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ABSTRACT
Over the last decade, many countries have demonstrated remarkable development in their competition regimes, and the regimes of the Member States of the Association of Southeast Asian Nations (ASEAN) are no exception. Since effective competition policy for the digital economy has become an important topic across the world, it is time to discuss desirable guidance for digital competition law and policy in the ASEAN region. There are notable obstacles to providing digital policy guidance for the ASEAN Member States. Most Member States have distinctive objectives of competition law, such as associating the non-economic goals of fair competition with unique substantive rules on unfair trade practices. Moreover, the dissimilar level of law enforcement among the Member States requires ASEAN to provide applicable standards for the appraisal of conduct in digital cases so as not to distort competition in the ASEAN region. This article aims at providing suggestions for ASEAN guidelines for the digital economy, which has not been discussed before, by analysing the cases and legislation in several competition regimes.
Acknowledgements
The authors would like to thank the anonymous referees for their insightful and invaluable comments on the earlier draft.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Richard Whish and David Bailey, Competition Law (10th edn, Oxford University Press, 2021) 1.
2 ASEAN was established in 1967, and the Member States are Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. See Ploykaew Porananond, Competition Law in the ASEAN Countries: Regional Law and National Systems (Wolters Kluwer, 2018) 2; Burton Ong, ‘Competition Law and Policy in the ASEAN Region’ in Burton Ong (ed), The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (Cambridge University Press, 2018) 1.
3 Ohseung Kwon, ‘Competition Law and Policy in ASEAN’ in Ohseung Kwon and others (eds), ASEAN Competition Law (Bobmunsa, 2022) 3 (in Korean). Cambodia is the last AMS that adopted a competition act, effective October 2021. The Cambodia Competition Commission was established in February 2022. See Alexander Chipman Koty, ‘Cambodia’s First Law on Competition: What Investors Need to Know’ (ASEAN Briefing, 9 May 2022) <www.aseanbriefing.com/news/cambodias-first-law-on-competition/#:~:text=In%20October%202021%2C%20Cambodia%20issued,Concerning%20Marks%20to%20stay%20compliant.> accessed 8 June 2022.
4 See Ong (n 2) 2. There is an incredibly wide spectrum of political and economic systems within ASEAN.
5 See Yo Sop Choi, ‘A New Frontier of Digital Competition Law’ (2022) 25(2) Inha Law Review 67, 81; Deborah Healey and Rhonda L Smith, ‘Competition Law in Flux: Established and Emerging Approaches to Methodology’ in Deborah Healey and others (eds), Research Handbook on Methods and Models of Competition Law (Edward Elgar, 2020) 2.
6 Many countries have adopted competition laws to satisfy conditions of free trade agreements, such as the WTO or regional trade agreements. See Yo Sop Choi and Andreas Heinemann, ‘Competition and Trade: The Rise of Competition Law in Trade Agreements and its Implications for the World Trading System’ (2020) 43(4) World Competition 521, 527.
7 See generally, Lawan Thanadsillapakul, ‘The Harmonisation of ASEAN Competition Laws and Policy and Economic Integration’ (2004) 9 Uniform Law Review 479.
8 Ong (n 2) 4–5; Cassey Lee and Yoshifumi Fukunaga, ‘Competition Policy Challenges of Single Market and Production Base’ (ERIA Discussion Paper Series, 2013) 4 <www.eria.org/ERIA-DP-2013-17.pdf> accessed 5 June 2022.
9 Porananond (n 2) 2.
10 See Wan Khatina Nawawi, ‘Regionalisation of Competition Law and Policy in ASEAN: Why, How and When?’ in Burton Ong (ed), The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (Cambridge University Press, 2018) 31, 32.
11 Eleanor M Fox, ‘Can ASEAN Achieve a Single Market with National-Only Competition Law?’ in Burton Ong (ed), The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (Cambridge University Press, 2018) 140, 141; Porananond (n 2) 26.
12 See Mitsuo Matsushita and others, The World Trade Organization: Law, Practice, and Policy (2nd edn, Oxford University Press, 2006) 855.
13 ASEAN held the validation workshop for the investigation manual on competition policy and law for the digital economy on 19 April 2022.
14 Jacques Crémer and others, Competition Policy for the Digital Era (2019) 7–8 <https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf> accessed 2 January 2023.
15 Case AT.39740 Google Search (Shopping), 27/006/2017; Case T-612/17 Google and Alphabet v Commission (Google Shopping) ECLI:EU:T:2021:763. The General Court judgment was issued in November 2021, and it is still pending as of the time of writing in January 2023 before the Court of Justice, Case C-48/22 P, Google and Alphabet v Commission (Google Shopping).
16 Korean Law No. 17799, effective 30 December 2022.
17 KFTC Decision 2021-07, 2018Seogam2521, 27 January 2021.
18 Seoul High Court Judgment 2021Nu36129 (14 December 2022).
19 KFTC Decision 2021-329, 2016Seogam2541, 30 December 2021.
20 Case AT.40099 Google Android, 18/07/2018.
21 Case T-604/18, Google and Alphabet v Commission (Google Android) ECLI:EU:T:2022:541.
22 See Sandra Marco Colino, ‘The Case Against Alibaba in China and Its Wider Policy Repercussions’ (2022) 10 Journal of Antitrust Enforcement 217; Sandra Marco Colino, ‘The Incursion of Antitrust into China’s Platform Economy’ (2022) 67(2) Antitrust Bulletin 237, 242; Toshiaki Takigawa, ‘Super Platforms, Big Data, and Competition Law: The Japanese Approach in Contrast with the USA and EU’ (2021) 9 Journal of Antitrust Enforcement 289, 301.
23 Yo Sop Choi, ‘The Choice of Competition Law and the Development of Enforcement in Asia: A Road Map Towards Convergence’ (2014) 22(1) Asia Pacific Law Review 131, 149.
24 See e.g. Qin Zhou, ‘Whose Data Is It Anyway? An Empirical Analysis of Online Contracting for Personal Information in China’ (2023) 31 Asia Pacific Law Review 73; Sarah Box and Javier Lopez-Gonzalez, ‘The Future of Technology: Opportunities for ASEAN in the Digital Economy’ in Simon SC Tay and Julia Puspadewi Tijaja (eds), Global Megatrends: Implications for ASEAN Economic Community (ASEAN Secretariat, 2017); World Economic Forum, ‘Digital ASEAN’ <www.weforum.org/projects/digital-asean.> accessed 16 December 2022.
25 See e.g. Julien Chaisse and Cristen Bauer, ‘Cybersecurity and the Protection of Digital Assets: Assessing the Role of International Investment Law and Arbitration’ (2019) 21(3) Vanderbilt Journal of Entertainment & Technology Law 549.
26 Alison Jones and others, EU Competition Law: Text, Cases, and Materials (7th edn, Oxford University Press, 2019) 43. Competition law plays an important role in the EU single market integration. This goal differentiates EU competition policy from those of other competition regimes. For instance, the Court of Justice of the European Union confirmed that an agreement that limits parallel trading between the Member States had the object of restricting competition contrary to the EU competition rule, e.g. Case C-501/06 P, GlaxoSmithKline v Commission ECLI:EU:C:2009:610, paras 59–62.
27 ASEAN Secretariat, ASEAN Economic Community Blueprint (2007) Art. 41 <www.asean.org/wp-content/uploads/images/archive/5187-10.pdf > accessed 24 July 2022.
28 Ibid, Art. 41.
29 ASEAN Secretariat, ASEAN Regional Guidelines on Competition Policy (August 2010) Art. 2.2.1. <https://asean.org/wp-content/uploads/2021/08/ASEAN-Regional-Guidelines-on-Competition-Policy.pdf> accessed 24 July 2022.
30 Trade Competition Act (1999). This law was later replaced by a modernized Trade Competition Act (2017).
31 Law of the Republic of Indonesia Number 5 Year 1999 Concerning Prohibition of Monopolistic Practices and Unfair Business Competition.
32 Competition Act of 2004 (Cap. 50B).
33 Law on Competition of 2004, No. 27/2004/QH11.
34 Competition Act, Act 712 (2010).
35 Pyidaungsu Hluttaw Law No. 9/2015.
36 Competition Order (2015).
37 Republic Act No. 10667 (2015).
38 ASEAN Secretariat, ASEAN Competition Action Plan (2016–2025) (2016) <www.asean-competition.org/about-aegc-asean-competition-action-plan-acap-2016-2025> accessed 24 July 2022.
39 Law on Business Competition (No. 60/NA) (2015) published in the Lao PDR Official Gazette in January 2016.
40 Law on Competition of Cambodia (2021).
41 See Wendy Ng, ‘From Divergence to Convergence: The Role of Intermediaries in Developing Competition Laws in ASEAN’ (2022) 10 Journal of Antitrust Enforcement 162.
42 Law on Competition of 2004, Ch. 2 Sec. 3.
43 Competition Act, Secs. 56–58 (2004).
44 Trade Competition Act, Sec. 51.
45 Andre Gan and Lydia Kong, ‘Global Compliance News, Malaysia: Proposed Amendments to Competition Act 2010 – Introduction of Merger Control Regime’ (21 May 2022) <www.globalcompliancenews.com/2022/05/21/malaysia-proposed-amendments-to-competition-act-2010-introduction-of-merger-control-regime-05052022/> accessed 17 July 2022.
46 See Paripurna Sugarda and Muhammad Rifky Wicaksono, ‘Power to the People: Enhancing Competition Law Enforcement in Indonesia through Private Enforcement’ (2018) 26(2) Asia Pacific Law Review 127.
47 Imelda Maher, ‘Competition Law: Convergence through Law and Networks’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (3rd edn, Oxford University Press, 2021) 824, 826.
48 See Choi and Heinemann (n 6) 524.
49 Ng (n 41) 166.
50 Ibid, 186–88.
51 Jennifer Orr and others, Best Practices in the Introduction and Implementation of Competition Policy and Law in East Asia Summit Countries (REPSF II Project No. 07/008, June 2008) <https://asean.org/wp-content/uploads/images/2015/september/competition/Best%20Practices%20in%20the%20Introduction%20and%20Implementation%20of%20Competition%20Policy%20and%20Law.pdf > accessed 24 July 2022.
52 ASEAN Secretariat, ASEAN Regional Guidelines (n 29); ASEAN Secretariat, Guidelines on Developing Core Competencies in Competition Policy and Law for ASEAN (2012) <https://asean-competition.org/file/post_image/Regional%20Core%20Competencies.pdf> accessed 24 July 2022.
53 Daniel Seah, ‘The ASEAN Charter’ (2009) 58 International & Comparative Law Quarterly 197.
54 Luu Huong Ly, ‘Regional Harmonization of Competition Law and Policy: An ASEAN Approach’ (2012) 2 Asian Journal of International Law 291.
55 Stéphanie Yon-Courtin, ‘ASEAN: L’ASEAN Publie des Lignes Directrices en Matière de Concurrence’ (2010) 4 Revue Concurrences 238.
56 Maria Wasastjerna, ‘European Union Competition Policy for the Twenty-First Century Digital Economy’ (2018) 24 Columbia Journal of European Law 527.
57 Hipster antitrust has argued for a wider scope of competition law which deals with non-economic goals, ranging from redistribution of wealth to climate change. See Sandra Marco Colino, Competition Law of the EU and UK (8th edn, Oxford University Press, 2019) 15. Moreover, hipster antitrust scholars assert that the consumer welfare test is very narrow and cannot prevent anti-competitive harm. See also Deborah Healey, ‘The Ambit of Competition Law: Comments on Its Goals’ in Deborah Healey and others (eds), Research Handbook on Methods and Models of Competition Law (Edward Elgar, 2020) 12, 20.
58 Erik Brynjolfsson and Brian Kahin, ‘Introduction’ in Erik Brynjolfsson and Brian Kahin (eds), Understanding the Digital Economy: Data, Tools, and Research (MIT Press, 2000) 1.
59 Rumana Bukht and Richard Heeks, ‘Defining, Conceptualising and Measuring the Digital Economy’ (GDI Development Informatics Working Papers, No. 68, 2017) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3431732 > accessed 25 July 2022.
60 Ibid.
61 Carl Dahlmani and others, ‘Harnessing the Digital Economy for Developing Countries’ (OECD Development Centre Working Papers No. 334, 2016) <https://ideas.repec.org/p/oec/devaaa/334-en.html> accessed 25 July 2022. There are policy suggestions for the digital economy at ASEAN and national level, and the proposals are to encourage AMSs to consider both the national or ASEAN market and the global market when designing a plan for the digital economy. See e.g. Lurong Chen, ‘ASEAN in the Digital Era: Enabling Cross-border E-Commerce’ in Lurong Chen and Fukunari Kimura (eds), Developing the Digital Economy in ASEAN (Routledge 2019) 259.
62 Amalina Anuar, ‘ASEAN’s Digital Economy: Development, Division, Disruption’ (RSIS 2019) <https://think-asia.org/handle/11540/10000> accessed 25 July 2022.
63 Competition laws in Northeast Asian countries like Korea and China resemble the EU competition rules, which indicates the influence of the EU competition regime. See Mark Furse, Antitrust Law in China, Korea and Vietnam (Oxford University Press, 2009) 14, 22.
64 See Ningrum Natasya Sirait, ‘The Development and Progress of Competition Law in Indonesia’ (2009) 54(1) Antitrust Bulletin 15, 23.
65 Mark Williams, ‘The Lion City and the Fragrant Harbor: The Political Economy of Competition Policy in Singapore and Hong Kong Compared’ (2009) 54(3) Antitrust Bulletin 517, 553.
66 See May Fong Cheong and Yin Harn Lee, ‘Malaysia and Singapore’ in Mark Williams (ed), The Political Economy of Competition Law in Asia (Edward Elgar, 2013) 215; Burton Ong, ‘The Origins, Objectives and Structure of Competition Law in Singapore’ (2006) 29(2) World Competition 269, 270.
67 The Vietnamese Competition Act widely covers anti-competitive agreements, abuses of market dominance, unfair trade practices and economic concentration. See Tu Thanh Nguyen, ‘Competition Law in Vietnam: A Paper or Young Tiger?’ (2012) 57(3) Antitrust Bulletin 409, 418.
68 Choi (n 23) 142–44.
69 A market share of 39.7% can indicate a market-dominant position in the EU, e.g. Case C-95/04 P, British Airways plc v Commission ECLI:EU:C:2007:166.
70 ASEAN provides rough guidance on broadly categorizing types of abusive conduct as exploitative behaviour towards consumers, customers and competitors, exclusionary behaviour toward competitors, discriminatory behaviour and limiting production and markets and technical development to the prejudice of consumers. See ASEAN Secretariat, ASEAN Regional Guidelines (n 29) Sec. 3.3.2.
71 Bundeskartellamt, ‘Bundeskartellamt Prohibits Facebook from Combining User Data from Different Sources’ (7 February 2019) <www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2019/07_02_2019_Facebook.html> accessed 12 June 2022.
72 See Marco Botta and Klaus Wiedemann, ‘The Interface of EU Competition, Consumer, and Data Protection Law in the Digital Economy: The Regulatory Dilemma in the Facebook Odyssey’ (2019) 64(3) Antitrust Bulletin 428.
73 Giuseppe Colangelo and Mariateresa Maggiolino, ‘Data Accumulation and the Privacy–Antitrust Interface: Insights from the Facebook Case’ (2018) 8(3) International Data Privacy Law 224, 227; William S Comanor and Donald I Baker, ‘The Issue of Consumer Welfare in the Government Complaints Against Google & Facebook’ (2022) 67(1) Antitrust Bulletin 12, 20.
74 Inge Graef, ‘When Data Evolves into Market Power – Data Concentration and Data Abuse Under Competition Law’ in Martin Moore and Damian Tambini (eds), Digital Dominance: The Power of Google, Amazon, Facebook, and Apple (Oxford University Press, 2018) 71, 89; Barry J Rodger and Angus MacCulloch, Competition Law and Policy in the EU and UK (6th edn, Oxford University Press, 2021) 20. Some critics disagree with the assertion of applying competition law to data cases. See D Daniel Sokol and Roisin Comerford, ‘Antitrust and Regulating Big Data’ (2016) 23(5) George Mason Law Review 1129.
75 Ariel Ezrachi and Maurice E Stucke, ‘Antitrust Enforcement and Market Power in the Digital Age: Is Your Digital Assistance Devious?’ in Damien Gerard and Loannis Lianos (eds), Reconciling Efficiency and Equity: A Global Challenge for Competition Policy (Cambridge University Press, 2019) 222.
76 See Liza Lodvdahl Gormsen and Jose Tomas Llanos, ‘Facebook’s Exploitative and Exclusionary Abuses in the Two-Sided Market for Social Networks and Display Advertising’ (2022) 10 Journal of Antitrust Enforcement 90, 94; Wolfgang Kerber, ‘Taming Tech Giants: The Neglected Interplay Between Competition Law and Data Protection (Privacy) Law’ (2022) 67(2) Antitrust Bulletin 280, 285. The development of competition law enforcement in each AMS can improve its digital competition policy. For instance, the Indonesian agency’s merger assessment on the Gojek-Tokopedia case in 2021 involved the digital dominance issue. See KPPU, ‘ICC Conducts a Comprehensive Assessment of the Tokopedia Acquisition Notification by Gojek’ (23 February 2022) <https://eng.kppu.go.id/icc-conducts-a-comprehensive-assessment-of-the-tokopedia-acquisition-notification-by-gojek/> accessed 3 January 2023.
77 Renato Nazzini, ‘Antitrust Enforcement and Privacy Standards’ in Joe Cannataci and others (eds), Legal Challenges of Big Data (Edward Elgar, 2020) 64, 71.
78 Some argue that the current situation of data oligopolies does not promote competition, innovation and privacy. See Maurice E Stucke, Breaking Away: How to Regain Control Over Our Data, Privacy, and Autonomy (Oxford University Press, 2022) 170.
79 Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act).
80 Singapore adopted a law for personal data protection that became effective in 2012. This was the first data protection law in ASEAN.
81 Case T-612/17 Google and Alphabet v Commission (Google Shopping) ECLI:EU:T:2021:763.
82 See Pinar Akman, ‘The Theory of Abuse in Google Search: A Positive and Normative Assessment under EU Competition Law’ (2017) 2017(2) Journal of Law, Technology & Policy 301, 306.
83 KFTC Decision 2021-07, 2018 Seogam 2521, 27 January 2021.
84 The Seoul High Court upheld the KFTC decision on 14 December 2022.
85 See e.g. The Economist, ‘The World’s Most Valuable Resource Is No Longer Oil, but Data: The Data Economy Demands a New Approach to Antitrust Rules’ (6 May 2017) <www.economist.com/leaders/2017/05/06/the-worlds-most-valuable-resource-is-no-longer-oil-but-data> accessed 23 July 2022.
86 See Robert Pitofsky, ‘New Definitions of Relevant Market and the Assault on Antitrust’ (1990) 90 Columbia Law Review 1805.
87 See also Johann Laux and others, ‘Taming the Few: Platform Regulation, Independent Audits, and the Risks of Capture Created by the DMA and DSA’ (2021) 43 Computer Law & Security Review 1.
88 For further discussions about pros and cons of vertical arrangements from ASEAN perspectives, see Alison Jones, ‘Antitrust Appraisal of Vertical Agreements in the ASEAN Economic Community: Proposals for a More Harmonised Approach’ in Burton Ong (ed), The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (Cambridge University Press, 2018) 271, 274.
89 See Paul Belleflamme and Martin Peitz, The Economics of Platforms (Cambridge University Press, 2021) 12.
90 Choi (n 5) 69–70.
91 Kwon (n 3) 36.
92 Ong (n 2) 7.
93 Economic efficiency should be the main goal of competition law and policy in small economies because they are not prepared to sacrifice efficiency to achieve broad socio-political goals. The efforts to achieve non-economic goals may result in incredible costs for the whole society. See Michal S Gal, Competition Policy for Small Market Economies (Harvard University Press, 2003) 48.
94 A regime with the influence of German Ordoliberalism often emphasizes economic freedom. For further discussions on the recent development in the EU, see also Alison Jones and Christopher Townley, ‘Competition Law’ in Catherine Barnard and Steve Peers (eds), European Union Law (3rd edn, Oxford University Press, 2020) 544, 546.
95 In the early stage of economic development in the 1960s and 1970s, the Korean government supported several conglomerates that eventually became national champions in the global market. However, the Korean people have been concerned about the problem of economic concentration by these conglomerates, and this has resulted in the adoption of a competition act and vigorous applications of the act against large conglomerates. See Yo Sop Choi, ‘The Enforcement and Development of Korean Competition Law’ (2010) 33(2) World Competition 301, 302.
96 Roger Van den Bergh, Comparative Competition Law and Economics (Edward Elgar, 2017) 115.
97 Ohseung Kwon and Jeong Seo, Antitrust Law (5th edn, Bobmunsa, 2022) 24 (in Korean). Korea has a social market economy system that allows market intervention by the State to achieve public interests. See also Hyun Yoon Shin, Economic Law (8th edn, Bobmunsa, 2020) 37 (in Korean).
98 A democratization movement is an important element of competition law development, as shown in Taiwan. See Andy CM Chen, ‘Political, Economic and Legal Driving Forces Shaping the Developmental Contours of Competition Law: The Experience of Taiwan’ in Steven Van Uytsel and others (eds), Research Handbook on Asian Competition Law (Edward Elgar, 2020) 81, 82.
99 See Thomas K Cheng, Competition Law in Developing Countries (Oxford University Press, 2020) 291.
100 See Ioannis Lianos and others, Competition Law: Analysis, Cases & Materials (Oxford University Press, 2019) 98.
101 For instance, the Malaysian competition regime has shown meaningful case law development in the past decade. See Yo Sop Choi, ‘Competition Law in Malaysia: A Ten-Year Retrospective’ in Ohseung Kwon and others (eds), ASEAN Competition Law (Bobmunsa, 2022) 66, 101 (in Korean); May Fong Cheong and others, ‘Legal Transplant: Giving Life to Malaysia’s Competition Regime’ in Steven Van Uytsel and others (eds), Research Handbook on Asian Competition Law (Edward Elgar, 2020) 181, 192.
102 See e.g. Ploykaew Porananond and Po Ma Ma Aung, ‘Emerging Trend in Competition Law in Southeast Asia: Perspectives from Myanmar and Thailand’ (2019) 42(4) World Competition 577, 589; Healey (n 57) 32.
103 See e.g. Hans Mahncke, ‘The Emergence of Competition Law Regimes in the Asia-Pacific Region: A Contrarian Perspective’ (2006) 14 Asia Pacific Law Review 1, 17.
104 The goal of fair competition seems to involve multiple goals in several AMSs, including Thailand and Myanmar. See e.g. Porananond and Aung (n 102) 590–91.
105 ASEAN Secretariat, Guidelines on Developing Core (n 52).
106 Ibid, 8–9.
107 Ong (n 2) 23. The competition laws of Lao PDR, Myanmar and Vietnam notably indicate similarities such as prohibitions of mergers based on market share and protections of mergers between small- and medium-sized enterprises as well as UTP provisions or unfair competition provisions. See Ng (n 41) 187.
108 The concept of economic democracy in Indonesian competition law differs from that of Europe and Northeast Asian countries because the Indonesian approach is based on its distinctive principle of Pancasila Democratic Economy. See e.g. Sirait (n 64) 15.
109 Sih Yuliana Wahyuningtyas, ‘Indonesian Competition Law: Up for Renewal’ in Steven Van Uytsel and others (eds), Research Handbook on Asian Competition Law (Edward Elgar, 2020) 100, 105.
110 Ioannis Lianos, ‘The Poverty of Competition Law: The Short Story’ in Damien Gerard and Loannis Lianos (eds), Reconciling Efficiency and Equity: A Global Challenge for Competition Policy (Cambridge University Press, 2019) 45, 55.
111 The competition act of Lao PDR also includes the UTP provisions within its Articles 8 through 17, and these are very similar to those in the Vietnamese Competition Act. See e.g. Steven Van Uytsel and Somsack Hongvichit, ‘Competition Law in Laos: Evaluating Its Potential for Effective Enforcement’ in Steven Van Uytsel and others (eds), Research Handbook on Asian Competition Law (Edward Elgar, 2020) 281, 286. Articles 17 through 29 of the Myanmar Competition Act also prohibit UTPs.
112 Corinne Chew, ‘Diversity of National Competition Laws in the ASEAN Region and the Resulting Challenges for Businesses Operating in the Region’ in Burton Ong (ed), The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (Cambridge University Press, 2018) 58, 61; Healey (n 57) 28.
113 Nawawi (n 10) 44.
114 Choi (n 23) 139.
115 Ibid, 140.
116 See e.g. Deunden Nikomborirak, ‘The Political Economy of Competition Law: The Case of Thailand’ (2006) 26 Northwestern Journal of International Law & Business 597, 612.
117 Choi (n 23) 134; D Daniel Sokol, ‘Antitrust, Industrial Policy, and Economic Populism’ in Damien Gerard and Loannis Lianos (eds), Reconciling Efficiency and Equity: A Global Challenge for Competition Policy (Cambridge University Press, 2019) 281, 284.
118 Unclear provisions often require amendments to competition acts in the developing countries. See e.g. Anan Chantara-Opakorn, ‘Thailand’s Competition Law and Its Implications on International Mergers and Acquisitions’ (2000) 18 Wisconsin International Law Journal 591.
119 Choi (n 23) 145.
120 See Eleanor M Fox, ‘Equality, Discrimination, and Competition Law: Lessons from and for South Africa and Indonesia’ (2000) 41(2) Harvard International Law Journal 579, 592.
121 Ong (n 2) 25.
122 Fox (n 11) 160.
123 Chew (n 112) 83.
124 Choi (n 23) 133; Thanadsillapakul (n 7) 483.
125 Josef Drexl, ‘The Transplantability of the EU’s Competition Law Framework into the ASEAN Region’ in Burton Ong (ed), The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (Cambridge University Press, 2018) 210, 212.
126 See Ong (n 2) 1.
127 See Fox (n 11) 153.
128 Deniz Both, ‘Models of Regional Cooperation in Competition Law and Policy from Around the World’ in Burton Ong (ed), The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (Cambridge University Press, 2018) 165, 192.
129 Porananond (n 2) 36.
130 Ng (n 41) 162.
131 Maher (n 47) 826.
132 Ong (n 2) 6.
133 Nawawi (n 10) 49; Porananond (n 2) 20.
134 Divergence of the political and economic systems often leads to a preference for a soft-law approach. See Drexl (n 125) 211.
135 The effective and appropriate functioning of democracy and a free market is crucial for harmonization, but each AMS has a different level of maturity of democracy and market economy, which often impedes the process of harmonization. See Porananond and Aung (n 102).
136 Historically, the ASEAN’s guidelines for competition law have assisted the AMSs that have less experience with competition law. See Ong (n 2) 8.
137 Steven Van Uytsel, ‘A Legal Transplant Made Unnecessarily Complex: The Myanmar Competition Law’ in Steven Van Uytsel and others (eds), Research Handbook on Asian Competition Law (Edward Elgar, 2020) 303, 307.
138 Porananond and Aung (n 102) 602.
139 Fox (n 11) 156.
140 Both (n 128) 170.
141 Ibid, 171.
142 Ong (n 2) 26.
143 Thanadsillapakul (n 7) 492.
144 Drexl (n 125) 211; Porananond (n 2) 135–36.
145 See e.g. Jones (n 88) 300.
146 Anu Bradford, The Brussels Effect: How the European Union Rules the World (Oxford University Press, 2019) 1.
147 Chew (n 112) 90.
148 See Thanadsillapakul (n 7) 493.
149 See Steven Van Uytsel, ‘Adopting Competition Law in Asia: An Increasingly Complex Reality’ in Steven Van Uytsel and others (eds), Research Handbook on Asian Competition Law (Edward Elgar, 2020) 2, 22.
150 See Viktoria HSE Robertson, ‘Current Issues in Defining Relevant Antitrust Markets: Data, Digitalization and Innovation’ in Pier Luigi Parcu and others (eds), Economic Analysis in EU Competition Policy: Recent Trends at the National and EU Level (Edward Elgar, 2022) 91, 95; Choi (n 5) 69.
151 Nicholas Economides and Ioannis Lianos, ‘Restrictions on Privacy and Exploitation in the Digital Economy: A Market Failure Perspective’ (2021) 17(4) Journal of Competition Law & Economics 765.
152 Some argue that there are beneficial synergies from the application of both laws. See Beatriz Kira and others, ‘Regulating Digital Ecosystems: Bridging the Gap Between Competition Law and Data Protection (2021) 30 Industrial and Corporate Change 1337, 1339. However, at the early stage of development of a data protection regime, an overlap may cause notable confusion in the society, especially when the different agencies’ approaches collide. See also Alessia Sophia D’Amico, ‘Conceptualising the Interrelation Between Data Protection Regulation and Competition Law’ in Eleni Kosta and others (eds), Research Handbook on EU Data Protection Law (Edward Elgar, 2022) 143, 148.
153 Chew (n 112) 91.
154 See Porananond (n 2) 155.
155 Jones (n 88) 294–98. Jones argues for the importance of a uniform analysis on vertical restraints in the ASEAN region.
156 Ibid, 300. For example, the different approaches to vertical restraints illustrate difficulties in achieving the goal of uniformity of appraisals.
157 Sakda Thanitcul, ‘Competition Law in Thailand: In Transition to an Operational Law’ in Steven Van Uytsel and others (eds), Research Handbook on Asian Competition Law (Edward Elgar, 2020) 118, 119.
158 See Sakda Thanitcul, ‘Competition Law in Thailand: A Preliminary Analysis’ (2002) 1 Washington University Global Studies Law Review 171, 173. Thanitcul argues that misunderstanding of the similarity between the economic structures of Korea and Thailand led the Thai authority to excessively focus on the UTP.
159 Both (n 128) 171.
160 Julien Chaisse, ‘Toward a Big Bang for the Taxation of the Digitalized Economy: A Business Retrospective, Perspective, and Prospective’ (2022) 41(3) Virginia Tax Review 345, 355.
161 Choi (n 23) 150.
162 Ibid, 132.
163 See Kwon (n 3) 36.