Unfair Trade Practices Conceptualisation Significance and Regional Perspectives

Concept and Meaning • Deconstructing “Unfair trade practices” • Parties: B 2 B, B

Competition Policy & Consumer Protection Competition Policy/Law Consumer Protection Consumer welfare (competition) Consumer welfare

Situating Unfair Trade Practices • “Unfair Trade” is a general term: – Depends on

ASEAN • Uneven progress in competition law implementation and enforcement • Country differences in

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Unfair Trade Practices – Conceptualisation, Significance and Regional Perspectives Comments Cassey Lee

Concept and Meaning • Deconstructing “Unfair trade practices” • Parties: B 2 B, B 2 C, C 2 C • Unfair: – Motivation: • Fraud, deception, confusing consumers • Exercise market power to increase profit – Source: • Information asymmetry • Bargaining power • Market power – Unfair: • Consequence / outcome – price, contract terms (distribution of surplus) Behavior • Process Structure

Competition Policy & Consumer Protection Competition Policy/Law Consumer Protection Consumer welfare (competition) Consumer welfare B 2 B , B 2 C, C 2 C (? ) Supply Side (Seller) Demand Side (Buyer) Motivation / Source Market Power Fraud, Deception, Confusion Market Characteristics Concentration Market Power Information Asymmetry Bounded rationality Per-se, rule of reason Per-se? (regulation) Market structure Conduct Courts Conduct Information Regulation? Objective Transactions Demand / Supply Legal Enforcement/Resolution

Situating Unfair Trade Practices • “Unfair Trade” is a general term: – Depends on national legislation – Can mean competition policy-law or consumer protection • Competition law & consumer protection – complementarities as well as potential conflicts need separate the two (law, enforcement agencies) • “Unfair trade” as residual / catch all problematic even as a ‘temporary solution’ due to path dependence, focus, consumer confusion etc. • Sectoral / specific: IP, e-commerce, distributive trade? • Enforcement challenges may also differ

ASEAN • Uneven progress in competition law implementation and enforcement • Country differences in legislation, institutions, political economy • Most countries have separate consumer protection laws / consumer policy • Raises interesting issues about: – whether competition agencies should take on residual unfair trade practices – If so, how? If not, how to deal with such practices? – whether countries should/can harmonize