The Experiences of Private Competition Enforcement in the United States, the European Union, Japan, Singapore and Malaysia: Lessons for Thailand

Abstract

Section 40 of Trade Competition Act, B.E. 2452 (1999) entitles private parties to bring claims for damages against violators who violate Sections 25, 26, 27, 28 and 29. However, the experience and study of the provisions on private antitrust/competition enforcement in the selected jurisdictions, namely the United States, the European Union, Japan, Singapore and Malaysia indicates that a claim for damages is one of the means, inter alia, of actions that private individuals can employ to enforce the antitrust/competition law. Moreover, Section 40 of Trade Competition Act, B.E. 2452 (1999) has two critical legal issues regarding the interpretation of the ambiguous wordings thereof. First, it is questionable as to whether private plaintiffs can initiate the claim for damages without any prerequisite. The second issue is related to the application of the law with respect to the standard of proof of the plaintiffs. This thesis puts forward the new amendment to Section 40 of Trade Competition Act, B.E. 2452 (1999) in order to make the wording clearer and enhance the effectiveness of enforcement. In other words, the decision of the Commission is a prerequisite to the exercise of rights of private claims for damages. This implementation will plausibly ease the burden of proof of the plaintiffs, and increase an opportunity for the plaintiffs to obtain compensation. Furthermore, the statute of limitations provided in Section 41 should also be amended in order that it will be consistent with the new amendment of Section 40 of the Act.