MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS NEW FEATURES OF 2018 COMPETITION LAW ON ANTI-COMPETITIVE PRACTICES AND ENFORCEMENT SOLUTIONS Specialization: International Trade Policy and Law FULL NAME: Phan Thi Thu Huong Hanoi –2020 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS NEW FEATURES OF 2018 COMPETITION LAW ON ANTI-COMPETITIVE PRACTICES AND ENFORCEMENT SOLUTIONS Major: Economics Specialization: International Trade Policy and Law Code: 8310106 Full name: Phan Thi Thu Huong Supervisor: Assoc Prof, Dr Nguyen Minh Hang Hanoi –2020 STATEMENT OF ORIGINAL AUTHORSHIP I declare that this thesis was composed by myself, that the work contained herein is my own and under the direction and supervision of Assoc Prof, Dr Nguyen Minh Hang, except where explicitly stated otherwise in the text, and that this work has not been submitted for any other degree or processional qualification except as specified I am fully responsible for the content of this master thesis as well as this declaration Hanoi, 25 January 2019 Author Phan Thi Thu Huong ACKNOWLEDGEMENT During the completion of this master thesis, I received the guidance and valuable help from the lecturers, family and friends With great respect and deep gratitude, I would like to express sincere thanks to: Assoc Prof, Dr Nguyen Minh Hang, Head of the Law Department of Foreign Trade University (FTU) who wholeheartedly helped, supported and encouraged me from the initial to the final level of this dissertation She provided me with comprehensive guide from choosing the topic, outlining the thesis and editing this research Professors and lecturers from FTU as well as World Trade Institute in the Master of International Trade Policy and Law Intake Four, who not only spread profound knowledge and information in the fields of economy and law but also generated strong motivation for me while I was taking this course as well Last but not least, I would like to express my sincere thanks to my family, my colleagues and my friends, who have always by my side encouraging, supporting, contributing valuable ideas and giving me favourable conditions for me to complete this scientific research TABLE OF CONTENTS STATEMENT OF ORIGINAL AUTHORSHIP ACKNOWLEDGEMENT TABLE OF CONTENTS LIST OF FIGURES & TABLES LIST OF ABBREVIATIONS SUMMARY OF THESIS RESEARCH RESULTS CHAPTER 1: INTRODUCTION 1.1 RESEARCH RATIONALE 1.2 LITERATURE REVIEW 1.3 RESEARCH OBJECTIVES 1.4 RESEARCH QUESTIONS 1.5 SCOPE OF RESEARCH 1.6 RESEARCH METHODOLOGY 1.7 THESIS OUTLINE CHAPTER 2: THE PRINCIPLE OF COMPETITION AND COMPETITION LAW 2.1 THE CONCEPT OF COMPETITION 2.2 FUNDAMENTALS OF COMPETITION LAW .9 2.2.1 INTRODUCTION OF COMPETITION LAW 2.2.2 OBJECTIVES OF COMPETITION LAW 10 2.2.3 BENEFITS OF COMPETITION LAW 15 2.3 DEFINITION OF ANTI-COMPETITIVE PRACTICES 17 CHAPTER 3: NEW FEATURES OF 2018 COMPETITION LAW ON ANTICOMPETITIVE PRACTICES 22 3.1 THE EVOLVEMENT OF VIETNAM’S COMPETITION LAW 22 3.1.1 VIETNAM ECONOMY REVIEW PRIOR TO THE INTRODUCTION OF COMPETITION LAW 22 3.1.2 OVERVIEW OF VIETNAM’S COMPETITION LAW 25 3.1.3 PROBLEMS EMERGING FROM THE 2004 COMPETITION LAW IN VIETNAM 27 3.2 NEW FEATURES OF 2018 COMPETITION LAW ON ANTI-COMPETITIVE PRACTICES 38 3.2.1 NEW FEATURES ON ANTI-COMPETITIVE AGREEMENTS 39 3.2.2 NEW FEATURES ON ABUSE OF DOMINANT POSITION, ABUSE OF MONOPOLY POSITION 49 3.2.3 NEW FEATURES ON ECONOMIC CONCENTRATION 55 CHAPTER 4: ENFORCEMENT SOLUTIONS AND RECOMMENDATION FOR NEW FEATURES OF 2018 COMPETITION LAW ON ANTICOMPETITIVE PRACTICES 63 4.1 ENFORCEMENT SOLUTIONS FOR NEW FEATURES OF 2018 COMPETITION LAW ON ANTI-COMPETITIVE PRACTICES 63 4.1.1 AIMS AND REQUIREMENTS 63 4.1.2 IMPLEMENTATION PLAN 64 4.1.3 ENFORCEMENT SOLUTIONS 70 4.2 RECOMMENDATIONS 82 CHAPTER 5: CONCLUSION 84 REFERENCES 86 LIST OF FIGURES & TABLES FIGURES Figure 3.1: Anti-competitive practices 27 Figure 3.2: Challenges and shortcomings implementing 2004 competition law .28 Figure 3.3: Market shares of telecommunications companies in 2011 37 Figure 3.4: 2004 versus 2008 exemption review timelines 48 Figure 3.5: 2004 versus 2018 review timelines 60 TABLES Table 2.1: Objectives in competition laws of selected east asian and asean countries 11 Table 3.1: The economic freedom index of vietnam between 1995 and 2003 .24 Table 3.2: 2004 versus 2008 competition law on provisions of the acts 40 Table 3.3: 2004 versus 2008 competition law on restrictive agreements .44 Table 3.4: 2004 versus 2018 competition law on scope of exemptions 45 Table 3.5: 2004 versus 2008 defining dominance 51 Table 3.6: 2004 versus 2018 prohibited acts of abuse 54 Table 3.7: 2004 versus 2018 criteria for notification 56 Table 3.8: 2004 versus 2018 prohibitions against economic concentration 58 Table 4.1: Assignment of tasks on implementing competition law 69 LIST OF ABBREVIATIONS AEC ASEAN Economic Community CPV Communist Party of Vietnam MIC Ministry of Information and Communications MOF Ministry of Finance MOIT Ministry of Industry and Trade MOJ Ministry of Justice NCC National Competition Commission OECD Organization for Economic Cooperation and Development R&D Research and Development SOE State-owned enterprise UNCTAD United Nations Conference on Trade and Development UNDP United Nations Development Programme VASEP Vietnam Association of Seafood Exporters and Producers VCA Vietnam Competition Authority VCC Vietnam Competition Council VCCA Vietnam Competition and Consumer Authority VCCI Vietnam Chamber of Commerce and Industry VIAC Vietnam International Arbitration Center VOV Voice of Viet Nam VTV Viet Nam Television WTO World Trade Organization SUMMARY OF THESIS RESEARCH RESULTS The thesis “New features of 2018 Competition Law on Anti-competitive practices and enforcement solutions” focuses on identifying new features on anticompetitive agreements, abuse of dominant or monopoly position and economic concentration as compared to the 2004 Competition Law In general, Vietnam enacted the first Competition Law to keep up with the trend of global economy In spite of the advantages that Competition Law has initially brought to Vietnam competitive market, it posed some limitations and shortcomings regarding scope of application, approaches to anti-competitive practices and unfair competition and regulatory body structure Therefore, 2018 Competition Law was enacted to address the issues emerged It supplemented, removed and introduced new concepts and provisions to correct from the experiences and to match the current situation The thesis concludes with some enforcement solutions that require the coordination from various parts in the market to make the Competition Law effective CHAPTER 1: INTRODUCTION 1.1 Research Rationale The transformation of the mechanism of economic management and international integration requires not only a complete and suitable legislation system for new economic activities, but also a basic knowledge on respective law areas The introduction of Competition Law has led to essential demand on equipping knowledge and raising awareness on Competition Law and Policy for people in relevant field As being a new area of law, it is necessary to study carefully the knowledge of Competition Law and develop it to match the Vietnamese economy As competition, ownership and freewill are three key elements in the market economy, the law that regulates the competitive activities is an indispensable condition to run that system Law on Competition, which sets up principle rules for economic activities, has become the standard of the market economy If there is no Competition Law, there is no appropriate competition and the market cannot function properly Besides, the risks of unfair competition acts without legal basis to prevent will damage the important objectives of the economic policy Competition Law makes businesses aware of competitive behaviours and facilities, thereby building a suitable competitive strategy without violating the law Understanding the need for this new area of law, on December rd 2004, the Competition Law was passed by the National Assembly of the Socialist Republic of Vietnam at its th session with the goal of meeting the requirements of regulating economic competition activities in Vietnam The promulgation of Competition Law is an important milestone in improving the legal documents, regulating the market economy in a new era of globalization and international economic integration The improvement of the legal documents reflects the process of standardization and harmonization of Vietnamese law with the laws of developed countries It is also one of the conditions for Vietnam to join and exercise our commitments in World Trade Organization (WTO) The introduction of the 2004 Competition Law is an important milestone in the process of creating a unified legal system for competitive activities of rules of origin to enjoy preferential treatment and overcome non-tariff barriers, trade remedies measures of markets with countries that have signed free trade agreements with Vietnam If enterprises actively improve the quality of products and product standards to meet the requirements of these countries, the opportunity to access and expand the market to those countries is very high In addition, enterprises also need to expand their cooperation with other enterprises and the business community for common development and economic integration (Kieu 2019) 4.1.3.5 For consumers Consumers need to understand the products and services that they use Goods and services with poor quality or with signs of violations of Competition Law on Anti-competitive practices should not be used In case of detecting goods and services that come from a prohibited Anti-competitive practices, they can condemn and persuade others not to use in order to pressurise violating enterprises, thereby, repelling Anti-competition practices (Nguyen 2019) Consumers need to be aware and understand the law on consumer rights protection, firstly, understand the rights of consumers, how to resolve disputes to successfully protect their legal rights Simultaneously, it is also necessary to understand the obligations when purchasing goods and using services As responsible consumers not only to themselves and their families, but also to the society and the country, they need to choose products with certified origins, not harmful with the environment, not contrary to customs, traditions and social ethics, not harmful with health They need to promptly inform state agencies, organisations, and related individuals when detecting goods and services in the market that are not safe, causing damages or likely to cause damages to life, health or property of consumers; acts of violating the law on protecting the interests of consumers of enterprises This will contribute to a sustainable consumption (Vietnam Standard and Consumers Association 2018) Consumers need to attend the programs on Vietnamese Consumer Rights’ Day, which organised annually to aim for propaganda and dissemination and enforcement of legal documents on consumer rights to create activeness and awareness of selfprotection to consumers (Thuy Linh 2019) Particularly, in 2019, 80 consumers could attend the “Consumers Appreciation Week” or “Festival of commodity products for consumers” at some sales points in Hanoi where they could get gifts, discounts, warranty support and product maintenance and more importantly, to update their legal knowledge (Thuy Linh 2019; Nam Giang 2019) Besides, they can update and raise awareness through propaganda and dissemination programs organised in some schools in Hanoi and on media In cases where consumers need to seek consultancy and support for their interest protection, they can contact the Call centre at 024.1081 (Thuy Linh 2019) Article 30 of the Law on Protection of Consumer Rights stipulated that ‘Disputes arising between consumers and organisations or individuals trading goods and/ or services are settled through: a) Negotiation; b) Mediation; c) Arbitration; d) Court’ Therefore, in accordance with Article 30, when detecting an act with signs of violations, consumers may have various options to deal with it, specifically (i): first, consumers may contact enterprises directly to request settlement; (ii): secondly, consumers can ask a third organisation or individual such as state management agencies, social organisations participating in protecting the interests of consumers, legal companies, offices or any other qualified individual organization; (iii): third, consumers can use arbitration method if this method is agreed before transaction taking place; (iv): fourth, consumers can directly sue at the competent People’s Court Additionally, consumers can also report the violations of Competition Law (with or without the request for mediation) of enterprises to state management agencies and press agencies (Ministry of Industry and Trade (2015) However, consumers need to understand that when they want Vietnam Consumers Protection Association to protect their rights, they must file a request and provide a purchase invoice (Hien Dung 2015) In case of no invoices provided, they can provide the sales address so that the Association can work with the seller, thereby, tracing the origin of the products and the causes of the problem A case of the bottle of herbal tea of Dr Thanh contained sediment was refused by Can Tho Consumer Protection Association due to no bill provided is an example (Hien Dung 2015) Furthermore, together with the common goal of effectively enforce 81 the Competition Law, especially on Anti-competitive practices, beside the effort of the government, competition agencies, trade associations, and enterprises, consumers need to be fair and objective when evaluating products and services depending on their actual quality rather consumers’ preferences However, in order to successfully implement the above solutions, it is necessary to have close coordination amongst levels, sectors and enterprises as well as the awareness and contributions of consumers, thereby creating an effective mechanism in limiting Anti-competitive practices in the market 4.2 Recommendations In order to effectively enforce the new Competition Law, competent authority needs to ensure clarity in the course of implementing the Law Comparing to the old version, the 2018 Competition Law provides the NCC wider discretion in interpreting some provisions as well as assessing the effect of significant competitive restriction of Anti-competitive agreements and economic concentration or significant market power of enterprises with dominant position (Lai 2018) This delegation of authority triggers the doubt of whether the enforcement of the Law would be effective or it would lead to abuse of power, which is difficult to control (Lai 2018; Tran n.d) Moreover, exemptions are granted to prohibited anti-competitive agreements under Article 14 However, the conditions to obtain exemptions are general and dependent on the NCC’s evaluation (Lai 2018) Therefore, the NCC needs to ensure clarity and transparency while doing their jobs In some certain cases, there are some risks of information being shared amongst parties in the relevant market Information shared may vary depending on the purpose and with whom the information is to be shared Information about political trend or regulatory update in general might not pose any risks, while exchanging sensitive and confidential information such as price, cost, customer list or production volume might cause suspicions of a price-fixing agreement (Ohya and Cao 2019) It is vital to examine the purpose of the exchange to determine if they are prohibited as anti-competitive agreements In cases where information shared is in vertical agreements, which is aimed for joint research or product 82 development or even with horizontal agreements with permissible purposes, it does not tend to be prohibited However, this matter is unclear under the 2018 Competition Law Hence, appropriate guidelines and enforcement practice will need to clarify these agreements 83 CHAPTER 5: CONCLUSION Along with the urgent need of global economic integration, Vietnam enacted Competition Law, which was passed on December rd 2004 However, after 14 years of implementation, it posed various limitations regarding scope of application, approaches to anti-competitive practices and unfair competition and regulatory body structure Therefore, the Competition Law was revised and finally passed on June 12 th 2018 The new version of Competition Law was introduced with a lot of innovation, which is expected to promote the business environment, freedom to compete, equality between business entities in the economy Changes have been made in the approaches to Anti-competitive practices including anti-competitive agreements, abuse of dominant or monopoly position and economic concentration Regarding anti-competitive agreements, the 2018 Competition Law has introduced per se prohibition on certain agreements without considering the combined market share between participants Other acts of anti-competitive agreements are prohibited when determining that such agreements affect or may adversely affect competition in the market The 2018 Competition Law has added many criteria to assess the extent and impact of anti-competitive agreements instead of using only market share At the same time, the Law also stipulates a leniency policy to allow exemption and reduction of fines for participating enterprises if voluntarily report violations to the NCC to enhance detection and investigation of anti-competitive agreements In terms of acts of abuse of dominant or monopoly position, in addition to the threshold of 30 percent market share in the relevant market, the 2018 Competition Law stipulates that "significant market power" may be the basis to determine the dominant position of an enterprise or group of enterprises Significant market power is determined by combining analysis and evaluation of various factors such as market share in the relevant market; barriers to entry or expansion of market; financial strength and size of the enterprise; right to own, hold, and access infrastructure; ownership, right to use subject matters of intellectual property and so on 84 For economic concentration, beside the combined market share of parties participating in economic concentration, the 2018 Competition Law has added other criteria to define the notification threshold of economic concentration, including total assets, total turnover in the Vietnamese market of enterprises engaging in economic concentration and value of transaction of economic concentration As of July 1, 2018, economic concentration will be prohibited if it causes or likely to cause anti-competitive effects on the Vietnamese market, regardless of whether such transactions are conducted by inside or outside the territory of Vietnam Similar to the 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Competition and Competition Law Chapter 3: New features of 2018 Competition Law on Anti-Competitive practices Chapter 4: Enforcement solutions and recommendations for new features of 2018 Competition. .. ENFORCEMENT SOLUTIONS AND RECOMMENDATION FOR NEW FEATURES OF 2018 COMPETITION LAW ON ANTICOMPETITIVE PRACTICES 63 4.1 ENFORCEMENT SOLUTIONS FOR NEW FEATURES OF 2018 COMPETITION LAW ON. .. THE PRINCIPLE OF COMPETITION AND COMPETITION LAW 2.1 THE CONCEPT OF COMPETITION 2.2 FUNDAMENTALS OF COMPETITION LAW .9 2.2.1 INTRODUCTION OF COMPETITION LAW