Does ASEAN need a Supranational Approach to Its Competition Law and Policy to Create a Highly Competitive AEC? Case Studies on Abuse of Dominance in Singapore and Thailand

ASEAN aimed to create a highly competitive, single market, production-based AEC in 2015 by applying strategic measures set out in the AEC Blueprint. However, after seven years of its adoption, the deadline has become merely the beginning of the AEC, not the finished line. Since November 2015, ASEAN has adopted the AEC Blueprint 2025 which aims to create a competitive, innovative, and dynamic AEC by 2025. One of the measures ASEAN uses is ensuring effective competition policy through greater harmonisation and convergence of national competition law. The key concept of this thesis is competitiveness. It applies Professor Michael E Porter’s concept of competitive advantage and gathers 15 years of data on the ASEAN Member States’ competitiveness. And it questions whether competition law and policy attribute to a nation’s competitiveness. If yes, to what extent. Then it questions whether it is necessary for ASEAN to take a supranational approach to become a competitive region because ASEAN has its own norm of cooperation, the ASEAN way, which is ingrained in ASEAN since its establishment. And it is now formally recognised in the ASEAN Charter. The results show that competition law and policy is not a sole key determinant of competitiveness. Having a low degree of market concentration, effective competition law and policy, and efficient goods market does not necessarily correlate to high competitiveness. A country’s competitiveness is affected by its stage of development too. Additionally, the political economy of a country has a certain degree of effect on efficiency in competition law enforcement. However, the determinant factor of efficient competition law enforcement lies on political will rather than type of the government administration as in the case of Taiwan and South Korea. The disparities in the economic development of AMSs are obvious. Therefore, trying to harmonise AMSs’ competition law and policy using an all-sector approach is not recommended and proved difficult, if not impossible. Moreover, a supranational approach is not compatible with the ASEAN way. Hence, a sectoral approach is more likely to help ASEAN achieve its goal. ASEAN has already begun its own sectoral approach to competitiveness in the aviation market. The Aviation Agreements which the AMSs have signed between them provide much more details and commitments on competition rules concerning this industry than in the Regional Guidelines 2010. The application of sectoral approach alongside with the comprehensive approach to competition law and policy to enhance competitiveness of the relevant market is practiced in many countries. Examples of how regulatory body in electricity in the US, the UK, Australia, New Zealand, Japan, and South Korea collaborate with their competition agencies provide evidence that it is possible and efficient. Therefore, ASEAN does not need a supranational approach to improve its competitiveness regarding competition law and policy. This thesis suggests that ASEAN should pursue a sectoral approach in dealing with competition issues among member state the ASEAN way.