Singapore's Competition Regime and its Objectives: The Case Against Formalism

39 Pages Posted: 5 Mar 2019 Last revised: 2 Dec 2019

See all articles by Kenneth Khoo

Kenneth Khoo

National University of Singapore (NUS) - Faculty of Law

Allen Sng

National University of Singapore (NUS) - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: September 4, 2018

Abstract

On 1 April 2018, the Competition Commission of Singapore was renamed – it is now the Consumer and Competition Commission of Singapore. Notwithstanding this renaming, however, a clear consensus on the underlying objectives of Singapore’s Competition Policy remains elusive. In this article, we put forth a normative case for why Singapore’s competition authorities should prioritise the promotion of economic welfare over competing objectives, as opposed to a more pluralistic approach that pursues multiple objectives of equal standing. We argue that many of the substantive rules in contemporary EU Competition Law are informed by non-efficiency objectives that are unique to the EU context, and may not be suitable for direct importation into Singapore. In particular, we illustrate how the heavy reliance on EU caselaw as persuasive authority has resulted in what antitrust scholars have termed a “formalistic” approach to Competition Law – liability is often established pursuant to presumptions of law that allow the authorities to infer liability upon proof of certain conduct. The “formalistic” approach stands in contrast to its “effects-based” counterpart, where the authorities are required to establish actual anti-competitive effects in the relevant market. We show how the “formalistic” nature of EU Competition Law may be unsuitable for Singapore’s competition regime in light of the normative framework expounded above. Henceforth, we suggest that antitrust authorities in Singapore should exercise considerable caution in endorsing the application of EU law in individual cases.

Keywords: Antitrust, Competition Law, Evidence and Procedure

JEL Classification: K21, L40

Suggested Citation

Khoo, Kenneth and Sng, Allen, Singapore's Competition Regime and its Objectives: The Case Against Formalism (September 4, 2018). Singapore Journal of Legal Studies, No. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3332802 or http://dx.doi.org/10.2139/ssrn.3332802

Kenneth Khoo (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

Allen Sng

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

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