LEGAL PROBLEMS RELATING TO PROVISIONAL MEASURE IN TRADE COMPETITION LAW

Abstract

This article focuses on the legal problems of an provisional measure in thai trade competition law. Provisional measure allows trad competition regulator to heal competition in the market which is affected by anti – competition behavior in timely manner while the cases is in consideration. The current thai trade competition law . Section 60 of the Trade Competition Act B.E. 2560, does not clearly specify whether or not the Trade Competition Commission has the power to issue an order as an provisional mesure. Additionally, questions may further arise when exercising the power of the Trade Competition Commission is an exercise of administrative order where it calls for consideration of whether the status of such order is an administrative act or not, including the appropriateness of the Administrative Procedure Act B.E. 2539 in application: how it deals especially with the right of the party to argue and present one's own evidences or the right to be heard by the Commission.

In order to obtain the answers, the author make a comparative studies regarding the basic principles of legality of administrative order in competition law as well as the guidelines and conditions for exercising a power to impose provisional measure apply by foreign competition regulator. The studies demonstrate that Trade Competition Commission was not empowered to issue a provisional measure. Based on the study of comparative law, the Trade Competition Commission should be empowered to issue such order in urgent cases and under conditions that the Commission determines the causation between facts and elements of laws in order to protect the market interest of consumer and other entrepreneurs. Beside, an administrative order has a severe effects to freedom of enterprise of the order recipient so that it can completely be detached from the ultimate administrative order and exists by itself. When an order imposing provisional measure has the status of an administrative order, the administrative procedural law should be compulsory applied according to the Administrative Procedures Act, B.E. 2539. But the application of such law especially the protection of the rights of the party to argue and present one's own evidences are grounds for exemptions under section 30 of the Administrative Procedures Act, B.E. 2539 because of its nature of urgency. From a comparative perspective of the law together with the characteristics and results of order, it is required to identify restricted competition behavior using specialized expertise and techniques. Not to mention, the impacts this order may restricts freedom of enterprise of the order recipient. Therefore, it is inappropriate to use an exception according to the administrative procedural law. the Trade Competition Commission should be obligated to facilitate the rights to be heard.