

Competition Law in ASEAN: Transplanting Legal Frameworks
to Prohibit Abuse of Dominance from Europe to South East Asia
Burton ONG *Abstract
National competition laws have been introduced in most of the ASEAN (Association ofSouth East Asian Nations) Member States in the last two decades, many of which are based on
the European competition law framework, even though many of these transplant jurisdictions
have vastly different socio-economic and political landscapes. It should be noted thatcompetition law in ASEAN only exists at the national level – in contrast with the legal modelin Europe, where competition laws exist for at a regional as well as at a national level. This
paper will provide an overview of the regional competition law framework in the ASEAN
Economic Community and explain how the national competition law frameworks of each
ASEAN Member State have implemented these non-binding regional guidelines in theirnational competition law frameworks, focusing on particular on the prohibition against conductthat amounts to an abuse of dominance. It will illustrate how a single European competition
law concept has been enacted and adapted in different ways in individual ASEAN Member
States despite the existence of regional guidelines which seek to achieve regional convergencein this field of economic law.

Contents
I.

Introduction: Competition Law in South East AsiaII.

The Association of South East Asian Nations

III. The ASEAN Economic Community Blueprint (2008-2015)*

1.

Competition policy within the AEC Blueprint (2008-2015)

2.

The ASEAN Experts Group on Competition (AEGC)

3.

The ASEAN Regional Guidelines on Competition Policy

Associate Professor, Faculty of Law, National University of Singapore.

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IV. Transplanting Competition Laws from the European framework into the ASEAN Member States
1.

Abuse of dominance – the “dominance” threshold2.

Implications of divergent thresholds for establishing market “dominance”

V.

Conclusion

I.

Introduction: Competition Law in South East Asia
Competition law is a relative new field in the member states of ASEAN (Association of South

East Asian Nations), with 9 out of 10 countries enacting competition law statutes between the last 5
and 20 years. The reasons for introducing competition law in each member state vary from jurisdiction
to jurisdiction. For some countries, it was part of a broader effort to enhance economic development
and liberalise their economies, which were previously dominated by state-owned enterprises, forothers, it was to comply with their international commitments to free trade and to attract foreign
investment. In many cases, it was a combination of some or all of the factors above. In this paper, I
will explore the legal and economic context in which several ASEAN member states introduced theirrespective competition law and policy frameworks, focusing on legal prohibitions which weretransplanted from the European competition law model.
At a regional level, competition policy has been given some prominence by the ASEAN member
states (AMSs) because of its potential to contribute to the ASEAN Economic Community (AEC), a
regional market initiative that aims to establish a common market for South East Asia. 1 Competition
law is regarded as a means for facilitating regional market integration and spurring economic growthwithin the region. Competition law scholars support the view that regionalising Competition policy
can advance economic development objectives, facilitating regional market integration between, inparticular, developing countries. 2 AMSs have recognised the nexus between Competition policy andthe establishment of a regional common market – the ASEAN Economic Community – and havechosen to adopt a regional Competition policy as an instrument to advance their collective economic
interests.
Section 2 will introduce the ASEAN region, while Section 3 critically examines the original
ASEAN Blueprint and the various implementing instruments that spawned from it, including the
See Burton Ong (ed), The Regionalisation of Competition Law and Policy within the ASEAN Economic Community, Cambridge
University Press (2018).
2
See Drexl, J. “Economic integration and competition law in developing countries”, chapter 11 in Drexl, Bakhoum, Fox, Gal andGerber (eds), Competition Policy and Regional Integration in Developing Countries (Cheltenham: Edward Elgar, 2011).
1

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Competition Law in ASEAN: Transplanting legal frameworks
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regional competition policy guidelines developed to facilitate the introduction of national competition
law frameworks in the ASEAN member states. Section 4 will look at examples from different AMSs
to illustrate how competition law prohibitions have been imported from Europe into these jurisdictions,to establish national competition law frameworks, pursuant to the wider policy objectives of thisregional economic grouping.

II.

The Association of South East Asian Nations
Established in 1967, ASEAN has grown into an important regional economic grouping with ten

countries in South East Asia – Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia,
Myanmar, Philippines, Singapore, Thailand and Vietnam – whose initial aims focused upon theacceleration of “economic growth… in the spirit of equality and partnership in order to strengthen thefoundation for a prosperous and peaceful community of Southeast Asian Nations”. 3 The ASEAN
Member States (AMSs) are organised around a series of cooperative principles which preserves eachmember state’s freedom to independently pursue their own legislative and regulatory agendas. The“fundamental principles” that govern the relations between AMSs are set out in Article 2 of the ASEAN
Treaty of Amity and Cooperation: 4(a) Mutual respect for the independence, sovereignty, equality and territorial integrity andnational identity of all nations;(b) The right of every State to lead its national existence free from external interference,
subversion or coercion;(c) Non-interference in the internal affairs of one another;(d) Settlement of differences or disputes by peaceful means;(e) Renunciation of the threat of use of force;(f) Effective cooperation among themselves.

The ASEAN Declaration (Bangkok Declaration), 8 August 1967. Available at http://asean.org/the-asean-declaration-bangkokdeclaration-bangkok-8-august-1967.
4
Treaty of Amity and Cooperation in Southeast Asia (Indonesia), 24 February 1976. Available at http://asean.org/treaty-amitycooperation-southeast-asia-indonesia-24-february-1976.
3

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The member states of ASEAN have incredibly diverse political, geographical and socioeconomic landscapes. The spectrum of political systems within the ASEAN region include an Islamic
monarchy, socialist states, a constitutional monarchy under military rule, transitional economies andseveral distinct parliamentary democracies with diverse political values. In 2015, the ASEAN
Economic Community was formally established with the goal of drawing the economies of the AMSs
closer together, though not going so far as integrating them into a single market as has been done in
the European Union. The regional grouping merely aspires towards establishing a common market inwhich tariff and non-tariff barriers to trade are eliminated or at least substantially reduced. The tablebelow captures the land and population size of these countries, as well as various indicators of theirrespective economic profiles.
Table 1: Comparison between key characteristics of ASEAN Member States
World Development
Indicators (2021)

Surface Area(sq km)Brunei Darussalam
Cambodia
Indonesia
Lao PDR
Malaysia
MyanmarPhilippines
Singapore
Thailand
Vietnam

5770
181,040
1,910,931
236,800
330,800
676,590
300,000
719
513,120
330,967

Population
Size(Million)
0.441
16.9
276.3
7.3
32.7
54.8
111.0
5.4
69.9
98.2

Gross Domestic
Product ($US) –per capita
31,722
1,591
4,292
2,551
11,371
1,187
3,549
72,794
7,233
3,694

Agriculture(% GDP)

Income Level
Categorisation

1.3
22.8
13.3
16.1
9.6
23.5
10.1
0.0
8.5
N.A.

High
Lower Middle
Lower Middle
Lower Middle
Upper Middle
Lower Middle
Lower Middle
High
Upper Middle
Lower Middle

Source: The World Bank (World Development Indicators, data.worldbank.org)

Between 2007 and 2015, ASEAN has enjoyed an average of 5.3% GDP growth per annum, withthe aggregation of the 10 AMSs’ GDPs amounting to USD2.6 trillion by 2016. With a combined
consumer base of 625 million people, with a majority under the age of 30, the ASEAN region attracted
USD 120 billion of foreign direct investment (FDI) in 2015, or 7% of global FDI. 5 The regional
market which ASEAN is working to establish would qualify as the world’s seventh largest economy.
6 As a result of implementing the initiatives laid out in the ASEAN Free Trade Area and the ASEAN

Economic Community Blueprint (2008-2015)(see below), extensive trade liberalisation measures 7
ASEAN Expert Group on Competition (AEGC) Inaugural Annual Report 2016, ASEAN Secretariat, May 2017, at p.2.
Welcome Address by Mr Lim Hng Kiang, Minister for Trade and Industry (Singapore), at the International Competition Network
Annual Conference 2016, 27 April 2016, at [7], available online at https://www.ccs.gov.sg/media-and-publications/speeches.
7
Investment liberalization policies introduced by AMSs were introduced with the view of permitting market entry into previously
state-controlled sectors and enhancing the contestability of such markets. Competition policy complements the removal of theseinternal barriers by preventing anti-competitive conduct from replacing these obstacles to market entry. See Lawan Thanadsillapakul,“The Harmonisation of ASEAN: Competition Laws and Policy from an Economic Integration Perspective” in Gugler and Chaisse(eds), Competitiveness of the ASEAN Countries: Corporate and Regulatory Drivers (Edward Elgar Publishing 2010) at p.130.
5
6

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have been implemented by the AMSs to achieve duty-free internal tariffs for 96% of tariff lines, more
liberal market access in more than 100 services sectors, improved customs clearance and otherbusiness-friendly regulatory frameworks. The overall economic strategy pursued by ASEAN towards
economic integration has been described as an approach based on “open regionalism”, 8 where both
intra-regional and extra-regional liberalisation of trade and investment are simultaneously pursued by
the AMSs, acting individually in some instances and acting collectively in others.

III. The ASEAN Economic Community Blueprint (2008-2015)
The proposal for establishing an ASEAN Economic Community (AEC) in dates back to 2007
when the AMSs conceptualised the AEC Blueprint, setting out the many reforms that the AMSs had
to carry out to establish the AEC by 2015 in order to “transform ASEAN into a region with freemovement of goods, services, investment, skilled labour and freer flow of capital”. 9 Four key interrelated and mutually reinforcing characteristics for the AEC were articulated: (a) an ASEAN single
market and production base; (b) a highly competitive economic region; (c) a region of equitableeconomic development; and (d) a region fully integrated into the global economy. Individual chaptersin the Blueprint are dedicated to each of these goals, with each chapter setting out specific areas ofpolicy-making and more detailed action plans for the AMSs to pursue.
In relation to (a), the Blueprint focuses on measures required to ensure the free flow of goods,
services and investment between the AMSs. The goal was to “facilitate the development of production
networks in the region and enhance ASEAN’s capacity to serve as a global production centre or as
part of the global supply chain”, building upon the creation of the ASEAN Free Trade Area in order
to eliminate non-tariff barriers to trade and attract sustained inflows of foreign direct investment. 10
In relation to (b), a “competitive” ASEAN region was envisioned as one where every AMS had
its own competition law and policy framework, consumer protection measures and intellectual
property frameworks to “develop a culture of learning and innovation supported by a friendlier IP
profile to businesses, investors and creators in ASEAN”. 11 The Blueprint also exhorts cooperation
between the AMSs in the areas of infrastructure development (multi-modal transportation, information
See Lawan Thanadsillapakul, “The harmonization of ASEAN: Competition laws and policy from an economic integration
perspective” in Drexl et al (eds) (n 1) above at p13-14.
9ASEAN Economic Community Blueprint, ASEAN Secretariat, Jakarta, January 2008, at [4]. http://asean.org/wpcontent/uploads/archive/5187-10.pdf (“AEC Blueprint”)
10
AEC Blueprint, [10]-[23].
11
AEC Blueprint, [41]-[45]833Nagoya University Asian Law Bulletin Vol.9 (May 2023)

and communications technology, energy generation, mining and project finance), taxation reform ande-commerce.
In relation to (c), the Blueprint makes reference to The ASEAN Policy Blueprint for SME
Development (APBSD) 2004-2014, calling upon AMSs to implement the APBSD’s objectives ofaccelerating the development of small and medium enterprises, enhancing their competitiveness anddynamism, strengthening their resilience to better withstand the challenges of a more liberalised
trading environment, as well as increasing the contribution of SMEs to the growth and developmentof the ASEAN region. 12
In relation to (d), the Blueprint reaffirms the outward-looking nature of the AEC and theimportance placed by the AMSs on making the region a more dynamic and stronger segment of the
global supply chain, such that “it is crucial for ASEAN to look beyond the borders of AEC [and that](e)xternal rules and regulations must increasingly be taken into account when developing policies
related to AEC”. 13 Furthermore, AMSs committed themselves towards maintaining “ASEAN
Centrality” in ASEAN’s external economic relations, particularly in relation to its free trade
agreements and comprehensive economic partnership agreements. 14
Competition laws were expected to be implemented by each individual AMS in accordance with
their respect socio-economic needs and legal systems. As far as developing a regional Competition
policy for the AEC is concerned, the AEC Blueprint advanced a “soft law” approach to give AMSs
maximum flexibility to take into account their respective socio-economic and political landscapes in
the process of introducing competition law frameworks to their respective jurisdictions, an approachentirely consistent with the “ASEAN Way”. 151.

Competition policy within the AEC Blueprint (2008-2015)

It is noteworthy that the Competition policy section is located in the “Competitive Economic
Region” chapter of the AEC Blueprint, bundled together with sections dealing with foreigninvestment-linked issues such as Intellectual Property Rights and Infrastructure Development. Placing

AEC Blueprint, [60].
AEC Blueprint, [64].
14
AEC Blueprint, [65]. Examples of these ASEAN-led trade agreements are the ASEAN-Australia-New Zealand Free Trade
Agreement (AANZFTA) and the Regional Comprehensive Economic Partnership (RCEP) between ASEAN, China and various other
FTA partners. See http://www.asean-competition.org/about-aegc-free-trade-agreements.
15
Luu Huong Ly, “Regional Harmonisation of Competition Law and Policy: An ASEAN Approach” (2012) Asian Journal ofInternational Law 291. The “ASEAN Way”, an approach that is centred on the principle of non-interference in the domestic affairsof each AMS, is analysed in depth in Rodolfo C. Severino, South East Asia in Search of an ASEAN Community (Institute of Southeast
Asian Studies, 2008).
12
13

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the Competition policy section alongside these other economic development priorities, rather than
within the “Single Market and Production Base” chapter, is telling. Competition policy is probably
regarded by the AMSs as something that will attract foreign direct investment to the ASEAN region,16
as would have an effective system for protecting intellectual property or a mature intra-ASEAN
transportation network.
Developing competition law frameworks within ASEAN would make the region more attractive
to foreign investors concerned about the economic risk of entering markets occupied by state-owned
enterprises, particularly if the AMSs adopt laws that are based upon competition policy foundations
that are similar to the laws that these foreign investors are familiar with.
The Blueprint itself is silent on the extent of the role that competition law should play infacilitating the market integration goals set out in the “Single Market and Production Base” chapter.
The common market which the AMSs envisage within the ASEAN region is fundamentally different
from that found in the European Union, where a supranational competition law framework plays acentral role to ensure that markets are not divided along national lines and that private conduct does
not impede trade between Member States. The AEC Blueprint does not expect Competition Policy toperform such an onerous task because the AMSs have only committed themselves, to date, towards amuch lower level of integration between their respective economies. In the absence of a supranational
institutional and legal framework within the ASEAN region, the Competition Policy agenda
articulated in the Blueprint must have been intended by the AMSs to focus primarily on their respective
national jurisdictions.
The Competition Policy section of the AEC Blueprint states that the “main objective ofcompetition policy is to foster a culture of fair competition” 17 and identifies the following actions tobe pursued by the AMSs in this regard:i. Endeavour to introduce competition policy in all ASEAN Member Countries by 2015;
ii. Establish a network of authorities or agencies responsible for competition policy to serve as aforum for discussing and coordinating competition policies;iii. Encourage capacity building programmes/activities for ASEAN Member Countries indeveloping national competition policy; andOn the supportive role that a regional Competition policy can have on the foreign direct investment regimes and regulations of the
AMSs, ensuring that the liberalization of the ASEAN market is not “frustrated” by anti-competitive practices that produce market
entry barriers, see Thanadsillapakul (n. 8) above at p.17-19. Intriguingly, Thanasillapakul goes further to argue that “[c]ompetition
laws may replace the current restrictive investment laws and regulations, incorporating principles based on non-discrimination in thecontrol of restrictive business practices among firms regardless of their origin or nationality.”
17
AEC Blueprint, [41].
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iv. Develop a regional guideline on competition policy by 2010, based on country experiences
and international best practices with the view to creating a fair competition 18 environment.
Action (i) has been achieved, with Cambodia being the last country to implement its national
competition law framework in October 2021, with Cambodian Competition Commission establishedin February 2022. Action (ii) was achieved with the establishment of the ASEAN Experts Group on
Competition (AEGC), a regional forum for discussing and coordinating competition policies within
ASEAN that comprises representatives from the respective national competition authorities of the
AMSs. Action (iii) is pursued through the capacity-building efforts of the AEGC, together with its
economic development partners, while Action (iv) was achieved with the publication of the ASEAN
Regional Guidelines on Competition Policy in 2010 (“Regional Guidelines”), 19 followed thereafter by
the Guidelines on Developing Core Competencies in Competition Policy and Law for ASEAN in 2013(“Regional Core Competencies – RCC – Guidelines”). 20 Both these Guidelines articulate broad nonbinding principles to assist the AMSs, particularly those with less experience with competition law, indeveloping their respective national legal frameworks. The Regional Guidelines provide AMSs witha framework guide to the core legal and economic principles underlying competition law regimes,
while the RCC Guidelines introduce national competition authorities to useful international bestpractices that are relevant to the development of their respective competition law agencies,
enforcement systems and advocacy programmes. The production of both Guidelines was funded withtechnical and economic assistance from the German Federal Foreign Office, implemented through theDeutsche Gesellschaft für Internationale Zusammenarbeit (GIZ).
2.

The ASEAN Experts Group on Competition (AEGC)

Economic Ministers from the AMSs endorsed the establishment of the AEGC in 2007 as an
official ASEAN body, comprising country representatives from national competition authorities andgovernment departments responsible for their respective national competition policies. The AEGC is
the central network through which the action plans relating to ASEAN Competition Policy are carriedout, providing a focal point for undertaking the cooperative activities necessary to implement capacity
building and institutional development goals set out in the Blueprint.

The implications of the term “fair competition” will be explored below in the section dealing with the Regional Guidelines.
http://www.asean-competition.org/read-publication-asean-regional-guidelines-on-competition-policy
20
http://www.asean-competition.org/read-publication-guidelines-on-developing-core-competencies-in-competition-policy-and-lawfor-asean
18
19

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3.

The ASEAN Regional Guidelines on Competition Policy

The 2010 Regional Guidelines serve as a non-binding reference guide for AMSs on the various
policy and institutional options that may be used to shape their respective national competition law
and policy frameworks. These Guidelines are based on country experiences and international bestpractices, with 10 chapters and 44 pages of proposals for how competition policy might be
implemented by the AMSs in their respective jurisdictions.
Updates to these Regional Guidelines were subsequently made and published in 2020. The key
features of these Regional Guidelines relating to the key competition law prohibitions will besummarised in the table below, along with the recommendations made to the national competition
authorities of each AMS on how they can implement these guidelines in their respective national
competition laws.
Table 2: Contents and Recommendations
Competition Law
Prohibitions
3.2 Prohibition of
Anti-competitive
agreements

Regional Guidelines (2020 edition)

Recommendations to AMSs

Agreements to be evaluated byreference to their objects or effects.
EU test for “by object” restrictions
cited – “restrictions of competition by
object are those that, by their very
nature, are injurious to the proper
functioning of normal competition” 21
and object should be “determined byreference to the provisions of theagreement between the parties, theobjectives it seeks to achieve and its
economic and legal context” 22

AMS should clarify their position on theinterpretation of the “object threshold” intheir national guidelines to help business
community determine when their agreements are anti-competitive.

EU competition law concepts
introduced: i) “hardcore restrictions”
on competition (price-fixing, bidrigging, market sharing, limits on
production and investment); ii) Use ofCounter-Factual in assessing the“effects” of an agreement; iii)
“appreciability” threshold; iv) Safe
harbour thresholds; v) Decisions ofassociations of undertakings; vi)
Concerted Practices; vii) Verticalagreements as less restrictive ofcompetition
thanhorizontal
agreements, especially where procompetitive benefit outweighs theanti-competitive harm

21
22

AMSs
shouldintroduced
national
competition law guidelines to clarify theapplication of competition to the activitiesof businesses and trade associations, as wellas to “provide reassurance to businesses in
the region” as to when their agreements “areunlikely to raise competition concerns”

Expedia Inc v Autorite de la Concurrence, Case C-226/11 EU:C:2012:795, para 36
519/06 P GlaxoSmithKline [2009] ECR I-9291 [58].

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3.3 Prohibition of
Abuse of Dominant
Position

3.4 Prohibition of
Anti-competitive
Mergers

Policy objective of abuse of
dominance provisions “should be toprotect competition in the market, notto protect individual competitors”
EU competition law concepts
introduced: i)
exploitative vsexclusionary abuses of dominance 23 ;ii) Price-based and non-price basedabusive conduct; iii) Predatory
pricing, Price discrimination, Marginsqueeze, excessive pricing; iv)
Bundling, Exclusive purchasing,
Refusal to Supply; v) Effects-based
test for market foreclosure (whether or
not the conduct would result in “acompetitor as-efficient as thedominant firm” being excluded fromthe market?)Mergers raise competition concerns
when they lead to a substantial
lessening of competition (SLC) or“significantly
impedeeffectivecompetitive in the relevant market”.
EU competition law concepts
introduced: i) joint ventures that create
independently
functioning
newentities; ii) substantive merger
notification thresholds (e.g. merger =change in “control” or acquisition ofdecisive influence over activities ofenterprise); iii) theories of harm –coordinated vs unilateral effects; iv)
SLC test – use of counterfactual andrelevant merger assessment factors(3.3.12) AMS may wish to consider whether
certain types of abuses should be treated asabusive ‘by object’, with no obligation on
the competition authority to establish an
anti-competitive effect (as is the case with
anti-competitive agreements). This could be
the case, for example, with discrimination
against suppliers from another AMS as suchdiscrimination would oppose integration of
the ASEAN Economic Community.

Recognises that there is great divergence
between the merger notification systems of
the AMSs – only a small number of AMSs
have adopted simplified filing systems forcases that do not raise serious competition
concerns.
(3.4.11) “Given the likelihood of increased
cross-border mergers in the ASEAN region,
AMS may wish to consider taking steps tobetter understand each other’s merger
regimes and identify practical ways inwhich differences can be managed inpractice. For example, AMS withmandatory regimes could inform AMS withvoluntary regimes of a notified merger (ofwhich the latter may be unaware) and a
proforma merger waiver could be
developed to allow confidential information
to be shared among the competition
authorities.”

IV. Transplanting Competition Laws from the European framework into the ASEAN Member
StatesOf all the AMSs with national competition law frameworks, Singapore has implemented the threemajor prohibitions against anti-competitive market conduct in a way that comes closest to theEuropean model. Sections 34, 47 and 54 of the Singapore Competition Act are very closely based on
Articles 101 and 102 TFEU, and the EU Merger Regulation. Case law from the European Courts is
European Commission: Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive
exclusionary conduct by dominant undertakings
23

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also frequently cited in the infringement decisions of the Competition and Consumer Commission ofSingapore, as well as the appeal decisions of the Competition Appeal Board. Many of Singapore’scommercial laws are based on corresponding English laws and the competition law framework issimilarly based on the prohibitions found in the UK Competition Act which is, in turn, based on
European competition law.
Malaysia has a similar colonial relationship with the UK as Singapore, and has also introduced anational competition law framework that is broadly similar to the Anglo-European model. However,it only currently has prohibitions against anti-competitive agreements (the Chapter 1 prohibition) andabuse of dominance (the Chapter 2 prohibition), though it is in the process of introducing its own
legislative framework for merger control.
Vietnam first introduced its competition law in 2004, but has subsequently updated it with the
Law on Competition in 2018, which came into effect on July 1 2019. New accompanying regulations
were also passed to focus on agreements which restrain competition, abuses of market dominance,
economic concentrations and unfair practices. The new law merged the pre-existing Vietnam
Competition Authority and the Vietnam Competition Council into a National Competition Committee,
a unit under the Ministry of Industry and Trade, which also has an investigation agency establishedwithin it. One of the main objectives of the new law is provide foreign investors with clearer guidelines
on the regulations, using international standards as benchmarks for the national competition law.
Indonesia introduced its competition law, Law No.5/1999 on the Prohibition of Monopolistic
Practices and Unfair Business Competition Law, shortly after the Asian Financial Crisis as part of its
economic restructuring efforts. Unlike other jurisdictions which use general language to describe thecompetition law prohibitions, the approach taken by this AMS is set out specific lists of prohibited
practices. It covers prohibitions against cartels and anti-competitive horizontal agreements, anticompetitive vertical restraints, abuse of dominance, mergers that may result in monopolistic practices
or unfair competition, as well as restrictions on “conglomerate power” (which prohibits interlocking
directorates where the companies involved are in the same relevant market) and a prohibition against
the formation of conglomerates with a single parent company holding the majority of shares incompanies which collectively have high market shares. The stated goal of this legal framework is topromote “a fair, effective and efficient business environment” and “an atmosphere of fair and naturalcompetition”.
The Philippines introduced its competition statute in 2015, the Philippine Competition Act, after“languishing in Congress for 24 years” with its main goal of “creating more inclusive economic
growth”, improving consumer protection and accelerating investment and job creation. The Act
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reflects the belief that competition “promotes entrepreneurial spirit”, “encourages private
investments”, “facilitates technology development and transfer” and “enhances resource productivity”.
The law is a hybrid of US antitrust law and EU competition law, reflecting its historical links with theAmerican legal tradition. For example, the prohibition against anti-competitive agreements includes
both a list of “per se” US-style prohibitions as well as an EU-style “object or effect” based prohibition.
The abuse of dominance and merger control provisions incorporate some of the legal language of thecorresponding prohibitions from the EU competition law model, though the statutory provisions in the
Act are drafted with much greater detail.
Cambodia was the tenth and final member of the ASEAN regional grouping to enact acomprehensive national competition law in September 2021, finally completing a long-drawn out
process which began in 2006. 24 The Cambodian Law on Competition “governs any activities thatprevent, restrict or distort Competition”, while seeking to “encourage fair and honest business relations,increase economic efficiency, encourage new businesses and help consumers to access high-quality,
low-cost, diverse and versatile products and services”. It has specific prohibitions against anticompetitive horizontal agreements, vertical agreements, abuses of dominant market position andbusiness combinations that have the effect of significantly restricting competition in the market.
1.

Abuse of dominance – the “dominance” thresholdTo illustrate the diversity of the ways in which the “abuse of dominance” prohibition has been
implemented in the AMSs, consider the legal definitions given to the concept of “dominance” in thesenational competition law frameworks. In some jurisdictions like Singapore and Malaysia, the conceptof dominance is not defined in the statute but is instead explained in non-binding guidelines issued by
the national competition authority. Indicative thresholds, or starting points, for what sort of market
share a firm should have before it is regarded as dominant are set out in the guidelines (see below).
Other jurisdictions are more prescriptive. Vietnam’s law states that an enterprise with 30% ormore market share is considered to have substantial market power. Indonesia’s law states that statesthat a business with 50% of more market share shall be regarded as having a dominant position.

The Competition Commission of Cambodia, which was established in 2022, explains on its website that “the law on competition isan economic and complex regulation that covers the national economy and are far different from other regulations. Due to thecomplexity and different methods of international experts from different countries with various jurisdictions, Cambodia has revisedalmost all of its draft law on competition whenever there was a change of global expertise who came to support the law drafting
process.”24

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The Philippines’ law includes a rebuttable presumption of dominance if an entity has a market
share of 50% or more. This places the burden of proof on a firm with a high market share to disprovethat it lacks the market power to be considered a dominant undertaking.
Table 3: Abuse of Dominance in selected ASEAN Member states’ competition law frameworks
AMS
Singapore

Numerical thresholds(market share) for
dominance
60%

Malaysia

60%

Vietnam30%

Indonesia

50%

Philippines

Cambodia50%

N/A

Nature of guidelines[3.9] CCCS Guidelines on the Section 47 Prohibition“…as a starting point, CCCS will consider a market shareabove 60% as likely to indicate that an undertaking is dominant
in the relevant market. However the starting point does notpreclude dominance from being established at a lower market
share.”[2.14] Guidelines on Chapter 2 Prohibition“In general, the MyCC will consider a market share above 60%
would be indicative that an enterprise is dominant. However,other factors will be taken into account in assessing dominance,such as whether there is easy entry into the market, etc”
Article 24, Law No. 23/2018/QH14 Competition Law“An enterprise shall be considered to hold a dominant positionon the market if it has substantial market power as specified in
Article 26 of this Law or has market shares of 30% or more on
the relevant market.”
Article 25(2) Law No.5/1999 on the Prohibition of
Monopolistic Practices and Unfair Business Competition Law“Business actors shall have a dominant position… [where]
one business actor or a group of business actors controls morethan 50% (fifty per cent) of the market share of a certain typeof goods or services…”
Section 27 Philippine Competition Act (Republic Act 10667)(2015)“There shall be a rebuttable presumption of market dominantposition if the market share of an entity in the relevant market
is at least fifty percent (50%), unless a new market sharethreshold is determined by the Commission for that particularsector. “
Article 3(6) Cambodia Law on Competition:“Dominant Market Position means a situation in which a
Person has the power to act in a Market significantly without
any effective constraint from other competitors.”

2.

Implications of divergent thresholds for establishing market “dominance”

The quick survey above of the abuse of dominance prohibitions from 6 of the 10 ASEAN member
states reveals a significance divergence between them on the thresholds used to determine when amarket player is regarded as “dominant” for the purposes of this pillar of the competition law
framework. From non-binding guidelines, to rebuttable presumptions and “deeming” provisions,these jurisdictions appear to pursue very different approaches towards identifying the category of41

Nagoya University Asian Law Bulletin Vol.9 (May 2023)

undertakings who are subject to these additional restrictions on their market conduct. These
differences between the way the European competition law concept of “abuse of dominance” has been
implemented in these ASEAN member states has at least three important ramifications.
Firstly, this potentially creates uncertainty for the business community when a successful
undertaking in one ASEAN member state expands its operations into neighbouring states – lawfulcompetitive conduct in one jurisdiction might be regarded as unlawful abusive market conduct anadjacent jurisdiction if the status of that undertaking is reclassified from non-dominant to dominant
under the national competition law framework of the latter state.
Secondly, it is unclear how these different national approaches towards the issue of “dominance”
might be applied to undertakings that operate in regional markets across the ASEAN region – that is,
in markets for goods or services that transcend national boundaries to include two or more countries.
The possibility for conflicting assessments of the status of such transnational business undertakings isvery real especially because many ASEAN member states have national competition law frameworks
with extra-territorial reach.
Thirdly, these divergent approaches towards the definition of a “dominant” undertaking do not
augur well for the convergence or harmonization objectives of the ASEAN Competition Action Plan
2025. If these jurisdictions are unable to reach a consensus on how to differentiate between “dominant”
and non-dominant market players, then it seems even less likely for them to come up with a collective
understanding of exactly what forms of market conduct should be regarded as “abusive” and therefore
prohibited by competition law.

V.

Conclusion
Competition law has only been in the ASEAN region for a relatively short period of time, withindividual member states having between 2 and 20 years of experience in this field of economic law.
The brief survey above has focused on the divergences that exist in just one aspect of the national
competition law frameworks of these countries, illustrating just one of the many areas of competition
law that these members of the AEC will encounter substantial challenges if they seek to advance theconvergence and harmonization agenda of the AEC Blueprint.

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