Thủ tục giải quyết vụ việc hạn chế cạnh tranh ở việt nam hiện nay tt tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES
INSTITUTE OF SOCIAL SCIENCES

TRẦN ANH TÚ

CURRENT PROCEDURES IN HANDLING
ANTI-COMPETITION CASES IN VIETNAM

DISSERTATION ON LEGAL STUDIES
Major

: Economic Law

Code

: 9 38 01 07

SUMMARY OF THE DISSERTATION ON LEGAL STUDIES

HÀ NỘI - 2019


This dissertation was accomplished at the
Institute of Social Sciences – Vietnam Academy of Social Sciences

Supervisor: Assoc. Prof. Dr. Nguyễn Như Phát

1st Opponent:
2nd Opponent:
3rd Opponent:

This dissertation will be examined by the
Vietnam Academy of Social Sciences leveled
Dissertation Grading Committee at the Institute of Social Sciences
at………h………on ……dd……mm…….yy 2019

This dissertation is availabled at:
- Vietnam National Library
- Library of Social Sciences - Institute of Social Sciences


THE SCIENTIFIC PAPERS PUBLISHED RELATING TO THIS DISSERTATION

1 Tran Anh Tu,“Some Basic Principles on Damage Claim Lawsuits Caused by Unfair Competition
Activities in the US Laws”, VNU Journal of Science: Legal Studies, Volume 30, Issue 04 (2014),
pp34-39;
2. Tran Anh Tu, “Êtat des lieux de la reesglementation de L’alcool au Vietnam; Les cahiers de droit
de la santé”, N 26 – Alcool, Droit et Santé, Le Groupe LEH, 10/2018. (Mã số xuất bản quốc tế:
ISSN 1774-9832);
3. Tran Anh Tu, “Mechanism of Assurance of the Right to Competition Related Complaints”,
Journal of Legislative Studies, Volume 21 dated 11/2018, pp 52-57.


INTRODUCTION
1. Rationale
Being awared of the importance of competition related legal tools in creation of a healthy
competitive market, elimitation of unfair competition practices, protection of the market, on 3rd
December 2004, the National Assembly of the Socialist Republic of Vietnam officially approved
the Competition Law (2004) and this Law (the very first competition law in Vietnam) took
effective on 1st July 2005. However, due to their poor experience and practices, the Vietnamese law
makers failed to build a comprehensive legal tool as expected. Till 2017, after twelve years the

Competition Law 2004 was implemented, the Competition Management Agency had investigated
eight anti-competitive cases and the Competition Council had made decision to six of out those eight
cases. On 12th June, 2018, at the Fifith Meeting Session of the National Assembly XIV, the
Competition Law 2018 was passed to replace the Competition Law 2004 on 1st July 2019. However,
though the Competition Law 2018 was made with significant changes to address limits of the
Competition Law 2004 relating to anti competition complaints settlement, there are many contents,
due to various reasons, the law makers haven’t included or haven’t come up with comprehensive
solutions in the new law.
In Vietnam, many studies on development and improvement of the competition law were
conducted before and after the Competition Law 2004. Nevertheless, they mainly concentrated on
contents of the law rather than competition legal proceedings or anti-competitive cases handling.
In Vietnam today, in order to improve legal provisions on anti-competitive cases handling,
there must be in-depth theoretical researches to assess pros and cons of the existing competition
legal proceedings, to learn experience of the countries that have been advanced in building and
implementing competition policies and laws, therefore to suggest long-term feasible, optimal and
comprehensive measures and immediate solutions to build guiding documents so as to ensure the
high effectiveness of the Competition Law 2018.
The afore-mentioned challenges in legal studies in Vietnam today have urged me greatly to choose
“Current Procedures in Handling Anti-competition Cases in Vietnam” as a principal theme of my
research.
2. Objectives and Research Tasks
2.1. Objectives
This research aims to provide insights into the theoretical, legal issues of anti-competitive
cases settlement; an assessment of the existing provisions and the settlement practices so as to
recommend orientations and measures in improvement of the anti competition proceedings in
Vietnam.
2.2. Research Tasks
In order to obtain the afore-mentioned objectives, the research is to tasked with the
following questions: Firstly, what is the theoretical basis of the anti-competitive cases settlement
procedures? Secondly, what are the current procedures of anti-competitive cases settlement like?

Thirdly, what is the situation of the anti-competitive cases settlement in Vietnam since the
Competition Law 2004 was issued and effective untill now? Forthly, how are the anti competition
provisions in Vietnam compared with those of the countries being advanced in building and
implementing the competition policies, laws in the world in order to withdraw lessons learnt in
completion of the law of anti-competitive cases handling in Vietnam? Fifthly, what orientations and

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specific measures can be proposed in order to improve the effectiveness of anti-competitive cases
handling procedures in Vietnam.
3. Objects and Scope
3.1. Objects
This research focuses on theoretical and practical issues of the anti-competitive cases
settlement in Vietnam currently. They can be seen through: (I) the legal nature of the handling of
anti-competitive cases; (II) orders and contents of anti-competitive cases settlement stages; (III)
competent entities handling anti-competitive cases and their functions, duties, and rights in each of
the stage; (IV) organizations, individuals participating in the anti-competitive cases settlement and
their rights, responsibilities.
3.2. Scope
This research dissertation only studies the anti-competitive cases settlement administrated
by agencies, organizations, individuals in accord with the orders, procedures as prescribed in
competition law, rather than unfair competitive cases, violations of law on economic concentration
or settlement against anti competitive activities. In terms of time, the period selected for the
research is ranged from 2004 when the Competition Law 2004 was introduced till now. In terms of
space, not only studying inside Vietnam, the research also studies, compares the law of Vietnam
with those of countries like US, English, France, Russia, Japan, South Korea...
4. Research Methodology
This dissertation follows the Party and the State of Vietnam’s viewpoints of a socialist
republic oriented market economy, and applies dialetic and historical materialism methods.

Specifically, the dissertation uses various methodologies such as synthesis and analysis,
comparision, indirect research, direct research, multi and inter disciplinary.
5. Research Contributions
This dissertation has certain unique contributions, specifically: Firstly, provision of a theoretical
basis of anti-competitive cases settlement in addition to a theoretical basis of anti competition including
relevant concepts, a legal basis of initiation of anti-competitive cases handling, entities involving in anticompetitive cases handing, and anti-competitive cases handling contents; Provision of instights into
legal characteristics and basic principles of anti-competitive cases handling; Secondly, review of the
relevant provisions in each anti-competitive cases handling stage including those of the Competition
Law 2004, the Competition Law 2018; Thirdly, provision of the current status of organization and
operations of competition agencies in Vietnam today including the Competition Managment
Department and the Competition Council that are responsible for investigation and settlement of anticompetitive cases; consideration and assessment of the organization and operations of the National
Competition Commission in accord with the Competition Law 2018 regards combination of the
functions of investigation and handling of anti-competitive cases; Forth, comparision between
Vietnamese procedural models and legal measures of anti-competitive cases selltement with those
of other countries so as to learn necessary lessons of legal amendment; Fifthly, proposal of
recommendation and solutions of completion and improvement of anti-competitive cases handling
in Vietnam today.
6. Theoretical and Practical Significance
The dissertation’s findings are expected to make contributions to improving anti-

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competitive cases handling in Vietnam. In addition, the dissertation’s findings can be used as a
reference resource for competition law makers and implementers, research and teaching of
competition policies and laws.
7. Dissertation Structure
In addition to the Introduction, Conclusions, References, the dissertation is made up of:
- Chapter 1: An Overview of Relevant Researches and Theoretical Bases
- Chapter 2: Theoretical Issues of Anti-competitive Cases Handling

- Chapter 3: Review of Procedures and Practices of Anti-competitive Cases Handling in
Vietnam Today
- Chapter 4: Solutions of Improvement of Anti-competitive Cases Handling Procedures in
Vietnam
Chapter 1

AN OVERVIEW OF RELEVANT RESEARCHES AND
THEORETICAL BASES
1.1. An Overview of the Relevant Researches
1.1.1. Theoretical Researches of Anti-competitive Cases Handling
Regards concepts of anti-competitive cases and anti-competitive cases handling, so far
there haven’t been any researches introducing a particular and accurate definition of anticompetitive cases, however some researches described competition cases and

competition

investigation as follows: competition case means case showing signs of violation of the
competition law which is investigated and handled by competent agencies in accord with this law;
competition investigation means activities taken by agencies, organizations, individual in accord
with sequences, procedures prescribed for a competition case in competition law.
Regards the legal nature of anti-competitive cases handling, some competition
investigation related researches explained this differently. However, they were suggestive only
because they didn’t provide a comprehensive assessment of the legal nature and characteristics of
anti-competitive cases handling, compare with the other procedings such as civil, administrative,
criminal in a single procedural stage. Many studies analyzed the significance of anti-competitive
cases handling and the necessiry of setting up an effective proceeding to ensure enforcement of
competition law.
Regards entities implementing and participating into handling anti-competitive cases, at
present, there are not in-depth studies inside the country of the entities, however there are quite
many studies of the entities implementing and participating in competition investigation or
competition cases. Generally speaking, all of researchers agreed that in Vietnam, the competition

investigation agencies are included the Competition Management Department and the Competition
Commisison, while the competition investigatioin implementers are the commission members;
Head of a competition management agency, investigators and hearing clerks, competition presiding
officers are included the complainant, respondent, investigated party, lawyer, witnesses, expert
witnesses, interpreters, and others with relevant rights and obligations. Regards the entities
implementing and participating in handling competitive cases, many domestics and foreign researches
paid special attention to agencies that conduct competition investigation. They analyzed, assessed the
legal nature of competition management agencies and well as their organization and operations. Most of

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them indicated existing competition agencies worldwide are semi-administrative and semi-judicial
institutions.
Regards orders and stages of anti-competitive cases handling, there are domestic studies
including the paper “Some competition investigation provisions under the Competition Law in
Vietnam” authored by Nguyen Nhu Phat, Le Anh Tuan published in the Journal of State and Law,
Volume 213, 1.2016; Textbook “Competition Law”, editor in chief Dang Van Nghia, Education
Publishing House, 2009; Reference book “Competition Laws in Vietnam” authored by Le Danh Vinh,
Hoang Xuan Bac and Nguyen Ngoc Sen, Legislation Publishing House, 2006. Those works agreed that
the anti-competitive cases selltement is included with the following stages: receipt of anti-competitive
cases complaints; conducting of investigation; opening of hearing; handling of settlement against anticompetitive complaint decision (if any); handling of administrative cases against complaint settlement
decisions by competition council (if any). The foreign researches are included Nguyen Huu Huyen,
French and EU Competition Laws, Legislation Publishing House; Christopher L.Sagers, Antitrust –
Examples & Explanations, Wolters Kluwer, 2011; Office of Fair Trading (OFT), Competition
Law Guideline, UK, 2004; Ernest Gellhorn, William E.Kovacic, Stephen Calkings, Thomson
West, Antitrust Law and Economics, 2004… Those studies viewed that competition cases
handling is different in other countries worldwide, however, basically the handling stages are
included reciept of information or complaints; investigation, settlement; handling of complaints
or initiation of a lawsuits at court.

1.1.2. Researches of the Status and Practices of Anti-competitive Cases Handling in
Vietnam Today
It is possible to mention here the following typical research works of anti-competitive
cases handling in Vietnam: The Competition Management Department – Ministry of Industry and
Trade, Proceeding of the Seminar “Legal Nature and Basic Requirements for Competition
Management Agency – Lessons Learnt for Vietnam”, May 2009; The Competition Management
Department and JICA, “Review of Vietnamese Competition Law” under the Project “Building
Capacity of Enforcement of Competition Policy and Law” between the Competition Management
Department and JACA; Duong Dang Hue, Nguyen Huu Huyen, authors of the paper “Competition
Management Models in Vietnam:, Journal of Legal Studies, Volume 1, 1.2004… and particularly a
collection of research workds conducted by Ministry of Industry and Trade as a focal point at the
time of drafting the Competition Law 2018. Those studies indicated some doubts of independence
of the Competition Management Department and the Competition Council as well as cooperation
between these agencies in implementing anti-competitive cases handling. Moreover, the
weaknesses of the relevant provisions in time of complaint, time of investigation of competition
cases were pointed out. In the Review of 12 Years of Enforcement of the Competition Law 2004
reported by the Ministry of Industry and Trade, it was described how ineffective the anticompetitive cases handling was in Vietnam during those twelve years, specifically only eight anticompetitive cases were investigated and six handled.
1.1.3. Researches and Proposal of Solutions of Completion of Law and Improvement
of Effectiveness of Anti-competitive Cases Handling in Vietnam Today
Very few studies ever touched this issue or if they did they analyzed just few aspects of the
anti-competitive cases handling. Reviewing some of the typical research works, the dissertation

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author gathered some major recommendations as follows: it is necessary to separate unfair
competitive cases handling with that of anti-competitive cases; to have mechanism of
encouragement and assurance of the right to anti-competitive complaints for all organizations,
individuals; to mitigate obligations of proving for complainant; to lengthen time of complaint and
investigation of anti-competitive cases…

1.1.4. Assessment of Researches and Issues Inherited the Dissertation
Through reviewing domestic and foreign researches of anti-competitive cases handling, the
Dissertation comes up with major comments as follows:
- Firstly, in Vietnam, in addition to partial and suggestive researches of each specific aspect of
anti-competitive cases handling, there haven’t been any comprehensive, systemetic, indepth research of
anti-competitive cases handling;
- Secondly, in the world, a competitive proceeding model is highly specific because it depends
on how state apparatus and enforcement of competition policy and law are organized, what procedural
practices are, and what economic, social, legal foundations are in a country. Therefore, those studies are
considered as a reference only to learn appopriate, useful factors in building a procedural model to
handle effectively anti-competitive cases in Vietnam.
Research results will be used in the dissertation
+ The research works that determine clearly the importance of competition legal
proceedings. Development of a transparent, fair, objective, and reasonable legal proceedinngs are
compulsory for handling effectively anti-competitive cases in Vietnam.
+ To build an effective legal proceeding in handling anti-competitive cases, it is absolutely
necessary to differentiate between handling of anti-competitive cases with that of unfair
competitive cases.
+ Phán quyết của cơ quan cạnh tranh có thể bị xem xét lại bởi Toà án. Competition legal
proceedings and anti-competitive cases handling are specific legal proceedings, they are mixed
with administrative, civil, and criminal proceedings, and highly litigative.
+ Competition management agencies are differently organized in countries depending on
parliament, government, or ministry models; as they are a mix of an administraive body and a
judiciary one, they must be organized independently with enough strong authority to enforce
competition policies and laws.
+ Basically, the research said that anti-competitive cases are often handled in
investigation, settlement, and review of settlement decisions stages.
1.1.5. Theoretical Issues to be Studied in the Dissertation:
Following the research questions and the domestic and foreign research finding, the
Dissertation will produce a system of concepts of anti-competitive cases handling; study the legal

nature, typical characteristics and contents of anti-competitive cases handling; assess how anticompetitive cases are handled in Vietnam; compare the handling in Vietnam with foreign laws,
international practices, and theoretical models so as to propose orientations and solutions of
improvement of anti-competitive cases handling in Vietnam today.
1.2. Research Theoretical Basis
1.2.1. Research Theory
The dissertation is based on the link of the “content law” and the “format law”. It means the

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anti-competitive cases handling is assessed to be or not to be effective depending on the fact that it
can turn the content of the anti-competitive law into practices so as to remede social relationships that
arise in the field of competition. The dissertation is also based on competition theories such as classic
competition theories (e.g. theories of Adam Smith, John Stuart Mill...); neo classic competition
theories (e.g. theory of Keynes); theory of free competition; theory of economic-law relationship in
competition…
1.2.2. Research Questions
Some research questions are raised for the dissertation including: What is the legal nature,
characteristics and content of anti-competitive cases handling? What is the current status of the
provisions of anti-competitive cases handling in Vietnam? Are they appropriate and effective? Do
the provisions meet major objectives of the law regarding anti-competition? What are orientations
and solutions proposed to complete anti-competitive cases handling procedures in Vietnam today?
1.2.3. Research Hypothesis
To conduct the dissertation, the author raises the following hypothesis: In Vietnam, there
haven’t been a theoretical basis of combination of competition proceedings in general and anticompetitive cases handling in particular; The fundalmental contents of anti-competitive cases
handling are included the work that competent agencies, organizations, and individuals conduct
activities in accord with sequences, procedures prescribed by the law to resolve anti-competitive
cases. Anti-competitive cases can be handled in several stages; The anti-competitive cases are
ineffectively handled in Vietnam and fail to meet practical needs; The provisions of anticompetitive cases handling under the Competition Law 2018 which is to replace the Competition
Law 2004 have undergone changes but haven’t been perfect. The anti-competitive cases handling

in Vietnam needs to be further studied for improvement.
Chapter 2: THEORETICAL ISSUES OF ANTI-COMPETITIVE CASES HANDLING
2.1. Brief of Thoeries of anti-competitive cases handling
2.1.1. Legal – economic nature and needs of handlinng to anti-competitive activities
Anti-competitive activities have economic – legal nature. The nature of polies, laws against
anti-competition is to use public power to interfere with traders’ rights ot free will, business freedom, to
limit those rights to certain levels so they won’t harm business environment as well as other market
participants.
2.1.2. Brief history of legal provisions of anti-competition
In mankind’s history, the anti-competition law was born much later compared to the unfair
competition law. Since it was developed, the anti-competition law has become an effective tool to
protect competition, business enviroment, economic factors and consumers from anti-competitive
activities.
2.1.3. Concepts of anti-competitive cases and anti-competitive cases handling
- Anti-competitive case: means a competition case, showing signs of violation of anticompetitive provisions, which is investigated, handled in accord with the competition law including
anti-competitive agreements, abuse of a dominant position, abuse of monopoly position.
- Anti-competitive cases handling: refers to “procedural steps, stages following sequences
with the participation of agencies, organizations, individuals depending on authority as prescribed
in the law so as to handle anti-competitive cases” or can be understood as “activities taken by

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agencies, organizations, individuals following sequences, procedures as prescibed in the
competition law to handle anti-competitive cases”.
2.1.4. Typical characteristics of anti-competitive cases handling procedures
The handling of anti-competitive cases is characterised legally as follows: it is a uniquely
proceedings to handle anti-competitive cases; it is a mix of administrative and legal procedure; it is
differentiated from unfair competitive cases handling.
2.1.5. Basic principle of anti-competitive cases handling

- Principle of assurance of the right to filing a claim or lawsuit under the anticompetitive cases handling procedures:. The right to filing a claim or lawsuit of relevant parties in
accord with legal proceedings of anti-competitive cases handling is reflected in two contents:
Firstly, any organizations, individuals’ right to filing a claim or lawsuit to competent agencies is
assured, which means any organizations, individuals are entitled to request investigation, handling
of anti-competitive activities that violate the law, harm or threaten to harm their rights or legal
interests; Secondly, any organizations, individuals are entitled to initiate a complaint against a
settlement decision of an agency that issues the decision if they think the decision is against the
law, unfair, harms their rights and legal interests.
- Principle of assurance of the right to dispute under the anti-competitive cases handling
proceedings: One of important reforms on competition law of nations and territories in the past was
to strengthen the right to litigation, defending of the complainant, the investigated party. The right
to defending is reflected in all stages of anti-competitive cases handling: from the stage of
investigation to the stage of making decision of settlement.
- Principle of assurance of the right to a fair trial: In the process of competition agencies’
investigation, handling of an anti-competitve case, parties concerned are treated equally before the
law; the handling of the anti-competitive case must undergone more thant one trial level or the
competition law must design a certain special process to ensure that in case the parties claim the
settlement decision is unfair, they are entitled to request a higher authority than the agency that has
issued the decision to review the decision; anti-competitive cases handling must be overseen by
society, communities, enterprises and consumers to ensure objectivity.
- Principle stipulating that persons or members of settlement agency must be
independent and obey the law only: To ensure anti-competitive cases handling are objective and
lawful, to protect the legitimate rights and interests of enterprises, consumers and the State, the
competition laws must guarantee that competition authorities operate independently and
transparently, and individuals who are authorized to participate in the handling must be
independent and only obey the law when implementing the assigned tasks.
- Principle of assurance of right and legal interests of enterprises, protection of business
confidentiality: In the competition proceedings and the anti-competitive cases handling procedures,
this principle ensures that the application of measures in handling anti-competitive cases by
agencies, conductors are not allowed to violate the rights, legal interests of enterprises.

2.2. Basic contents of anti-competitive cases handling
2.2.1. Legal basis that cause anti-competitive cases
The anti-competition law and the anti-competitive cases handling procedures of nations
can be different greatly but basically they have one thing in common that is procedural activities

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are used to start handling an anti-compeitive case when there is one of two bases as follows: firstly,
following and based on the complaint or a claim by agencies, organizations, individuals that are
entitled to filing for a claim or lawsuit in accord with the competition law; secondly, based on the
authority of competition agencies regards initiation of opening of competition procedures for the
purposes of investigation, handling of anti-competitive activities that violate the competition law.
2.2.2. Authority of handling of anti-compeititve cases
In nations, it is stipulated in the competition law which agency is authorized to handle anticompetitive cases. In fact, such an agency will be named differently and its scope of authority will be
different also. Investigation and handling are always seperated so as to ensure that settlement is
objective and accurate. In case investigation and handling are carried out by the same agency, there are
specialized divisions set up to perform these functions.
2.2.3. Stages of handling of anti-competitive cases
- Investigation of anti-competitive cases
Investigation is a compulsory stage in competition proceedings and anti-competitive cases
handling. Accordingly, competition agencies are authorized to apply necessarily technical measures
to determine behaviors and conductors violating the competion law as a basis for handling purpose.
- Handling of anti-competitive cases
After the investigation is done, the anti-competitive case will be handed over to a
competent authority according to a certain process for handling. Such an authority is stipulated in
the law, so it can be a specialized court set up to handle activities of violatiion of the competition
law or the handling is assigned to a competion agency. According to the law and practices of many
countries, especially in EU, the handling can be suspended in case the complainant withdraws the
complaint and after investigation, the competition agency finds no ground to go on handling the

case.
- Filing for claim or lawsuit against decision on settlement of an anti-competitive case
The anti-competitive cases handling always includes the right to lodge a complaint of
relevant parties with a higher authority in case of disagreement with a part or the whole of a
settlement decision. However, depending on the law, the competent authority that “reviews” the
decision can be a higher authority (of the agency that has issued the decision), an administrative
court, an ordinary court or a specialized court.

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Chapter 3:
REVIEW OF PROCEDURES AND PRACTICES OF ANTI-COMPETITIVE CASES
HANDLING IN VIETNAM TODAY
3.1. Situation of legal provisions of entities implementing and participating in
handling of anti-competitive cases
Because anti-competitive cases are a kind of competition cases to be investigated, handled
according to provisions of the competition law, the entiries that conduct and involve in handling the cases
are also the ones that conduct and involve in competition proceedings as stipulated in the Competition
Law 2014 and now the Competition Law 2018.
3.1.1. Competition Prosiding Agencies
In the Competition Law 2004, competition presiding agencies include competition
management agency and competition council (Article 74). In the Competition Law 2018,
competition presiding agencies include National Competition Commission; Anti-competitive
settlement council; Anti-competitive complaint handling council; and Competition Investigation
Agency (Article 58).
3.1.2. Competition Prosiding Officers
In the Competition Law 2004, competition prosiding officers include competition council
members; head of the competition management agency; and hearing clerks (Article 75). In the
Competition Law 2018, they include President of the National ompetition Commission; President

of the anti-competitive settlement council; Members of the anti-competitive settlement council;
Members of anti-competitive complaint handling council; Head of Competition Investigation
Agency; Investigators; Hearing clerks (Arcile 58).
3.1.3. Participants in competition legal proceedings
According to the Competition Law 2004, participants in competition legal proceedings
include complainants; investigated parties; lawyers; witnesses; expert witnesses; interpreters; and
others with relevant rights and obligations. The Competition Law 2018 adds the investigated party
and persons protecting legitimate rights and interests of the complainant, respondent,

investigated party, persons with related interests and obligations.
3.2. Review of Legal Provisions of Initiation of Handling of Anti-competitive Cases
3.2.1. Initiation of Handling of Anti-competitive Cases at the Request of the
Complainant
Article 58, the Competition Law 2004 and Article 77, the Competition Law 2018 stipulate
that: “The organizations, individuals assuming that their rights and interests are breached due to
violations of this Law (hereinafter referred to as a complainant) shall have the right to lodge
complaints against the Competition Management Agency (or the National Competition
Commission as stated in the Competition Law 2018)”. The Competition Law 2018 even mentions
that within the time the National Competition Commission verifies if the compliant dossier is
complete and valid, the complainant shall have the right to withdraw the complaint dossier and this
behavior will result in a legal consequence that is the Commission will stop the assessment of the
dossier.
Regards provision of evidence, Article 58 of the Competition Law 2004 and Article 77 of
the Competition Law 2018 prescribe the complainant is obligated to provide evidence to prove the

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violation. Decree 116 specifies at Clause 1 Article 74 that: “The complainant, meaning a person
with rights and interests is requested independently to provide evidence to prove contents of the

complaint have ground and legality”.
3.2.2. Initiation of Handling of Anti-competitive Cases Following the Authority of
Competition Agency
According to the competition law in Vietnam today, anti-competitive cases handling will be
initiated at the request of the complainant and on the basis of proactivity of the competition agency
which is tasked with protection of “competition order” in the economy. According to the
Competition Law 2004 and the Competition Law 2018, detection of activities that have signs of
violation of the competition law is one of two bases for the competition agency to initiate handling
of anti-competitive cases.
3.2.3. Time Limit of Initiation of Handling of Anti-competitive Cases
Articles 58, 65 of the Competition Law 2004 prescribe the time limit of making complaint
against competitive cases, the time limit for making decision of investigation in case the
competition agency detects acts with signs of violation of competition law is within two years since
the date the acts with signs of violation are committed. Due to inappropriateness, the Competition
Law 2018 increased the time limit of making complaint against anti-competitive case and the time
the National Competition Commission investigates the acts with signs of violation of competition
law from two years to three years at Clasue 2 Article 77 and Clause 2 Article 80. Regars time limit
of making complaint, according to Articles 58 and 65 of the Competition Law 2004 and Articles 77
and 80 of the Competition Law 2018, the time limit of making complaint against competition case
and the National Competition Commission makes decision of investigation is counted from the
time the acts with signs of violation of competition law are committed.
3.2.4. Initiation of Handling of Anti-competition Practices Taken Place Outside the
Territory of Vietnam but Cause or May Cause Anti-competition Effect on the Market of Vietnam
The Competition Law 2004 only made amendment to acts of enterprieses of Vietnamese
nationality and that of forieng enterprises operating in the territory of Vietnam. Therefore, according to
the Competition Law 2004, there was no clear legality to adment the anti-competitive practices taken
place outside the territory of Vietnam but may have negative effects on the competition market of
Vietnam. In order to address this weakness of the Competition Law 2004, Article 1 of the Competition
Law 2018 prescribes “This law sets forth anti-competitive practices, economic concentration that causes
or may cause anti-competitive effect on the market of Veitnam…” This provision is in line with the

world practices and the requirement of practical amendment of the market of Vietnam.
3.3. Riview of Legal Provisions of Investigation of Anti-competitive Cases
3.3.1. Entities of Investigation of Anti-competitive Cases
According to the Competition Law 2004, the entities of investigation of anti-competitive
cases include the Competition Management Department and investigators. According to the
Competition Law 2018, because the Competition Management Agency (the Competition
Management Department) and the Competition Council were merged to set up the National
Competition Commission, investigation and handling of anti-competitive cases is under the
authority of the National Competition Commission which is the highest agency with duties and
power of investigation. The agency that carries out investigation of competitive cases is referred to

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as an assistant to the National Competition Commission in implementing the duty of investigation.
In addition, the investigation is included of competition prisiding officers who are heads and
investigators of the competition investigation agencies according to duties as assigned.
3.3.2. Process of investigation of Anti-competitive Cases
According to the Competition Law 2004 and the guiding documents, the handling of anticompetitive cases is staged into preliminary investigation and official investigation. According to
the Competition Law 2018, because there is no preliminary investigation, official investigation is
implemented as soon as the head of the Competition Investigation Agency issues competition
investigation decision (Article 80).
3.3.3. Time Limit of Investigatiion of Anti-competitive Cases
The time limit for investigation of anti-competitive cases according to the Competition
Law 2004 was 210 days and could be extended to 120 days. For additional investigation, the time
limit was within 60 days (Clause 2 Article 96). The time limit of the Competition Law 2004 was
said unreasonable and too soon for investigation of anti-competitive cases. The Competition Law
2018 prescribed the time limit for investigation of anti-competitive cases is nine months from the
date of investigation decision. In case of complicated case, it can be extended once but not
exceeding three months (Article 81). So, according to the Competition Law 2-18, the time limit is

twelve months including extention (if any).
3.3.4. Contents of Investigation of Anti-competitive Cases
According to the Competition Law 2004, regards investigation of anti-competitive cases,
investigation contents or requirements are defined for each stage, specifically: + Premilinary
investigation is a basis for issue of official investigation cases; + Official investigation aims to
detect the relevant market, market shares of the investigated party, income and evidence of
violation.
3.3.5. Investigation Findings of Anti-competitive Cases and Legal Consequences
After receiving the investigation report and dossiers of anti-competitive cases, the
President of the National Competition Commission will issue decision to set up Competitive Case
Settlement Council. The Council then studies the case dossiers and investigation report so as to
make one of the three decisions, specifically: firstly, opening of a hearing; secondly, returning
dossiers for further investigation; and thirdly, suspending of hanlding of anti-competitive case.
3.3.6. Tranfer of anti-competitive case dossiers showing criminal signs
In Vietnam, the Competition Investigation Agency has no function of investigation of
criminal cases, therefore, in a case where signs of crime are detected, investigators must report it to
the Head of the Competition Management Agency for consideration of referral of the dossiers to
the State body with authority to institute a criminal prosecution (Article 94, the Competition Law
2004).
3.3.7. Application of Administrative Preventive Measures in Handling of Anticompetitive Cases
Article 61 of the Competition Law 2004 prescribed the application of administrative
preventive measures, accordingly “The head of the administrative body for competition and the
chairman of the Competition Council shall have the right to apply a number of administrative
preventive measures in accordance with the laws on dealing with administrative offences in the

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circumstances stipulated in Clause 6 Article 76 and Clause 4 Article 79 of this Law.”
According to Article 88 of the Decree 116, administrative preventive measures in

investigation, handling of anti-competitive cases are included: 1) Temporary detention of a person
in accordance with administrative procedures; 2) Temporary detention of material evidence and
facilities in breach of the laws on competition; 3) Body searches; 4) Searches of vehicles and other
objects; 5) Searches of places used to hide material evidence and facilities in breach of the laws on
competition. According to the Competition Law 2018, application of measures to prevent and
guarantee imposition of sanctions against administrative violations in investigation and settlement
of competition cases is prescribed shortly at Clause 1 Article 82, specifically: “During the
investigation and settlement of competition cases, the President of the National Competition
Commission, within his/her competence, shall require competent authorities to apply measures to
prevent and guarantee imposition of sanctions against administrative violations in accordance with
law on sanctions against administrative violations: 1) Temporarily seizing exhibits and means of
violations, licenses, practicing certificates; 2) Searching means of transport and objects; 3)
Searching locations suspected to store exhibits and means of violations”, and the Government shall
set forth procedures for application of these measures (Clause 2, Article 82).
3.3.8. Suspension and re-establishment of investigation
Suspension of investigation of competitive-cases means no longer or stop handling the
cases but it must occur during the investigation period and within authority of the investigation
agency. The Competition Law 2018 contains amendments to this particular issue by stipulating that
in case investigation show evidence to prove violation can’t be taken the Head of the Competion
Investigation Agency is authorized to issue a decision to suspend the investigation. Moreover, the
investigation of a competition case can be suspended in case the Competition Investigation Agency
considers the continuity of the investigation is no longer needed.
3.4. Review of the Legal Provisions on Issuing a Decision to Handle Anti-competitive
Cases
3.4.1. Hearings
According to the Competition Law 2004 and the Competition Law 2018, anti-competitive
case settlement must go through hearings. A hearing is like a trial in accord with a proceeding
before a court. Members of the Competition Case Settlement Council must resolve all issues of the
anti-competitive case through voting on each issue according to the majority principle.
3.4.2. Cancelling of handling of anti-competitive cases

According to the Competition Law 2004, suspending of anti-competitive case settlement
was stipulated at Article 101: The council dealing with the competition case shall issue a decision
to stay resolution of a case within the authority for resolution of the Competition Council in the
following circumstances: “+Where the head of the administrative body for competition proposes a
stay of resolution of a case because there is insufficient evidence to prove practice in breach of the
provisions of this Law and the council dealing with the competition case agrees that such proposal
is legitimate; + The parties subject to investigation have terminated voluntarily the practice in
breach, remedied the consequences caused, and the complainant has withdrawn voluntarily the
complaint; + The parties subject to investigation have terminated voluntarily the practice in breach
and remedied the consequences caused, and the head of the administrative body for competition

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proposes a stay of resolution of the case.”
3.4.3. Dealing with Damage Claim Lawsuits Caused by Anti-competitive Pracrices
According to the current competition law in Vietnam, the issue of compensation for damage
caused by violations of anti-competition for organizations, individuals is not mentioned. In Clause 3
Article 117 of the Competition Law 2004 and Article 110 of the Competition Law 2018 the issue of
compensation for damage caused by violations of completion law is referred to the provisions on noncontractual compensation for damage in accord with civil law.
3.5. Review of Legal Provisions on Dealing with Complaints against Anti-competitive
Cases Handling Decision and Administrative Cases of Complaint Settlement Decision
According to the Competion Law 2004, if the involved parties disagree with part or the
whole of the anti-competitive case handling decision, they may make complaint to the National
Competion Commission (Clause 1 of Article 107). The Commission is authorized to deal with
complaints against competitive case handling decisions issued by the Competition Case Council.
According to the Competion Law 2018, the National Competition Commission has authority of
dealing with complaint against anti-competitive case handling decisions not the Competition
Council (Article 96).
According to Article 115 of the Competition Law 2004, in case of disagreement with the

decisions to settle complaint about competition case handling decision, the involved parties shall may
initiate administrative lawsuits against part or the whole of the content of such decisions at the
competent provincial/municipal People’s Courts.
3.6. Practices of Application of Provisions on Dealing with Anti-competitive Cases in
Vietnam in the Past
After twelve years of implementing the Competition Law 2004, in 2017, as stated in the
“Report of Twelve Years Implementing the Competition Law” by Ministry of Industry and Trade,
the number of anti-competitive cases that have been detected, investigated, and handled was very
few. There were eight cases on anti-competitive agreement, abuse of a dominant position, abuse of
a monopoly position investigated by the Competition Management Agency. Among them, only six
cases were handled in accord with the Competition Law by the National Competition Commission.
Thus, it is clear that that number is highly incompatible with the market nature which indicates
poor effectiveness of procedures of anti-competitive case handling and the Competition Law in the
past time.

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Chapter 4: SOLUTIONS OF IMPROVEMENT OF PROCEDURES OF
ANTI-COMPETITIVE CASES HANDLING IN VIETNAM
4.1. Orientations for Completion of Procedures of Anti-competitive Cases Handling in
Vietnam Today
4.1.1. National and International Contexts
- National context: After 12 years of enforcement of the Competition Law 2004, it was
said the Law show low effectiveness. On June 12, 2018, the Revised Competition Law 2018 was
adopted by the National Assembly to replace the Competition Law 2004 since July 1, 2002. The
Competition Law 2018 has new features compared to the Competition Law 2004. However, there
are still many limitations and shortcomings, for different reasons, lawmakers have not mentioned
or can not have comprehensive and synchronous solutions, such as solving complaint against
compensation due to damages caused by violations, the application of administrative preventive

measures in the investigation and handling of anti-competitive cases, the issue of assurance of the
right to make complaint against settlement decision by organizations and individuals...
- International context: The world economy in recent years has constantly moved in the
direction of linking between countries and territories to form larger market areas. In this context,
with the requirement of market protection, the detection, investigation and handling of anticompetitive acts that cause or may case negative effects on the competitive market is no longer a
separate task of each country but a common task of all countries where anti-competitive behaviors
of corporations and multinational companies can affect.
4.1.2. Orientations
The completion of procedures of anti-competitive cases handling in Vietnam must follow
the following directions: ensuring compliance with international the bilateral and multilateral
commitments that Vietnam has participated; improving the efficiency of handling of anticompetitive cases and the effectiveness of competition law enforcement; ensuring the
implementation of the competition state management function of competition authorities while
ensuring the legitimate rights and interests of all concerned organizations and individuals; ensuring
the consistency of the legal system.
4.2. Measures of Completion and Improvement of Handling of Anti-competitive Cases
in Vietnam Today
4.2.1. Measures of Law Completion
4.2.1.1.Measures of Law Completion in the Stage of Opening Procedures of Handling of
Anti-competitive Cases
- Time limit of a complaint: The Competition Law 2004 defines the time limit for a
complaint to be 2 years, the fact that the Competition Law 2018 increases from 2 years to 3 years
but applies to both unfair competition cases and anti-competitive cases is not reasonable. In order
to ensure the prescription of the time limit for each type of cases, it is necessary to have regulations
on time limit applicable specifically to anti-competitive cases and unfair competitive cases and at
the same time increasing the time limit for making complaints, investigation, and handling of anticompetitive cases.
- Caculation of the time limit of a complaint: According to Articles 58, 65 of the
Competition Law 2004 and Articles 77, 80 of the Competition Law 2018, the time limit for

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complaints about competitive cases is calculated from the date when the acts with signs of violation
are committeed. In fact, there are cases where violations have occurred for a long time before they
are discovered and when discovered, the time limit for complaint has expired but the bad effects
are detrimental to the competitive environmen or the damage that the behavior caused to
competitors and consumers still exists. In order to ensure the effectiveness of the investigation and
handling of anti-competitive acts and protection of legitimate rights and interests for damaged
organizations and individuals, at present, the competition law of many countries counts the time
limit starting from the date the complainant or the competent agency discovers the violation,
especially in the complaints (lawsuit), accompanied by a claim for compensation. In the regulation
of compensation for non-contractual damages of the Civil Code 2015, Article 588 also stipulates
the time limit for initiating lawsuits to claim damages is 3 years from the date the person having the
right to request to know or have to know his/her legal rights and interests to have been violated.
The difference in the way of calculating the time limit for a complaint between the Competition
Law and the Civil Code leads to a real situation where the complainant realizes that his/her
legitimate rights and interests are violated by anti-competitive acts and starts making complaint in a
court to claim damages, the time limit for initiating a lawsuit still remains but the time limit for
investigation and handling of the anti-competitive acts has expired. Regulations on how to calculate
the time limit between the Competition Law and the Civil Code must ensure consistency because in
fact, these are the two stages in the same process of general proceedings (implemented by the
competition authority and the Court) in order to resolve fully the complainant’s request for
handling violations of the competition law and claiming for compensation.
- Obligation of proof of the complainant: Because they are stipulated too general in the
competition law, the provisions on the complainant’s obligation of proof are poorly encouraging,
even difficult for organizations and individuals to implement their right of making complaint, and
limit possibilities to detect, investigate and handle violations of competition laws. The competition
law should split the obligation of proof into specific types of cases.
- Opening of handling of anti-competitive cases taken place outside of the territory of
Vietnam: the expansion of the scope of adjustment as in the Competition Law 2018 is appropriate
and ensures the legal basis for Vietnam’s competition authority to cooperate with competition

agencies of other countries in the process of investigating and handling anti-competitive cases of
"cross-border" nature, meaning anti-competitive practices done outside Vietnam but have effect on
the competitive market of Vietnam. With such a relatively wide scope of application as in Article 1
of the Competition Law 2018, this provision will be difficult to enforce in practice. The
competition law should only be applied to acts that cause anti-competition in a "direct" and
"foreseeable" or "clear" way to the market of Vietnam and should be limited to certain commercial
activities to ensure that the principle of "territorial competence" can be realized in practice.
4.2.1.2. Measures of Law Completion in the Stage of Investigation
- Use of indirect evidence:
In the stage of investigation of anti-competitive cases, competition agencies in the world tend to
accept and use more indirect evidence in case there is not enough direct evidence. Vietnam’s
competition law, perhaps, should also recognize the value of indirect evidence in the investigation and
handling of anti-competitive cases.

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- Application of administrative preventive cases:
It is necessary to affirm that administrative measures to prevent and ensure handling of
anti-competitive cases are extremely important tools for agencies and officers conducting legal
proceedings to effectively carry out investigation and handling of anti-competitive cases. Thus, the
inconsistency between the Law on Handling of Administrative Violations 2012 and the
Competition Law are forecast to lower the effectiveness of the application of administrative
preventive measures - an extremely important too in investigation and handling of anti-competitive
cases. We believe that the contradiction between legal documents and how to correct them is the
work of lawmakers, but to ensure the effectiveness of the anti-competitive cases handling and the
implementation of the Competition Law in general it is necessary to stipulate the authority to apply
administrative preventive measures to the head of the competition authority, and this is also
consistent with international practices experience. The competition law also needs to stipulate the
right of the complainant to request the President of the National Competition Commission to apply

administrative preventive measures right from the filing of a complaint to ensure the value of "the
need to protect evidence immediately, prevent serious results possibly occuring in an emergency"
of this measure, not after an investigation decision has been made to apply. At the same time,
temporary emergency measures, if specified in the Competition Law, should also have more
measures (such as prohibiting or forcing organizations or individuals to perform certain acts) in
addition to measures as stipulated in Clause 1 Article 82 of the Competition Law 2018 to prevent
serious damages that may occur, not just to collect evidence for the investigation or temporary
seizure of material evidences, vehicles of violations, licenses, practice certificates to ensure the
handling of administrative violations as today.
4.2.1.3. Measures of Law Completion in the Stage of Issuing Anti-competitive Cases
Decision
- Regarding the inheritance of existing regulations on hearings and further clarifying
these provisions in the Decree on guiding the implementation of the Competition Law 2018:
The contents related to hearings have been mentioned in the Competition Law 2004 and
Decree 116, which provide very specific, detailed, assurance of the litigation, the objectivity, the
right to "defend" in a very complete way of the complainant, the party subject to investigation and
the obligee involved in anti-competitive cases handling, ensuring an independent role and only
obeying the law of the Council members in hearings. These regulations are completely in line with
the basic principles of the anti-competitive case handling and common practices in the world. The
contents that have been specified in the contents of the hearings, the procedures for litigation at the
Provincial People's Committee should be continued to ensure the effectiveness of the Competition
Law 2018.
- On Establishment of Close Relations between the Competitive Cases Investigation
Agency and the Anti-competitive Cases Handling Council
The Competition Law 2018 tackles a huge limitation of the Competition Law 2004 in
building a model of competition authority in Vietnam, whereby establishing a single competitive
agency which is the National Competition Commission to carry out both functions of investigation
and handling of anti-competitive cases at the same time with the aim of creating uniformity of
handling of anti-competitive cases and the smooth coordination between agencies and officers

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implementing competition proceedings. However, this purpose will be highly effective only if the
competition law clarifies the coordination relationship between the Competitive Case Investigation
Agency and the Anti-competitive Cases Handling Council during the stage of investigation and
handling of cases. Accordingly, when conducting an investigation, investigators or investigating
agencies need to consult with members of the National Competition Commision to ensure that the
investigation contents are fully complied with the requirements of the latter. In the opposite
direction, when handling the case, the Anti-competitive Handling Council also needs the opinion of
the investigating agency before making decisions such as: suspending the handling of anticompetitive cases as stipulated in Article 92 of the Competition Law 2018; handling the anticompetitive cases in accordance with Article 94 of the Competition Law 2018 or return the file to
request further investigation. Establishing such a link in the competition law will ensure of no
increase of the time of settlement because no additional investigation is needed, and the accuracy
and the legality of the decision are ensured.
- On Dealing with Request of Compesation Caused by Anti-competitive Practices:
According to the current law of Vietnam, the settlement of claims for compensation to
organizations and individuals due to violations of competition laws and acts of violation of law is
implemented by Civil Court in accordance with civil proceedings based on the regime of
compensation for non-contractual damages of the Civil Code 2015. In case the damaged
organization or individual does not lodge a complaint with the Competition Management Agency
so that later the settlment decision will be used as a basis for claiming compensation before the
Court and initiate a lawsuit directly at the Court ignoring the handling under the Competition Law,
the settlement will face many difficulties.
Accordingly, measures proposed for the afore mentioned case can only be:
+ First: establishing a close legal relationship between the competition authority and the
Court, in which, if the damaged organizations or individuals exercise the right to complain before
the competition authority accompanied with the request to compensate for damage, the competition
authority shall process, investigate and issue decisions to handle according to its competence then
transfer the compensation claim to the Court for settlement.
+ Second: If the damaged organizations or individuals exercise the right to initiate lawsuits

at the Court first, the Court must have the right to request the competition authority to conduct
investigation and issue handling decisions, clearly determining the illegality of the acts as a basis
for the Court to settle damages. In the handling process under the Competition Law, the
competition authority can apply administrative sanctions and market remedies to ensure its state
management function on competition.
4.2.1.4. Measures of improvement of the law in the stage of dealing complaints against
anti-competitive cases handling decision and initiating administrative cases.
The Competition Law does not contain any provision for the case where the complaint
settlement decision is suspended a part or the whole by the Administrative Court according to its
authority. According to Point d, Clause 2, Article 193 of the Law on Administrative Procedures
2015, the First Instance Trial Court of the Administrative Court is entitled to "Accept a part or the
whole of the petition to initiate a lawsuit, declare partial or total cancellation to settle complaints
about anti-competitive cases handling decisions; Force competent agencies and persons to issue

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decisions to settle complaints about competitive cases handling decision according to the
provisions of the Competition Law ”.
Thus, the content of "forcing competent agencies and persons to issue decisions to settle
complaints about the anti-competitive case handling decision in accordance with the provisions of
the Competition Law" of Point d, Clause 2, Article 193 of the Law on Administrative Proceedings
2015 are also not really clear and difficult to implement satisfactorily, because the authority
competent to issue competitive case handling decisions under the Competition Law 2004 is the
National Competition Commission, in this case, the Commisison will transfer the case to the
Competitive Case Handling Council to re-handle or will re-organize the settlement of complaints.
It should also be noted that the subject of lawsuits at the Administrative Court is the decision to
settle complaints about the competitive case handling decision, not the competitive case handling
decision, so in principle, the Commission must deal with the complaint but cannot assign the case
to the Competitive Case Handling Council for settlement according to the provisions of Point d,

Clause 2, Article 193 of the Law on Administrative Procedures. This issue needs to be clarified in a
document guiding the implementation of the Competition Law 2018. The absence of a specialized
institution such as the Competition Court and a specialized process to handle competitive cases
and anti-competitive cases forces us to borrow another procedural process (e.g.: administrative
procedures for competition) resulting in the consequence that the anti-compeitive case
handling procedure has not been synchronized and failed to ensure the rights and interests of
the parties concerned. In the long term, with the model where a competition agency deals with
anti-competitive cases in terms of aministrativeness, the court deals with complaint on
compensation, we should establish a type of court in charge of competition in the court system
and the competition court will be delegated the authority to review decisions on handling of
competitive cases by the National Competition Commission when being appealed.
4.2.2. Additional Measures
- Recognize the role of "case law" and the role of the National Competition
Commission in providing professional guidance in the competitive field: In the world, case law
plays a particularly important role in the field of competition, especially in dealing with
competitive cases. The reason why case law has a particularly important role in dealing with
inequality and in cases of anti-competition is because of the competition law itself, which is a tool
to implement competition policies and help the State run the economy so it is often more "flexible"
than other legal areas, in addition due to the complex and unpredictable nature of competitive
activities, competition laws are usually only valid as a "framework law." In Vietnam today,
although the Competition Law is always guided by sub-law documents like the Government’s
decrees, even though, the documents under this law cannot anticipate all problems of reality that
may arise when applying the provisions of the Competition Law, especially the regulations on
competition proceedings because of the complexity of this activity. Therefore, the recognition of
the value of decisions of handling of competitive cases and anticompetitive including the
application of the law of contents and the law on procedures to serve as a basis for settlement are
absolutely necessary. At the same time, the professional and technical guidelines of the competition
authority for prosiding agencies and prosiding offiers are also important for these subjects when
participating in handling of anti-competitive cases (e.g.: investigation) because they complement

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the absence of specific provisions, details in the Competition Law and the Enforcement Decrees.
- Building capacity for prosiding officers: The effectiveness of handling of anticompetitive cases depends very much on the qualifications, abilities, experiences and skills of the
prosiding officers. In particular, it is particularly important that the members perform the task of
investigation and the participating members perform the task of handling of anti-competitive cases.
Currently, the handling of anti-competitive case is carried out through a hearing similar to a trial in
accordance with the principle of litigation in the judiciary. Therefore, for the members of the
National Competition Commission, when participating in the Anti-competitive Handling Council,
they must be trained in general legal knowledge (previously, they were only trained on economic
and financial knowledge) and especially a judge's skills.
- Awareness increase of competition law for enterprises and consumers: As a market
participant and subject to abuse or impact of anti-competitive acts taking place in the market,
businesses and consumers must have a certain understanding of competition law and legal
regulations on handling of anti-competitive cases because of some reasons: First, businesses
understand the harmful effects of anti-competitive behaviors and sanctions may be incurred in the
case of implementing such acts, thereby increasing the effectiveness of "prevention" of competition
law; Second, help businesses and consumers understand their rights (such as the right to complain
and provide information about violations to competition authorities) when they suffer from anticompetitive acts or when discover acts showing signs of violating the Competition Law. On that
basis, businesses and consumers will be more aware of their responsibilities in accompanying
competition agencies and other state management agencies to fight and eliminate illegal acts of the
market.
CONCLUSIONS
Experience of countries with a long history of building and enforcing anti-competitive
legislation in the world has shown that: for competition laws to be implemented effectively in
prevention, control and abandoning anti-competitive acts in the market, lawmakers must pay
special attention to building a competition proceedings, ensuring objectivity, fairness and efficiency
in handling of anti-competitive cases. The proceedings is a complicated, specific, complex mixture
of various types of proceedings such as civil proceedings, administrative proceedings, criminal

proceedings, designed with various stages such as receipt of information about cases, investigation,
collection of evidence, making judgments, handling of complaints and initiation of lawsuits with
the participation of many related subjects including the prosiding agency, prosiding officers.
In Vietnam today, the borrowing of the rules of civil, administrative, criminal procedures
and handling of administrative violations have made the anti-competitive cases handling in accord
with the Competition Law 2004 a complicated, inconsistent procedure and difficult to enforce. The
Competition Law 2004 and Decree No. 116/2005/ND-CP guiding the implementation of the
Competition Law 2004 have only basically described the procedural process, the transformation of
legal frameworks into acts require the competent prosiding authorities and persons to be competent
and experienced. The fact that the lawmakers in Vietnam combined the parts of unfair competition
and anti-competition in the same law and established a common competition proceedings for both
types of competitive cases meaning unhealthy competition and anti-competition which are so

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different in nature also lead to great difficulties in building effective competition proceedings.
Because, if the unfair anti-competition law is not healthy meaning that should be a "private law",
protect the interests of consumers and businessmen who can be damaged by violation of ethics and
good tradition, the law on anti-competition which is basically a "public law" in nature will ensures
the State's power in interventing effective so as to preserve competition.
According to the international experience, in order to handle anti-competitive cases
effectively, the Competition Law must establish an authority system which is competent,
indepedent, and capable of running the proceedings including investigation, issue of decision; a
contingent of staff with good professional qualifications, experience and moral qualities. In
Vietnam, the system of competition agencies is now determined to include Competition
Management Department and the National Competition Commission. These two agencies were
established under Decree No. 05/2006/ND-CP and Decree No. 06/2006/ND-CP of the Government
dated 9 January 2006. The fact that Competition Management Department is located in the
Ministry of Industry and Trade may cause doubts of the possibility of "independent" operation and

the authority if it is strong enough in investigation. The fact that the competition authority system
consists of two separate agencies of the Competition Management Department and the National
Competition Commission which undertake investigation and handling makes it difficult to ensure
uniformity, coordination and good operation in dealing with the anticompetitive cases ...
On 12th December 2018, at the Fifith National Assembly Session XIV, the Competition Law
2018 was officially passed to replace the Competition Law 2004 since July 1st, 2002. In overall, this
is an elaborately constructed law with new and positive points including new regulations on anticompetitive cases handling prcedures so as to overcome the limitations encountered by the
Competition Law. 2004 e.g. a merger between the Competition Management Department and the
Competition Council to establish the National Competitioin Commisison, thereby unifying the
function of investigation and handling in a unified body.
However, from a theoretical perspective, many provisions of the Competition Law 2018
are still considered unreasonable and can reduce the enforcement of this Law in practice.
According to the Competition Law 2018, the "judicial" factor is still more fuzzy than the
"administrative" factor in the provisions of handling of anti-competitive cases. Legal provisions
still focus on implementing the functions of the competition authority rather than focusing on
protecting legitimate rights and interests of businesses and consumers. Many provisions on
handling of anti-competitive cases and unfair competitive cases have not been clearly separated as
provision on time limit or obligation of proof... make such regulations unreasonable.
Thus, both in terms of theory and practice, thorough research on the legal nature of of
hanlding of anti-competitive cases, the rationality or irrationalities of the relevant legal provisions
to this type of procedure in Vietnam today including the provisions of the Competition Law 2004
and the new provisions of the Competition Law 2018 so as to propose orientations for further
improvement are highly necessary to improve the enforcement of competition laws in practice.
The author of the dissertation, through reviewing research (Chapter 1), studying the basic
legal issues of handling of anti-competitive cases (Chapter 2), analysing and evaluating the existing
legal provisions on handling of anti-competitive cases as well as the enforcement of those
regulations in dealing with anti-competitive cases (Chapter 3) from which to set forth specific

20

directions and solutions for completing the handling of anti-competitive cases in Vietnam (Chapter
4).
The dissertation has provided specific measures to complete and improve the
implementation efficiency of handling of anti-competitive cases in Vietnam today including
perfecting the law corresponding handling stages such as receipt of complaints and opening
settlement procedures; investigation; handling; dealing with complaints and settlement decisions,
and initiation of administrative lawsuits… and other complementary measures.

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