Anti-Competitive Agreement Case Study
A) THERE IS NO INFRINGEMENT UNDER SECTION 4(2) OF COMPETITION ACT 2010 Anti-competitive agreement generally means any horizontal or vertical agreement which has the object or effect of significantly preventing, restricting or distorting competition in any market for goods or services in Malaysia or any part of Malaysia. 1) Deeming provision is not a shortcut Section 4(2) prohibited any horizontal agreement between enterprises that has any object to fix, directly or indirectly, a purchase or selling price or any other trading conditions. In the case of Air Asia and Mas, Malaysian Competition Commission (MyCC) contended that Section 4(2)(b) can be triggered by the mere entry into an agreement. The Competition Appeal Tribunal (CAT) held that MyCC is required to establish the object of the agreement. MyCC’s attempt to rely totally on the deeming provision does not absolve itself from the duty to prove restriction by object under Section 4(2). Plus, CAT’s …show more content…
Under Competition Act 2010, “no-poach” agreement initiated by AAA is not prohibited. This agreement is necessary to protect trade secret or copyright or any confidential information of the enterprises. Moreover, the impact of poaching is very worrying as it could affect the whole market and automatically defeat the aim of the Commission to safeguards the process of free and fair competition in commercial markets. Thus, this is inapplicable under infringement stated by Section 4(2)(a). Plus, the court must take into account the real nature of this agreement to determine the true rights and interests of the
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