The State-Owned Enterprises under the ASEAN Regional Competition Policy : Insights from the European Competition Network

The present study analyzes the current level of progress in introducing a regional competition law and policy that would create a level playing field for the businesses within the ASEAN Economic Community (AEC). It is specifically focused on the state-owned enterprises (SOEs), which dominate various key industries in the ASEAN countries. According to the ASEAN Regional Guidelines on Competition Policy, “competition policy should be an instrument of general application, i.e., applying to all economic sectors and to all businesses engaged in commercial economic activities, including State-owned enterprises.” The paper explores the ASEAN members’ approach towards SOEs in their national competition laws as well as in the ASEAN Regional Guidelines on Competition Policy. The comparative analysis demonstrates certain degree of heterogeneity in regulatory approaches towards SOEs among the ASEAN members. It also addresses the functionality of the current “ASEAN way” of coordinating competition law enforcement in cross-border cases, arguing that a differentiated approach may be required in relation to the commercial practices of the SOEs. While several ASEAN states have introduced their national competition legislation very recently, the enforcement practices of other jurisdictions will be informative in shaping regulatory approaches of the ASEAN members. In this respect, the paper discusses the experiences of the European Competition Network (ECN) in assessing economic concentrations involving SOEs. A recent string of merger cases involving Chinese SOEs has raised a number of practical problems in applying traditional competition law concepts such as single economic entity, control, etc. in relation to SOEs. The insights drawn from the ECN practice should be instructive for the development of the regional framework for competition law and policy in the AEC and wider Asia-Pacific region