Sunday, February 20, 2011

A CRITIQUE OF PHILIPPINE ANTI-TRUST LAWS

Atty. Lorna Patajo-Kapunan was a resource speaker at the second "Understanding Anti-Trust" Public Forum held at the Philippine Senate last February 10, 2011. Atty. Kapunan gave a detailed and very informative talk on previous and existing anti-trust laws in the Philippines, the issues surrounding what she described as these "scattered" provisions, and the need for a comprehensive anti-trust framework. A brief outline of Atty. Kapunan's presentation during the public forum appears below:


A Critique of Philippine Anti-Trust Laws
by Atty. Lorna Patajo-Kapunan
Senior Partner
Kapunan Lotilla Garcia & Castillo Law Offices


Various Existing Anti-Trust Laws in the Philippines
  • THE PHILIPPINE CONSTITUTION, Article XII, Section 19
  • The Revised Penal Code of the Philippines, Article 186
  • The New Civil Code of the Philippines, Article 28
  • Republic Act No. 7394, the "Consumer Act of the Philippines"
  • Republic Act No. 7581, the "Price Act"
  • The Corporation Code of the Philippines, Section 79
  • The Intellectual Property Code of the Philippines
  • Republic Act No. 8479, the "Downstream Oil Industry Deregulation Act of 1998"
  • Republic Act No. 7042, the "Foreign Investments Act of 1991"
  • Republic Act No. 8762, the "retail Trade Liberalization Act of 2000"
Problems of the Current Anti-Trust Laws
  • All laws relating to anti-trust are scattered in different codes.
  • Existing anti-trust laws do not provide for clear-cut guidelines, elements/requisites or evidence to determine whether an act constitutes unfair competition, monopolistic behavior or restraint of trade.
  • Lack of judicial experience in determining anti-trust laws, caused also by inadequate laws.
  • Need for proper body to determine whether there was any violation of anti-trust laws.
"In the case of SEDI and FDI 2 vs. Nestle Philippines, Inc., the DTI refused to assume jurisdiction over an administrative complaint for violating Article 186 of the Revised Penal Code, which is a trade and industry law. DTI itself is confused with its jurisdiction when it ruled that the proper office to assume jurisdiction is the DOJ because Article 186 of the Revised Penal Code is a penal law."
  • Codification of anti-trust laws into one statute.
  • Recognition of the rise of Small and Medium Filipino Enterprises (SME) and the need for protection.
  • Clearer protection against vertical agreements which have the effect of restraining trade.
  • Definition of vertical price restraints and predatory pricing.
  • Recognition of the disadvantage of vertical price restraint to the distributor or retailer.
  • Recognition that protection from vertical price restraint is not a novel concept as other countries have protected against such form of anti-trust practice.
Proposed Bills
  • Senate Bill No. 1 (Senator Juan Ponce Enrile)
  • Senate Bill No. 123 (Senator Sergio R. Osmena III)
  • Senate Bill No. 175 (Senator Antonio "Sonny" F. Trillanes IV)
  • Senate Bill No. 1838 (Senator Miriam Defensor Santiago)

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