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Competition & Anti-Trust Law

 

Introduction

The Competition & Anti-Trust Law department has been established to enhance and streamline our provision of a diverse range of legal services in connection with the Competition Act 2010. The administration and enforcement of the Act has been placed in the hands of the Malaysian Competition Commission (MyCC). Whilst the MyCC’s initial focus was on education and advocacy, the MyCC’s focus is now firmly on implementation and enforcement of the Act.

To date, the MyCC has issued 7 findings of infringement under s.40 and 9 findings of non-infringement under s.39 of the Act relating to conduct that is prohibited under s.4 (anti-competitive agreement) or s.10 (abuse of dominant position) of the Act.

In addition to the above, it is also important to note that competition laws in Malaysia are not solely confined within the jurisdiction of the MyCC. There are other sectors which may be excluded from the application of the Act but fall under other statutes that are governed by other sectoral regulators.

The competition issues within the communications and multimedia industry fall under the jurisdiction of the Malaysian Communications and Multimedia Commission (MCMC) by virtue of the provisions stipulated in the Communications and Multimedia Act 1998. Whereas in the energy and gas supply sector, the competition matters are governed by the Energy Commission (EC) by virtue of the Energy Commission Act 2001 and the Gas Supply (Amendment) Act 2016 respectively. The aviation sector on the other hand is governed by the Malaysian Aviation Commission (MAVCOM) following to the enactment of the Malaysian Aviation Commission Act 2015.

Competition law brings an impact on enterprises that operate in the market. For this reason, our Competition Law and Anti-Trust Department provides the broad range of services including the following:

• Advice on all matters relating to competition law, including advice on compliance with the Competition Act 2010 and guidelines issued there under;
• Advice on all matters relating to competition laws provided for under different Malaysian legislation which are governed by the sectoral regulators i.e. MCMC, EC and MAVCOM;
• Applications for individual or block exemption under the Act;
• Applications for anticipated merger or merger to MAVCOM;
• Representation and advocacy before the MyCC and appeals to the Competition Appeals Tribunal;
• Appearance in the High Court for judicial review and appearance at the Appellate level;
• Competition compliance training including on dawn raid; and
• Competition compliance audit.

Recent Work

Our recent work includes the following:

Investigations by the Malaysia Competition Commission

We act for clients in several competition law investigations. Our services include, amongst others, lending support to clients during the MyCC’s dawn raid, attendance during interview with the MyCC, document inspection, written representation and oral representation before the MyCC and preparing leniency applications with the MyCC.

We represent and advise clients in respect of the MyCC’s investigations in numerous industries and sectors, including insurance; tyre manufacturing; information technology (IT); and tourism and hospitality.

Corporate Advisory

We also regularly represent and advise business associations, local and multinational companies in relation to a multitude of competition and compliance issues. Our clientele is from diverse industries including insurance, manufacturing, Fast-Moving Consumer Goods (FMCG), cement, IT, tourism and hospitality, automotive, construction and logistics providers.

Our experiences involve:

• reviewing distribution agreements, pricing scheme and marketing strategy;
• advising on competition issues such as abuse of dominance, exchange of information, retail price maintenance, etc.

Legal Audit

We regularly conduct legal audit for companies in respect of competition law compliance. Our services include reviewing companies’ documentation, policies and contracts, developing competition law compliance programmes and protocols, providing training and carrying out due diligence.

Examples of steps taken by MyCC to implement/enforce the Act are as follows:

  • Enforcement action against Cameron Highlands Floriculturist Association (Dec 2012)
  • Rejection of Application for Individual Exemption by Nestle Sdn Bhd (Feb 2013)
  • Enforcement action against Pan-Malaysia Lorry Owners Association (PMLOA) (Oct 2013)
  • Grant of Block Exemption in favour of Liner Shipping Services (Dec 2013)
  • Enforcement action against Ice Manufacturers (Feb 2014)
  • Enforcement action against MAS and AirAsia (April 2014)
  • Enforcement action against Confection, Bakery Product Producers (September 2014)
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