Thailand: Antitrust Reform In Thailand 2016

Last Updated: 11 December 2017
Article by Suparerk Auychai, Peter McDonald, François Renard and Nonnabhat Paiboon

The 1999 Thai Trade Competition Act will soon be amended. The amendments are significant and will create a new independent antitrust authority, expand the scope of the Act, adjust the types and level of sanctions, and introduce new mechanisms such as a leniency program. It is also expected that these amendments will lead to the formal entry into force of the merger control regime in Thailand. The overall changes are in line with international standards. Business operators need to prepare to ensure compliance with the new legislation.

For the past 17 years, the Thai Trade Competition Commission (the Commission) has not actively regulated and enforced the Trade Competition Act B.E. 2542 (1999) (the Act), with a minimal number of claims considered by the Commission, and, as far as we are aware, only one civil case is being prosecuted at court level and one criminal case being investigated by the Commission. The regulator is aware that competition law in Thailand is in many ways not sufficiently evolved, with a lack of underlying rules, regulations and guidelines, the Commission's limited independence and budget, inefficient enforcement proceedings and lack of judicial expertise. A long awaited draft amendment to the Act was proposed to the Cabinet and approved in principle on 2 February 2016 (the Draft Amendment). Although the current draft is not yet publicly available, we set out below what we understand the key changes to the Act are.

Where is the Draft Amendment now?

The Draft Amendment was approved in principle by the Cabinet on 2 February 2016 and is now being reviewed by the Council of State. After the Council of State has commented on the Draft Amendment, the draft will be proposed to the Cabinet for approval. The National Legislative Assembly will then consider and approve such draft, which will come into force 30 days after being published in the Government Gazette. The Office of the Trade Competition Commission (the OTCC) noted that the Draft Amendment is expected to come into force sometime in 2016. Although the exact timing for the entry into force of the amendments is unknown, it is understood that this initiative benefits from strong political support, which indicates that the amendments are imminent.

Application to state-owned enterprises

Thailand is currently one of the few countries where state-owned enterprises (SOEs) are wholly exempted from competition law. The Draft Amendment provides that the Act will, in the future, apply equally to private operators and all SOEs. The only exemption available to SOEs will be actions carried out pursuant to the law or state policy, which are necessary to ensure national security, promote the benefit of the public as a whole, or for provision of public utilities. This amendment is expected to substantially affect the way that SOEs do business in Thailand, although Thai SOEs with international operations should be acquainted with antitrust principles.

Extra-territorial jurisdiction

The Draft Amendment will also have extra-territorial jurisdiction whereby liability will be considered on an 'effects-based' basis. This means that when a foreign company engages in anti-competitive conduct outside Thailand but the conduct has an anti-competitive effect on the market in Thailand, such foreign company will be liable under the Draft Amendment and can be sanctioned in Thailand. This approach is aligned with the approach adopted by many other competition rules around the globe.

Changes to the Commission

Contrary to the current governmental body, the new Commission will have independence and extended scope of powers so that they can actively regulate the market and ensure transparency and efficiency. The Commission will become an independent administrative organisation, similar to the Securities Exchange Commission, with an annual budget derived from various sources, including 10% of commercial trade registration fees which is approximately THB 190 million per year (i.e., approx. USD 5.3 million), as opposed to the current THB 5-6 million (i.e., approx. USD 140,000-170,000 per year) and other administrative fees. An initial budget will be allocated from the government for the first year after the Draft Amendment becomes effective. Members of the Commission will hold a full-time position and will be appointed by a transparent nomination process.

Legal certainty – merger control and more

A deadline will be imposed on the Commission to issue all guidelines, notifications, rules and regulations in relation to the Draft Amendment within one year from the date the Act is published in the Government Gazette and these must be revised every five years. This would include the merger control thresholds which have been anticipated over the last few years.

There is now a high possibility that the Commission will deviate from the draft merger control threshold that was publically disclosed on 6 June 2013.  As a reminder, these thresholds were as follows (see also our alert of 10 November 2014):

  1. businesses having at least 30% market share (before or after the merger) and turnover of at least THB 2 billion (i.e., approx. USD 62 million) in the previous financial year; or
  2. an acquisition of at least 25% voting shares in a public company, or of at least 50% of voting shares in a limited company, and each party or both parties collectively having at least a 30% market share and turnover of at least THB 2 billion in the relevant product or service market.

The Draft Amendment contemplates a systematic pre-merger notification requirement (as is the case for instance in Europe or China), as opposed to an approval process, whereby only a merger or an acquisition that may substantially reduce competition within a certain product or service market (pursuant to the thresholds to be issued by the Commission) must be notified to the Commission. The Commission may issue an order or recommendations in respect of such merger. Failure to notify the Commission or comply with such order will result in a fine of up to 20% of the turnover from the year of the merger or non-compliance (as applicable). In addition, the Draft Amendment further requires business operators to submit financial statements for a period of three years following completion so that the Commission may follow the outcome of the merger.

The OTCC commented that the draft notification on merger control thresholds will likely be issued not long after the Draft Amendment comes into force.

There are other changes in the Draft Amendment which are in line with international principles, e.g. 'business operators' will be viewed as a group and clearly defined to include affiliated companies with the notion of both capital and management control.

Adjustments to criminal sanctions and introduction of administrative fines

One of the reasons the Act is difficult to enforce is because all current violations are criminal offences, which means that no sanctions can be imposed without the involvement of the public prosecutor and the imposition of sanctions by the Courts of Justice; these extra steps have meant in practice that very few actions have been taken and no criminal cases have been brought to the Courts of Justice. The Draft Amendment will provide a mix of criminal, civil and administrative sanctions which are adjusted and allocated to different offences as appropriate. This is expected to enable the Commission to have more flexibility in imposing sanctions against business operators.

The Draft Amendment also empowers the Commission to give administrative orders and, more importantly, introduces administrative fines of up to 20% of the business operator's turnover in the year of the offence, including for failing to file a reportable M&A transaction. Failure to pay such fines will result in a penalty of two times the amount of the initial fines together with a daily fine of up to 1% per day throughout the period of violation. If failure to pay persists, the Commission will have the power to bring a case to the Administrative Court requesting an order to seize assets of the business operator in order to obtain payment of fines from the proceeds by way of a public auction.

Director's liability

Quite uniquely, the managing director or any person with managing control in a legal entity will be equally liable for any offence under this Draft Amendment committed by the legal entity if the offence arose from the order or act (or an omission thereof) by such person, including failing to file a reportable M&A transaction. The new Draft Amendment has removed the exemption of liability of directors who were not aware of the offence being committed or it has taken action to prevent the offence from occurring.

Leniency programmes

A leniency programme will be introduced for offences relating to hard core cartels (e.g. price fixing, agreements to obtain market control and bid rigging). This will incentivise companies involved in cartels to be whistle-blowers and cooperate with the Commission to lower their own penalties or obtain full immunity. This programme is expected to play a crucial role in the enforcement against cartels in Thailand. Leniency programmes around the world have proved to be one of the most important tools for antitrust authorities to initiate and to conduct cartel investigations.

New routes for claimants and judicial expertise

To ensure appropriate judicial expertise, criminal cases and claims for damages arising under the Draft Amendment will be filed at the Intellectual Property and International Trade Court rather than the Courts of Justice. Moreover, claimants who incurred damage from a breach of competition law can still make a civil claim via the Consumer Protection Board without having to go through the Commission.

Next steps

Business operators of all sizes and in all industries will need to prepare for this reform by having a comprehensive compliance program in place and by ensuring that both the management and employees are well informed of how their current business conduct will need to change to comply with the new legislation. Furthermore, all reportable M&A transactions will require pre-closing notification. Businesses will need to be mindful of how it will affect the deal's timeline, transactional documents, and structure of the deal.

Originally published 30 May 2016

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions