Kiểm soát hành vi lạm dụng vị trí thống lĩnh thị trường theo pháp luật cạnh tranh ở việt nam hiện nay tt tiếng anh

The State's intervention in the market to control abusive acts of enterprises with market dominant postion is necessary to ensure fair competition between business entities, which is an

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

TRAN THUY LINH

CONTROLLING THE ABUSE OF MARKET DOMINANCE UNDER THE CURRENT VIETNAMESE

This dissertation is completed at:

HANOI LAW UNIVERSITY

Science Supervisor 1 Assoc Prof Dr Bui Nguyen Khanh Science Supervisor 2 Dr Vu Dang Hai Yen

at date… month… year

You might found this dissertarion at:

1 National Library

2 Library of Hanoi Law University

INTRODUCTION

1 The neccessity of disertation

Enterprises holding market power are often inclined to exploit that power by strongly influencing market factors (price, output, quality, etc.) to ultimate the benefit from customers, consumers and eliminate competitors' competitiveness in order to maintain their position The State's intervention in the market to control abusive acts of enterprises with market dominant postion is necessary to ensure fair competition between business entities, which is an important basis for the dynamic and efficient operation of the market economy

The first competition law of Vietnam was established in 2004 with regulations on controlling acts of abusing market dominant postion quite fairly, specific and detailed However, after more than 10 years of implementation, these regulations have revealed many limitations To overcome the limitations of the 2004 competition law, and at the same time, meet the requirements of perfecting market economy institutions, especially in the context of global economic integration with the extensive participation of Vietnam In the regional and global playgrounds, the Competition Law 2018 was enacted with many positive amendments related to controlling the abuse of VTTT

So far, the Competition Law 2018 has taken effect but many contents have not been guided Therefore, in this context, the research and evaluation of the provisions of the Competition Law 2004 and awareness of the content of the Competition Law 2018 and seeking to bring it to life are extremely necessary

Therefore, the author has chosen the topic: "Controlling the

abuse of market dominance under the current Vietnamses competition law" to research in the hope that the research results of

the dissertation will have significant for reform of the competitive

environment in Vietnam

2 Objectives of research

On the basis of analyzing and assessing the current status of regulations and competition law practices on the control of abusing market dominant postion, the research aims to build solutions to improve the provisions of the law on the control of abuse dominant position in Vietnam

Specific research tasks of the research including:

- Research sheds light on theoretical issues on legislation of controlling the abuse of market dominant position;

- Analyzing and assessing the status of adjusting the law enforcement practice of the law on control of abusing market dominant position in Vietnam

- Proposing solutions to complete the provisions of Vietnamese law on controlling the abuse of market dominant position

3 Object and scope of research

- Experience of EU, USA, Japan; Scientific views have been published by individual authors and organizations in researches on competition in general and the abuse of market dominant position in particular and in Vietnam and abroad

The dissertation only focuses on researching laws on controlling acts of abuse of market dominant position, so it will not include acts of abuse that are specific to monopoly enterprises as the division of the

Vietnam Competition Law

3.2 Research scope

- Scope of space: The research focuses on theoretical issues, current status of regulations and law enforcement practices on controlling acts of abusing market dominant position in Vietnam; Experiences of the United States, EU and Japan are also studied to propose lessons for Vietnam

- Scope of time: The research focus on laws on controlling acts of abuse of market dominant posituon in the period from 2004 to the present time

- Scope of legal documents: Researching regulations on controlling acts of abusing market dominant position in Competition Law and its guiding documents, including Competition Law 2004, Competition Law 2018 and other Implementation guidelines

4 Methodology

To accomplish the research objectives, the author has used a combination of many legal scientific research methods such as analytical - synthesis method, historical method, statistical method

in which the main methods ared analytical - general method and comparative method

Analysis – synthesis method: to analyze, explain and systematize specific provisions of the studied legal systems in order to provide a comprehensive and comprehensive view of the regulations related to control the abuse of market dominant postion related legal systems and

at the same time evaluate the implementation of those regulations The comparative method is used to identify the similarities and differences of regulations in the studied legal systems related to anti-abuse behaviors From there, the thesis will point out the appropriate legal solutions for the improvement of Vietnamese law on controlling

acts of abusing market dominant position

5 The new contribution of dissertation

On the basis of acquiring and inheriting research results in previous scientific works, the research proposes new points as follows:

- The dissertation contributes to supplementing and completing the theoretical basis system of policies and laws to control the abuse

of market dominant position in Vietnam such as clarifying the concept of market dominance and abuse of that; analyze and clarify views on the control of the acts of abuse of market dominant postition and point out the general trend of the legal systems in controlling the acts of abuse of that behaviors

- Comprehensively analyze and clarify the current situation of regulations and practice of Vietnam Competition Law on controlling enterprises having maret dominant posittion

The thesis analyzes the requirements set when completing the law on controlling the abuse of market dominant position and improving enforcement efficiency in practice in order to ensure both business freedom of enterprises and ensuring the goals of competition law

- The dissertation has proposed a scientific solution to improve the law

to control acts of abusing market dominant position

6 The structure of disseration

Apart from the Table of Contents, Introduction, Overview of the research situation, Conclusion and List of References, the dissertation

is structured into 3 chapters as follows:

Chapter 1: Theoretical issues on laws that control the abuse of market dominant position

Chapter 2: Controlling the abuse of a market dominant position under Vietnamse Competition Laws

Chapter 3: Orientations and solutions for improving Competition Law

on controlling the abuse of market dominance in Vietnam

Many perspectives emphasize a more cautious approach to the abuse of market dominant position, according to which, the determination of VTT abuse will need to be considered and evaluated both from the perspective of economics and legal sciences , especially in the high-tech market, the market is dynamic and creative

1.2 Research on the status on law and practice application about the law of controlling the acts of market dominant position

The international studies mainly in the common researches on competition law, competition policy, especially on EU competition law and policy (EU), The United States or included in comparative studies between EU competition law and EU policy, which are

considered the two basic models of competition law in the World Studies have shown that the US laws on antitrust and the EU's law against the abuse of market dominant position have some things in common However, the differences between them are at a fairly basic point, EU laws are more rigid and have a deeper intervention mechanism than US laws on antitrust

Domestic studies focused on analyzing and assessing the provisions of the 2004 Competition Law with issues such as identifying abuse of dominance, monopoly position, and analyzing specific dominant abuses such as acts of predatory pricing, acts of abuse related to prices

1.3 Studies on legal trends and complete solutions to control the abuse of market dominant position

The researches of the authors in the world all mention the solution

to improve the law on controlling the abuse of market dominant position as the trend of changing the approach to the abuse of these acts is an approach based on the nature of behavior, in line with modern economic thinking about unilateral behavior

Given the limitations of the Competition Law 2004, the domestic research also pointed out the direction and a number of solutions to improve the law on controlling the abuse of market dominant position

in Vietnam Follow that, we had to put in international economic integration scene; placed in an overall relationship with other legal institutions

It can be seen that the domestic researches on abuse of market dominant position under Vietnam's competition law mostly focus on analyzing specific abusive behaviors and leaving the concerns on issues brought about rationale theoreotical issues In particular, in the context of the new Competition Law 2018, no evaluation studies on the

Competition Law 2018, on the basis of comparison to show the progress and reasonableness compared to the Competition Law 2004,

do premise for approaching, understanding and constructing the provisions of the Competition Law 2018 on comprehensive abuse of market dominance

2 Evaluation of literature review

Fristly, about the object of competition law in general and the object of regulations on abuse of market dominance in particular Secondly, about the concept of market dominant

Thirdly, about the factors to determine the market dominant position of enterprise

Sáu là về nguyên tắc xử lý hành vi lạm dụng VTTLTT

Fourthly, about the concept of abuse of market dominance Firthly, about identifying the market dominant abusive behaviours

Sixthly, about the principle of dealing with the market dominant abusive behaviours

3 The issue needed to be solved by the dissertation

- Research and systematize the theoretical background issues of policies and laws that control abuse of market dominance

- Research theoretical issues on the concept and content of laws that control market dominant abuses Define the specific content and legal system of controlling abuse of market dominance

- Assessing the rationality and unreasonability of the current law

on controlling the abuse of market dominance and the need for appropriate adjustment regulations to both ensure the business freedom of the enterprises and ensure target of competition law

- Proposing a system of complete views and specific solutions to perfect the law to control the abuse of market dominance

4 Theoretical basis and research questions

4.1 Theoretical basis

The establishment of the law on control of abuse of VTTT based on the theoretical basis and viewpoint of competition in the market economy The view of promoting free competition is rooted

in the economic theory of the invisible hand of economist Adam Smith (1723-1790) The viewpoint and theory of the competitive market needs state regulation developed by economists and jurisprudents from the nineteenth century The basic rationale for the formation of the law to control acts of abuse of market dominance in Vietnam is the view of the Party and the State of Vietnam on perfecting the market economy institution in the context of international economic integration which emphasizes the need to ensure a healthy, fair and transparent competitive environment

4.2 Research questions and research hypotheses

Research questions :

- What is market dominance abuse ? How does the abuse of market dominance affect competition, the development of the economy and the interests of consumers ?

- Why should there be control over the abuse of a dominant market position by law ?

- How is the structure and basic content of competition law on controlling the abuse of dominant market position ?

- How is the experience of other countries in controlling the abuse of dominant market positions by competition law ?

- How is the current situation of legal regulations on controlling acts of abusing dominant market position in Vietnam ?

- Given the shortcomings and inadequacies, what directions and solutions are needed to improve the law on controlling the abuse of dominant market position ?

Research hypotheses :

- Building a theoretical basis and perfecting the mechanism to control the abuse of dominant market position is important for establishing and maintaining a fair and healthy competitive environment in Vietnam

- The provisions of Vietnamese law on controlling acts of abusing dominant market position still have inappropriate points , and there still exist legal gaps

- The improvement of legal regulations on controlling the abuse of dominant market position in Vietnam is one of the requirements of the process of perfecting the market economy institution with a competitive policy to ensure enjoy the freedom of competition of enterprises while ensuring the objectives of the competition law, in accordance with Vietnam's economic and social conditions and international practices in the process of international economic integration

CONCLUSION OF LITERATURE REVIEW

CHAPTER 1 THEORETICAL ISSUES ON LAW ON CONTROLLING THE

ABUSE OF MARKET DOMINANCE 1.1 Controlling the abuse of market dominance

1.1.1 Concept, characteristics of market dominance behaviours

1.1.1.1 Concept of market dominance

In ECJ's view, market dominance “relates to a position of

economic strength enjoyed by an undertaking, which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers” According to Chapter 2, Model Law on Competition of

UNCTAD, dominant position of market power refers to a situation

where an enterprise, either by itself or acting together with a few other enterprises, is in a position to control the relevant market for

a particular good or service or group of goods or services”

Competition law of Vietnam has a distinction between market dominance and monopoly Accordingly, monopoly is a situation where the market is completely uncompetitive, monopoly enterprise has no competitors Meanwhile, in the market where there is market dominance enterprise, even though the enterprise has considerable market power, has the ability to dominate and control the market, there are still competitors certain competition

The general definition of market dominance can be drawn as

follows: Market dominance is the position of a business or group of

enterprises that holds significant market power capable of restricting competition in the relevant market and behaving independently of competitors, customers and consumers

1.1.1.2 Concept of market dominance behavior

The general definition of the abuse of a dominant market position

can be drawn as follows: Abuse of a dominant market position is the

behavior of an enterprise with a dominant position, exploiting market power it has to maintain, enhance the position of the business in the market, hinder competition, harm to competitors and customers of the business

1.1.1.3 Characteristics of market dominance behavior

a The subject is an enterprise or a group of enterprises with a dominant position or an enterprise with a monopoly position in the relevant market

b Dominant enterprises or groups of enterprises have or are currently abusing acts that negatively impact competition in the market

c Abuse of dominant market position is unilateral behavior of enterprises

d The consequences of abuse are distorting market structure, hindering or eliminating competition in a specific market

1.1.2 The concept, characteristics and purpose of controlling the abuse of market dominance

1.1.2.1 The concept of controlling the abuse of market dominance

Controlling the abuse of market dominance is the act of state agencies and competent entities performing the State's management function, affecting enterprises through measures and ways different methods to monitor, detect, prevent and handle abusive acts of enterprises with market dominance in order to protect and maintain the competitive order and ensure the lawful rights and interests of enterprises, state, other business entities and consumers

1.1.2.2 Characteristics of controlling abuse of market dominance

- Controlling the abuse of a dominant market position to create, maintain and protect a fair and fair competitive environment

- The object of controlling the abuse of market dominance is enterprises having dominant market position

- Control the abuse of a dominant market position within the limits

of enterprises' business freedom

- Controlling acts of abusing dominant market positions, leading to restriction of economic privileges of enterprises with dominant market position

- Controlling the abuse of dominant market position with limited scope due to the free business principle

1.1.2.3 The purpose of controlling the abuse of market dominance

1.1.3 Tools to control market abuse

1.2 Law on controlling the abuse of market dominance

1.2.1 Concept of law on controlling the abuse of market dominance

The law on controlling acts of abusing dominant market position

of enterprises is a total of laws promulgated by the State to regulate acts of abusing market power of enterprises having positions dominate the market causing competition restriction impact

The law on controlling acts of abusing dominant market position

is an important part of competition law The basic source of legislation

on controlling acts of abusing dominant market position is the competition law of countries

1.2.2 The objective of controlling the abuse of a dominant market position in the competition law

The objective of the competition law in controlling the conduct of enterprises with market dominance is to prevent these enterprises from abusing market power to limit and eliminate competition and thus causing loss to social welfare, damage to consumers In other words, the application of the law to control market dominance is not aimed at eliminating the dominant position of enterprises but only abusive behaviours of market dominance to gain profits or to distort the competition, destroy the competition

1.2.3 Approaches to controlling abuse of market dominant position

For more than a decade, the absolute prohibitions of competition laws of countries for certain acts of enterprises are considered abusive (the principle of per se rule), although slow, but gradually replaced with regualtions based on the rule of reason

1.2.4 The structure of law on controlling the abuse of dominant market position

1.2.4.1 Identifying enterprises, groups of enterprises have a market dominant position

a) relevant market

Identifying the relevant market is determining the range of close substitutes for a specific product and the geospatial range in