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Trade industry of all kinds in Indonesia, whether large, medium, or small in size are affected or potentially affected by laws and regulation. Many of applicable rules are highly technical and non-intuitive: common sense is simply not sufficient guide to avoiding legal liability.

“Off all human powers operating on the affairs of mankind none is greater than that competition” – Henry Clay, 1832 


Misconduct of the antitrust laws fall into two principle categories: (1). Action that are unlawful without regards to their actual impact on competition (called Perse violation); and (2). Action that are not necessarily unlawful, but may be so depending on their actual impact on competitive condition (called Rule of Reason violation).

Action that are likely Perse unlawful include the following:
1.    Agreements fixing prices or fees or setting floors or ceilings on prices or fees:
2.    Agreements to boycott competitors, suppliers, third party payers, or customers.
3.    Agreements among competitors divining or allocation markets; and
4.   Agreements force by a provider with a dominant market position tying the purchase or provision of one product or service to the purchase or provision of another product or service.
Any other agreement – including resolutions of, or other measures taken by, an organization of competitors – may violate the antitrust laws under a Rule of Reason analysis if its effect is generally to rise price of fees or to reduce the quality or quantity of available goods or service.

Notes: It is very important to understand that the antitrust laws can be violated by mutual understandings or other informal arrangements falling far short of formal contract or written resolution

Business entity may violate the antitrust laws, or implicated their organization in antitrust violations, by using the organization to facilitate their undertaking anti competitive arrangements among themselves, even without invoking any of the formal mechanisms of the organization. Indeed, an business entity may held responsible for anti competitive conduct by its employees who only appear to be acting in the name of the organization but, in fact, violate its policies.

Risk owner should refer to the specific section that address particular areas of organization policies and program that may pose antitrust risk. Generally, however, the following guidelines should be observed:
  1. Avoid agreements, resolutions, or other action – formal or informal, written or unwritten – that relate to commercial prices or professional fees.
  2. Avoid agreements, resolutions, or other action – formal or informal, written or unwritten – that restrict non deceptive advertising.
  3. Avoid agreements, resolutions, or other action – formal or informal, written or unwritten – that constitute a boycott (ex: collective refusal to deal), except to the extent that the boycott is motivated purely by political (ex: non economic) concern. Legal counsel should be shought with respect to any proposed action that could be characterized as a boycott, whatever its motivation.
  4. Avoid agreements, resolutions, or other action – formal or informal, written or unwritten – that could be construed as representing a division or allocation of market among competing economic actors.
  5. Avoid agreements, resolutions, or other action – formal or informal, written or unwritten – that tie the provision or purchase of one good or service to provision or purchase of another good or service.
  6. Avoid any other action that appears likely to have the effect of raising prices or fees or reducing the quantity or quality of goods or service that are available.
  7. Adoption of an antitrust compliance policy may assist staff in understanding the need to comply with antitrust laws.

Bibliography
  1. Law No. 5 Year 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition.
  2. KPPU Commission, Business Competition Law: Between text & context, 2009.

Disclosure: this only general overview of legal risk avoidance in trade business. This not be relied upon as a comprehensive treatise or manual on all of the laws affecting all types of trade business industry.

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