MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY -o0o - DISSERTATION COMPETITION POLICY IN THE TRANS-PACIFIC PARTNERSHIP AND THE IMPLICATIONS FOR IMPROVING COMPETITION LAW AND POLICY OF VIETNAM Major: International Trade Policy and Law Full Name: Ngo Hoang Quynh Anh SUPERVISOR: Prof Dr Tang Van Nghia Ha Noi - 2017 DECLARATION I hereby declare that this master thesis is the scientific research of my own which made on the basis of theoretical studies, field surveys and under the direction and supervision of Prof Dr Tang Van Nghia The research contents and results of this thesis is completely honest These data and documents for the analysis, review and evaluation were collected from various sources which are fully listed in the reference list I am fully responsible for the content of this master thesis as well as this declaration Hanoi, December 2016 Author Ngo Hoang Quynh Anh TABLE OF CONTENTS ACKNOWLEDGEMENT i LIST OF ABBREVIATIONS ii LIST OF TABLES iii LIST OF FIGURES iii CHAPTER 1: INTRODUCTION 1.1 Research Rationale 1.2 Literature Review 1.3 Research objectives 1.4 Research questions 1.5 Scope of research 1.6 Research methodology 1.7 Thesis outline CHAPTER 2: THE PRINCIPLE OF COMPETITION, COMPETITION LAW AND POLICY 2.1 The concept of Competition 2.2 Fundamentals of Competition Policy 2.2.1 Competition Law and Competition Policy 2.2.2 Generalization of Competition Policy 2.2.3 Main objectives of Competition Policy 10 2.2.4 Benefits of Competition Policy 12 2.2.5 Contents of Competition Policy 13 2.3 International Competition Law and Policy 14 2.3.1 Similarities between competition law regimes around the world 15 2.3.2 Differences between competition law regimes around the world 19 2.3.3 The involvement of international bodies and organizations in the field of competition law and policy 22 CHAPTER 3: COMPETITION POLICY IN THE TRANS-PACIFIC PARTNERSHIP (TPP) 28 3.1 Introduction to TPP 28 3.1.1 Overview of TPP 28 3.1.2 Timeline of TPP negotiations 29 3.1.3 Outline of TPP 30 3.2 Potential macroeconomic implications of the TPP 34 3.2.1 Member countries impacts 34 3.2.2 Non-member countries impacts 37 3.3 Competition policy in the TPP 39 3.3.1 Overview of competition policy in the TPP 39 3.3.2 Contents of competition policy in the TPP 40 CHAPTER 4: POTENTIAL IMPACTS OF COMPETITION POLICY OF THE TPP TO VIETNAM 48 4.1 Vietnam‟s membership of the TPP 48 4.1.1 Position of Vietnam in the TPP 48 4.1.2 Vietnam‟s Commitments on Competition Policy under the TPP 48 4.2 Competition Policy in Vietnam 49 4.2.1 Overview of Vietnam Competition Legislation 49 4.2.2 Sources of Competition Law in Vietnam 51 4.2.3 Coverage of Vietnam Competition Law 53 4.2.4 Enforcement of Competition Policy in recent years 58 4.2.5 Support activities of law enforcement of Competition Policy in recent years 61 4.3 Impact of the TPP Competition Policy and issues raised in reforming competition policy, law and its enforcement in Vietnam 62 4.3.1 About reforming competition law and policy in Vietnam 62 4.3.2 About reforming competition law and policy enforcement in Vietnam 64 CHAPTER 5: IMPLICATIONS FOR REFORMING COMPETITION LAW AND POLICY IN VIETNAM IN ACCORDANCE WITH THE COMMITMENTS IN THE TPP 68 5.1 Improving provisions in Competition Law in accordance with regulations of TPP 68 5.1.1 General provisions 68 5.1.2 Provisions on competition law enforcement 71 5.1.3 Provisions on the model of competition authority 72 5.2 Introducing the competitive neutrality to the competition law and policy 73 5.2.1 Creating a level playing field for enterprises 74 5.2.2 Limiting abuse of market power of SOEs 75 5.2.3 Enhancing competitive capacity of enterprises 75 5.3 Raising awareness of competition law and policy 75 5.3.1 Enhancing knowledge of competition law and policy 75 5.3.2 Improving dissemination of competition law and policy through means of communication 76 5.4 Improving the skilled human resources in the field of competition law and policy 77 5.4.1 As regards human resources of competition authorities 77 5.4.2 Education and training of competition law and policy at graduate and undergraduate level 77 5.5 Setting a fair, transparent and accountable competition environment 78 5.6 Improving Competition Law Enforcement and authorities 79 5.6.1 Solutions for improving the effectiveness of competition law enforcement 79 5.6.2 Solutions for improving law enforcement capacity of concerning authorities 80 5.7 Protecting consumers‟ rights 81 5.8 Promoting cooperation and technical cooperation in competition policy 83 5.9 Raising corporate awareness and corporate compliance of competition law and policy 84 CHAPTER 6: CONCLUSION 86 REFERENCES iv i ACKNOWLEDGEMENT During the completion of this master thesis, I received the guidance and valuable help from the lecturers, siblings and friends With great respect and deep gratitude, I would like to express sincere thanks to: Prof Dr Tang Van Nghia, Dean of Faculty of Graduate Studies of the Foreign Trade University (FTU) who wholeheartedly helped, supported and encouraged me from the initial to the final level of this dissertation He provided me with comprehensive guide from choosing the topic, outlining the thesis and editing this research Professors and lecturers from FTU as well as World Trade Institute in the Master of International Trade Policy and Law Intake Three, who not only spread profound knowledge and information in the fields of economy and law but generated strong motivation for me while I was taking this course as well Last but not least, I would like to express my sincere thanks to my family, my colleagues and my friends, who have always by my side encouraging, supporting, contributing valuable ideas and giving me favourable conditions for me to complete this scientific research ii LIST OF ABBREVIATIONS Abbreviation ASEAN Full name Association of Southeast Asian Nations EU European Union FDI Foreign Direct Investment FTA Free Trade Agreement GDP Gross Domestic Product ICN International Competition Network JICA Japan International Cooperation Agency NAFTA North American Free Trade Agreement OECD Organization for Economic Cooperation and Development SME Small and Medium – Sized Enterprises SOE State – Owned Enterprises TPP Trans – Pacific Partnership TRIPS Trade – Related Aspects of Intellectual Property Rights UNCTAD United Nations Conference on Trade and Development U.S United States of America VCA Vietnam Competition Authority VCC Vietnam Competition Council WTO World Trade Organization iii LIST OF TABLES Table Table 4.1: Statistics of competition restriction cases during the period of 2009-2015 Table 4.2: Number of the unfair competition investigations initiated in the year 2015 Page 59 60 LIST OF FIGURES Figure Figure 2.1: Four elements of competition policy must be considered to promote a market oriented economy Page Figure 3.1: Change in GDP of TPP Members by 2030 35 Figure 3.2: Change in GDP of TPP Non-Members by 2030 37 Figure 3.3: Change in exports of TPP Non-Members by 2030 38 Figure 3.4: Impact of TPP on sectorial output by 2030 39 CHAPTER 1: INTRODUCTION 1.1 Research Rationale Negotiating Trans-Pacific Partnership (TPP) has been developed from TransPacific Strategic Economic Partnership Agreement (or P4) – a Free Trade Agreement which was signed on 03 June 2005 and became effective from 28 May 2006 between 04 countries including Singapore, Chile, New Zealand and Brunei In September 2008, US announced its decision to take part in the P4‟s expansion Two months later, Australia, Peru and Vietnam expressed their concerns in TPP negotiation which brings about the increase in the number of members of P4 to nations in 2010 From then on, TPP members have experienced 19 official negotiations, ministerial negotiations and finished negotiating in October 2015 with 12 country members including Canada, Brunei, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, Australia, US, Japan and Vietnam The main target of TPP is to eliminate tariff and barriers to goods and service in importation and exportation among members On 04 February 2016, in Auckland city, New Zealand, Minister of Trade and Economics of 12 country members of TPP together signed on TPP Agreement, marking the official completion of TPP negotiations This Agreement consists of 30 chapters and regulates not only traditional issues like goods, service, investment but also relatively new matters such as state-owned companies, E-commerce and competition policy As for competition policy, TPP spends a whole chapter controlling this matter with detail and practical regulations It synchronizes anti-trust law of member countries and elevates them to provide the most useful environment for competition to develop in the whole organization With the socialist-oriented market economy, competition environment in Vietnam should bring about the best conditions for enterprises to grow, for consumers to benefit and for social welfare to gain In almost developed countries in the world, competition policy serves as an instrument to “encourage industrial efficiency, the optimal allocation of resources, technical progress and the flexibility to adjust to a changing environment” (Massimo Motta, 2004, p.15) Nonetheless, competition policy in Vietnam remains various obstacles Accessing to the WTO and especially in the TPP not only marks a crucial effort of Vietnam in integration to international law but brings out numerous benefits to Vietnam‟s economy as well In compliance with TPP regulations in the fields of competition policy, legal framework on competition law and policy of Vietnam should gradually be modified and improved From the above reasons, the topic “Competition policy in the Trans Pacific Partnership and the implications for improving competition law and policy of Vietnam” is chosen This thesis shall give information about general theory of competition policy and deepens its analysis of competition policy in the TPP After that, based on the current status of competition policy in Vietnam, the thesis shall give several implications for Vietnam‟s competition policy In November 2016, the U.S President-elect Donald J Trump has issued a video outlining his policy plans for his first 100 days in office in which announced his intent to U.S withdraw from the Trans-Pacific Partnership “from day one” This is a really serious challenge for other members of the TPP However, in the framework of this dissertation, competition policy in the TPP and implications for Vietnam shall be analyzed in the condition that TPP is fully ratified by all its member countries 1.2 Literature Review While a significant amount of researches have been conducted in the fields of competition law and policy, there are not many researches focusing on competition policy in the TPP The main reason is that TPP only finalized its negotiations at the beginning of this year Thus most of the researches on competition policy in the TPP done before that time were prediction However, researches on international competition law and policy as well as competition policy in Vietnam are really huge collection This section shall make a general assessment on several typical and prominent researches First of all, Competition Policy: Theory and Practice (Motta, 2004) is a book dealing with both theory and practice of competition policy This is really a musthave textbook in economics of lecturers, students, economists and lawyers It draws on the literature of industrial organizations, and on original analyses, to explain the likely effects that firms‟ practices have on welfare and formulate policy 81 human resources In addition, VCA also send staff for training abroad, especially in nations having developed market economy and high competition law enforcement capacity 5.6.2.2 Regarding Competition Council At the moment, members of Competition Council in Vietnam are mainly from related ministries so they are not specialized Hence, the recommendation here is to add more members to the Competition Council New members should be researchers, experts in the fields of competition and they should also be specialized in the field in order to fulfill their tasks and majors They should be well qualified in legislation, economics and competition and practically experienced in competition cases Activities of Competition Council should be made independently It should be the competition control authority which publishes reports and submits to the Government Reports ought to be annual and focus on the competition in practice on the market in general and in certain sectors in particular Base on those reports, Government can adopt appropriate policies to regulate the market for each stage of the development of the national economy as well as orientations to settle competition cases 5.7 Protecting consumers’ rights - For government and authorities: Be compliance with TPP regulations, Vietnam shall adopt or maintain consumer protection laws or other laws or regulations that proscribe fraudulent and deceptive commercial activities At the moment, Vietnam has the Law No 59/2010/QH12 about protecting consumers' rights which is still valid However, this law is not strong enough and consumers' rights are not protected in the efficient way For example, in 2016, Vietnam Petroleum enterprises are discovered 'pickpocket' 3,500 billion from consumers (Anh Vu, 2016) or "dirty" food is so popular to threaten human life In the near future, this law should continuously strictly be enforced and improved to be more strict and strong Moreover, at the moment, competition law and policy as well and law on protecting consumers of Vietnam 82 only govern activities within the national territory Entering TPP means that Vietnam law system on competition and protecting consumers should expand the scope of regulation, to protect cross border consumers Furthermore, Vietnam shall promote cooperation and coordination with other members of TPP on matters of mutual interest related to fraudulent and deceptive commercial activities, including in the enforcement of consumer protection laws This can be done through the relevant national public bodies or officials responsible for consumer protection policy, laws or enforcement within their reasonably available resources To be more specific, authorities in this field could organize seminars, field trips, fora or programmes for TPP member countries to cooperate and share their knowledge and experience in protecting consumers' rights It is vital that Vietnam government and authorities to take an active role in holding events in this field because TPP agreement is really open for members - For consumers: Firstly, consumers should keep an eye on measures to self-protect their rights through competition law instruments Each consumer ought to be well aware of his rights and should react appropriately and actively whenever their rights are violated To be more specific, when receiving goods and services, consumers check whether the standards or the nature of goods and services are compatible with regulations stated in the contracts or with initial agreements In addition, consumers also take care of the responsibility of the products when they are launched to the market Consumers tend to choose high quality products with clear originality and complete user guides When discovering damages or low quality and incompatible products, consumers need to give feedbacks to suppliers as soon as possible In case the issues are not satisfactorily resolved, consumers should lodge complaints to the VCA Different from developed countries, consumers in Vietnam are often hesitant of litigation and complaints against suppliers or of requiring the competition authorities to settle their cases Therefore, it is essential for consumers to continuously improve their knowledge and awareness in order to apply appropriate legal regulations and instruments to protect their rights 83 Secondly, the competence and capacity of law enforcement of concerning authorities in the fields of protecting consumers‟ rights should be enhanced Furthermore, the protection of consumers‟ rights shall be regulated not only in competition law but other law such as consumer protection law Thirdly, boosting the involvement of means of media in protecting consumers‟ rights Only when communication agencies work effectively in complaining competition violation cases will the public timely identify problems, issues and shortcomings in the violation of the consumers‟ rights Fourthly, developing the roles of associations and organizations protecting consumers‟ right Then, consumers have the motivation and confidence of the victory of protecting their rights Hence, there should have a favourable legal environment for the consumers to establish suitable organizations for the purpose of protecting their legal rights Those organizations which are set up on the basis of voluntariness of members or in support of the government are forums for exchanging information and implement the purpose of protecting consumers‟ right They shall often broaden laws and raising consumers‟ awareness of their self-protection of their rights and benefits 5.8 Promoting cooperation and technical cooperation in competition policy Regulations and solutions in this field are indicated in Article 16.4 and 16.5 of the TPP: Regarding cooperation: Compatible with laws, regulations and important interests, and within reasonably available resources, Vietnam should foster cooperation and coordination of competition law enforcement authorities with other member countries of TPP in two aspects: cooperate in the area of competition policy by exchanging information on the development of competition policy; and cooperate, as appropriate, on issues of competition law enforcement, including through notification, consultation and the exchange of information As mentioned in part 5.7 of this thesis, cooperation and coordination can be done through multinational seminars, field trips, fora or programmes with government and authorities' initiatives 84 In addition, Vietnam national competition authorities may consider entering into cooperation agreements with other TPP members' competition authorities to make cooperation and coordination more effectively Regarding technical cooperation: Similarly, compliance with Article 16.5 of the TPP, like other TPP member country, Vietnam can benefit more by sharing its diverse experience in developing, applying and enforcing competition law and in developing and implementing competition policies Vietnam shall consider undertaking mutually agreed technical cooperation activities, including: (a) providing advice or training on relevant issues, including through the exchange of officials; (b) exchanging information and experiences on competition advocacy, including ways to promote a culture of competition; and (c) assisting a Party as it implements a new national competition law 5.9 Raising corporate awareness and corporate compliance of competition law and policy Firstly, all corporate, especially great ones, should have competition law compliance programs in order to ensure that their competition acts are lawful and not harm other entities‟ rights, competition on the market and competition environment Those programs should be public on means of media of the enterprises where customers, consumers or even competent authorities find it easy to follow Programs also need to cover all sectors of goods and services that enterprises are trading in connection with competition law so as to ensure competition acts not contain potential risks of competition law violation Secondly, big enterprises should have organizational structure or human resources specializing in corporate compliance of competition law and policy This will make corporate active and qualified in developing business plans and appropriate competition policy It is also essential for enterprises to broaden their competition law compliance programs to all staff Thirdly, increasing awareness of business ethics for entrepreneurs Managing corporate compliance in this field is based on corporate awareness of the adverse 85 consequences of acts of unfair competition as well as long term benefits can be gained in case of fair competition Business ethics need to be educated from training activities for undergraduate level human resources to raising awareness of business principles for entrepreneurs Business ethics compliance is often limited in low economic development nations As market economy has been existed in Vietnam for a short time, competition law compliance as well as business ethics have not been prioritized Business fraud, illegal multi-level sales, advertising for the purpose of unfair competition are obviously serious matters in Vietnam today Thus, the education and training of business ethics as well as competition law and policy to entrepreneurs is absolutely vital Through the launching of corporate compliance programs, enterprises will be well aware of business ethics as well as their competition capability so as to apply effectively to its operation They also know how to protect their reputation, properties as well as their incomes against illegal competition acts In addition, they are likely to care for the common goals of the society, legitimate rights of other competitors and consumers 86 CHAPTER 6: CONCLUSION Along with other economic policies, competition policy contributes to formulate competition legislation and govern competition relationships of each territory The first and the essential target of competition policy is the establishment of economic competitiveness regime The final target of competition policy is economic growth and consumer welfare Moreover, as competition policy prevents anti-competitiveness practices, it contributes to attract more investment and optimize the benefits of foreign investment Compared with competition policy, competition law is a narrower concept, in other words, it is a factor of competition policy Competition law which adopted by about 110 countries in the world is a body of legal rules and standards for the purpose of protecting the process of competition It ensures that anti-competitiveness practices or transactions either domestic or transnational detrimental to efficiency and welfare not undermine the efforts of governments to promote economic growth, freedom of trade and consumer welfare Competition law and policy has evolved in significant ways internationally over the past two decades by virtue of two forces: first, business and commerce have continued to become more considerably internationalized and second, the number of countries adopting competition law regime has expanded significantly Although each country pursues an explicit competition law and policy regime, most of the world‟s competition law regimes share common characteristics and features including the prohibitions on collusion (cartel), prohibition on abuse dominance or monopolization and regulating mergers Notwithstanding these similarities, striking differences among competition law and policy regime around the world exist They are differences in viewing competition and understanding competition law, the tittle of the law, enforcement and institutional approaches One important thing to note is that thanks to globalization, there are international bodies and organizations which contribute substantially to the mechanisms and proceedings in the field of competition law and policy They played a major role in keeping the internationalization debate alive and in furthering the understanding of competition law globally, as well as in spreading competition law itself around the world and helping several countries build much-needed capabilities to enforce it 87 Regional free trade agreements including TPP have been definitely proving their influences and powers all over the world Not only does TPP write the rules for global trade but it also levels the playing field for enterprises of all kinds to compete in a fair and favourable environment Through 30 chapters and annexes, the TPP consolidates new and emerging trade issues related to the Internet and the digital economy, the engagement of state-owned enterprises in international trade and investment, the ability of small businesses to take advantage of trade agreements and especially competition policy Thus, impacts of the TPP are obviously considerable, to some extent, greater than that of WTO On the one hand, for member countries, it boosts the economy, attracts more investments, move up the value chain, enables the SME trade and creates opportunities for more FTA On the other hand, for nonmember countries, it exerts important influence on their trade and business, especially produces trade diversion effects for several countries, and brings about sectorial shifts In the TPP, regulations related to competition policy are specified in the whole chapter with details This chapter aims at establishing and ensuring fair competition in the free trade area, preventing and eliminating anti-competitiveness practices in the market The TPP is an important landmark in Vietnam‟s international economic integration process Compared with the rest 11 member countries of the TPP, Vietnam is regarded as the country with the lowest level of development but will benefit most from the TPP It is said that GDP of Vietnam will expand more, various industries will develop, FDI flow into Vietnam is larger, SOEs reform will be accelerated, economic, political and institutional reforms will be improved and especially, there will be a fairer and more equal competition law and policy system in Vietnam At the moment, competition law and policy in Vietnam today has specific strengths and weaknesses of a socialist-oriented market economy In order to make use of the TPP and to comply with commitments in the TPP, Vietnam should exploit its strengths and minimize its weaknesses Therefore, only by comprehensive reforms and competition law and policy amendment and adjustment will Vietnam Law achieve effectiveness from entering TPP 88 Although at the moment when U.S president-elect Donald Trump who will be the official president from January 20th 2017 announced his intention of U.S quitting TPP, it is believed that TPP shall not stop easily There will be considerable challenges for all other member countries of TPP for the purpose of keeping and applying this international agreement However, by virtue of its dominant influence, the author of this dissertation still work on this topic with overwhelming desire for TPP to be fully accepted and adhered by all its member countries and especially for improving competition law and policy of Vietnam in accordance with the commitments in the TPP The short-term solution is to soon improve several critical provisions in the Competition Law of Vietnam and raise public awareness of Competition Law and policy of Vietnam Once competition law and policy of Vietnam is stricter, systematic and compliance with that of TPP and public awareness are improved, Vietnam will have a more healthy competition environment and this, in turn helps Vietnam benefit considerably from the TPP The long-term but more significant solutions are improving the skilled human resources in the field of competition law and policy; improving Competition Law Enforcement and authorities; introducing the competitive neutrality to the competition law and policy; setting a fair, transparent and accountable competition environment; introducing the competitive neutrality to the competition law and policy; protect consumers„ rights and promoting cooperation in competition policy among member countries of TPP On the whole, TPP and competition law and policy are issues attracting increasing public concern Internationalization is happening in all fields especially competition law 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in recent years 61 4.3 Impact of the TPP Competition Policy and issues raised in reforming competition policy, law and its enforcement in. .. for improving competition law and policy of Vietnam? ?? is chosen This thesis shall give information about general theory of competition policy and deepens its analysis of competition policy in the. .. on competition law and policy of Vietnam should gradually be modified and improved From the above reasons, the topic ? ?Competition policy in the Trans Pacific Partnership and the implications for