You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

May 6, 2025

Key Findings from OECD Review of Thailand’s Competition Law

Subscribe to Updates

On May 2, 2025, the Trade Competition Commission of Thailand (TCCT), in cooperation with the OECD, held a conference to discuss the results of the OECD Peer Review of Thailand’s competition law and policy. This review, conducted under the second phase of the OECD-Thailand Country Program, marks a significant milestone in Thailand’s ongoing institutional reform. Tilleke & Gibbins’ trade competition experts were invited to participate in both the program and the conference.

The OECD Peer Review aimed to assess the current state of Thailand’s legal and regulatory environment surrounding competition law and policies, pinpoint strengths and weaknesses, and offer recommendations on potential future development. This article highlights the review’s key findings and recommendations, and their implications for businesses operating in Thailand.

Institutional Framework: Room for Improvement

Competition law in Thailand has undergone significant transformation, particularly since the enactment of the Trade Competition Act B.E. 2560 (2017) (TCA). This landmark legislation aimed to revolutionize the competition regime, notably by amending important legal provisions to enhance public enforcement capabilities and establishing the TCCT as an independent authority separate from government ministries, endowed with its own budget and powers to enforce competition law across key areas: anticompetitive agreements, abuse of dominant market positions, merger control, and unfair trade practices. The goal was to create a more efficient, flexible, and independent agency and to prevent political intervention.

However, the OECD Peer Review points out a major impediment. The TCCT faces considerable budget and human resource constraints, which may impact its enforcement capacity. Its budget is comparatively low by international and regional standards, and only a fraction of its staff is dedicated to core competition enforcement (merger control and anticompetitive behavior). Furthermore, there is room for the TCCT to continue its improvements in expertise and efficiency—areas the TCCT has been attempting to shore up in recent years.

Scope of Application: Key Exclusions

A critical aspect noted by the OECD is the TCA’s scope of application, which contains broad exemptions in relation to the following areas:

  • State-owned enterprises (SOEs): While the 2017 TCA aimed to reduce the scope of exemptions for SOEs, SOEs remain predominantly outside the TCA’s reach if their undertakings relate to national security, public interest, public utilities, or societal interests based on law or cabinet resolutions. In practice, the TCCT appears to consider most SOEs exempt, even when competing with private players, which can create an uneven playing field.
  • Regulated sectors: Businesses specifically regulated by other sectoral laws with jurisdiction over competition matters (like telecommunications, energy, banking, and insurance) are excluded from the TCA. However, the competition rules and enforcement powers within these sectoral laws vary substantially, leading to a fragmented landscape and potential enforcement gaps. Clarity is needed on jurisdictional boundaries, especially in cross-sector cases, and the principle of competitive neutrality should be observed.
  • Extraterritoriality: It remains unclear whether the TCA applies to anticompetitive conduct occurring outside Thailand but having effects within the country. The current interpretation seems to limit enforcement against foreign entities without a Thai presence, potentially leaving international cartels or foreign mergers affecting the Thai market unaddressed.

Enforcement: Obstacles and Need for Reforms

Competition enforcement in Thailand is still developing, and the past seven years saw a low number of enforcement cases reported to the public. The OECD Peer Review Report outlines the following challenges:

  • Standard of proof: Hardcore cartels (with agreements on price-fixing, output restrictions, market allocation, or bid rigging) and abuse of dominance are exclusively criminal offenses. This requires a very high standard of proof (“beyond reasonable doubt”), making successful prosecution difficult. Most jurisdictions make administrative tools available for competition authorities to impose fines on infringements.
  • Rule of reason for cartels: Even hardcore cartels are assessed under a rule of reason, requiring proof of market effects and potentially exempting collusion with a combined market share of below 10%. This contrasts with the standard international practice of treating hardcore cartels as per se (inherently) illegal.
  • Bid rigging: Ambiguity exists regarding jurisdiction over bid rigging in public procurement. In Thailand, the National Anti-Corruption Commission typically has jurisdiction over public procurement in regard to anticorruption concerns, potentially leaving a gap in competition-focused enforcement.
  • Abuse of dominance: The assessment focuses more on the “unfairness” or “unreasonableness” of conduct rather than its impact on competition. Determining dominance itself relies heavily on market share and revenue thresholds, potentially overlooking other market power indicators.
  • Detection: Enforcement hinges primarily on complaints filed by business operators or any third party. A leniency program or whistleblower protections have not been formally introduced, but both tools are crucial for cartel detection globally.
  • Transparency: The TCCT generally does not publish a full version of their decisions but only brief summaries. This may hinder legal certainty, deterrence, and public understanding.

Merger Control: A Complex Dual System

Thailand operates a two-tiered merger control system:

  1. Premerger (ex-ante) approval: Required for mergers that may cause a monopoly or result in a dominant position. The TCCT can approve, approve with remedies, or prohibit these mergers.
  2. Postmerger (ex-post) notification: Required within seven days post-completion for mergers that may substantially reduce competition but do not fulfill the ex-ante criteria. The TCCT has no power to intervene (impose remedies or prohibit) in these notified mergers, even if anticompetitive concerns may be found.

Major issues with this two-tiered system identified by the OECD include:

  • Ineffective ex-post system: The inability to act on an ex-post notification may weaken enforcement on merger deals that presage competition restraint from the outset.
  • Unclear thresholds: Notification thresholds are linked to the potential competitive effect (monopoly, dominance, substantial lessening of competition), requiring complex analysis before notification and creating uncertainty. Clearer, objective criteria (such as turnover, potentially with a local nexus) are recommended.
  • Possibly high thresholds: The relatively low number of ex-ante filings (only 12 from 2017 to 2023) suggests current thresholds might be too high, potentially allowing anticompetitive deals to escape review.
  • Substantive test: The assessment appears focused on market structure (creation of dominance) rather than a broader “substantial lessening of competition” test used in many jurisdictions.
  • Procedure: Lack of third-party participation rights, potentially short review timelines for complex cases, and limited transparency regarding decisions are concerns.

Principal OECD Recommendations

The OECD Peer Review provides numerous recommendations, including:

  • Scope: Apply competition law consistently to SOEs engaged in economic activities and clarify jurisdiction in regulated sectors. Ensure extraterritorial application.
  • Resources and structure: Increase the TCCT budget and enforcement members of staff. Reconsider the role of external inquiry subcommittees.
  • Transparency and fairness: Publish decisions consisting of facts, legal basis, and penalties while protecting legitimate confidentiality. Improve procedural rules and rights of defense.
  • Enforcement: Empower the TCCT to impose administrative sanctions against hardcore cartels and abuse of dominance. Consider hardcore cartels inherently illegal. Clarify bid-rigging jurisdiction. Focus assessment of abuse of dominance on competitive impact. Introduce leniency/whistleblower programs.
  • Merger control: Streamline the regime (potentially removing the ex-post system or giving the TCCT powers within it). Adopt clear, objective notification thresholds, potentially lower them, and add a local nexus. Allow concerned parties to be involved in each stage of review and third-party input. Introduce a simplified procedure for a transaction that does not cause significant competition concerns (e.g., no horizontal overlaps or vertical relationships between the concerned parties, meeting criteria for combined market shares).

While Thailand made strides in the application and enforcement of competition law upon the enactment of the 2017 TCA, the OECD Peer Review underlines significant challenges that need to be addressed. An implementation of the OECD’s recommendations will be crucial for fostering a truly competitive environment that benefits businesses and consumers alike. For businesses having an operation in Thailand regardless of having a physical presence, understanding these ongoing developments and potential reforms is vital for navigating the competition law landscape effectively.

Related Professionals

Practices

Antitrust and Competition

Customs and International Trade

Location

RELATED INSIGHTS​ 

October 30, 2023
On October 9, 2023, Laos issued Presidential Decree No. 003, which raised excise tax rates for certain goods, effective immediately. The move to increase excise tax rates comes amid the marked depreciation of the Lao kip (LAK). The Lao government is trying to monitor and discourage imports of non-essential products in order to reduce the outflow of foreign currency from the country. Increasing the tax rate for some of these products is part of these efforts. The specific products and excise tax rates are listed in the table below.   This new rate policy is also in line with recent government efforts to encourage avoiding payment in foreign currency to prevent the depletion of foreign currency reserves in Laos. In this regard, commercial banks have already taken action to ration the supply of foreign currency by prioritizing imports of essential goods, such as fuel. The products listed above formalize this impetus to prioritize certain imports and discourage others deemed not essential. In addition, the increased excise tax rates on fuel-powered vehicles show the commitment of the Lao government to move toward electric vehicles, which would also lessen the country’s dependence on fuel imports. For more information on these excise tax changes, or on any aspect of Laos’ international trade regulations, please contact Tilleke & Gibbins at [email protected].
Read More
October 17, 2023
On June 20, 2023, Vietnam’s new Law on Protection of Consumers’ Rights (“CPL 2023”) was officially promulgated, followed two days later by a new Law on E-Transactions (“LOET 2023”). The new laws, which will both take effect from July 1, 2024, replacing the CPL 2010 and the LOET 2005, respectively, provide new regulations for e-commerce platforms and will impact e-commerce activities in Vietnam. Some of the more significant changes are outlined below. Law on Protection of Consumers’ Rights Regulation of offshore entities: Previously, the CPL 2010 regulated only organizations and individuals in the territory of Vietnam. Under the CPL 2023, both onshore and offshore agencies, organizations, and individuals related to protecting consumers’ rights are regulated. In other words, Vietnam intends to monitor and manage activities of platforms with no legal presence in Vietnam. Remote transactions: Previously, the laws on consumer protection regulated “remote contracts.” The CPL 2023 introduces and defines “remote transactions” as transactions made online, by electronic means or by other means wherein consumers cannot check or have direct contact with products, goods or services before participating in the transaction. In addition, the CPL 2023 also provides for additional responsibilities of business entities offering remote transactions such as adequately and precisely providing consumers with information when entering into these remote transactions, including the rights of consumers in case of incomplete or inaccurate provision of information and complaint handling mechanisms. Online businesses: The CPL 2023 introduces “online businesses,” which are defined as (i) those trading products, goods, and services via their self-established platforms or digital platforms or (ii) those establishing or operating intermediary digital platforms. According to the Vietnam Competition Commission in a recent workshop, the definitions of “digital platforms” and “intermediary digital platforms” can be referred to in the LOET 2023 (see below). Under this new category, online
Read More
September 26, 2023
Cambodia has issued a set of regulations that aim to encourage greater energy efficiency from appliances marketed in the country. The regulations follow Cambodia’s adoption of its National Energy Efficiency Policy, which sets out the government’s energy efficiency targets and policies to reach them by 2030, including the ambitious national target of reducing the country’s total energy consumption by at least 19%. This set of regulations for appliances marketed in Cambodia is contained in Sub-Decree No. 254 on the Management and Improvement of Energy Efficiency of Electrical Appliances, dated August 11, 2023. This sub-decree sets out product registration and energy efficiency labeling requirements for electrical appliances marketed in Cambodia. It further provides that appliances should meet energy efficiency standards and all other mandatory standards that apply to electrical appliances. During the product registration process, the appliances are checked against such standards, and registration is only granted if the standards are met. The sub-decree identifies the Ministry of Mines and Energy as the main ministry responsible for the implementation of the sub-decree. To assist with the wide scope of regulations as set by the sub-decree, it further appoints assisting ministries that may implement and enforce only certain aspects. These effective implementation and enforcement mechanisms suggest that once the sub-decree’s 12-month implementation period has passed, there is likely to be a rather strict enforcement approach to the requirements. Key Features of the Sub-Decree Several mandatory standards have already been applied to most electrical appliances over the past years, but the required product registration process to check for compliance with those standards has not always been completed by those importing, distributing, or manufacturing electrical appliances in Cambodia. The new sub-decree clearly mandates a product registration requirement as a check to verify the applicable standards are met, and sets penalties for non-compliance. Penalties
Read More
September 25, 2023
Laos’ Ministry of Industry and Commerce (MOIC) has added to the list of goods subject to the country’s recently imposed import-export registration requirement. Traders who import or export goods on the expanded list, which was issued in MOIC Notification No. 1941 on September 18, 2023, must first obtain a certificate authorizing their import or export activities. The six additional categories of goods specified by the notification, along with the corresponding Harmonized System (HS) codes from the World Customs Organization, are: Mining – HS 2601–2611, 2613–2617 Electricity – HS 27160000 Wood and wood products – HS 4401–4421, 4701–4707, 4801–4812, 94 Spare parts and electronic equipment, electrical equipment – HS 8501–8548 Cigarettes – HS 240220 Alcoholic beverages – 2203–2206, 2208 Enterprises that import or export these goods must complete registration with the MOIC’s Department of Import and Export (DIMEX) by October 31, 2023. Enterprises not registered with DIMEX will be prohibited from importing or exporting these goods. Importers and exporters of other goods not covered by this list may also register, with the option of registering until any future changes to the import-export registration requirements dictate otherwise. Registrants must also seek Bank of Lao PDR certification of their commercial bank accounts. Following this, they must ask the relevant commercial bank to convert their account to an import-export account. For more details on Laos’ new import-export registration rules, or on any aspect of trade involving Laos, please contact Tilleke & Gibbins at [email protected].
Read More