Trade Competition: Overview of Provisions, Remedies and Legal Recourse

Introduction:

The Trade Competition Act B.E. 2560 (2017) (Act) of Thailand serves as pivotal legislation aimed at fostering fair competition in the marketplace and preventing monopolistic practices. This act is fundamental in creating an equitable competitive environment, stimulating business development, and safeguarding consumer interests against exploitation.

Key Provisions and Regulatory Authority:

Prohibited Practices

The Trade Competition Act prohibits several anti-competitive practices, including:

1. Business consolidation leading to monopolies
2. Collusion to monopolize or limit competition
3. Abuse of market power
4. Unfair commercial practices
5. Unreasonable agreements with foreign businesses that significantly harm the economy and consumers

Regulatory Body

The Office of Trade Competition Commission (OTCC) is the primary agency responsible for overseeing and enforcing this law. The OTCC’s duties include:

1. Monitoring market activities
2. Investigating potential violations
3. Imposing administrative penalties when necessary
4. Establishing guidelines for regulating mergers and acquisitions to prevent market monopolization

Legal Recourse for Affected Parties:

Parties Authorized to Initiate Legal Proceedings

1. Individuals or juristic persons affected by violations of the Act
2. The Committee on Consumer Protection (CCP)
3. Foundations or associations certified by the CCP under consumer protection law

For certain violations, such as those criminal cases related to market dominance, affected parties must file complaints with the OTCC rather than pursue criminal cases directly.

Filing a Lawsuit

Cases filed under this Act fall under the jurisdiction of the Central Intellectual Property and International Trade Court (CIPITC).

Preparing for Legal Action

When preparing for a lawsuit, affected parties shall:

1. Gather evidence of economic damage
2. Obtain OTCC resolutions or judgments confirming trade competition law violations (if available)
3. Assess damages and prepare economic evidence resulting from the violation

Damage Compensation and Remedies:

Types of Damages Claimable

1. Actual damages: Direct losses from the wrongful act, such as lost income or expected profits
2. Legal costs: Litigation expenses, including attorney fees and document preparation costs
3. Damages from legal violations: Compensation for harm caused by violations of the Act

Additional Remedies

Beyond monetary compensation, the Act provides for various forms of remedies:

1. Restoration of status: Returning the injured party to their pre-damage condition, e.g., canceling unfair agreements
2. Injunctions: Court orders to cease unlawful or unfair acts and prevent future harm
3. Business recovery support: Assistance for affected businesses through advice or support for business improvements
4. Preventive measures: Establishing guidelines to prevent recurrence, such as training on fair competition practices
5. Mediation: Facilitated discussions among involved parties to reach mutually acceptable resolutions

Temporary Protection

Victims can request temporary protection under the Act for the Establishment of and Procedures for the Intellectual Property and International Trade Court. A victim must provide:

1. Clear evidence: Indicating possible violations that could harm businesses or consumers
2. Proof of potential harm: Demonstrating that severe or irreparable damage can occur without temporary protection

Current Status of Implementation and Case Law:

The Act has been in effect for years, but no cases have yet been brought to the IPITC’s consideration. Most cases have been settled during OTCC review, with administrative fines applied.

Notable OTCC rulings include:

1. Food House Catering Services Co., Ltd. was fined 12 million baht for unreasonably exercising superior bargaining power.
2. Lazada Co., Ltd. was fined 1.8 million baht for abusing its market dominance.

As of now, there are no supreme court decisions directly related to this Act, as most cases have been resolved at the OTCC level.

Key Takeaways:

1. The Act aims to promote fair competition and prevent monopolistic practices, with the OTCC as the primary regulatory authority.
2. The Act prohibits various anti-competitive behaviors, including business consolidation leading to monopolies, collusion, abuse of market power, and unfair commercial practices.
3. Affected parties, the CCP, and certified organizations can initiate legal proceedings, with some cases requiring direct complaints to the OTCC.
4. Cases under this Act fall under the jurisdiction of the CIPITC.
5. Claimable damages include actual damages, legal costs, and compensation for harm caused by violations of the Act.
6. Additional remedies such as injunctions, business recovery support, preventive measures, and mediation are available beyond monetary compensation.
7. Temporary protection can be requested with clear evidence of violations and potential harm.
8. While the Act has been in effect for seven years, most cases have been settled through OTCC review and administrative fines, with no cases yet reaching the CIPITC level.
9. The OTCC has issued significant rulings and imposed fines in cases involving abuse of market power and unfair business practices.

This comprehensive overview provides insights into the legal framework, remedies, and current implementation status of Thailand’s trade competition Law and system, offering valuable guidance for businesses, legal professionals, and affected parties navigating this important area of economic regulations.

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