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Toolkit for Competition
Advocacy in ASEAN
Toolkit for Competition
Advocacy in ASEAN
Government and other public authorities
Legislators
As a stakeholder group, the government comprises numerous
ministries, departments and agencies. There is a need to clearly
identify and focus on the relevant stakeholders within the public
sector. While the CA in most countries is only responsible for
enforcing the competition law, the Ministries of Trade have the
main mandate for promoting competition policy. They should
therefore be prioritised.
At the start of any advocacy activity, a CA should identify the
right level of government that should be addressed, i.e. national,
state or local level, as well as which department within a public
institution should be included in the CA’s wider advocacy efforts.
Typically, the following government employees should be included
in advocacy target groups:
♦
Public policy advisors and staff
♦
Tendering, procurement and service contract staff
♦
Legal advisors
♦
Audit and compliance staff
♦
Division heads and managers requesting open
market proposals
♦
Budget managers and financial controllers
Among the public authorities that a CA should pay particular
attention to are line ministries, often with larger budgets to
fund public services, as well as procurement agencies. Sector
regulators, too, are often unaware about competition principles
and thus need to be addressed through advocacy activities.
Legislators write and pass laws. They are usually politicians
and often elected by the people of the state. Legislators may be
supra-national (e.g. European Parliament), national (e.g. national
assemblies or parliaments of individual AMS), or local (e.g. state
assemblies or local councils).
Advocacy efforts that serve to engage with parliamentarians need
to be timed very carefully. If a draft law or regulation is already
presented to the executive or legislature, a CA’s recommendation
is less likely to be considered or incorporated when compared
to a law or regulation which is still in the early drafting stages.
Therefore, the earlier in the legislative or regulatory process the
legislators are consulted, the more likely it is that competition
advocacy will be effective.
Governments must create
competitive and conducive
environments that enable
the private sector to
flourish. Public authorities
must ensure their policies
are not in conflict with the
principles of CPL.
Legislators are responsible
for drafting the legislation
and regulations that impact
society. It is important to
consult with legislators
and raise their awareness
so that they can become
champions for CPL.
Judiciary
A judiciary familiar with competition law, including its economic
aspects, is an important element of a country’s competition policy
system as it shapes competition policy results, irrespective of the
legal tradition and development level
1
.
As such, it plays a fundamental role in interpreting and
implementing competition rules. Where laws are criminal in
nature, there is a direct involvement in that the judiciary is
charged with prosecuting competition cases. Moreover, the
judiciary is involved in appeal mechanisms. Some laws also allow
private rights of action, where an aggrieved party can directly file
a competition case in court. Offering an independent review of
competition agencies’ decisions by the judiciary contributes to a
well-functioning competition regime.
In the ASEAN region, CPL is a relatively new subject that is not
yet well understood by the broader sections of society, including
judges. A lack of familiarity with the concepts of competition law
can lead to divergent views between the judges and the CA, to
the effect that decisions on competition cases made by a CA can
be nullified by the courts.
The CA should therefore address this issue by organising joint
seminars or roundtable discussions to strengthen the judiciary.
The CA could also periodically send materials on competition
issues to judges or the court authorities to keep them in the loop
of CPL developments. Formal meetings between the CA and
the judges could also be held so that technical details could be
explained in face-to-face discussions.
Moreover, each CA should identify and collaborate with institutions
or specialised establishments where training is conducted for the
judiciary. A basic training course on the principles of competition
law and economics could be a good starting point. Gradually,
advanced courses could be introduced. Involving experienced
judges from other jurisdictions in conducting such briefings or
trainings would be ideal as they have first-hand insights into the
concerns and challenges faced by the judiciary in the area of CPL.
When it comes to the enforcement of competition rules, some
CA do not have the power to conduct dawn raids or search and
seize documents or computer records. They need to closely
cooperate with the courts and other law enforcement agencies,
such as the police or attorney-general, to issue subpoenas. In
those jurisdictions, CA would also have to consider involving
representatives of the executive branch of government in their
advocacy activities, particularly in raising the awareness about
procedural provisions of the competition law.
A judiciary that is familiar
with the competition law,
including its economic
aspects, is critical for the
effectiveness of competition
law enforcement.
1.
International Competition Network, Competition Policy Implementation Working Group: Sub group 3, Competition
and the Judiciary
