The harmonisation of competition policy in ASEAN economic community: problems and prospects

The main aim of this research is to examine the importance of competition policy harmonisation for regional economic integration and propose a workable framework of competition policy harmonisation for ASEAN Economic Community (AEC). To comply with the objectives, this research proposes a possible approach for ASEAN to develop competition policy harmonisation. The method used in this research is qualitative data with rational choice theory analysis. Of the ten of ASEAN member states, only five have national competition policy with different substantive laws, procedural rules, and enforcement mechanism. Legal diversity was not the only factor that militates against ASEAN regional competition policy harmonisation. Different competition culture, economic development, and national political support are also significant barriers to the development of competition policy and law in ASEAN member states. The thesis suggests that harmonisation in ASEAN can be achieved by following two alternative approaches: regional or bilateral cooperation. The regional approach requires ASEAN member states to change their competition policy and law to synchronize them with the regional competition policy and law. To implement this approach, ASEAN needs a regional competition authority which would require its member states to surrender their sovereign authority to make national competition policy and law. The regional approach also requires all member states to adopt uniform regional competition policy and law in their legal systems. These two requirements may render the regional approach very difficult to implement. Alternatively, bilateral cooperation between two member states is more lenient for ASEAN because it is not necessary to give up their sovereignty to a regional authority. It also gives an opportunity for other member states without competition policy and law to prepare for the development of national competition culture. The latest movement of ASEAN Economic Community shows a sign that ASEAN still is not ready for the regional harmonization of competition policy and law. The regional competition law is usually monitored by a regional competition authority for enforcement across jurisdictions. At this stage, ASEAN does not have any such legal regime to achieve enforcement. The lack of such an institution is likely to create an ineffective and flawed regime of competition law and policy in ASEAN. Another predominant factor is that ASEAN member states are too much concern about their national political interests. Consequently, bilateral cooperation is likely to work better than regional approach for harmonization. Should ASEAN want to develop its competition policy and law harmonisation on a regional basis, it may start gradually from bilateralism to limited multilateralism starting from Indonesia, Malaysia, Singapore, Thailand, and Vietnam which have competition authorities. The research outcomes will provide an innovative framework for the progressive development of competition policy and law in ASEAN, which will be immensely rewarding for ASEAN member states’ policy-makers, strategists, and negotiators in achieving this harmonisation. The research outcomes will also provide better understanding and experience for any existing and/or future regional economic integration/s desirous of pursuing competition policy and law harmonisation.