DOI: 10.14457/tu.the.2016.765
title: Divestiture under competition law: a comparative study of foreign and Thai laws

description: Thesis TitleDIVESTITURE UNDER COMPETITION LAW A COMPARATIVE STUDY OF FOREIGN AND THAI LAWS  AuthorMr.  Thanapont ThongnoiDegreeMaster of Laws  Major Field/Faculty/UniversityBusiness Law (English Program)Faculty of LawThammasat UniversityThesis Advisor Professor Jumphot Saisoonthorn, Ph.D.Academic Years2016 ABSTRACTForeign competition laws recognize divestiture as a structural remedy. The functions of divestiture order always result in restructuring the market, corporations or activities in order to maintain fair competitiveness of the market.  Maintaining fair competition of the market is the primary goal for competition law. The government can decrease any market concentration which restraint the competition by granting the divestiture order to restructure the market.  Divestiture is the most famous structural remedy for US’s antitrust law, despite enormous numbers of failure of divestiture orders that drew-back their enforcement in monopolization cases.  Divestiture is more acceptable and suitable as a structural remedy for the unlawful merger cases.In Thailand, divestiture is commonly known as a strategic tool of business sector. In the perspective of business sector, divestiture basically refers to the sales of portion of the company to other parties for cash infusion. Thai businessman uses divestiture as a strategic solution for corporate restructuring to eliminate unprofitable business or division, financial exigency or change in the strategic orientation of the business.Thailand’s TTCA implies the possibility of divestiture application, as reflected in Section 30. Section 30 of the TTCA empowers the TTCC to make in writing an order to amend market share.  Amending and restructuring market share are said to be in common with respect to the outcome. However, the TTCC has never applied divestiture order to any case where applicable. The TTCC’s failure of application of divestiture is unclear as to whether or not the TTCC has recognized its power of issuing divestiture order. In addition, TTCC may recognize its power but lack sufficient knowledge or information about divestiture that would temporarily freeze divestiture application at minus zero degree.Recognition of divestiture in all major foreign competition laws remarkably reflects the importance of divestiture.  Divestiture has been used as the most powerful structural remedy for violation of competition law.This thesis reveals the applicability of divestiture order under existing law.  To apply divestiture order, TTCC should issue divestiture order under Section 30 of the TTCA. Prior to issuance of the divestiture order, TTCC should carry out the analysis and evaluation of consequences of divestiture order. TTCC may appoint a sub-committee which consists of experts covering all related fields, such as economics, laws, accounting and finance to carry out the said analysis and evaluation.  Divestiture order should specify conditions and timeline for business operators to comply therewith. In addition, TTCC should prescribe rules of the evaluation procedures of the issuance of divestiture order.  These rules should consist of the determination of the process of issuance, implementation and enforcement of divestiture order.  To be more effective, TTCC should recruit more personnel who have expertise in the fields of finance, accounting, judgment execution, property assessment and litigation. The TTCC should be likewise encouraged to work closely with the Department of Judgment Execution.  Finally, TTCC may propose an amendment to the TEACP to include the lawsuits with respect to violation of competition law to be under the jurisdiction of the administrative court.Keywords: Thailand, competition law, divestiture