SEN. VILLAR CALLS FOR THE PASSAGE OF AN ANTITRUST LAW (PART 1)

"Time to pass an antitrust law"
by
Sen. Manny B. Villar
BUSINESS MIRROR, Entrepreneur, 19 September 2011
(Original article available here)

First of two parts

"The time is ripe for the Philippines to enact a comprehensive antitrust law. Let me tell you why.

First, the global financial crisis of 2008, which plunged two-thirds of the world into recession and which continues to threaten the developed economies, has shifted the flow of capital into emerging markets, such as the Philippines, which are now leading economic growth and offering better returns for investments.

The Philippines can expect a bigger share of foreign investments as a result of this shift in capital flow because of its strategic location. It is close to China, which is aggressively investing in other countries not only to make money but to ensure adequate supplies of raw materials and intermediate goods for its own industries.

Second, the volatility in the prices of essential goods like oil and other food commodities, which must be imported. We have to import rice because of our inability to produce enough rice for domestic consumption. We also have to import wheat (for flour) because we don’t grow this cereal.

Third, there are so few players in many of our industries, providing the temptation and the environment for the operation of cartels and monopolies.

The hearings conducted by the Senate Committee on Economic Affairs, of which I’m chairman, and the Committee on Trade and Commerce, on several bills and a resolution proposing the enactment of an antitrust law underscored the relevance and the urgency of such legislation.

In particular, Senate Resolution 123, which I introduced, expresses concern about the undue advantage that cartels and monopolies pose over our micro, small and medium enterprises.

During the hearings, Trade and Industry Undersecretary Adrian Cristobal stressed that a competition or antitrust law would promote investments and facilitate trade between the Philippines and other countries. Attorney Lorna Patajo-Kapunan explained that antitrust provisions could be found in existing laws like the Revised Penal Code, New Civil Code and the Consumer Act of the Philippines.

However, these provisions do not provide for clear-cut guidelines or evidence to determine whether an act constitutes unfair competition, monopolistic behavior or restraint of trade.

Attorney Anthony Abad, managing director of the Trade Advisory Services of the Ateneo Center for International Economic Law, said it was fortunate that the 15th Congress was prioritizing the antitrust bill, enactment of which would have a transformative effect on the way business is done in the country.

The Constitution itself provides the basis for the enactment of an anti-trust law. Under Article XII, Section 19, the state is mandated to “regulate or prohibit monopolies when public interest so requires” and disallows “combinations in restraint of trade or unfair competition.” Section 22 of the same article provides: “Acts which circumvent or negate any of the provisions of this article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.”

Monopolies exist when one major company has enough power to dictate the prices, quality and selection of products and services, thereby becoming very powerful because competitions are not big enough to threaten that company.

On the other hand, a cartel is a group of companies producing the same product or service which, instead of competing with each other, agree to jointly control the price or supply of their common product or service, to the detriment of consumers.

Since consumers have no other product choices, monopolies or cartels can increase or decrease prices at will. In the end, the people who suffer most are those who already have low purchasing power like the minimum-wage earners or small entrepreneurs.

To this day, the Philippines does not have a comprehensive and developed legislation relating to antitrust and monopoly activities.

We need a comprehensive law that will give meaning to the principles of fair market and discourage monopolies, to afford our micro, small and medium enterprises the opportunity to participate in the growth of our economy.

The Senate Committees on Economic Affairs and on Trade and Commerce have come up with a draft bill, which consolidates Senate Bill 1 introduced by Senate President Juan Ponce Enrile together with Senators Ralph Recto and Antonio Trillanes; Senate Bill 123 by Sen. Serge Osmeña; Senate Bill 1838 by Sen. Miriam Santiago and my Senate Resolution 123.

The consolidated measure, when enacted into law, will encourage competition in the marketplace, help reduce prices and increase the quality of products or services for the benefit of consumers."

BusinessWorld Anti-Trust Commentary - COMPLETE

Published May 25 and 26, 2011 in BusinessWorld

Also available here and here

Senate to deliberate on anti-trust bills

"Senate set to deliberate antitrust bill next week"

by Butch Fernandez

Published 18 May 2011 in Business Mirror

(Original article available online here)

"The Senate moved to speed up floor deliberations on a new Anti-Trust Law that its chief proponent, Senate President Juan Ponce Enrile, said would add more “fangs” to existing regulations, penalizing unfair trade and uncompetitive practices, including cartels, monopolies, abuse of dominant position, predatory pricing, bid-rigging and price-fixing.

“This [new Anti-Trust Law] will bite; it has fangs,” Enrile told editors and reporters of the BusinessMirror, the Philippines Graphic and dwIZ in a breakfast press conferences on Wednesday.

Enrile explained that the proposed Competition Act of 2011, embodied in Senate Bill (SB) 1 that he and Senators Ralph Recto and Antonio Trillanes IV co-authored, was meant to plug gaps in the existing Anti-Trust law, which, Enrile noted, was “not as sharp.”

According to Enrile, a consolidated bill, incorporating related proposals filed by other senators, is due to be reported by Sen. Manuel Villar, chairman of the Committee on Trade and Commerce, for floor deliberations next week.

Apart from penalizing unfair trade and anti-competitive practices in restraint of trade, unfair competition and abuse of dominant power, SB 1 also seeks to strengthen the powers of regulatory authorities to go after violators, with the Department of Justice (DOJ) and the Department of Trade and Industry (DTI) as its chief enforcers.

As proposed by Enrile, persons found violating the law face fines ranging from P10 million to P50 million, while erring companies would be fined from P250 million to P750 million, plus 10-year imprisonment.

The proposed legislation also gives regulatory agencies the power to impose fines ranging from a minimum of P100, 000 to P5 million (for a person) and from P5 million to P50 million (for a company) for each violation.

Under the bill, the DOJ and the DTI shall, on their own, initiate preliminary inquiries to enforce the law upon filing of a verified complaint by an interested party.

The bill, however, also sought to protect confidentiality of information submitted in connection with the enforcement of the law, by providing that any document submitted or marked confidential by the DOJ, relevant to an investigation, shall not be disclosed, published, copied or disseminated. It also includes immunity from suit to any firm or person who will cooperate with authorities and give information to the DOJ.

“Our people have been victims to big business. It behooves the Senate to provide protection to our people against price manipulators,” Enrile said in his explanatory note to the bill. “In a volatile economic situation, such as that which we are experiencing now, it is not very difficult to imagine how artificial prices in one or two commodities is able to directly or indirectly raise the prices of related goods and services.”

Enrile cited Article XII, Section 19, of the Constitution, which provides that “the State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.”

“As proof of the importance of this Constitutional mandate, Section 22 of the same article encourages the promulgation of legislation that would impose civil and criminal sanctions against those who circumvent or negate this principle,” the senator said. “Hence, Section 22 of the Constitution provides: “Acts which circumvent or negate any of the provisions of this article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.”

While previous legislations have been passed pursuant to this Constitutional mandate, Enrile noted “the increased deviousness and complexity of schemes in perpetuating monopolies in the free-market landscape necessitates an equally sophisticated legislation that would effectively address this concern.”

“Generally, this bill penalizes combinations or conspiracies in restraint of trade and all forms of artificial machinations that will injure, destroy or prevent free-market competition,” Enrile added."

To the point: predatory pricing

Appeared in "To The Point" column, Manila Standard Today, by Emil Jurado, on 11 March 2011

"There’s this case filed recently by two Filipino-owned companies against a giant multinational company whose products the local firms distribute. The case bears watching. Service Edge Distribution Inc. and FDI Forefront II Trading Corp. sued Nestle for predatory pricing and perjury.

Predatory pricing is selling one’s products at very low prices to put competitors out of business or discourage them from entering the market. In this case, Nestle allegedly forced SEDI and FDI II to sell products at controlled prices, way below the actual cost of distributing the product, with threat of termination of contract if they failed to do so.

Santa Banana, it’s bad enough to take a low blow against competition. To do something like this to one’s own distributors is one for the books!

The case of perjury involves four top executives of the multinational company who allegedly presented false testimonies as evidence in their counter-affidavits to the complaints filed against them.

Cases such as these that involve not-so-aboveboard practices of some multinational companies doing business in the Philippines give urgency to the passage of an anti-trust law that will protect small and medium enterprises that are owned and managed by Filipinos.

In the Senate, pending are Bill 123 by Senator Serge Osmeña, Bill 1838 by Senator Miriam Defensor Santiago and Resolution 123 by Senator Manny Villar. These call for an inquiry into cartels and monopolies. There is another measure by Senate President Juan Ponce Enrile that prohibits price-fixing and price discrimination.

Representing the private sector in the Senate inquiry is lawyer Lorna Patajo Kapunan, who has brought public attention to the way some multinationals, for the longest time, have taken advantage of the absence of an implementing law that will stop their underhanded practices."

Also available online here.

Supermarket association attends Senate anti-trust public forum

"PAGASA at Senate Committee on Trade & Commerce"
By Wave Technologies, Inc., originally published 10 February 2011, at the Philippine Amalgamated Supermarket Association Incorporated website here.


Atty. Lorna Kapunan at the podium (Image from PAGASA site here)

"PAGASA [Philippine Amalgamated Supermarket Association Incorporated] was invited as an observer at the Senate Committee on Trade & Commerce, Committee on Economic Affairs and Special Oversight Committee on Eco. Affairs’ Lecture Forum: “Understanding Antitrust.” At the podium is Atty. Lorna P. Kapunan with her critique on existing and fragmented legislations on antitrust. Other presenters were DTI Usec. Zenaida C. Maglaya and Ateneo’s Atty. Anthony Abad. The forum was headed by Senate Pres. Juan Ponce Enrile and Senator Manuel Villar."

Proposed competition measures seeks to protect small enterprises

"Proposed competition measure seeks to protect small enterprises"
by Ritchelle Alburo, PHILEXPORT News and Features
Originally published in the Philippine Exporters Confederation, Inc.'s site here.

"6. Proposed competition measure seeks to protect small enterprises

A recent proposed legislative measure on competition responds to a glaring need to address unfair competitive practices to the disadvantage of micro, small and medium-scale enterprises.

While protection of consumers from unreasonable pricing has been the rationale for the enactment of many of the country’s competition-related laws, Senate Resolution No. 123 of Senator Manny Villar seeks to operationalize fair market principles and discourage monopolies to allow MSMEs to participate in the growth of the economy.

Atty. Lorna Patajo-Kapunan of Capunan Lotilla Garcia & Castillo Law Offices was very pleased with said bill.

I would like to thank Senator Villar for recognizing the need to protect the MSMEs, said Kapunan, during a forum on Understanding Anti-trust held yesterday at the Philippine Senate, mentioning that many of the country’s small enterprises are disadvantaged by the restrictive agreements and arrangements of giant companies.

These restrictive agreements, as cited by Anthony Abad of Trade Advisory Services during said forum, include price-fixing, collusive tendering, market or customer allocation, sales or production restraints, concerted refusal to purchase or to supply and collective denial of access to an arrangement or association that is crucial to competition.

Aside from SB No. 123, there are four other proposed measures on competition in the Senate. These are SB No. 1 authored by Senator Ponce Enrile, SB No. 175 of Senator Anthony Trillanes IV, SB No. 123 of Senator Sergio Osmena III, and SB No. 1838 of Senator Mirriam Santiago.

Many of these bills seek to respond to the need to codify existing competition laws and come up with a comprehensive competition law that is workable and effectively deters anti-competitive practices.

Kapunan noted that Senate Bill No.1 of Senator Ponce “defines with particularity prohibited acts constituting monopolization and cartelization”.

By increasing the penalty for violation of Article 186 of the Revised Penal Code, Kapunan likewise intimated that SB No. 1838 will serve to deter the anti-competitive measures.

SB No. 1838 seeks to increase the number of years of imprisonment from the current six months to six years and the fine from P200 to 1,000,000.

To effectively enforce a competition law and achieve its desired outcome, Atty. Geronimo Sy of the Department of Justice laid emphasis on the need to fine-tune the evidentiary architecture of competition bills, citing that despite sectoral regulation of basic commodities, such as sugar, tobacco and rice, prices of the same remain prohibitively high, due mainly to the difficulty in providing sufficient evidence demonstrating violation of competition-related laws. -- Ritchelle Alburo, PHILEXPORT News and Features"

In BusinessWorld

Published in BusinessWorld, 01 March 2011, BULLETINS, page 6/S2

(Click on image to enlarge)

Senate anti-trust forum provides key trade insights

Senate anti-trust forum provides key trade insights

Metrofile, The Daily Tribune, 27 February 2011

"02/27/2011

Senators from the committee on trade and commerce invited noted experts from a variety of fields to share valuable insights on existing anti-trust practices in the country. According to Sen. Manny Villar, the need for such a forum cannot be overstated. “We need to cover all the bases by conducting public hearings and hosting a series of lectures, so we may all understand the intent of the law and its benefits,” he pointed out. The proposed anti-trust law seeks to penalize unfair trade and anti-competitive practices in restraint of trade, unfair competition and abuse of dominant power. Consequently, it intends to encourage competition in the market place, which will help reduce prices and increase the quality of products and services. “Our committee is dead-set on passing the bill,” Villar further noted. The senators listened to the resource speakers who provided key inputs that are expected to make the final version of the law more effective. Among them were Undersecretary Zenaida Maglaya of the Department of Trade and Industry, lawyer Anthony Abad from the Ateneo Center for International Economic Law, and prominent lawyer and consumer advocate Lorna Patajo-Kapunan. After her presentation, a number of local distributors of a multinational corporation (MNC) from the audience approached Kapunan and the senators who were in attendance. It was learned later on that these distributors were driven to bankruptcy by what they deemed to be grossly unfair practices of this MNC. “This is precisely why we need carefully-worded and well-crafted legislation,” Kapunan said in response. “Our current laws not only allow our local businessmen to be bullied and exploited, but the level of leniency actually encourages it,” she emphasized. The committee is also tackling related bills on anti-trust legislation, namely, the Competition Act of 2010, co-authored by Senate President Juan Ponce Enrile and Senators Ralph Recto and Antonio Trillanes IV, Senate Bill 123, authored by Sen. Sergio Osmeña III, Senate Bill 1838 filed by Sen. Miriam Defensor Santiago, and Senate Proposed Resolution 123 urging inquiry into cartels and monopolies sponsored by Villar."

Original article appears on Tribune Online here.

More anti-trust buzz

Click on image to enlarge and to read full article.
Originally published in People's Journal, 27 February 2011.

Senators at anti-trust public forum

Image source: Philippine Senate official website/ PRIB Photo by Albert Calvelo/ 10 February 2011

"ANTI-TRUST FORUM: Senate President Juan Ponce Enrile, together with Sen. Manny Villar, chair of the committee on Trade and Commerce, attend the second day of “Understanding Anti-Trust”, a forum presented by the Committees on Trade and Commerce, Economic Affairs and the Special Oversight Committee on Economic Affairs. Also in photo is Senate Deputy Secretary for Legislation, Atty. Edwin B. Bellen. (PRIB Photo by Albert Calvelo/10 Feb 2011) "
(Original photo release with text appears here).

*Resource speakers for the Senate anti-trust public forum were Usec Zenaida Malaya of the Department of Trade and Industry, Atty. Anthony Abad, and Atty. Lorna Patajo-Kapunan.

Gaining momentum - the crusade for better anti-trust laws

"Anti-trust laws" by Ducky Paredes.

Published 22 February 2011 in Malaya. (Original article also appears online here).

"IT’S good to know that not everyone in the Senate is taken up by the investigation into the corruption in the military. While that is also important, the reality is that this investigation may just eventually peter out and, as a lot of other legislative investigations "in aid of legislation" have gone, this one could still go the way of a lot of similar investigations that never even merited an official report in the files of the Senate or the House, much less any attempt at legislation that could cure what was investigated.

Hopefully, these will lead to a time when we will be proud of an uncorrupt military, police and government. For that to happen, however, we would need five of six presidents whose holy grail is the "daang tuwid."

In the event that the one after P’Noy is not committed to taking to the straight and narrow, there goes the PH!

Thus, it is good that the Senate has not placed all of its eggs in that one basket ad that Sen. Manny Villar is trying to pass an anti-trust law through the Committee on Trade and Commerce, which he heads.

This is certainly a welcome development, as the Philippines does not have any comprehensive anti-trust law to protect business owners or consumers.

The Department of Trade and Industry (DTI), the line agency that is tasked to look after trade and business operations, as well as consumer welfare, does not have the legal ammunition to fight unfair trade practices.

This is precisely why the DTI or relevant government agencies have been ineffective in dealing with or prosecuting blatant price fixing by players in certain industries.

The Competition Act of 2010 was proposed by Senate President Juan Ponce Enrile, and co-authored by Senators Ralph Recto and Antonio Trillanes.

The public forum also focused on related bills, namely, SB 123 authored by Sen. Sergio Osmeña III, SB 1838 filed by Sen. Miriam Defensor Santiago and Senate-Proposed Resolution No. 123 by Villar urging the holding of an inquiry on cartels and monopolies. These long overdue proposed antitrust measures seek to penalize unfair trade, anti-competitive practices and the abuse of dominant power by certain institutions – a.k.a. monopolies, cartels and some big, bad MNCs.

During the forum, Atty. Lorna Kapunan, a friend and one of the champions of this issue, presented a critique on existing legislation on anti-trust. She explained that while there are some existing laws that touch on anti-trust, the provisions do not provide clear-cut guidelines or evidence to determine whether an act constitutes unfair competition, monopolistic behavior or restraint of trade.

Speaking from experience, she shared with legislators the fact that some multinational giants often act like bullies and take advantage of the leniency present in the Philippines in order to get away with violations like predatory pricing.

Kapunan bared the ugly truth that it is very hard to do business in the Philippines if you are a Filipino. Given this bitter reality, it is high time we protect the interests of local entrepreneurs simply because SMEs are the backbone of our economy.

Let’s pass stricter laws that will protect the weak – the Pinoy dealers --from the double dealing and bullying multi-nationals that this column has been writing about for the last several years."

Villar holds series of forum on Anti-trust law

Original article appears here.

"Villar holds series of forum on Anti-trust law
Press Release
February 10, 2011

Sen. Manny Villar today hosted the second installment of a series of discussion to better understand the anti-trust law now being studied by the Committee on Trade and Commerce. "I would like to cover all the bases by conducting public hearings and hosting this series of lecture so we may all understand the intent of the law and its benefits," Villar said.

The proposed Antitrust law seeks to penalize unfair trade and anti-competitive practices in restraint of trade, unfair competition and abuse of dominant power.

Villar said the law will encourage competition in the market place which will help reduce prices and increase the quality of products or services and gave the assurance that his committee is dead set on passing the bill.

Usec. Zenaida Maglaya of the Department of Trade and Industry gave a presentation expounding on the need for an antitrust law in the country during "Lecture II: Understanding Antitrust" held Thursday morning at the Recto Room.

Maglaya underscored the need to enact a Competition/Antitrust Law to promote investment and facilitate trade among neighboring countries.

Atty. Anthony Abad, managing director, Trade Advisory Services/ Ateneo Center for International Economic Law explained the United Nations Conference on Trade and Development (UNCTAD) Model for Antitrust Law while Atty. Lorna Patajo-Kapunan presented a critique on existing legislations on antitrust.

Abad said it is fortunate that the 15th Congress is prioritizing the Antitrust bill, as this is one piece of legislation that will have a transformative effect on the way business is done in the country.

For her part, Kapunan recognizes that there are antitrust provisions scattered in different laws like the Revised Penal Code, New Civil Code, Consumer Act of the Philippines, etc. but argued that these provisions do not provide for clear-cut guidelines or evidence to determine whether an act constitutes unfair competition, monopolistic behavior or restraint of trade.

Reactions on the presentations were given by Atty. Geronimo Sy, assistant secretary, Department of Justice; Atty. Rod Libunao, legal counsel, Chevron Philippines; Mr. Reiner Aaron Villasenor, student leader, San Beda College; and Atty. Jose Cabrera, governor, Integrated Bar of the Philippines.

Villar said the country needs a comprehensive antitrust law that will complement the prevailing economic conditions and put in place the atmosphere for companies to deliver better goods and services to consumers.

"We need this law because we want to prohibit anti-competitive practices like monopolies and cartels," he added.

The first forum was held last week where Senate President Juan Ponce Enrile, who co-authored with Sens. Ralph Recto and Antonio Trillanes IV Senate Bill No. 1 or the Competition Act of 2010, shared his insights on the matter.

The committee is also tackling related bills on antitrust legislation namely, SB 123 authored by Sen. Sergio Osmena III, SB 1838 filed by Sen. Miriam Defensor Santiago and Senate Proposed Resolution No. 123 urging inquiry on cartels and monopolies sponsored by Villar."