Letter to the editor
THE Malaysia Competition Commission (MyCC) refers to the media articles published recently on the decision by the Competition Appeal Tribunal (CAT) in relation to MyCC’s decision.
The recent articles on this case do not do justice to the decision of the CAT as they do not depict a complete picture of the said decision.
It should be noted that in 2017 and again in 2020, both Bank Negara Malaysia (BNM) and Persatuan Insurans Am Malaysia (PIAM) asserted that the infringing agreement was made based on a directive by BNM. In fact, this was a defence that was put strongly by the insurers before the CAT which was supported by BNM.
MyCC would like to emphasise that the CAT held that MyCC – by its nature and function as a quasi-judicial body – is empowered to interpret a provision of law whether it is relevant or otherwise.
The mere fact that the outcome of the interpretation of the law affects another regulator’s power could not preclude MyCC from exercising its duties.
Further, the CAT ruled that the letters issued by BNM which were relied heavily on by PIAM and the insurers cannot be construed as a directive. In fact, the CAT is of the considered view that the impugned letters which BNM alluded to be a direction or directive fall short of precise language to amount to a direction or directive.
It was further held that in all impugned letters before the CAT, BNM did not state in clear terms that it was directing PIAM and the insurers to enter into the infringing agreement.
Consistent with MyCC’s findings in its final decision, the CAT ruled that the letters are merely letters urging the parties to resolve the commercial dispute, expedite negotiation and reach an agreement on the issues raised.
The timing of BNM’s first mention of its position that the said impugned letters were a direction or directive was also taken into consideration by the CAT in reaching its decision.
The CAT was of the view that if BNM had indeed issued a direction in 2011, it would have stated so in 2015, at the earliest possible opportunity when investigations by MyCC commenced.
On the contrary, BNM only mentioned that the said letters were a direction or directive just around a month before MyCC issued its proposed decision in 2017. On this basis, the CAT dismissed BNM’s appeal.
On other aspects of the decision, MyCC is currently analysing and weighing its options, which includes filing a judicial review. This is because the decision by the CAT may create ambiguity on how the law in relation to anti-competitive agreements through associations is interpreted.
Concurrently, MyCC will continue to strive to execute its mandate efficiently and effectively with a commitment to ensure competition culture remains conducive and markets work well for consumers, businesses, and the economy. – Sept 13, 2022
Iskandar Ismail is the CEO of the Malaysia Competition Commission (MyCC), an independent body established to enforce the Competition Act 2010.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.