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 : 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 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; 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 quốc tế: ISSN 1774-9832); 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 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 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 specific measures can be proposed in order to improve the effectiveness of anti-competitive cases handling procedures in Vietnam 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 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 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 Theoretical and Practical Significance The dissertation’s findings are expected to make contributions to improving anti- 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 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 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 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 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 quan cạnh tranh bị xem xét lại 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 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 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 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 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 violation Decree 116 specifies at Clause 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 Article 77 and Clause 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 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 10 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 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 11 circumstances stipulated in Clause Article 76 and Clause 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 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 12 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 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 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 13 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 years, the fact that the Competition Law 2018 increases from years to 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 14 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 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 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 15 - 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 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 16 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 17 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 18 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 19 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 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 21 ... 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... 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... 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