Exclusion to Prohibition of Anti-Competitive Conduct on the Legislative Ground In Malaysia: A Cross-Sectoral Analysis

10.2478/bjlp-2022-007074

Abstract

In Malaysia, its competition law (Competition Act 2010) excludes commercial activities from prohibitions on the ground that they are in pursuant to an order to comply with a legislative requirement. While this type of exclusion is present in other jurisdictions including the European Union (EU) and Singapore, there is slight difference in legislative wording in the Malaysian law leading to narrower scope of exclusion. Hence this article analyses the application of the exclusion in specific sectors in Malaysia. Using the black letter approach to legal research, the analysis in paper finds that only limited sectors namely professional services fulfil the criteria, while the other sectors, though have legislation that provides for conduct which could be acted upon, such as price fixing, are short of such an order. This creates false impression that certain activities are shielded merely by being mentioned in a statute whereas a gazetted order from the state to perform them is absent. Meanwhile, the statutes of different sectors have different objectives. Requiring such an order prevents flexibility for matters of security and strategic concerns.