Regional Competition Bites Q1 2023
This Rajah & Tann Regional Competition Bites provides an overview of the key competition updates in South-east Asia during the period of January to March 2023.
A key macro trend across the region is the introduction of new merger regimes or enhancing existing regimes so as to capture a wider range of mergers. Cambodia has now introduced merger filing thresholds and mergers will have to be filed with the regulator come September 2023. Vietnam and Thailand have been reviewing an increasing number of mergers, with Vietnam seeking to review even foreign-to-foreign mergers. Indonesia has bucked the trend a little, providing a breather to businesses by shifting from a single nexus to a double nexus requirement, while Philippines has raised its notification thresholds. What these developments spell for businesses is that Southeast Asia is a region that can no longer be ignored from a merger control review perspective. Even in Singapore, which has a voluntary regime, the regulator takes the position that if thresholds are crossed, a notification is necessary.
Separately, fighting inflation and cost of living issues continue to be a focus area. Regulators in Indonesia, Thailand and Philippines have opened cartel investigations products involving daily essentials such as onions and chicken eggs, while the Malaysian regulator is working closely to support the Ministry of Domestic Trade and Cost of Living in tackling these issues.
Another key area where focus continues is in all things data, digital, and e-commerce. Several of the regulators have reiterated that this is an area of priority, and with some opening investigations in the area. Tech is also important for the regulators as they look to enhance their internal capabilities to handle more complex mergers and investigations.
On regulators, the Vietnam Competition Commission ("VCC") has finally been properly constituted and empowered to take enforcement action. VCC is now responsible for all competition matters, ranging from investigations to enforcement and merger control. We expect stronger competition law enforcement and quicker review of merger cases in Vietnam moving forward.
Developments in the region remain dynamic and the Rajah & Tann Asia Team is very much in the thick of many of the developments and on-going matters. Please reach out to us if you wish to further discuss these developments.
The Importance of Specificity in Selecting a Seat of Arbitration – Determining the Court of Exclusive Jurisdiction in the Malaysian Context
When drafting arbitration clauses, the selection of the seat is a crucial aspect. It establishes the applicable lex arbitri as well as the court which would have supervisory jurisdiction over an arbitration.
In Malaysia, there exists two High Courts with separate territorial jurisdictions – the High Court of Malaya (which has jurisdiction over West Malaysia) and the High Court of Sabah and Sarawak (which has jurisdiction over East Malaysia). The scenario is not dissimilar to other countries in which different states have their own courts of coordinate jurisdiction. In such countries, one question which arises is this: In an arbitration seated in the country, which court would then have exclusive jurisdiction? Would it be the court at the place specified? What if the arbitration agreement merely provides the country and not the specific state (in this context, "Malaysia" rather than the specific state in Malaysia) as the seat?
To answer this question, we explore the Malaysian Federal Court decision of Masenang Sdn Bhd v Sabanilam Enterprise Sdn Bhd [2021] 6 MLJ 255.
Visit Arbitration Asia for insights from our thought leaders across Asia concerning arbitration and other alternative dispute resolution mechanisms, ranging from legal and case law developments to market updates and many more.