RECENT DEVELOPMENTS OF COMPETITION LAW IN MALAYSIA: LEGAL CHALLENGES AND ANALYSIS OF DECISIONS

Abstract

 Competition law is implemented in Malaysia through the Competition Act 2010 (CA 2010) and Competition Commission Act 2010 (CCA 2010). The CA 2010 came into force in 2012, and in 2011, a dedicated commission known as the Malaysian Competition Commission (MyCC) was established under the CCA 2010 to enforce competition provisions. The CA 2010 was largely modelled after the Treaty on the Functioning of the European Union (TFEU). Throughout the 13 years of enforcement, the Commission issued 14 final infringement decisions against enterprises involved in hardcore cartels, particularly price-fixing agreements, while only 2 final infringement decisions were issued against abuse of dominant position. Recently, the Court of Appeal (confirmed by the Federal Court of Malaysia) quashed the Commission’s decision against Malaysia Airlines and AirAsia (the MAS/AirAsia case) for a market-sharing agreement after nearly a decade of legal battle. The Commission has also lost two important cases, namely the General Insurance Association of Malaysia (PIAM) and its 22 members (at the appeal level, Competition Appeal Tribunal (CAT)), as well as a judicial review application to review the Commission’s proposed decision against MyTeksi/Grab. This article highlights the latest developments in Malaysian competition law and explores the legal and institutional challenges in its enforcement. Adopting a doctrinal legal research approach, the paper relies on both primary and secondary sources, particularly recent decisions issued by Malaysian competition authorities. Findings indicate that the influence of foreign competition rules, particularly those from the EU treaty, presents numerous challenges amidst judicial testing of local competition law enforcement. It suggests that the Malaysian competition authority needs to strengthen its internal guidelines and enforcement procedures, as well as increase capacity building efforts to address these legal and institutional challenges effectively. This study is expected to contribute to the existing body of knowledge on competition law.