The Competition Law 2018 defines an anti-competitive agreement to mean: (a) an act of agreement between parties in any form, and (b) which causes or has the ability to cause a competition-restraining impact. Under Article 3.3. of the Competition Law 2018, a competition-restraining impact means an impact, which removes, reduces, distorts or hinders competition in the market. The definition of anti-competitive agreement is a new provision under the Competitive Law 2018 which the Competition Law 2004 does not have.

The Competition Law 2018 continues to provide a list of specific agreements which may be considered as an anti-competitive agreement which is similar to that of the Competition Law 2004. However, due to the new definition under the Competition Law 2018, logically, an anti-competitive agreement must now satisfy two tests:

·         Test 1: It must cause or have the ability to cause a competition-restraining impact in the market; and

·         Test 2: It must fall under the list of prohibited agreement stipulated by the Competition Law 2018.

This is different from the Competition Law 2004. Since the Competition Law 2004 does not contain any definition of anti-competitive agreement, it is arguable that all agreements falling under the circumstances listed in such law (especially the “hard-core” restrictions) will constitute an anti-competitive agreement and thus, will be prohibited when they satisfy the prescribed conditions.

This post is written by Tran Thuy Tien and edited by Nguyen Quang Vu.