unfair trade practices: conceptualisation, significance and regional perspectives march 11, 2011
TRANSCRIPT
Unfair Trade Practices: Unfair Trade Practices: Conceptualisation, Significance and Conceptualisation, Significance and
Regional PerspectivesRegional PerspectivesMarch 11, 2011March 11, 2011
COMMENTS ON PRESENTATION
• Definition of an Unfair Trade Practice
• Relationship to Competition Law
• Harm to Consumers
• Implications in ASEAN Countries
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DEFINITION OF AN UNFAIR TRADE PRACTICE?
• UTP are fraudulent, deceptive or dishonest practices between parties that often are not bargaining with each other in any normal sense.
• UTP may occur directly between competitors, between businesses at different levels of a supply or production chain, or may directly target consumers.
• UTP may involve the breach or misuse of another statute in order to obtain an “unfair” competitive advantage –e.g. abuse of intellectual property rights.
RELATIONSHIP TO COMPETITION LAW
• UTP are not and should not be a “basket clause” to cover issues not explicitly addressed by Competition Law.
• There are differing views of the goal of Competition Law, but, from my perspective, it is about protecting markets and competition as a whole – not specific competitors.
• In contrast, UTP often focus on specific competitors without concern for effects on markets or on traditional metrics of competition such as price.
RELATIONSHIP TO COMPETITION LAW
• Some UTP are addressed within a more general Competition Law:• Overlaps with Abuses of Dominance, but UTP often includes actions by
non-dominant competitors that may not otherwise infringe a Competition Law;
• Some Competition Laws include “fair competition” provisions or regulate specific conduct such as false advertising.
• However UTP may also be addressed within consumer protection legislation or other statutes.
HARM TO CONSUMERS
• Harm to competition is often measured as a harm to consumers in the form of artificial changes in price or other elements of competition.
• A specific UTP may not result in any measurable harm to competition within a market or to consumers.
• However widespread acceptance of such conduct would subvert the rules of a free competition established under Competition Law and other commercial statutes.
IMPLICATIONS IN ASEAN COUNTRIES
• Potential impact of UTP in ASEAN members:• Many ASEAN members are developing economies or economies still
transitioning to free market economies;• Many ASEAN members have not fully developed or implemented the
legal framework to ensure free market competition;• Numerous factors may exacerbate effects of UTP that may have
particular relevance in some ASEAN members including: • Insufficient enforcement or lack of commercial legal framework;• Corruption;• Lack of available relevant information for consumers and businesses;• Potential inability of small local businesses to defend against UTP.