Merger Control: Experience of China for the Thai Legislation Reform

Abstract

In light of the development of Thailand competition law system, merger control stands out as a crucial matter requiring attention from practitioners in the field. Despite over two decades of implementation, the progress of Thailand’s competition law system appears limited in terms of applying theoretical foundations of competition law, imposing sanctions on business operators and effectively enforcing relevant laws and regulations to prevent anticompetitive activities and maintain an optimal level of market competitiveness. The decision in a landmark merger case within the small-sized retail market suggests that the regulator has not demonstrated effective adherence to the relevant laws and regulations. This deficiency has triggered public criticism, raising concerns about the transparency and efficiency of regulatory practices. On the other hand, Chinese merger control regulations exhibit a notably stringent and protective approach, reflective of the country’s distinctive commitment to maintaining a socialist market economy within the framework of antimonopoly law enforcement. With approximately fifteen years of implementation, Chinese law has demonstrated remarkable efficacy in merger control, effectively managing dominant positions and maintaining a proper level of market concentration. The underlying promotion of a socialist market economy might suggest the strict application of nationalist or protectionist principles, potentially posing challenges for the involvement of foreign investors in the Chinese market. Nevertheless, the Chinese regulator has progressively embraced the concept of preserving fair competition while concurrently facilitating the participation of foreign investors in the Chinese market under proper control. This study aims to present a comprehensive overview of Thailand’s merger control system, highlighting existing challenges within the current legal framework, and leveraging insights from China’s experience to propose valuable lessons for Thailand’s enhancement. Despite differing governance systems, both countries share a common objective in merger control, emphasizing the importance of maintaining appropriate market concentration and competitiveness. China’s experience in this field is anticipated to offer significant insights, serving as a valuable learning opportunity for Thailand to refine its own merger control regulations and enforcement procedures. This study will be organized into three parts. Part 1 will begin with an exploration of the merger control provisions outlined in the Trade Competition Act 2017 of Thailand. Subsequently, it will delve into a detailed case analysis of a landmark case that has garnered public criticism, shedding light on identified issues within this legislative framework. Part 2 will shift to an examination of merger control under the antimonopoly law of China. This section will include an analysis of a notable case within China’s merger control regime. Subsequently, the section will derive and articulate valuable lessons discerned from the Chinese merger control era, offering insights that Thailand can incorporate for its own regulatory practices. Lastly, in Part 3, the study will synthesize the findings and draw conclusions from the entirety of the study.