The long-awaited Law on Competition was enacted on October 5, 2021, bringing Cambodian law in line with its ASEAN and WTO obligations, but leaving open questions regarding intellectual property rights. The Law calls for the establishment of the Cambodia Competition Commission, which is yet to be accomplished. Until this institution is in place, and the supporting regulations enacted, it remains to be seen how the Competition Law will be interpreted and implemented.
 

Cambodia Competition Commission - The principal regulator will be established as the Cambodia Competition Commission ("CCC"), with the Consumer Protection, Competition and Fraud Repression (""CCF") Directorate General as its implementing body and Secretariat. The CCC - which is yet to be formed - will be led by the Ministry of Commerce, with the involvement of other ministries and institutions. Five independent members shall serve five-year terms, and be chosen from the judiciary, legal profession, and economic experts.

The Law aims to ensure competitive markets by prohibiting activities that prevent, restrict or distort competition and apply to all 'Persons' conducting business activities, or any actions supporting business activities, which have the Requisite Anti-Competitive effect in a Cambodian market. Three types of activities are specifically treated: anti-competitive agreements, abuses of dominant market positions, and anti-competitive business competitions.

Given the expansive wording of the prohibitions, the Law also gives the Competition Commission the power to grant exemptions if:

1) there are significant identifiable technological, economic or social benefits

2) such benefits would not exist without the otherwise prohibited activity

3) the benefits significantly outweigh the harm to competition, and 4) competition is not eliminated in any important aspects of goods or services.

While the Law establishes the broad framework for ensuring competitive markets, it leaves many important questions to be determined by the Competition Commission and/or further implementing regulations, particularly regarding IP. The only mention of intellectual property rights in the Law pertains to penalties, where the Competition Commission has the power to require violators to share or license IP rights in order to restore, maintain or protect competition in a market.

How the Competition Commission, and eventually the courts, will reconcile these two areas of law remains to be seen. The provisions for the Competition Commission to grant exemptions is one solution, especially since IPRs should have a relatively strong case of satisfying the requirement of technological, economic or social benefits. However, the exemption would need to be granted before the agreement is entered into, which is likely unworkable in most licensing situations. Perhaps the Competition Commission will use its power to grant categorical exemptions for certain IP-related practices. Here too, it is unclear whether such exemptions could apply to all market-actors at large, or only to those that have applied to the Competition Commission.

Until the Competition Commission is established and further implementing regulations are enacted, there will unfortunately be significant uncertainty regarding what limits the Law on Competition places on IP rights in Cambodia.

FICPI’s view and involvement

FICPI's independent IP attorney members are based around the world and bring insights and counsel from a wider external perspective together with a commitment to high quality work, complying with all relevant regulations.

Next steps

Consider becoming involved with FICPI's Study & Work Committees, such as CET 8 which focuses on Asian issues. It follows and studies the latest development of IP laws and practice in Asian countries and provides up-to-date information and comments. It also actively attends meetings and communicates with local IP Offices and other authorities in Asia.


 

 

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