The Thai Trade Competition Act of 1999 established the Trade Competition Commission responsible for the implementation of the law and the Office of Trade Competition Commission as the secretariat body. The office resides within the Ministry of Commerce. The Act contains all of the major substantive provisions found in most competition laws, including abuse of dominance provisions in Section 25, merger control provisions in Section 26, collusive practice provisions in Section 27 and unfair trade practice provisions in Section 29.¹⁰ Besides a few horizontal restrictions, such as price fixing, quantity fixing, and bid rigging, other restrictive practices are governed by a rule of reason.¹¹ Section 4 of the law also provides exemptions for state enterprises, co-operatives and agricultural co­operatives, central and regional government agencies, and other businesses prescribed by Ministerial Regulations.¹² In part, these exemptions were unnecessary because of the lack of enforcement of the aforementioned Ministerial Regulations.
Interestingly, certain provisions of the law, namely those that concern abuse of dominance and mergers, were not immediately enforceable once the law took effect. The law requires that the Trade Competition Commission ("TCC") propose a threshold market share and/or sales figure that determines whether an enterprise is "dominant," or whether a planned merger would need to submit a pre-merger notification. The Cabinet must endorse the proposed threshold figures before they can become law. After six years, the Commission has not yet passed these threshold figures. This is due mainly to strong opposition from large businesses and the government's own lack of interest in enforcing the law because of its strong ties to such businesses. Today, the business conduct of dominant players in the market and all mergers and acquisitions essentially remain unregulated.

The TCC is composed of four bureaucrats and at most twelve experts.¹³ The Minister of Commerce, a politician, chairs the TCC, which does not bode well for its autonomy from politics. The law, oddly enough, stipulates that at least half of the twelve expert commissioners must be from the private sector. Even more strangely, instead of conducting a search for qualified and impartial representatives from the private sector, the Department of Internal Trade requested three recommendations each from the Federation of Thai Industries and the Thai Chamber of Commerce.¹⁴ As big businesses tend to dominate these trade associations, the probability of representatives of small- and medium-sized businesses obtaining a nomination for commissioner is low. Consequently, large businesses are over-represented on the Commission. Other experts on the Commission, whether academics, professionals, or other private sector representatives, are nominated by the Minister of Commerce and appointed by the Cabinet. Therefore, it is likely that only those that are friendly, or at least not hostile, to the government of the day are selected. The selection process is closed to the public. The names of candidates, their qualifications, the selection criteria, and the selection results are not disclosed.
The performance of the TCC has been dismal, especially after the January 2001 installment of the new government dominated by large businesses. The Committee met only nine times in six years, four of which took place during the inaugural year. The latest meeting took place on May 14, 2004.¹⁵

According to the information provided on the Department of Internal Trade's website, in June 2004, the Trade Competition Office reviewed nineteen competition cases since its inception in 1999. It has deliberated on three cases, seven cases are reportedly under investigation, and nine more are awaiting submission for consideration and deliberation by the TCC. The website neither provides details about the nature of the alleged anti­competitive practices nor does it disclose the progress made in each case.¹⁶ The information available in English summarizes the performance of the TCC from 1999 to February 2002, but there have been no updates since then.¹⁷

The level of transparency with which the TCC operates deteriorates in parallel with its performance. Recently, the Department of Internal Trade decided to remove the record of complaints filed with the Office of Trade Competition Commission ("OTC") from its website. Perhaps the list of cases awaiting deliberation and consideration by the Commission was getting too long, as the Commission has not met in eighteen months. Although the minutes of each of the nine meetings of the TCC became available on the Department of Internal Trade's website in 2005, they are only one to two pages in length.

The Thai competition regime is currently in its darkest hours. But even during its brightest days, the implementation of the law was already problematic, as evidenced by the four cases that were at the center of public attention during the first two years that the law was in effect. These cases include:

1. The cable television monopoly;
2. Whiskey and beer tied-sales;
3. Unfair trade practices in large retail trade; and
4. Exclusive dealings in the motorcycle market.

A. Case Study # 1: The Cable Television Monopoly
In the first case, the Consumer Foundation filed a complaint that the cable television monopoly, the United Broadcasting Corporation, charged an excessive monthly subscription fee.¹⁸ The company argued that it was not a monopoly and that cable television was in direct competition with local cable operators and many other substitutes such as video rental services, movie theaters, satellite dishes, and free television channels. The subcommittee investigating the case confirmed that the cable operator was a monopoly in the Bangkok region, where other cable operators were absent, but was not able to establish whether the fee charged was excessive. However, it found that the company's failure to offer a lower-priced package with fewer channels, known as the "silver-package," constituted a breach of the concession contract.¹⁹

Footnotes

10. Thai Competition Act 1999, Thailand, Mar. 26, 1999 (1999), available at http://www.apeccp.org.tw/doc/Thailand/Competition/thcom2.htm [hereinafter Thai Competition Act 1999].
11. In case of abuse of dominance, words such as "unreasonably" and "without justifiable reasons" provide a basis for a rule of reason approach. For the case of merger and certain collusive practices, the notification requirement provides the administrative authority with the discretionary power to assess the merit of practices on a case-by-case basis.
12. Ministerial Regulations are regulations passed by Ministries as prescribed in a particular section of a particular Act. It has the status of a law. Section 5 of the Trade Competition Act 1999 stipulates that the Minister of Commerce and the Minister of Finance are vested with the power and duty to pass Ministerial regulations required by the Act. Thai Competition Act 1999, supra note 10, §5.
13. The composition of the Trade Competition Commission is stipulated in Section 6 of the Trade Competition Act 1999. Thai Competition Act 1999, supra note 10, §6.
14. Nipon Poapongsakorn, Institutional Arrangements for the Competition Authority in Thailand 93 (Dec. 2003) (on file with the APEC-OECD Cooperative Initiative), available at http://www.apeccp.org.tw/doc/APEC-OECD/2003-12/005.pdf.
15. Department of Internal Trade, Ministry of Commerce, Thailand (2006), available at http://www.dit.go.th (available in Thai) (last visited Feb 10, 2006) [hereinafter Department of Internal Trade website].
16. Id.
17. Department of Internal Trade, Summary of the Work on Trade Competition Act, Thailand (2006), available at http://www.dit.go.th/eng/contentdetail.asp? typeid=15&catid=108&ID=344 (last visited Feb. 15, 2006).
18. Unpublished Report of the Subcommittee Investigating the Cable Television Competition Case (2001), available at http://www.info.tdri.or.th/reports/unpublished/ ubc_pdf/content.pdf.
19. Id.