Should ASEAN Antitrust Laws Emulate European Competition Policy?

Abstract

Recent years have seen the Association of Southeast Asian Nations (ASEAN) members embark upon various initiatives that seek to harmonize their competition regimes. These ongoing efforts to modernize and harmonize ASEAN competition laws take place amid a longstanding effort by both the European Union (EU) and the United States (US) to export their respective competition laws throughout the world. This raises a critical question: should the ASEAN countries attempt to mimic the competition regimes of other developed nations, notably those that are in force in the EU and the US? And, if so, which one of these regimes should they draw more inspiration from? This paper seeks to dispel the myth that the European model of competition enforcement would necessarily provide a superior blueprint. To the contrary, it shows that the evolutionary, common-law-like regime that has emerged in the US has many strengths that are often overlooked by contemporary competition policy scholarship, and which might provide a particularly good fit for the economic and political realities of the ASEAN member states. The paper proceeds as follows. Section  2 analyzes the high-level differences between the American and European approaches to competition policy. Section  3 shows that the US and Europe also differ substantially in terms of the conduct that may constitute an infringement of competition law — the EU system being significantly more restrictive. Section  4 turns to the thorny problem of digital platforms, in particular, and argues that while the European model might more readily facilitate intervention against digital platforms, the resulting cases may be detrimental to consumers and the economy more broadly. Section  5 posits that reducing economic concentration — sometimes cited as a byproduct of European-style competition enforcement — should not be a self-standing goal of antitrust policy. Finally, Section  6 argues that many of the economic and political characteristics of the ASEAN economy cut in favor of using the US model of competition enforcement as a blueprint for further development and harmonization of ASEAN competition law.