MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY ________________ MASTER THESIS COMPETITION LAW OF VIETNAM 2018 AND ISSUES INVOLVED IN ENFORCEMENT Specialization: International Trade Policy and Law NGUYEN PHUONG TAM Hanoi – 2020 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY ________________ MASTER THESIS COMPETITION LAW OF VIETNAM 2018 AND ISSUES INVOLVED IN ENFORCEMENT Specialization: International Trade Policy and Law Full name: NGUYEN PHUONG TAM Supervisor: Prof. Tang Van Nghia Hanoi – 2020 i DECLARATION I hereby declare that I am the sole author of this master thesis. It is made on basis of data collection, figure analysis, theoretical studies and under the direction, support and supervision of Prof. Tang Van Nghia. The research contents and findings of this research are truly honest. The data and figures collected and analyzed in the thesis are completely listed in the List of References. I am fully responsible for the content of this Master thesis as well as this Declaration. Hanoi, March 23rd, 2020 Nguyen Phuong Tam ii ACKNOWLEDGEMENTS During the progress of conducting this Master thesis, I have received the guidance and valuable support from professors, lecturers, family and friends. First of all, I would like to express my gratefulness and the sincere thanks to Prof. Tang Van Nghia, Dean of Faculty of Graduate Studies of the Foreign Trade University (FTU) who provided me much guidance, support and help so that I can complete this Master thesis. Second, I would like to extend a special thanks to all the respectful professors and lecturers from WTI in the Master of International Trade Policy and Law courses and Foreign Trade University who devoted their time, experiences and knowledge to give me the good foundation of international trade policy and law. Last but not least, I convey my sincere thanks to my family and friends who provide me consecutive supports during the time of conducting thesis. Hanoi, March 23rd, 2020 iii TABLE OF CONTENT DECLARATION . ii TABLE OF CONTENT . iii LIST OF ABBREVIATIONS.v SUMMARY OF THESIS RESEARCH RESULTS .1 CHAPTER 1: OVERVIEW OF COMPETITION LAW OF VIETNAM .1 Fundamentals of competition and competition law .1 Fundamentals of Competition .2 Fundamentals of Competition Law .2 Evolution of competition law in Vietnam .1 Before the promulgation of the Competition Law 2004 .2 The promulgation of the Competition Law 2004 .3 The promulgation of the Competition Law 2018 .28 CHAPTER 2: ISSUES INVOLVED IN ENFORCEMENT OF COMPETITION LAW OF VIETNAM 2018 .1 Contributions of the Competition Law 2018 .1 Regulations on anti-competitive agreements .2 Regulations on abuse of dominant position and monopoly position .3 Regulations on economic concentration .4 Regulations on unfair competition .5 Regulations on Model of Competition Agency .2 Issues involved in enforcement of Competition Law of Vietnam 2018 .2 Issues on competition enforcement agency .3 Concern related to enforcement to state-owned enterprises .4 Issues on Resources and Staffing .63 CHAPTER 3: RECOMMENDATIONS FOR VIETNAM TO EFFECTIVELY ENFORCE COMPETITION LAW 2018 .1 Recommendations on content of provisions .2 Recommendations on Competition Authority .3 Recommendations on enforcing competition laws to SOEs .4 Recommendations on resources and staff .82 v LIST OF ABBREVIATIONS ASEAN Association of Southeast Asian Nations MoIT Ministry of Industry and Trade NCC National Competition Commission OECD Organization for Economic Cooperation and Development POE Private Owned Enterprise SOE State Owned Enterprise UNCTAD United Nations Conference on Trade and Development VCA Vietnam Competition Authority VCCA Vietnam Competition and Customer Authority VCC Vietnam Competition Council vi SUMMARY OF THESIS RESEARCH RESULTS The leading objective of this research is to evaluate issues involved in enforcement of the Competition Law 2018 then to provide recommendations on how to solve these issues and to effectively implement the new law. To achieve it, the research analyzes the situation of Vietnam Competition Law 2004 implementation, analyzes big changes of the Law 2018 then find out issues involved in the enforcement of this new Law. Based on data analysis and information collected, the Competition Law 2018 implementation face the following issues: Firstly, the new Law still exists some points that are not clear or not feasible. Some articles having good contents at the perfect concept but are inapplicable or hard to apply in reality. The new Decree detailing the Competition Law 2018 has been promulgated on March 24 th, 2020 and will enter into force at middle of May, so during this time, standards for evaluating market power, market share, etc. still follow the old degree. Besides, some provisions of the new law such as leniency provision will not be effective if related provisions in other laws (e. the Criminal Code) are not reformed. In addition, the Competition Law 2018 separates the economic concentration from the anti- competitive agreements. This change is suitable with the current context that not every economic concentration transaction is of anti-competitive nature. The competition agency will determine the risk of leading anti-competitive of the economic concentration transaction then decide to approve the transaction or not. It demands the very detailed and effective standard and tool to make the correct decision. So one of recommendations suggested for the government is double check and keep amending unsuitable points. Secondly, the National Competition Commission (NCC) is not officially organized yet, during this time, the Vietnam Competition Authority (VCA, and currently VCCA – Vietnam Competition and Consumer Authority) and Vietnam Competition Council are still in charge of competition cases. In the new Law, NCC also belongs to the Ministry of Industry and Trade (MoIT) and members of NCC are officials of the MoIT, relevant ministries, they handle NCC missions vii concurrently. This situation has limited the power, functions, neutrality and efficiency of the agency. Thirdly, same as before, NCC has to face a lot of difficulties in handling competition cases related to state-owned enterprises or administrative decisions issued by state agencies as well as performing consultancy functions. So the government will take more time to discuss and carry out how to help NCC effectively function. Last but not least, Vietnam competition agency has a lack of budget and human resources for handling competition cases. In fact, the number of competition agency‟ members is too small compared with competition cases that they need to handle. They also need to do other jobs assigned, so they cannot concentrate on handling competition cases only. They also need to be trained regularly to improve their skills and experiences. To fully fill these demands, a huge budget is needed. So it requests the government to distribute more part of the State Budget to competition agencies. Rationale of the research topic Competition Law No. 27/2004/QH11 was approved in the sixth session on December 3rd, 2004 and took effect from July 1st, 2005. This law regulates competition restricting acts, unfair competition acts, order and procedures for settling competition cases, measures to handle violations of competition legislation. During over ten years of the implementation, the Competition Law 2004 has revealed several shortcomings and drawbacks that need to be overcome. Some provisions are no longer adequate with reality and direction of economic development. New anti-competitive behaviors appeared which are not governed by the Law. Some of them occurred outside Vietnam territory but their effects have been on Vietnam. No legislation on competition handled this group of behaviors. These shortcomings directly have impacts on the effectiveness and efficiency of competition law implementation, the strictness of law and violation prevention. Under this context, the Competition Law No. 23/2018/QH14 was enacted on June 12th, 2018 and took effect on July 1st, 2019, replacing the Law on Competition 2004 with changes that address the new market situation. There have been new subjects regulated under Vietnam Law on Competition 2018, evaluation of market power factors in competition instead of market share factors, and changes in organization of authority handling investigation and enforcing competition matters. After several months implemented, the new regulation reveals some issues in enforcement. Therefore, the research on “Competition Law of Vietnam 2018 and issues involved in enforcement” expects to provide detailed analysis on issues involved in enforcement and then to provide some recommendations on effectively implementing the Competition Law 2018. Hopefully, the research will be useful with readers who may be concerned. Literature review Researches on competition are various at different angles and perspectives. However, the Competition Law 2018 has recently taken effect on July 1st 2019 – 2 several months ago, so there has been no research on issues involved in its enforcement that is published yet. There exist some literatures on theoretical and practical background for competition law and some researches on Vietnam Competition Law 2004 and related legislation, namely as follows: In national research, the textbook “Competition Law in Vietnam” by Le Danh Vinh, Hoang Xuan Bac, Nguyen Ngoc Son (2006) provides theoretical and practical background for training on competition law. The principal contents of this book include concept on competition, roles and objectives of competition policies, approaches on competition restriction behaviors governed in the Competition Law 2004 and competition agency implementing competition law in Vietnam; The textbook “Competition Law” by Nghia Tang Van (2013) mentioned and analyzed relevant markets (chapter 4); anti-competitive practices (chapter 5); unfair competitive practices (chapter 6) and power and legal proceedings of Vietnam Competition Authority (chapter 7). Vietnam Competition Authority, the state management on competition also conducted a report on “Review on Vietnam competition legislation” in 2013. The report is divided into three chapters. The first chapter is overview of Vietnam competition legislation – that provides basic information about the context of issuing competition law, overview of competition legislation and law enforcement status in recent years. Chapter two analyses issues involved in enforcement of competition law such as general regulations, regulations on controlling anti- competitive agreement, abuse of market dominant and monopoly position, economic concentration, unfair competitive behaviors and model of competition agency. The last chapter gives some recommendations on resolving these issues in enforcement of the Competition Law 2004. The review focuses on analyzing issues involved in enforcement of the Competition Law 2004 then provides ideas to amend some out-of-date and infeasible regulations. The research “Vietnam regulations on anti-competitive agreements: Some inadequacies and recommendations for amendments” by Nguyen Khanh Phuong (2014) examined Vietnam's legal provisions on anti-competitive agreements, 3 focusing on proving that these regulations have not been really effective in protecting a fair competition environment and consumers‟ legitimate interests. The paper then pointed out some inadequacies and shortcomings of these provisions, and proposed some solutions to amend and implement these regulations. The research “Application of law and jurisdiction of competition enforcement agencies” by Lu Lam Uyen (2014) analyzed the inconsistence and irrationality of determining the applicable law and jurisdiction of enforcement agencies in Vietnam by examining distinct nature and legal field between unfair competition conducts and antitrust violation. In international research, the most popular textbook on competition is the “Competition Policy, theory and practice” of Massimo Motta, Cambridge University in 2004. The research comprises of three sections (i) Overview on antitrust (competition policy), namely definition on competition policy, approach on development of competition policy in United States and some European countries; (ii) Definition on market power, impacts of enterprises with dominant position on competition market; (iii) Economic tools to define market power. Analysis on competition agency is integrated in the competition policy and approach on development of competition legislation of countries. The international organizations like OECD, UNCTAD, etc. conducted research papers and roundtable meetings among members on competition law. Among these papers, OECD peer reviews of Competition Law and Policy of Vietnam that was published in 2018 has been a great assistance to Vietnam in amending the Competition Law. The review focuses on problems related to state owned entities, on analyzing law framework of restrictive competition and unfair competition, on analyzing proposed new competition law and competition authority reform, then provides recommendations on improving competition institutions. Research objectives and research questions The research objectives are raising issues involved in enforcement of Competition Law 2018 and then providing recommendations to solve these issues and to effectively apply the new regulation.
Luật Cạnh Tranh Việt Nam 2018 và Các Vấn Đề Liên Quan Đến Thực Thi
Tài liệu nghiên cứu Luận văn competition law of vietnam 2018 and issues involved in enforcement, tổng hợp lý thuyết và thực hành, cung cấp kiến thức chuyên sâu về luật học.
Trường đại học
Foreign Trade UniversityChuyên ngành
International Trade Policy and LawNgười đăng
Ẩn danhThể loại
master thesisPhí lưu trữ
35 PointMục lục chi tiết
THÔNG TIN CHI TIẾT
Tác giả: Nguyen Phuong Tam
Người hướng dẫn: Prof. Tang Van Nghia
Trường học: Foreign Trade University
Chuyên ngành: International Trade Policy and Law
Đề tài: Competition Law of Vietnam 2018 and Issues Involved in Enforcement
Loại tài liệu: master thesis
Năm xuất bản: 2020
Địa điểm: Hanoi
Tài liệu "Luật Cạnh Tranh Việt Nam 2018: Vấn Đề và Giải Pháp Thực Thi" cung cấp cái nhìn sâu sắc về các quy định và thách thức trong việc thực thi luật cạnh tranh tại Việt Nam. Tài liệu này không chỉ phân tích các vấn đề hiện tại mà còn đề xuất các giải pháp thực tiễn nhằm nâng cao hiệu quả áp dụng luật. Độc giả sẽ tìm thấy những thông tin hữu ích về cách thức cải thiện môi trường cạnh tranh, từ đó thúc đẩy sự phát triển bền vững cho doanh nghiệp.
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