Competition Law and Sectoral Regulation

in the Electricity Sector in Thailand:

Current Problems, International
Experience and Proposals for Reform

Pornchai Wisuttisak

Supervisor: Associate Professor Frank Zumbo

Co-supervisor: Dr May Fong Cheong

Submitted in Fulfilment of the Requirements for the

Award of the Degree of Doctor of Philosophy
School of Taxation and Business Law
Australian School of Business

12 April 2013
 2

Abstract
Currently in competition law and sectoral regulation in Thailand, there are
significant obstacles to developing market competition in the electricity sector. This thesis
investigates the problems relating to competition law and sectoral regulation in Thailand’s
electricity sector. The thesis finds that there are problems in relation to competition law and
sectoral regulation regarding aspects of the regulatory institution and rules. The Thai
Competition Commission and Energy Commission both still face various institutional
obstacles in relation to achieving the development of market competition in the Thai
electricity sector. The rules regarding both competition law in the Competition Act and
sectoral regulation in the Energy Act also do not promote or protect market competition in
the Thai electricity sector.
Following the research on the problems in Thailand’s competition law and sectoral
regulation, the thesis reviews the international experience of both developed and developing
countries regarding competition law and sectoral regulation with a view to presenting in the
thesis a possible reform framework for Thailand. The thesis reviews the fundamental ideas
regarding the role of competition law within utility sectors, including the electricity sector.
The thesis finds that the substantives rules and their application, as well as the institution of
competition law are important to protecting and promoting market competition in the
electricity sector. In addition, the thesis researches the international experience regarding
sectoral regulation to create and protect market competition in the electricity sector. The
thesis finds that market competition will not occur by simply withdrawing regulation, but
that regulation has to play an important role in stimulating and shaping workable market
competition. The main aspects of the international experience with sectoral regulation relate
to establishing effective regulatory institutions and ensuring appropriate regulation of the
market. The thesis points out the importance of both competition law and sectoral regulation
as a necessary development towards market competition in the electricity sector.
Based on the review of the international experience, the thesis outlines a possible
framework that could be used to reform Thai competition law and sectoral regulation in the
Thai electricity sector. The thesis contends that the reform must involve both short and long
term plans to develop the institutions, as well as the rules with respect to competition law
and sectoral regulation in electricity sector in Thailand.
 3

Portions of this thesis were presented and published at the

following international conferences and journals:

Conferences
Wisuttisak, Pornchai, 'The Regulatory Framework of Thai Electricity Sector' (Paper
presented at the 3rd Annual Competition and Regulation in Network Industries
Conference, Brussels, Belgium, 2010).

Wisuttisak, Pornchai, 'Competition law and sectoral regulation on Thai energy

sector: A review and the forward development plan' (Paper presented at the
Reviewing of the Global Experience with Economic Regulation, New Delhi, 2011)

Wisuttisak, Pornchai, 'Ineffective Competition law: A Case from Thailand' (Paper

presented at the Asian Competition Forum 7th Annual Conference: Establishing
Sound Competition Cultures in Asia, Hong Kong, 2011)

Journals
Wisuttisak, Pornchai, 'Thailand and Australia Free Trade Agreement (TAFTA): The
advantage pace of foreign investment of both countries', (2009) 12 (2), Thailand Law
Journal, <http://www.thailawforum.com/articles/Thai Australia Free Trade
Agreement.html>.

Wisuttisak, Pornchai, 'Australian Free Trade Agreement /Antidumping Clauses: Fair

trade or Anticompetitive Provision' (2010) 5 (1) Global Trade and Customs Journal
29.

Wisuttisak, Pornchai, 'Regulation and competition issues in Thai electricity sector'

(2012) 44 Energy Policy 185.

Wisuttisak, Pornchai, 'Liberalization of the Thai energy sector: a consideration of

competition law and sectoral regulation' (2012) 5(1) The Journal of World Energy
Law & Business 60.
 4

Originality Statement

‘I hereby declare that this submission is my own work and to the best of my
knowledge it contains no materials previously published or written by another
person, or substantial proportions of material which have been accepted for the
award of any other degree or diploma at UNSW or any other educational institution,
except where due acknowledgment is made in the thesis. Any contribution made to
the research by others, with whom I have worked at UNSW or elsewhere, is
explicitly acknowledged in the thesis. I also declare that the intellectual content of
this thesis is the product of my own work, except to the extent that assistance from
others in the project’s design and conception or in style, presentation and linguistic
expression is acknowledged.’

Signed ……………………………………
 5

Copyright Statement

‘I hereby grant the University of New South Wales or its agents the right to archive

and to make available my thesis or dissertation in whole or part in the University

libraries in all forms of media, now or here after known, subject to the provisions of

the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also

retain the right to use in future works (such as articles or books) all or part of this

thesis or dissertation. I also authorize University Microfilms to use the 350 word

abstract of my thesis in Dissertation Abstract International (this is applicable to

doctoral theses only). I have either used no substantial portions of copyright material

in my thesis or I have obtained permission to use copyright material; where

permission has not been granted I have applied/will apply for a partial restriction of

the digital copy of my thesis or dissertation.’

Signed: ...............................

Date: ...............................

Authenticity Statement

‘I certify that the Library deposit digital copy is a direct equivalent of the final

officially approved version of my thesis. No emendation of content has occurred and

if there are any minor variations in formatting, they are the result of the conversion

to digital format.’

Signed: ...............................

Date: ...............................
 6

Acknowledgements

I would like to express my gratitude to my supervisor, Associate Professor

Frank Zumbo, for his valuable advice, guidance and encouragement. He taught me
not only how to achieve a PhD, but also how to be a good academic. I also would
like to thank my co-supervisor, Dr May Fong Cheong, who gave me significant
guidance and advice towards the completion of my thesis. I am also grateful to my
fellow PhD students, particularly Nguyen Bah Binh, Mahmoud Abdellatif and
Najeeb Memon, for their interactive discussions and support. I also would like to
thank people in the School of Taxation and Business Law, especially Professor John
Taylor, Mr Bill Butcher and Mrs Bibi More, who supported me during my PhD
studies.
I am deeply grateful to my parents, Wichai Wisuttisak and Waniporn
Wisuttisak. Without their kind support, I would not be able to complete my PhD. My
mother, who never had a chance to attend and complete primary school, supported
me to complete the highest level of education. I solemnly thank her for her brave
support for my PhD.
I am also grateful to my aunty, Suwatana Tanaraksiritaworn, who gave me
kind encouragement and significant financial support during semesters 1–3. Without
her help, I would not have been able to complete my PhD.
I would like to thank Chiangmai University, which gave me a scholarship
and a lectureship position after the completion of my PhD. Without the university’s
scholarship, I would have faced financial difficulties and would have had to continue
working as a kitchen hand to cover my tuition fees and living costs.
I would also love to thank my dear wife, Chompoonut Tanyakeaw, for her
belief in my abilities and for her very kind support and encouragement during my
PhD studies.
 7

Table of Contents
Originality Statement .............................................................................................. 4
Copyright Statement ............................................................................................... 5
Authenticity Statement ............................................................................................ 5
Acknowledgements ................................................................................................. 6
List of Figures ........................................................................................................... 12
List of Tables............................................................................................................. 12

Chapter 1: Introduction ......................................................................................... 13

1.1 Background of the thesis ..................................................................................... 13
1.2 Rationale for research ......................................................................................... 14
1.3 Literature review ................................................................................................. 15
1.3.1 Regulation and competition law in the utility sectors .................................. 15
1.3.1.1 Competition and regulation in the utility sectors .................................. 15
1.3.1.2 Competition law and sectoral regulation in the utility sectors .............. 19
1.3.2 Competition law and regulation in the electricity sector ............................. 25
1.3.3 Competition law and regulation in Thailand’s electricity sector ................. 31
1.4 Research questions .............................................................................................. 35
1.5 Significance of the thesis research ...................................................................... 35
1.6 Scope of thesis .................................................................................................... 36
1.7 Methodology ....................................................................................................... 38
1.8 Organisation of the thesis chapters ..................................................................... 40

Part I: The exploration of problems and issues regarding

competition law and regulation in the electricity sector ......................... 42

Chapter 2: Competition law framework and problems in Thailand ................. 42

2.1 Introduction ......................................................................................................... 42
2.2 Competition law framework ............................................................................... 44
2.2.1 Background on economic development and competition law ..................... 44
2.2.2 Drafting the new competition law ................................................................ 47
2.2.3 Competition legislation ................................................................................ 49
2.3 Problems relating to Thai competition law ......................................................... 55
2.3.1 Inadequacy of the Competition Act ............................................................. 57
2.3.1.1 Lack of a clear objective ....................................................................... 57
2.3.1.2 Definition of market dominance ........................................................... 58
2.3.1.3 Poor interpretation of the Competition Act........................................... 60
 8

2.3.2 Ineffective Competition Commission .......................................................... 63

2.3.2.1 Lack of independence ........................................................................... 64
2.3.2.2 Financial constraint ............................................................................... 66
2.3.2.3 Lack of expertise ................................................................................... 67
2.3.3 Lack of coordination with sectoral regulators ............................................. 68
2.3.4 Lack of public recognition and competition advocacy ................................ 71
2.4 Conclusions ......................................................................................................... 72

Chapter 3: Sectoral regulation of the electricity sector ....................................... 74

3.1 Introduction ......................................................................................................... 74
3.2 Current market structure of the electricity sector ............................................... 75
3.2.1 Market players: SOEs’ market control ........................................................ 75
3.2.1.1 Generation and transmission ................................................................. 75
3.2.1.2 Distribution and retail ........................................................................... 78
3.2.2 Reliance on gas supply for electricity generation: the PTT monopoly........ 80
3.3 Development of the electricity sector and regulation ......................................... 85
3.3.1 Early development of the electricity sector ................................................. 85
3.3.3 New reform arrangement for the electricity sector ...................................... 93
3.3.4 Supreme Administrative court decision on EGAT corporatisation ............. 95
3.4 Current electricity regulation .............................................................................. 98
3.4.1 Energy Regulatory Commission .................................................................. 98
3.4.2 Uncompetitive provisions in the Energy Act ............................................. 100
3.4.3 Lack of open access to essential facilities.................................................. 104
3.4.4Price tariff regulation with rate-of-return regulation and floated Fuel
Adjustment Charge ............................................................................................. 105
3.5 Conclusion ........................................................................................................ 110

Part II: International experience as a possible framework for Thailand ........ 112

Chapter 4: International experience in competition law

in the electricity sector ....................................................................... 112
4.1 Introduction ....................................................................................................... 112
4.2 Objective and function of competition law ....................................................... 113
4.2.1 Objective of competition law ..................................................................... 113
4.2.2 Function of competition law ...................................................................... 116
4.3 Competition law in the electricity sector .......................................................... 120
4.3.1 Application of competition law to the utility sector .................................. 120
 9

4.3.2 Competition law: substantive rules for the electricity sector ..................... 127
4.3.2.1 Dominant market position and significant market power ................... 127
4.3.2.2 Abuse of market power ....................................................................... 132
4.3.2.3 Refusal for access to essential facilities .............................................. 134
4.3.2.4 Predatory pricing ................................................................................. 139
4.3.2.4 Margin squeeze ................................................................................... 142
4.3.2.5 Cartelisation and anti-competitive agreements ................................... 146
4.3.2.6 Mergers and acquisitions..................................................................... 150
4.3.3 Competition law enforcement institutions ................................................. 155
4.3.3.1 Independence of competition law enforcement agency ...................... 155
4.3.3.2 Adequacy of enforcement resources ................................................... 158
4.3.3.3 Advocacy on competition focus .......................................................... 159
4.3.3.4 Private enforcement ............................................................................ 163
4.4 Interactions between competition law and sectoral regulation ......................... 167
4.4.1 Complementary role to sectoral regulation ................................................ 167
4.4.2 Overlaps and conflicts ................................................................................ 171
4.4.3 Establishment of cooperation between the competition law and sectoral
regulation............................................................................................................. 174
4.5 Conclusion ........................................................................................................ 175

Chapter 5: International experience on regulation on competition

in electricity infrastructure sector ................................................... 178
5.1 Introduction ....................................................................................................... 178
5.2 Overview of regulation in the utility sector ...................................................... 179
5.2 Overview of regulation in the utility sector ...................................................... 179
5.2.1 What is regulation of the utility sector? ..................................................... 179
5.2.2 Why regulate the infrastructure utility? ..................................................... 180
5.2.2.1 Utility regulation under public interest theory .................................... 180
5.2.2.2 Utility regulation under capture theory ............................................... 182
5.2.2.3 Deregulation and re-regulation in the electricity sector ...................... 185
5.3 Regulation of market competition in the electricity sector ............................... 187
5.3.1 Regulatory institutions ............................................................................... 187
5.3.1.1 United States of America .................................................................... 188
5.3.1.2 United Kingdom .................................................................................. 191
5.3.1.3 Australia .............................................................................................. 193
5.3.1.4 New Zealand ....................................................................................... 195
5.3.1.4 Japan.................................................................................................... 197
 10

5.3.1.5 Korea ................................................................................................... 199

5.3.1.6 Analysis of countries’ experience of regulatory institutions in the
electricity sector .............................................................................................. 201
5.3.2 Regulation for competition ........................................................................ 205
5.3.2.1 Regulation for unbinding the electricity sector ................................... 206
5.3.2.2 Regulation to attract new investment .................................................. 211
5.3.2.3 Regulation for access to essential facilities on non-discriminatory terms
......................................................................................................................... 215
5.3.2.4 Analysis of Countries experiences with regulation for competition... 222
5.3.3 Regulation of competition .......................................................................... 226
5.3.3.1 Regulation of market competition: light-handed regulation on market
level playing .................................................................................................... 228
5.3.3.2 Analysis of countries experience on regulation of competition.......... 231
5.4 Conclusion .................................................................................................... 234

Part III: Thailand and the way forward on competition law and
sectoral regulation on electricity sector ............................................... 236

Chapter 6: Thailand and the way forward on competition law and

sectoral regulation .............................................................................. 236
6.1 Introduction ....................................................................................................... 236
6.2 Short-term plans for Thai competition law and sectoral regulation in the
electricity sector ...................................................................................................... 237
6.2.1 ERC action on market competition ............................................................ 238
6.2.2 Build public recognition on competition law and competition on electricity
sector ................................................................................................................... 240
6.2.3 Advocacy among Competition Commission, ERC, and other authorities. 243
6.3 Long-term plans ........................................................................................... 245
6.3.1 Establishment of National Competition Council ....................................... 245
6.3.2 Reform on Thai competition law ............................................................... 250
6.3.2.1 Reform on provisions of the Competition Act .................................... 250
6.3.2.2 Reform on institution of Competition Act enforcement ..................... 258
6.3.3 Reform of Thai Energy sectoral regulation .......................................... 266
6.3.3.1 Enhancement of the role of the Energy commission .......................... 266
6.3.3.2 Inclusion of section requiring structural change to decrease market
power of SOEs and for building market competition ..................................... 268
6.3.3.3 Reform on Energy Act to establish competitive neutrality in electricity
sector ............................................................................................................... 270
6.3.3.4 Inclusion of section on access to essential facility.............................. 272
 11

6.3.4 Establishment of inter-institutional collaboration ...................................... 273

6.3.4.1 Combination form ............................................................................... 274
6.3.4.2 Concurrency form ............................................................................... 275
6.3.4.3 Competition law-based approach ........................................................ 276
6.3.4.4 Thailand and concurrency model ........................................................ 276
6.4 Conclusion ........................................................................................................ 279

Chapter 7: Thesis Conclusion .............................................................................. 281

7.1 Summary of thesis chapters .............................................................................. 281
7.1.1 Problems regarding Thailand’s competition law and sectoral regulation .. 282
7.1.2 International experience ............................................................................. 285
7.1.3 Proposal for Thailand ................................................................................. 288
7.2 Contribution of the thesis .................................................................................. 291
7.2.1 Knowledge in the field of competition law and sectoral regulation .......... 291
7.2.2 Exchange of ideas in the field of competition law and regulation ............. 292
7.3 Benefits of thesis research ................................................................................. 293
7.4 Future research .................................................................................................. 294

Bibliography .......................................................................................................... 296

Books .................................................................................................................. 296
Chapters in Books ............................................................................................... 303
Journal Articles ................................................................................................... 306
Electronic Articles ............................................................................................... 344
Reports ................................................................................................................ 365
Published Thesis ................................................................................................. 389
Web pages ........................................................................................................... 390
Newspapers ......................................................................................................... 392
 12

List of Figures
Figure 1.1 Flow of Thesis Chapters……………………………………………...41
Figure 2.1 Organisation structure of Thai competition law……………………...50
Figure 2.2 Thai Competition Law Case Procedure………………………………53
Figure 3.1 Thailand’s Electricity-generating Capacity………………………......77
Figure 3.2 Current Market Structure of the Electricity Sector under SOEs……..80
Figure 3.3 National Plans on Sources of Electricity Generation………………...81
Figure 3.4 Share of Power Generation…………………………………………...82
Figure 3.5 Thai Energy Sectors under SOEs…………………………………….84
Figure 3.6 NEPO’s Plan for a Liberalised Electricity Sector……………………91
Figure 3.7 Processes of Setting Electricity Tariffs……………………………..109
Figure 7.1 Flow of Thesis Research…………………………………………....282

List of Tables
Table2.1: Enquiries to the Office of Competition Commission:
October 1999–September 2011………………………………………………….56
Table 3.1 Proposed plans to liberalisation the electricity sector,
2002-2003……………………………………………………………………….93
Table 3.2 Annual profits of the three SOEs in the electricity
sector……………................................................................................................106
 13

Chapter 1: Introduction

1.1 Background of the thesis

Competition law and sectoral regulation are two important mechanisms
available for creating competitive markets and preventing anti-competitive conduct
in the electricity sector. Many developed countries have successfully employed
competition law and sectoral regulation to shape reform in the electricity sector, with
the aim of promoting market competition.1 However, developing countries (e.g.
Thailand) face problems such as ineffective competition law and inefficient sectoral
regulation, which lead to an inability to create competitive conditions for the
electricity sector.
Thai competition law has been ineffective in creating and protecting
competition in the electricity sector. Since its adoption in 1999, it has not been used
to tackle anti-competitive conduct, nor does it apply to the liberalised electricity
sector. This is primarily due to the competition law exemption for state-owned
enterprises (SOEs), which monopolise enterprises in various utility sectors, including
the electricity sector. In addition, sectoral regulation in Thailand is an important
mechanism for creating market efficiency and competition, but it still faces a legal
obligation to support SOEs in the electricity sector. This contributes to the
continuation of an uncompetitive structure in the Thai liberalised electricity sector.
After the collapse of the liberalisation plan for the privatisation of SOEs in
the electricity sector in 2006,2 no market competition was injected into the sector and
the sector remains under the oligopolistic control of SOEs. The Electricity
Generating Authority of Thailand (EGAT) controls electricity generation and
transmission,3 and the Provincial Electricity Authority (PEA) and the Metropolitan
Electricity Authority (MEA) control the distribution and retail supply of electricity to
Thai consumers in metropolitan and provincial areas. The uncompetitive electricity

1
The examples are from Australia, the United Kingdom (UK) and the European Union (EU).
However, some scholars might argue that these markets still face considerable problems in employing
competition to ensure that the energy market is competitive. However, compared to developing
countries, Australia, the UK and the EU are more effective in employing competition law and sectoral
regulation to improve the coemptive conditions and behaviours of energy markets.
2
See Chapter 3 of the thesis sections 3.2 and 3.3.
3
See Chapter 3 of the thesis sections 3.2.
 14

sector structure is undeniably derived from the ongoing problems with the
liberalisation and development of Thai competition law and sectoral regulation.
Therefore, this thesis aims to research the current problems with Thai
competition law and electricity-specific regulations, and to suggest possible reforms
in these areas to create market competition. First, the thesis will research the current
problems surrounding competition law and sectoral regulation in the electricity
sector in Thailand. Second, it will explore relevant international experience to guide
a possible competition law reform plan. Third, the thesis will offer proposals for the
reform of competition law and sectoral regulation in Thailand’s electricity sector.

1.2 Rationale for research

Competition law and sectoral regulation are vital mechanisms to create
market competition in a country’s electricity sector. With effective enforcement,
market competition will develop and result in efficiency in the sector. In contrast,
ineffective competition law and sectoral regulation that lack the ability to build
market competition can lead to significant inefficiency in the electricity sector and in
Thailand’s economy. Thus, it is vital to investigate the current problems that
contribute to the uncompetitive structure.
After exploring Thailand’s problems, the thesis attempts to explore the
international experience regarding the development of competition law and sectoral
regulation in relation to what facilitates the creation of effective competition in a
country’s electricity sector. By exploring various countries’ experiences, the thesis
will assist in understanding how to best develop competition law and sectoral
regulation in Thailand’s electricity sector.
Finally, the thesis proposes a possible reform track that aims to enhance
competition in Thailand’s electricity sector. This proposal will provide guidance for
Thailand to develop its competition law and sectoral regulation in the electricity
sector in order to build effective market competition.
 15

1.3 Literature review

This literature review provides a survey of scholars’ research on competition,
sectoral regulation and competition law in the utility sector and reveals that there is a
lack of research on the development of competition law and sectoral regulation in
Thailand’s electricity sector. Thus, the literature review demonstrates that the focus
of the thesis research is original research.
To reveal the scope of the research gap that the thesis attempts to fill, the
literature review is divided into three parts. The first section reviews the literature
relating to competition, regulation and competition law in the utility sectors. The
second section considers the research regarding the development of competition law
and regulation in the electricity sector, showing that there is a gap in the research.
The third section discusses the gap in research on competition law and sectoral
regulation in the Thai electricity sector. The literature review points to a need for
further research in this area.

1.3.1 Regulation and competition law in the utility sectors

This section provides the context for research relating to regulation and
competition in the utility sectors. It provides a preliminary review as valuable
background to the next part of the review, which relates to competition law and
sectoral regulation in the electricity sector.

1.3.1.1 Competition and regulation in the utility sectors

Various scholars have researched competition and sectoral regulation in the
utility sectors. A leading example is Posner’s work on ‘Theories of Economic
Regulation’,4 which discusses regulation within the context of ‘public theory’ and
‘capture theory’. The public theory focuses on regulation that is supplied in response
to the public interest in correcting inefficient or inequitable market practices.5 It
supports sectoral regulation as an important mechanism for governing a utility sector
in the wider public interest. In contrast, the capture theory considers regulation that
is supplied in response to the demands of interest groups.6

4
Richard A Posner, 'Theories of Economic Regulation' (1974) 5(2) The Bell Journal of Economics
and Management Science 335.
5
Ibid.
6
Ibid.
 16

There are crucial differences among capture theorists. Posner contends that
the capture theory is the most promising, but also points out the significant
weaknesses in the theory and the empirical research that is alleged to support it.7
Posner submits that regulation according to the capture theory can lead to the
inefficiency of the economy.8 The idea is similar to Stigler’s research, which points
out that regulation is the instrument for interest groups to politically secure their
monopoly benefits from the utility sector.9 Similarly, Viscusi, Vernon and
Harrington assert that regulation is captured by the influence of interest groups to
secure economic benefits for their groups’ interest (in utility sectors) rather than for
social welfare.10 This issue of captured regulation is also observed in the recent
research of Lyon and Wilson, which confirms the capture theory of regulation in the
electricity sector by submitting that regulation was adopted with the purpose of
protecting utility firms rather than the public interest of consumers.11
In addition, the most convincing literature regarding regulation that refers to
the capture theory emanates from Noble Laureate Douglas North, who stated in his
research that ‘the formal rules are created to serve the interests of those with the
bargaining power to create new rules’.12
Research regarding regulation and the capture theory in the utility sectors
contributed to the substantial move towards liberalisation and the deregulation of the
utility sectors. This research directed attention to the need to scrutinise regulation in
the utility sectors and gave rise to deregulation to reduce market barriers derived
from the regulation. This is an important point when considering Thailand’s
situation. Sectoral regulation tends to be a mechanism for SOEs to secure their
monopoly positions in the utility sectors. These issues will be further discussed in
Chapter 3, which focuses on sectoral regulation in Thailand’s electricity sector.

7
Ibid.
8
Ibid.
9
George J. Stigler, 'The Theory of Economic Regulation' (1971) 2(1) The Bell Journal of Economics
and Management Science 3.
10
W. Kip Viscusi, Joseph E. Harrington and John M. Vernon, Economics of Regulation and Antitrust,
4th Edition (MIT Press, 4 ed, 2007).
11
Thomas P. Lyon and Nathan Wilson, 'Capture or Contract?: the Early Years of Electrivcity Utility
Regulation' (Working Paper-JEL Codes: K2, L5, L9, N4, N7, 2010)
<http://webuser.bus.umich.edu/tplyon/PDF/Working%20Papers/Lyon%20Wilson%20Electric%20His
tory%20for%20JLEO.pdf>.
12
Douglass C. North, 'Economic Performance Through Time' (1994) 84(3) The American Economic
Review 359,360.
 17

Nevertheless, there is research that argues that regulation was not purely
captured in the interest of utility firms; rather, it was adopted through political
bargaining following pressure from various interest groups. This can be seen in
Peltzman’s research, which considers that regulation is the realisation of all interest
groups’ desires, and that it could contribute to the vested interests of various
competing interest groups in society.13 Peltzman considers the capture theory the
way to analyse regulation under the political bargaining power of various interest
groups.14 Thus, the regulation is the result of political interest bargaining and can
contribute to the public interest rather than only benefiting utility firms. In this sense,
regulation may not create a biased effect on market competition and the public
interest when the regulation under the capture theory benefits economic development
in the utility sectors. This can be seen in Foster’s research, which argues that
regulation under the capture theory might contribute to economic efficiency when
interest groups exert their political influence to maximise economic welfare.15
Similarly, Shearing points out that regulation is the creator of market competition
because it plays an important continuing role in creating competition.16 This idea
supports the establishment of sectoral regulators for utilities, with the main function
of building and supporting the competition of the utility sectors.
In a study of the liberalisation of public utilities, Vickers and Yarrow observe
that the regulatory rules on privatised and liberalised utilities can be utilised as the
instrument for protecting competition and consumer interest.17 A similar idea is also
found in Armstrong et al.18 and Bishop et al.,19 who submit that regulation is an
instrument for protecting competition and consumer interest in the privatisation of a
utility. Moreover, a broader discussion on utility regulation can be found in Bishop

13
Sam Peltzman, 'Constituent Interest and Congressional Voting' (1984) 27(1) Journal of Law and
Economics 181; Sam Peltzman, 'Pricing in Public and Private Enterprises: Electric Utilities in the
United States' (1971) 14(1) Journal of Law and Economics 109.
14
Sam Peltzman, 'Toward a More General Theory of Regulation' (1976) 19(2) Journal of Law and
Economics 211.
15
Christopher D. Foster, Privatization, public ownership, and the regulation of natural monopoly
(Blackwell, 1992) p 372-373.
16
Clifford Shearing, 'A Constitutive Conception of Regulation' in Peter Grabosky and John
Braithwaite (eds), Business Regulation and Australia's Future (Australian Institute of Criminology,
1998).
17
John Vickers and George Yarrow, Privatization: an economic analysis (MIT Press, 1995).
18
Mark Armstrong, Simon Cowan and John Vickers, Regulatory Reform:Economic Analysis and
British Experience (MIT Press, 1994).
19
Matthew Bishop and Colin P. Mayer, Privatization and economic performance (Oxford University
Press, 1994).
 18

et al., who point out that regulation is a tool for creating market competition for
liberalised and privatised utilities.20
Thus, the literature review shows that there is a relationship between
regulation and competition in the utility sector. Regulation is seen as an important
mechanism to create competitive market conditions and has an overlapping
relationship with competition law in aiming to promote and protect market
competition.
The overlapping relationship between competition law and regulation has
been widely discussed21 because it is the crucial factor for developing and protecting
market competition. Kirchner states that, although there are some complex problems
regarding their interaction, competition law and sectoral regulation complement each
other.22 This is because competition law and policy cannot alone create market
competition in the utility sectors; although, they can prevent and limit the effect of
anti-competitive conduct that restricts freedom of competition.23 Thus regulation is
needed to be the instrument for introducing market competition into utility
markets.24
Some research relates to the role of competition law in protecting market
competition, which amounts to an overlap between competition law and regulation in
utility sectors. Parker’s research on the reform of UK competition law argues that the
law is an important rule that prevents restrictive practices and the abuse of market
dominance in utility sectors. Parker also points out that, by empowering enforcement
power to utility regulators, competition law would be better employed to promote
and protect market competition.25 Similarly, in his research on the EU’s competition
policy for energy utilities, Green found that there is a need to develop some aspects
of the EU’s competition law and policy, which are crucial measures to protect and
20
Matthew Bishop and Colin P. Mayer, Regulatory Challenge (Oxford University press, 1995).
21
Peter Cameron, Legal aspects of Eu energy regulation : Implementing the new directives on elect
ricity & gas across Europe (Oxford University Press, 2005); Stacey L. Dogan and Mark A. Lemley,
'Antitrsut and Regulatory Gaming' (2009) 87(4) Texas Law Review ; Damien Geradin, 'Regulatory
Issues Raised by Network Convergence: The Case of Multi-Utilities' (2001) 2(1) Journal of Network
Industries ; Damien Geradin, Remedies in Network Industries: EC Competition Law Vs. Sector-
Specific Regulation (Intersentia, 2004).
22
Christian Kirchner, 'Competition policy vs. Regulation: Administration vs. Judiciary' in Manfred
Neumann and Jürgen Weigand (eds), The international handbook of Competition (Edward Elgar
Publishing, 2004).
23
Ibid.
24
Ibid.
25
David Parker, 'Reforming Competition Law in the UK: The Competition Act 1998 ' (Occasional
Paper 14 Center for study on regulated industries, University of Bath, 2000)
<http://www.bath.ac.uk/cri/pubpdf/Occasional_Papers/14_Parker.pdf>.
 19

promote competition in the EU’s energy utilities.26 Semeraro’s research on

competition law (anti-trust) and the telecommunication sector also states that
competition law is an important remedy for protecting market competition in
telecommunication utilities, and the use of competition law allows courts to consider
anti-trust cases relating to anti-competitive conduct in telecommunication utilities.27
Likewise, Kahn shows that competition law should have an expanding role in the
telecommunication sector in order to promote and protect market competition.28
In Leveque’s study, competition law appears to be significant remedies
dealing with an abuse of firms’ market power, which creates a monopoly price in the
liberalised electricity utility.29 Dziadykiewicz and Liyang state that competition law
is a vital rule that deals with anti-competitive conduct specifically a refusal to deal in
the utility sectors.30 In addition, Marshall’s research observes that competition law
comprises vital rules to maintain fair access to essential facilities and to prohibit
unfair refusal to deal in the utility sector.31 In Crocioni and Veljanovski’s research,
competition law principles are an important obligation that prohibit the price
squeeze32 in the liberalised utility sector.33
The literature shows that competition law is significant in promoting and
protecting market competition, and it can overlap with regulation to create and
protect competition in the utility sectors.

1.3.1.2 Competition law and sectoral regulation in the utility sectors

26
Richard Green, 'EU Regulation and Competition Policy among the Energy Utilities' (Paper
presented at the 50 years of the Treaty, IESE Business School, University of Navara, 2007)
<http://www.bhamlive3.bham.ac.uk/Documents/college-social-sciences/business/economics/2008-
papers/2008-discussion-papers/08-01.pdf>.
27
Steven Semeraro, 'The Antitrust-Telecom Connection' (2003) 40 San Diego Law Review 555.
28
Alfred Kahn, 'Telecommunications: The Transition from Regulation to Antitrust' (2006-2007) 5
Journal on Telecommunications & High Technology Law.
29
François Lévêque, 'Antitrust Enforcement in the Electricity and Gas Industries: Problems and
Solutions for the EU' (2006) 19(5) The Electricity Journal 27.
30
Eryk Dziadykiewicz, 'Refusal to Grant Third-Party Access by an Electricity Transmission System
Operator -- Overview of Competition Law Issues' (2007) 25(2) Journal of Energy & Natural
Resources Law 114; Liyang Hou, 'Refusal to Deal within EU Competition Law' (2010) SSRN
eLibrary.
31
Brenda Marshall and Rachael Mulheron, 'Access to 'Essential Facilities' under Part IIIA of the Trade
Practices Act: Implementing the Legislative Regime' (1998) 10(1) Bond Law Review
32
The “price squeeze” or “margin squeeze” is an exclusionary practice used by a vertically integrated
firm to leverage its market power in the upstream market to squeeze the margins of its downstream
competitors. The discussion about the price or margin squeeze will be further discussed in section
chapter 4 section 4.3.2.4.
33
Pietro Crocioni and Cento Veljanovski, 'Price Squeezes, Foreclosure And Competition Law
Principles And Guideline' (2003) 4(1) Journal of Network Industries.
 20

The previous section showed that competition law and sectoral regulation are
important to market competition in the utility sectors. In this section, consideration is
given to empirical research relating to competition law and sectoral regulation in the
utility sectors in developed and developing countries.

Developed countries
Newbery’s studies on the long-term effects of competition policy and
regulation in the UK and the EU offer an important contribution to the literature on
how competition law is effective for utility markets in ex post conditions as well as
markets that are not experiencing significant market power (SMP).34 The study also
stresses the crucial ex ante task of sectoral regulation for dealing with SMP in the
electricity market.35 In Newbery’s view, sectoral regulation can increase market
competition by licensing a number of new competitors to enter the utility market.36
Monte also presents a view on the different roles of competition law and
sectoral regulation. From an EU perspective, they can contribute to market
competition; however, there needs to be a clear separation between them.37 Sectoral
regulation needs to be free from the interference of competition law where the
38
regulation deals with allocative efficiency and prioritising other social objectives.
Moreover, this separation line between competition law and sectoral regulation is
also found in Prossor’s works, which argued that the application of competition law
needs to be limited to give priority to sectoral regulation where there is a
consideration of social purposes in utility services, for example, in relation to
universal service objectives that allow for the equal distribution of services
throughout society, including poor or rural people.39
Kerf, Neto and Geradin consider the relationship between competition law
and regulation in the liberalised telecommunication sector in countries that have

34
David M. Newbery, 'Regulation and competition policy: longer-term boundaries' (2004) 12(2)
Utilities Policy 93; See also in David Newbery, 'The Relationship Between Regulation and
Competition Policy for Network Industries' (Working paper EPRG 0611- Electricity Policy Research
Group, Cambridge University, 2005) <http://www.eprg.group.cam.ac.uk/wp-
content/uploads/2008/11/eprg0611.pdf>.
35
Ibid.
36
Ibid.
37
Giorgio Monti, 'Managing the Intersection of Utilities Regulation and EC Competition Law' (2008)
4(2) The Competition Law Review 123 123-145.
38
Ibid.
39
Tony Prosser, The Limits of Competition Law: Markets and Public Services (OUP Oxford, 2005);
See also in Tony Prosser, 'Regulation and Social Solidarity' (2006) 33(3) Journal of Law and Society
364 p 364-387.
 21

implemented liberalisation programs. This study reveals that some countries have
relied mainly on sectoral regulation, while others have relied mainly on economy-
wide competition law and institutions to control market power in utility sectors.40
Their study is based on the experiences of Australia, Chile, New Zealand, the UK
and the US, and the study illustrates that there needs to be cooperation between
competition law and specific sectors for dealing with anti-competitive behaviour and
building competition in the utility markets.41
Weeds’ study on the concurrent operation of the UK OFT and sectoral
regulators submitted that the concurrent operation provides an advantage in relation
to the extension of competition law principles to be used by regulators.42 The
concurrent power achieves a broadening of the regulator’s power within the wider
competition policy regime and provides the benefit of consistency and transparency
between competition law and sectoral regulators.43 The concurrent operation assists
in the alignment between ex ante and ex post roles for both competition law and
sectoral regulation.44
In Streel’s study on the relationship between competition law and sectoral
regulation in electronic communication such as infrastructures for the services of the
information society -fixed and mobile telephony networks, Internet connections,
45
cable TV, and satellite connections suggests that competition law authorities and
sectoral regulators have specific and complementary roles regarding the promotion
and protection of competition.46 Streel points out that competition law is justified to
intervene more intensively in the electronic communications sector than in other
sectors of the economy; however, sectoral regulation should be employed when there
are uncompetitive structures in the sector.47 In addition, in his research on sectoral
regulation and anti-trust law for US telecommunications, Shelanski states that, when

40
Michel Kerf, Isabel Neto and Damien Geradin, 'Antitrust vs. Sector-specific Regulation in Telecom:
What Works Best?' (2005) < http://ssrn.com/abstract=886292>.
41
Ibid.
42
Helen Weeds, 'Concurrency between OFT and regulators' (2004) 12(2) Utilities Policy 65pages 65-
69, See also in UK Department of Trade and Industry and HM Treasury, 'Concurrent Competition
Powers in Sectoral Regulation ' (UK Department of Trade and Industry and HM Treasury Doc No.
URN 06/1244, 2006) <http://www.bis.gov.uk/files/file29454.pdf>.
43
Ibid.
44
Ibid.
45
Alexandre de Streel, 'The Relationship between Competition Law and Sector Specific Regulation:
The case of electronic communications' (2008) XLVII(10) Reflets et perspectives de la vie
économique.
46
Ibid.
47
Ibid.
 22

market competition has been gradually established in the US telecommunication

sector, anti-trust law would be a significant remedy for protecting market
competition under the phasing out role of of sectoral regulation.48
In a study by Diathesopoulos on competition law and sectoral regulation, it is
found that competition law and sectoral regulation are important mechanisms for
promoting and protecting competition in EU energy sectors.49 Diathesopoulos
submits that competition law and sectoral regulation are interactive with each other
to encourage market competition in the energy sector by promoting fair access to
energy networks,50 the structural change of unbundling51 and the progress of
liberalisation and deregulation.52
A study by Starkie on airport sector regulation and competition submits that
competition law needs to be used in the airport sector to handle anti-competitive
conduct under an ex post regulatory approach to complement sectoral
regulation.53Similarly, Littlechild specifies that competition law and sectoral
regulation need to collaborate to establish and protect market competition in the
airport sector.54
Bender et al.’s study on effective competition in EU telecommunications, rail
and energy utilities points out that the interplay between competition law and
sectoral regulation is an important mechanism to create and protect market
competition in the utility sectors.55 They submit that the implementation of
competition policy via an interplay between competition law and sectoral regulation
plays a considerable role in promoting and protecting market competition.56

48
Howard A. Shelanski, 'From sector-specific regulation to antitrust law for US telecommunications:
the prospects for transition' (2002) 26(5–6) Telecommunications Policy 335.
49
Michael D. Diathesopoulos, 'Competition Law and Sector Regulation in the European Energy
Market after the Third Energy Package: Hierarchy and Efficiency' (2012) 1 Journal of Governance
and Regulation ; Ibid.
50
Ibid; Michael D. Diathesopoulos, 'Third Party Access and Refusal to Deal: How Sector Regulation
and Competition Law Meet Each Other' (2010) <Available at SSRN:
http://ssrn.com/abstract=1732210 or http://dx.doi.org/10.2139/ssrn.1732210>.
51
Michael D. Diathesopoulos, 'Ownership Unbundling in EU & Legal Problems' (2010) <Available
at SSRN: http://ssrn.com/abstract=1732212 or http://dx.doi.org/10.2139/ssrn.1732212>.
52
Michael D. Diathesopoulos, 'Energy Market Restructuring and Competition Regulation' (2010)
<Available at SSRN: http://ssrn.com/abstract=1621719>.
53
David Starkie, 'Airport regulation and competition' (2002) 8(1) Journal of Air Transport
Management 63.
54
Stephen C. Littlechild, 'German airport regulation: Framework agreements, civil law and the EU
Directive' (2012) 21(0) Journal of Air Transport Management 63.
55
Christian M. Bender, Georg Götz and Benjamin Pakula, 'Effective Competition: Its Importance and
Relevance for Network Industries' (2011) 46(1) Intereconomics.
56
Ibid.
 23

A study by Blankart et al. on the regulation of new markets in EU

telecommunications found that the ex ante and ex post approaches under the
coordination between competition law and sectoral regulation are significant to
develop competition in telecommunications.57
The literature above on the application of competition law and sectoral
regulation in the utility sectors. outlines why utility market require a combination of
competition law and sectoral regulation. In order to promote and protect market
competition they need to complement each other to prevent incumbent firms from
abusing their market power as well as increasing market power in the liberalised and
privatised utility sectors. Both competition law and sector-specific regulation provide
the applicable remedies for coping with market power and distorted market
competition. Therefore, it is necessary for all countries to formulate competition law
and regulation in order to develop market competition and the efficiency in their
liberalised utility markets.

Developing countries
As well as research on developed countries, there is also research on
competition law and sectoral regulation in the utility sectors in developing
countries.58 The research from CUTS-Centre for Competition, Investment and
Economic Regulation (CUTS C-CIER) points out that developing countries need
formal interaction and development between sectoral regulators and the competition
authority so that there is no conflict between them, and they can then jointly promote
the development of competition in the utility markets.59 Similarly, Stewart, Clark
and Joekes consider various studies on the application of competition law in
developing countries.60 Their research reveals that some developing countries have

57
Charles Beat Blankart, Günter Knieps and Patrick Zenhäusern, 'Regulation of New Markets in
Telecommunications: Market Dynamics and Shrinking Monopolistic Bottlenecks' (2007) 8(03)
European Business Organization Law Review (EBOR) 413.
58
CUTS, 2004, Sectoral Regulation – Challenges for the Developing World, http://www.cuts-
international.org/pdf/C-CIER-No-4-2007.pdf. See also the further detail of CUTS relating to
competition law and policy at the CUTSC-CIER website of http://www.cuts-ccier.org/.
59
Ibid.
60
Taimoon Stewart, Julian Clarke and Susan Joekes, Competition law in Action:Experiences from
Developing Countries (IDRC, 2007).
 24

developed and established a framework for the development of competition law and
regulation that contributes to an increase in market competition and economic
efficiency.61
A study by the UK Department for International Development on the
Competition Policy, Law and Developing Countries concludes that developing
countries require competition law for tackling uncompetitive business practices
across all economic sectors or those in specific individual sectors.62 The study notes
that network service industries, such as telecommunication and electricity services,
have specific competition problems that may be best addressed through utility
sectoral regulation.63
In Ulen’s research, competition law and regulation are seen to play important
roles in the development of economic sectors, including utility sectors.64 However,
the research contends that there must be a suitable development framework to
develop market competition in a developing economy.65 This can be also seen in the
United Nations Conference on Trade and Development’s (UNCTAD’s) conference
report relating to anti-competitive businesses and their effects on development
prospects.66 The report is derived from various conference papers that reveal that
competition law and policy have become crucial mechanisms for promoting and
protecting market competition in rapid transformation of economies due to
liberalisation and privatisation policies.67 The report highlights empirical research in
developing countries such as Romania and Pakistan, where competition law and
policy play a significant complementary role with sectoral regulation in dealing with
anti-competitive conduct in the utility sectors.68

61
Ibid.
62
Department for International Development, 'Competition Policy, Law and Developing Countries'
(Department for International Development, 2001)
<http://webarchive.nationalarchives.gov.uk/+/http://www.dfid.gov.uk/pubs/files/itdcompetitionbrief.p
df>; See also in DFID, 'Competition Policy, Law and Developing Countries' (2001),Trade matters
eliminating poverty<http://www.dfid.gov.uk/pubs/files/itdcompetitionbrief.pdf>.
63
Ibid.
64
Thomas S. Ulen, 'The uneasy case for competition law and regulation as decisive factors in
developments: some lessons from China' in Michael Faure and Xinxhu Zhang (eds), Competition
Policy and Regulation : Recent Developments in China, the US and Europe (Edward Elgar 2011).
65
Ibid.
66
Hassan Qaqaya and George Lipimile, 'United Nations Conference on Trade and Development: The
effects of anti-competitive business practices on developing countries and their development
prospects' (UNCTAD, 2008) <http://www.unctad.org/en/docs/ditcclp20082_en.pdf>.
67
Ibid.
68
Gheorghe Oprescu, Daniela Eleodor and Maria Alexandru, 'Benefit of Introducing and Applying
Competition Policy in Emerging Economise: Case study-Romania' (Paper presented at the United
Nations Conference on Trade and Development: The effects of anti-competitive business practices on
 25

The above literature review outlines the existing research relating to

competition, regulation and competition law in the utility sectors. The review shows
that, when seeking to build market competition in the utility sectors, consideration
must be given to how best to formulate and develop effective competition law and
sectoral regulation in order to promote and protect competition. Having regard to the
literature review on competition law and sectoral regulation in both developed and
developing countries, there are similarities in that there must be effective
frameworks in place regarding competition law and sectoral regulation. These
frameworks are essential to the development of competition in the utility sectors.
The next part of the literature review focuses on, the main consideration of
the thesis; that is, the role of competition law and sectoral regulation in the electricity
sector.

1.3.2 Competition law and regulation in the electricity sector

There is a body of research that focuses on the development of competition
law and regulation in the electricity industry.69The OECD‘s study, for example,
shows that through the implementation of a liberalisation policy, the electricity
sector is prone to face anti-competitive behaviour and the abuse of market power
given that the sector has inelastic demand, a lack of extensive practical storage of
electricity, transmission overcrowding, and transmission flow and capacity limitation
coupled with diverse marginal costs of different types of generators.70 Due to the
problem of market power in the electricity sector, the study reveals that many

developing countries and their development prospects, 2008)

<http://www.unctad.org/en/docs/ditcclp20082_en.pdf>; Joseph Wilson, 'Competition Policy And
Poverty Alleviation: The Case of Pakistan' (Paper presented at the United Nations Conference on
Trade and Development: The effects of anti-competitive business practices on developing countries
and their development prospects, 2008) <http://www.unctad.org/en/docs/ditcclp20082_en.pdf>.
69
OECD, 'Competition Issues in the Electricity Sector' (2005) 6(4) OECD Journal of Competition
Law & Policy 81.
70
Ibid 1.
 26

countries that have liberalised their electricity sectors have had to rely on
cooperation between sectoral regulators and the national competition authorities in
order to supervise the market competition of their electricity sectors.71
In a study on regulation and competition in liberalised electricity sectors,
Zhang, Parker and Kirkpatrick assert that there is a lack of appropriate institutional
regulatory frameworks and competition policies in many countries to create market
competition.72 This can also be seen in research by Pablo,73Cook,74Lalor and
Garcia,75and Spiller and Martorell.76 Each study considers the challenges that need to
be addressed in establishing an appropriate framework for sectoral regulation and
competition law in the liberalised electricity sector. In summary, a lack of
appropriate framework results in privatised electricity firms being able to
monopolise or exert market power in the sector.
Moreover, Schmalensee and Golub found that the liberalised electricity
market in the US faces a significant concentration of market power among electricity
firms.77 This finding is similar to a study by Cardell, Hitt and Hogan, which reveals
that the deregulated electricity market still has a significant concentration of market
power.78 Moreover, the US Office of Economic Electricity and Natural Gas Analysis
explored the liberalised electricity market in countries such as the US, the UK, New

71
Ibid 93. The study present that ,in the case of Canada, given the substantial overlap in the different
roles, the agencies have developed a joint statement setting out the respective agencies’ jurisdictions
and formalising modes of co operation. In Brazil, where there are market share caps on the
privatisation process, the market share caps are administered by the Brazilian competition agencies,
under a collaborative agreement with the energy regulator.
72
Yinfang Zhang, David Parker and Colin Kirkpatrick, 'Competition, regulation and privatisation of
electricity generation in developing countries: does the sequencing of the reforms matter?' (2005)
45(2-3) The Quarterly Review of Economics and Finance 358.
73
Pablo T. Spiller, 'Institutions and Regulatory Commitment in Utilities' Privatization ' (1993) 2(3)
Industrial and Corporate Change.
74
Paul Cook, 'Privatization and Utility Regulation in Developing Countries: the Lessons So Far'
(1999) 70(4) Annals of Public and Cooperative Economics 549.
75
R. Peter Lalor and Hernán García, 'Reshaping Power Markets-Lessons from Chile and Argentina'
(World Bank, , Note No. 85, 1996)
<http://rru.worldbank.org/documents/publicpolicyjournal/085garcia.pdf>.
76
Pablo T Spiller and Martorell Luis Viena, 'How Should It Be Done? Electricity Regulation in
Argentina, Brazil, Uruguay, and Chile' in Richard J Gilbert and Edward P Khan (eds), International
Comparison of Electricity Regulation, Cambridge (Cambridge University Press., 1996).
77
Richard Schmalensee and Bennett W. Golub, 'Estimating Effective Concentration in Deregulated
Wholesale Electricity Markets' (1984) 15(1) The RAND Journal of Economics 12.
78
Judith B Cardell, Carrie Cullen Hitt and William W Hogan, 'Market power and strategic interaction
in electricity networks' (1997) 19(1-2) Resource and Energy Economics 109.
 27

Zealand and Australia, and found strong evidence of market power being exercised
in electricity markets.79
Newberry’s study of the EU’s liberalised electricity market uncovered
significant problems associated with dominant firms possessing and exercising
market power.80 Similarly, Sweetse found that there are issues with state policy that
may favour the market power of dominant state electricity suppliers.81 However, the
study urges that its findings should not contribute to a condemnation of policy to
restructure electricity in states with dominant firm. It is because the study finding
merely display that there must be special consideration in creating effective
competition in states where a regulated electricity utility controls a large share of
generation capacity.82
The review above points to the need to pay attention to the development of
competition law and sectoral regulation, when attempting to liberalise and
restructure the electricity market. The literature regarding the development of
competition law and sectoral regulation is discussed below.

Development of competition law and sectoral regulation

In Bergman’s research regarding competition law and sectoral regulation,
which is aimed at creating market competition in the electricity sector, he submits
that attempts to build competition may be undermined by ill-designed markets and
regulations that are unable to deal with the exercise of market power by liberalised
firms.83 Further, in addressing the market power of liberalised electricity firms, there
should be regulation and competition policy that supports (1) free entry on the
supplier side, (2) a low degree of electricity supplier concentration, (3) price
transparency, (4) free choice of market supplier and contracts, and (5) freedom to

79
Office of Economic Electricity and Natural Gas Analysis, 'Horizontal Market Power in Restructured
Electricity Markets' (U.S. Department of Energy, 20585, 2000)
<http://www.pi.energy.gov/documents/HMPReport.pdf>.
80
David M. Newbery, 'Problems of liberalising the electricity industry' (2002) 46(4-5) European
Economic Review 919.
81
Sweetser Al, 'Measuring Market Power in a State with a Dominant Supplier: A Case Study' (1998)
11(6) Electricity Journal, The 61.
82
Ibid.
83
Lars Bergman, 'Addressing Market Power and Industry Restructuring ' (Paper presented at the
Implementing the Internal Market of Electricity: Proposals and Time-Tables, Brussels, 2005)
<http://www.sessa.eu.com/documents/final/SESSA_report_wp4.pdf>.
 28

switch suppliers.84 The Al-Sunaidy and Green85 study of the trend in regulation and
competition law with respect to electricity deregulation in OECD countries found
that market competition needs to be promoted by transforming an anti-competitive
structure into a competitive structure by implementing regulations that:
- deals with large dominant companies, which may still be state-owned;
- manage fair Third Party Access (TPA) of electricity wires;
- contribute to the unbundling of electricity-dominant firms into
generation, transmission and distribution of electricity; and
- open competition in the retail electricity market.
In relation to specific countries, O’Neill and Helman consider the experience
of US reforms in the area of electricity regulation where the Federal Energy
Regulatory Commission (FERC) built market competition in the wholesale sector by
establishing an open-access regime for electricity transmission networks that
stimulated development in regional electricity markets, thereby allowing the partial
liberalisation of wholesale electricity supply and the promotion of retail electricity
competition.86 O’Neill and Helman conclude that the US electricity market has not
been deregulated; rather, it has been subject to a new paradigm of regulation that
promotes market competition through open access, market expansion and efficient
market design, while constraining firms’ market power.87
Research by Ceriani, Doronzo and Florioon on the policy and regulation of
the liberalised EU electricity market found that liberalisation relied on the regulatory
reform that contributed to the structural change towards market competition with less
public ownership in electricity enterprises.88 They found that the general regulatory
changes when liberalising EU electricity were (i) privatising SOEs, (ii) vertically and
horizontally unbundling non-competitive segments; and (iii) allowing market

84
Ibid. 14.
85
A. Al-Sunaidy and R. Green, 'Electricity deregulation in OECD (Organization for Economic
Cooperation and Development) countries' 31(6-7) (2006/6//) Energy 769.
86
Richard O'Neill and Udi Helman, 'Regulatory Reform of US. Wholesale Electricity markets' in Marc
K. Landy, Martin A. Levin and Martin Shapiro (eds), Creating Competitive Markets: The Politics of
Regulatory Reform (Brookings Institution Press, 2007).
87
Ibid. 151.
88
Lidia Ceriani, Raffaele Doronzo and Massimo Floro, 'Privatization, Unbundling, and libearalization
of Network Industries: A Discussion of Dominant Policy Paradigm in The EU' (Paper presented at the
EPSU/ETUI-REHS/SALTSA Conference “An alternative to the market. The social, political and
economic role of public services in Europe” Bruxelles, 19-20 November 2007 2007)
<http://www.economia.unimi.it/uploads/wp/Deas2009_09wp.pdf>.
 29

competition in the electricity sector.89 Further, Kotlowski points out that in gas and
electricity markets, competition law90 and especially the essential facilities doctrine
and refusal to supply cases, complement the ex ante role of sectoral regulation.91
The literature shows that, in establishing competition in liberalised electricity
markets, regulation must play an important role in shaping the market towards a
competitive environment. After the regulation establishes workable market
competition in the electricity sector, competition law must supervise competition.92
Glazer and Little point out that regulation and competition law are important in
protecting competitors and consumers from the abuse of market power in a
deregulated electricity market.93
The importance of competition law enforcement in a liberalised electricity
sector can also be seen in the works of Lock,94 Decker and Keyworth,95 Salerno,96
and Scholz and Purps.97 These works point to the essential role of competition law in
building and protecting the establishment of market competition in the liberalised
electricity sector.
Similarly, Dziadykiewicz proposed that competition law is important in
situations where a refusal to grant access in electricity networks may constitute an
abuse of a dominant power.98 This is similar to Kotlowski’s work, which focuses on
providing a competition law remedy for open access to the essential facilities of

89
Ibid.; See also in Martin F. Hellwig, 'Competition Policy and Sector-Specific Regulation for
Network Industries' (MPI Collective Goods Preprint, No. 2008/29 , Maxplanck Institute For research
on Collective Goods 2008) <http://ssrn.com/paper=1275285>.
90
EC treaty Article 82.
91
Aleksander Kotlowski, 'Third-party Access Rights in the Energy Sector: A Competition Law
Perspective' (2007) 16(3) Utilities Law Review 101.
92
Vincent Smith, 'Competition concurrency between the OFT and sector regulators' (2004) 12(2)
Utilities Policy 6161.
93
Craig A. Glazer and M. Bryan Little, 'The Roles of Antitrust Law and Regulatory Oversight in the
Restructured Electricity Industry' (1999) 12(4) The Electricity Journal 21.
94
Reinier H. J. H. Lock, 'Anti-trust and regulatory issues in a competitive electric industry' (1991) 1(3)
Utilities Policy 220.
95
Chris Decker and Tim Keyworth, 'Competition Law and Comodity Markets: The Case of Wholesale
Electricity' (2002) 22(4) Economic Affairs 32.
96
Francesco Maria Salerno, 'The Competition Law-ization of Enforcement: The Way Forward for
Making the Energy Market Work?' (2008) EUI RSCAS 2008/07
<http://cadmus.eui.eu/dspace/handle/1814/8108>.
97
Ulrich Scholz and Stephan Purps, 'The Application of EC Competition Law in the Energy Sector'
(2010) 1(1) Journal of European Competition Law Practice 37.
98
Dziadykiewicz, above n 30.
 30

electricity networks.99 Kotlowski points out that competition law provided a remedy
to some structural market problems in the electricity sector.100
The above literature review reveals that there is wide-ranging research on the
development of competition law and sectoral regulation in the electricity sector in
developed countries, including EU countries, the US and the UK.101 In contrast, there
is a lack of literature regarding the development of competition law and regulation in
the electricity sector in developing countries. In Dagdenviren’s study relating to the
limits of competition and regulation in privatised electricity markets, it was noted
that there is limited literature regarding regulatory effectiveness in developing
countries and thus, the issue of the dynamic regulation that is needed to create
competition and efficiency in liberalised electricity markets in developing countries
is neglected.102 Moreover, the majority of studies relating to developing countries
only focus on the regulation leading up to electricity reform, and they neglect the
issue of competition law enforcement in building market competition.
In research by Zhang, Parker and Kirkpatrick that assesses the effects of
electricity privatisation, competition and regulation in developing countries, it was
found that privatisation and deregulation do not in themselves contribute to obvious
gains in economic efficiency; rather, it is the introduction of competition that appears
to be effective in facilitating improvements in economic efficiency.103 However, the
research does not consider the development of competition law application and
sectoral regulation in the liberalised electricity sector in developing countries.
Xu’s study on the World Bank’s template on electricity reform found that the
template proposed for regulatory reform can translate into the unbundling of the
electricity industry (generation, transmission, distribution and supply).104 However,
Xu did not mention the importance of applying competition law and policy in
liberalised electricity markets in developing countries. Tooraj’s studies on reform in

99
Kotlowski, above n 91.
100
Alexander Kotlowski, 'Third-Party Access Rights in the Energy Sector: A Competition Law
Perspective' 2007 16(3) Utilities Law Review 101.
101
Dennis W. Carlton and Randal C. Picker, 'Antitrust and Regulation' (US National Bureau Of
Economic Research, Working Paper 12902, 2007) <http://www.nber.org/papers/w12902.pdf>.
102
Hulya Dagdeviren, 'Limits To Competition and regulation in Privatized Electricity Markets' (2009)
80(4) Annals of Public and Cooperative Economics 641.
103
Yin-Fang Zhang, David Paker and Colin Kirkpatrick, 'Electricity sector reform in developing
countries: an econometric assessment of the effects of privatization, competition and regulation'
(2008) 33(2) Journal of Regulatory Economics 159.
104
Xu Yi-chong, 'Models, Templates and Currents: The World Bank and Electricity Reform' (2005)
12(4) Review of International Political Economy 647.
 31

electricity sectors in developing countries consider that regulatory frameworks can

assist in the establishment of market competition. However, the studies do not
consider that competition law can be a complementary remedy when there is an
abuse of market power by liberalised electricity firms.105
Besant-Jones and Tenenbaum conducted a study regarding the lessons that
developing countries could take from California’s electricity market crisis,
suggesting that inappropriate regulatory design was the flaw that ultimately led to the
crisis in the California electricity industry in 2001 .106 The importance of their
research is that appropriate regulation is required for restructuring liberalised
electricity markets. However, the research does not consider competition law a
remedy for preventing anti-competitive conduct by liberalised electricity firms in
developing countries.

1.3.3 Competition law and regulation in Thailand’s electricity sector

The previous section showed that there is a lack of research regarding the
development of competition law and sectoral regulation in the electricity sectors in
developing countries. This section focuses on Thailand, which is one of the
developing countries with a lack of research. In Thailand’s case, scholars tend to
consider the development of competition law and the development of electricity
regulation separately rather than together. As a result, there is a failure to consider
the inter-relationship between the development of both competition law and
regulation in the electricity sector.
In a study focusing on Thai competition law, Nikomborirak illustrates that
Thai competition law is futile when its enforcement cannot withstand political
hurdles and discriminatory and arbitrary implementation.107 She reviews the
historical background to Thai competition law and considers what went wrong with

105
Tooraj Jamasb, 'Reform and Regulation of the Electricity Sectors in Developing Countries' (CMI
Working Paper Series, University of Cambridge, 2007)
<http://www.econ.cam.ac.uk/electricity/publications/wp/ep08.pdf>; Tooraj Jamasb, 'Between the
state and market: Electricity sector reform in developing countries' (2006) 14(1) Utilities Policy 14.
106
John Besant-Jones and Bernard Tenenbaum, 'The California Power Crisis: Lessons for Developing
Countries' (World Bank Energy & Mining Sector Board Discussion Paper No.1 2001) <http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2004/03/25/000090341_2004032
5143555/Rendered/PDF/280840California0Power0crisis0EMS0no.01.pdf>.
107
Deunden Nikomborirak, 'The Political Economy Of Competition Law: The Case Of Thailand'
(2006) 26(3) (Spring2006) Northwestern Journal of International Law & Business 597.
 32

the law’s implementation, especially the lack of competition law enforcement

following the establishment of a competition regime in Thailand.
Similarly, Poapongsakorn asserts that enacting competition law will not bring
about competitive market environment unless there are effective competition
institutions.108 He also contends that the competition law authority needs to be
established as an independent and transparent institution.109Further, Poaponsakorn
submits that Thailand lacks a clear relationship between the competition authority
and sectoral regulators. Nevertheless, there is no research or recommendation on the
possible development for Thai competition law and sectoral regulation in the utility
sectors.
It appears that the research on competition law points to the ineffective
enforcement of Thai competition law. However, the researchers neglected to
consider the importance of developing a framework for competition law and sectoral
regulation in utility infrastructure sectors. Moreover, Nikomborirak and
Poapongsakorn paid little or no attention to research on how to develop an effective
enforcement framework for Thai competition law in the utility sectors. Thus, there is
still a lack of research on competition law application in Thai utility sectors,
especially the electricity sector, which is the focus of this thesis.
In the research relating to sectoral regulation in Thailand’s electricity sector,
various studies focus on the regulatory framework for a liberalised electricity market.
In their research on electricity reform in developing countries, William and Ghana
pointed out that in implementing electricity reform, the Thai government de-
emphasised market competition and instead focused on turning the state-owned
electricity entity into a ‘National Champion’.110 They concluded that Thailand’s
reform of the electricity sector lacked effective sectoral regulation, and a key lesson
from the experience is that simply passing laws and regulations does not contribute
to the success of reform.111 Rather, it requires regulators that have the independence,
professional capacity and financial resources to design and enforce regulations in the
public interest.112

108
Nipon Paopongsakorn, 'The New Competition Law in Thailand: Lessons for Institution Building '
(2002) 21 (2) Review of Industrial Organization 185.
109
Ibid.
110
J. H. Williams and R. Ghanadan, 'Electricity reform in developing and transition countries: A
reappraisal' (2006) 31(6-7) Energy 815.
111
Ibid, 831.
112
Ibid, 838.
 33

A study by Wattana, Sharma and Vaiyavuth discusses the historical

development of regulation in Thailand’s Electricity Supply Industry.113 The study
reveals that the regulatory reform for the liberalisation of the Thai electricity sector
is uncertain given the socio-political context. The study concluded that, with
Thailand’s socio-economic circumstances, macroeconomic conditions, electricity
system, political situation, the size of country and the capacity of its domestic
financial market and institutions, the country is not ready to undertake market
reform. The study furthers states that Thailand’s priority is the reliability of the
electricity supply to serve social and economic development rather than the
introduction of competition and choices of supply for consumers.114 The study tends
to abandon the role of market competition for producing a reliable supply of
electricity in the long term. Instead, it relies on the role of SOEs as the main
suppliers of electricity. The study can be contrasted with the research of Greacen and
Greacen on Thai electricity reforms through privatisation. They assert that a
framework for the liberalisation of the electricity sector, which favours state-owned
electricity and gas enterprises without seeking to create competition, would lead to
economic inefficiency and increases in the cost to public consumers.115
Further, Chaivongvilan, Sharma and Sandu submit that the Thai energy
policy and regulatory framework lacks a comprehensive analysis of possible
economy-wide effects.116 They recommend that the regulatory and policy framework
regarding energy, including the electricity sector, needs to correspond to economy-
wide contexts.117 This is similar to work by Sirasoontorn, who submits that the
existing regulation of electricity prices does not facilitate industry efficiency and
does not promote appropriate electricity prices for consumers due to a lack of
consideration of the supply-side efficiency.118
Regarding a regulatory framework that can help increase competition in the
electricity market, Woo’s research on independent power producers in Thailand

113
Supannika Wattana, Deepak Sharma and Ronnakorn Vaiyavuth, 'Electricity Industry Reforms in
Thailand: A Historical Review' (2008) 2 GMSARN International Journal 41.
114
Ibid. 8.
115
Chuenchom Sangarasri Greacen and Chris Greacen, 'Thailand's Electricity Reforms: Privatization
of Benefits and Socialization of Costs and Risks' (2004) 77(3) Pacific Affairs 517, 520.
116
Srichattra Chaivongvilan, Deepak Sharma and Suwin Sandu, 'Energy challenges in Thailand: an
overview' (2008) 2(2) GMSARN International Journa 53.
117
Ibid, 60.
118
Puree Sirasoontorn, 'Tariff Regulation in Electricity Supply Industry in Thailand' (Discussion Paper
No. 0007, Faculty of Economics, Thammsat Univerisity, 2008)
<http://www.econ.tu.ac.th/doc%2Fcontent%2F334%2FDiscussion_Paper_No.7.pdf>.
 34

reveals that, although there is regulation that permits private investors to participate
in electricity supply, the SOEs still have significant control over the electricity
market.119 The research details that private electricity producers are subject to control
by SOEs that hold significant shares of the main private producers.120This is similar
to a study by Jarvis on the institutional process and political risk in the Thai energy
sector, which explores the effects of regulatory reform on the energy sector and the
governance institutions responsible for the electricity sector.121 By reviewing a
history of the regulatory changes, Jarvis claims that reform in Thailand’s electricity
sector has failed because independent regulatory oversight was not established, and the
SOEs retain significant control over the electricity market.122 Jarvis concludes by
pointing out that the newly established Energy Regulatory Commission, which must
deal with many challenges and private enterprises wishing to invest, still needs to
consider the risks arising from political and regulatory changes.123
From the above literature review on competition law and electricity
regulation in Thailand, it appears that there is limited research on the development of
Thai competition law enforcement, with the research paying less attention to its
development in the electricity sector. Moreover, it can be seen that, although there is
some research on the reform and liberalisation of regulation in the electricity sector,
it neglects the importance of developing a competition law enforcement framework.
Therefore, it is submitted that further research on the development of
competition law and sectoral regulation is needed to fill the gap in the existing
research. The research would contribute to the possible reform of competition law
and sectoral regulation in order to promote and protect competition in the Thai
electricity sector. Moreover, the research could provide an example for the
development of competition law and sectoral regulation in other Thai utility sectors.

119
Pei Yee Woo, 'Independent Power Producers in Thailand' (Program on Energy and Sustainable
Development, Standford University, Working Paper # 51, 2005)
<http://pesd.stanford.edu/publications/20978>.
120
Ibid.
121
Darryl S. L. Jarvis, 'Institutional processes and regulatory risk: A case study of the Thai energy
sector' (2010) 4(2) Regulation & Governance 175.
122
Ibid.
123
Ibid.
 35

1.4 Research questions

Within the context of the above literature review, the thesis will attempt to
answer the following three key research questions:
1) What is the current framework in the Thai electricity sector, and are
there any problems regarding competition law and sectoral regulation
in Thailand?
2) What is the international experience regarding the shaping of
competition law and sectoral regulation when seeking to transform the
electricity sector into a competitive market?
3) How can Thailand apply the international experience to develop its
competition law and sectoral regulation in the electricity sector?

1.5 Significance of the thesis research

The research in this thesis is significant in that it seeks to investigate and
diagnose the current problems regarding competition law and sectoral regulation in
the context of the Thai electricity sector. As shown above, there is limited research
relating to problems with Thai competition law and with electricity regulation under
the liberalisation program. However, the existing research tends to neglect problems
regarding the interrelation between competition law and sectoral regulation. In
addition, the previous research has taken the form of single papers and articles that
examine only narrow aspects. A comprehensive investigation of problems with
competition law and sectoral regulation in Thailand would provide a much-needed
broader view of the current problems with competition law and sectoral regulation in
Thailand’s electricity sector.
The research in this thesis is also important because it reviews international
experience with shaping competition law and sectoral regulation to help stimulate
and protect market competition in electricity sectors. Reviewing international
experience will help highlight the benefits and limitations of the different approaches
undertaken by various countries in relation to competition law and sectoral
 36

regulation of their electricity sectors. In doing so, useful lessons can be drawn to
assist Thailand to create and protect market competition in its electricity sector.
The research in this thesis is original in providing a possible plan for the
reform and development of competition law and sectoral regulation in Thailand’s
electricity sector. After identifying the problems and reviewing the possible solutions
identified from international experience, the research will propose reforms that will
provide insights into potential ways to develop Thailand’s competition law and
sectoral regulation to contribute to the creation and protection of competition in
Thailand’s electricity sector. The research will be available to provide a
recommendation to Thailand’s government for reforming competition law and
sectoral regulation to promote and protect market competition in the electricity
sector.
Therefore, this thesis is important to the development of Thailand’s
competition law and sectoral regulation of the electricity sector. In addition, the
research will add to the literature by offering an important study that other
developing countries can draw on during a transitional period that leads to the reform
of competition law and sectoral regulation in their electricity sectors.

1.6 Scope of thesis

This thesis focuses on competition law and sectoral regulation in Thailand’s

electricity sector. It is confined to legal research that focuses on law and regulation
and it is based on the widely held premise that competition can create considerable
economic efficiencies when compared with a monopoly structure. The research in
the thesis considers how to develop competition law and sectoral regulation with the
purpose of assisting with the creation of market competition and further promoting
and safeguarding market competition in Thailand’s electricity market. The thesis
also seeks to identify problems with existing competition law and sectoral regulation
that may contribute to uncompetitive structures and anti-competitive behaviour. The
thesis draws from international experience to identify a reform framework to
improve competition law and sectoral regulation of the electricity sector in Thailand.
 37

While the international experiences are confined primarily to developed countries

such as the US, the UK, Australia, Japan and Korea, the thesis also draws some
insights from developing countries such as Argentina, India and Mexico.
At the outset, it is important to define the term “competition” in the context
of this thesis. Competition refers to a situation in a market in which firms or sellers
independently strive for the patronage of buyers to achieve a particular business
objective such as profits, sales and/or market shares.124 In this context, competition is
also equated to business rivalry that occurs when there are two or more firms in the
market.125 This business rivalry may occur in terms of price, quality, service or
combination of these and other factors that customers may value.126
The thesis defines competition in the electricity sector as a situation in which
there is free and fair rivalry among electricity firms in various sections (generation,
transmission, distribution and retail), including free and fair entry for firms,127
competitive neutrality to all firms in the sector,128 fair access to essential electricity
facilities,129and free and fair choices in electricity retail for consumers.130
In this thesis’s quest for an economically efficient legal and regulatory structure
in order to reform Thailand’s electricity sector, it is recognised that Thailand’s
economic and political environment will have an impact on the issues considered in
this thesis. However, a detailed study of these aspects is beyond the scope of this
thesis which focuses on legal and regulatory framework of competition law and
sectoral regulation. This is primarily due to the position that the political situation in
Thailand is inconclusive and is still subject to change. The political aspects are
simply too broad and fluid to provide any definitive statement or conclusive view as
to the direction that will be taken in Thailand. The political problems in Thailand,
although having been researched by many scholars over 40 years (1970-2013), have
not reached a final conclusion or solution. While political scientists and other

124
The definition is derived from OECD glossary of Industrial Organization Economics and
Competition law- <http://www.oecd.org/dataoecd/8/61/2376087.pdf>.
125
Ibid.
126
Ibid.
127
OECD, 'Competition and Barriers to Entry' (OECD Policy Brief, Jan 2007, 2007)
<http://www.oecd.org/dataoecd/9/59/37921908.pdf>.
128
Antonio Capobianco and Hans Christiansen, 'Competitive Neutrality and State-Owned Enterprises:
Challenges and Policy Options' (OECD Corporate Governance Working Papers No. 1, 2011)
<http://www.oecd.org/dataoecd/29/43/46452890.pdf>.
129
Mats A. Bergman, 'Role of Essential facilities Doctrine' (2001) 46(2) Antitrust Bulletin 403.
130
Michael Pollitt, 'Electricity Liberalisation in the European Union: A Progress Report' (EPRG
Working Paper 0929-Cambridge Working Paper in Economics 0953, 2009)
<http://www.eprg.group.cam.ac.uk/wp-content/uploads/2009/12/Binder1.pdf>.
 38

researchers have continued to comment on the ongoing uncertainty, this approach

has not been adopted due to the concern that it will detract from the main focus in
this thesis. The thesis states in the last chapter that the political environment in
Thailand would be an important area for future research. The thesis is accordingly
confined to undertaking research on how to develop and reform the legal and
regulatory aspects relating to competition law and sectoral regulation.
Following the defined limits of this thesis, this thesis would not be taking
into account the political circumstances in Thailand other than referring, where
relevant, the interaction with the political situation affecting competition law and
sectoral regulation in Thailand’s electricity sector. Although the political uncertainty
may affect the reform of law and regulations within Thailand’s electricity sector, this
does not detract from the benefit of this research for a new legal and regulatory
framework in Thailand’s electricity sector based on international experience.
The thesis thus will focus on Thailand’s framework on competition law and
sectoral regulation for the electricity sector and lesson learnt from existing
international frameworks. Notably, this thesis argues that appropriate proposals from
lessons learnt from international experience can be implemented in Thailand, given
that such reforms have been implemented in other countries having varying degrees
of political uncertainty.

1.7 Methodology
This thesis employs a qualitative method of legal research by analysing both
primary and secondary sources regarding competition law and sectoral regulation of
the utility sectors with specific reference to the electricity sector.
The primary sources for this thesis comprise legislation, case law and the
authoritative pronouncements of law made by parliament and the courts regarding
competition law and regulation in the utility sectors. Secondary sources include
material from books, journal articles, conference papers, policy research papers,
working papers and newspaper articles.
The explanatory and descriptive analyses in the thesis are based on the
research of the primary and secondary sources relating to existing competition law
 39

and sectoral regulation in Thailand. Descriptive and comparative analyses are

employed to present the international experiences. Possible reforms are then
suggested for Thai competition law and sectoral regulation.
In proposing reforms, the thesis will employ the method of law reform
research.131 This approach is based on the critical study of existing law (competition
law and sectoral regulation) and on providing arguments for the reform of the law
and regulation. The approach will be used in Part I of the thesis, which focuses on
existing problems in Thai competition law and sectoral regulation, as well as Part II,
which explores international experiences in competition law and sectoral regulation
in the electricity sector. Part III analyses the international experiences for possible
reforms of Thai competition law and sectoral regulation in the electricity sector. The
reform proposal will outline the possible direction for reform in order to build and
protect market competition.
The thesis will also employ an intellectual exchange from various scholars
via conferences and publication as a means of developing accurate information and
to improve the ideas underpinning research within the thesis. By presenting parts of
the thesis in presentations at international conferences and seminars that are attended
by important scholars and government authorities, the thesis chapters can be subject
to peer review. Reviews and feedback are invaluable for fine-tuning the thesis and
improving the arguments contained in the thesis. The publication of parts of the
thesis in conferences and journals will provide intellectual interactions for the
exchange of ideas. The feedback and ideas received from peer reviews and journal
editors have enabled the fine-tuning of the thesis argument and reform proposals for
Thai competition law and sectoral regulation.

131
Terry Hutchinson, Reserching and Writing in Law (LawBook, 2 ed, 2008), 55-61.
 40

1.8 Organisation of the thesis chapters

The thesis has an introduction chapter and three parts that comprise six
chapters (see Figure 1.1). Part I contains Chapters 2 and 3, which investigate the
problems relating to competition law and sectoral regulation in Thailand’s electricity
sector. Chapter 2 considers the current framework of Thai competition law and
investigates problems rendering the law ineffective. Chapter 3 explores the current
framework and problems regarding sectoral regulation.
Part II comprises Chapters 4 and 5, which review and analyse international
experience with competition law and sectoral regulation in relation to the electricity
sectors. Chapter 4 considers the competition law and its enforcement within the
context of protecting market competition in the electricity sectors in a number of
developed and developing countries. Chapter 5 considers the experience with
establishing sectoral regulation in order to create market competition in the
electricity sectors of developed and developing countries. This part of the thesis
seeks to provide a possible solution for the problems identified in the first part of the
thesis.
Part III contains Chapters 6 and 7. Chapter 6 outlines a possible framework
that could be used to reform Thai competition law and sectoral regulation in the
electricity sector. The framework is derived from international experience, which
provides significant guidance on how to enhance competition law and sectoral
regulation in the electricity sector. Finally, Chapter 7 presents the conclusions of the
thesis. The figure 1.1 below displays a flow of thesis ideas.
 41

Figure 1.1 Flow of Thesis Chapters

Ch 1 Introduction

Problem
identification and
To diagnose the clear problems
Ch 2–3 assessment: Thai
before finding solutions
competition law and
sectoral regulation in
the electricity sector

International
To examine international
experience with
Ch 4–5 experience, which provides
competition law and
alternative proposals for reform
sectoral regulation

Proposals for reform To display a proposal for reform in

of Thai competition Thai competition law and sectoral
Ch 6
law and sectoral regulation based on international
regulation in the experience

Ch. 7 Conclusion
 42

Part I: The exploration of problems and issues

regarding competition law and regulation in the
electricity sector

Chapter 2: Competition law framework and

problems in Thailand

Aim of this chapter: This chapter provides an overview of the Thai competition law
framework and investigates problems that contribute to the ineffectiveness of
competition law in Thailand. This chapter attempts to answer the first thesis
question: What is the current framework in the Thai electricity sector, and are there
any problems regarding competition law and sectoral regulation in Thailand?

This chapter explores the issues relating to competition law and regulation in
the electricity sector, and it explores Thai competition law framework and its
problems before exploring regulation in Thailand’s electricity sector and its
problems in Chapter 3.

2.1 Introduction
Competition law is the vital legal remedy that helps preserve market
competition and facilitates the enhancement of economic efficiency, and contributes
to the outcome of cheaper goods and services, adequate supplies for consumers and
economic growth with the increase of equitable wealth distribution.1 Competition
law also improves economic circumstances by preserving efficient market
competition2, which is an essential prerequisite for economic development.3

1
Phillip Areeda, 'Introduction to Antitrust Economics' (1983) 52(4) Antitrust Law Journal 523.
2
The efficient market competition occurs when there is a maximizing of allocation and dynamic gain
on production of goods and services- See further in Richard O. Zerbe, Economic efficiency in law and
economics (Edward Elgar, 2001); See also information about competition law and economic
efficiency in thesis chapter 4, section 4.2.
 43

In many jurisdictions, a competition law framework has been enacted to deal

with market distortions from the abuse of market power and unfair market practices.
During 1980–2000, there was a rapid proliferation of competition law enactment
around the world, and around 100 countries adopted a competition law framework
with the establishment of a national competition authority to enforce it.4 However, a
number of countries, especially developing countries, still face problems regarding
ineffective enforcement of competition laws. This is the case in Thailand.
Thailand’s experience suggests that the enactment of legislation alone would
not create effective an effective competition law framework. Since its enactment,
competition law has been ineffective, and it is rarely employed to protect market
competition. During 12 years of enforcing Thai competition law, there has been no
effective enforcement regarding anti-competitive conduct or the abuse of SMP. The
Thai Trade Competition Commission5 (hereafter referred to as “the Competition
Commission”) cannot complete any cases regarding market abuse and anti-
competitive conduct, and this leads to problems that result in ineffective competition
law enforcement. Thus, this chapter explores the problems that contribute to
ineffective enforcement of Thai competition law.
First, the chapter provides the general framework of Thai competition law.
Second, it explores the main problems that render the competition law ineffective.
Third, the chapter relates the problems causing ineffective competition law to the
electricity sector, which is a focus of this thesis.

3
Shyam Khemani, A Framework for the Design and Implementation of Competition Law and Policy
(World and OECD, 1998).
4
Taimoon Stewart,, Julian Clarke and Susan Joekes, Competition law in Action: Experiences from
Developing Countries (IDRC, 2007).
5
See the details of Thai Trade Competition Commission at the website of
<http://otcc.dit.go.th/otcc/content_en/catcontent_detail.php?typeId=11&catId=114&ID=77>.
 44

2.2 Competition law framework

2.2.1 Background on economic development and
competition law
The development of competition law in Thailand can be traced back to the
change in the country’s political economy. In early 1930, Thailand’s main economic
sectors were agricultural businesses and small enterprises.6 After Thailand’s 1932
political revolution, the military government paid much support to farmer groups
that comprised the majority of the population.7 At that time, the government’s policy
was to protect the poor people from being exploited by small business groups
occupying the majority of the economy.
However, during 1940s and 1950s, the small business groups changed their
strategy by forming an alliance with the government to create a joint venture
between the government and private businesses.8 This led to an increase in the
concentration of economic activities by small entrepreneur groups.9 In 1957,
Thailand was under the control of the military government, which was headed by
Marshal Sarit who implemented, under American advice, economic policies on the
market liberalisation which reduced economic reliance on SOEs’ monopoly and
encouraged private investment.10 With these policies on opening the economy to
industrialisation and private investment, the government passed the Investment
Promotion Act in 1960 and 1962.11 While government policy and law supported the
expansion of private businesses, they also increased market concentration and
collusive business conduct.12 The monopoly and oligopoly firms, with their allied

6
Pasuk Phongpaichit and Chris Baker., Thailand, economy and politics (Oxford University Press,
1995) 139.
7
Ibid.
8
Kevin Hewison, 'Thailand’s Capitalism: The Impact of the Economic Crisis' (1999)
<http://www.une.edu.au/asiacenter/Hewison.pdf>,5.
9
Ibid.
10
Danny Unger, Building social capital in Thailand : fibers, finance, and infrastructure (Cambridge
University Press, 1998), 61.
11
Ibid.
12
Nipon Paopongsakorn, 'The New Competition Law in Thailand: Lessons for Institution Building '
(2002) 21 (2) Review of Industrial Organization 185, 185-204.
 45

relationships with the military and their involvement in Thai politics, were able to
engage with anticompetitive conduct without regulatory constraints.13
In 1973, Thailand faced economic depression due to high inflation caused by
the oil crisis and the rapid rise of commodity prices. In response to the situation, the
government enacted the Prevention of Excessive Profit Trade Act in 1974 to deal
with collusive conduct that resulted in excessive benefits from the rapid rise of
prices.14 However, the Act paid no attention to the concentration of market cartels
and monopolies.15
In 1979, the government started to consider the widespread collusive
behaviours that were causing inefficient economic development.16 The government
passed two Acts to protect consumer rights: the Price Determination and Anti-
Monopoly Act in 1979.17 Nevertheless, the Price Determination Act contained
unclear definitions on anti-competitive conduct, and it had no provisions concerning
the abuse of market power, which is the most important consideration of
competition law.18 In addition, the Act could only be applied where the businesses
were declared control businesses by the government. During the period of its
enforcement, there was one declaration on an ice-trading business,19 whereas other
sectors had strong relationships with the government and were able to lobby the
government not to impose any declarations on them.
During the 1980s, Thailand’s economy turned to high economic growth;
however, the economy still had characteristics of uneven development under market
concentration.20 The foreign capital of private foreign investments and the financial
assistance of international organisations flowed to only small business groups that

13
Ibid.
14
Ibid.
15
Ibid.
16
Ibid, See also the collusive behavior in Thai economy from -Richard F. Doner and Ansil Ramsay,
'Competitive Clientelism and Economic Governance: The Case of Thailand' in Sylvia Maxfield and
Ben Ross Schneider (eds), Business and the State in Developing Countries (Cornell Univeristy Press,
1997).
17
Ibid.
18
The Price Determination and Anti-Monopoly Act, in principle, was purported to protect consumers
as well as to disallow any anticompetitive behaviors in market.
19
Notification of Committee on Price Determination and Anti-Monopoly No. 57 BE 2525 (1982)
<http://www.lawreform.go.th/lawreform/images/th/legis/compe/th/notifi/2525/a157-2E-2525-
A004.htm>.
20
Chris Dixon, The Thai Economy: Uneven development and internationalisation (Routledge, 1999)
 46

were able to create oligopolies in various business sectors.21 The small business
groups carrying out important activities in an industrialised economy can reap
higher profits while taking advantage of consumers who cannot equally bargain for
product prices and of new competitors who cannot access the market to compete.22
During 1990–1992, the government policy approach gradually changed to a
market-driven strategy to enhance economic development.23 This attracted a high
inflow of international investment, which became an important source of finance for
Thailand’s economy.24 The local middle and capitalist class could create wealth by
tapping into the influx of international investment. The local middle and capitalist
class then employed its wealth to establish its domain over the politically linked
business regime.25 Business people gained seats in the cabinet and parliament, and
they built a collusive alliance between the government and businesses.26
Although the alignment contributed to severe market concentration and a
patronage system in the Thai government, it also seeded the policy of liberalising the
market by fostering competition in the marketplace.27 This is because the business
people who became politicians viewed that the government’s rules and regulations
as needing to be liberalised to increase economic development in order for them to,
receive more benefits from the development of market liberalisation.28 This
contributed to the initiation of a reform program of legislation and regulations,
including a review of the Price Fixing and Anti-Monopoly Act 1979—the old
version of Thai competition law.29 The review of the Price Fixing and Anti-

21
Patrick Heenan and Monique Lamontagne, Southeast Asia Handbook (Fitzroy Dearborn Publishers,
2001)page 49.
22
Ibid.
23
Peter Warr, 'Thailand, a nation caught in the middle-income trap' (2011) 3(4) East Asia Forum
Quarterly, 4
24
Ian Coxhead and Jiraporn Plangpraphan, 'Economic boom, financial bust, and the decline of Thai
agriculture: Was growth in the 1990s too fast?' (1999) 11(1) Chulalongkorn Journal Of Economics,1.
25
Phongpaichit above n 6.
26
Anek Laothamatas, Business associations and the new political economy of Thailand: from
bureaucratic polity to liberal corporatism (Westview Press-Institute of Southeast Asian Studies,
1992);Pasuk Phongpaichit and Christopher John Baker, Thaksin: The Business of Politics in Thailand
(Nordic Institute of Asian Studies, 2004).
27
Sutee Supanit, 'Thailand Report' (Japan Fair Trade Commision, 2002)
<http://www.jftc.go.jp/eacpf/02/thailand_r.pdf> p 2.
28
Laothamatas above n 26.
29
Archanun Kohpaiboon, Paritat Chantasakda and Alongkorn Tanasritunyakul, 'Competition Policy
in Thailand ' (Paper presented at the Competition Policy in Southeast Asia: A Stock Take of Recent
Developmen, Manila, Philipine, 2010)
<http://www.econ.tu.ac.th/doc/content/647/Discussion_Paper_No.20.pdf>.
 47

Monopoly Act led to the drafting of a new competition law, which is discussed in
detail in the next section.

2.2.2 Drafting the new competition law

As discussed above, the government aimed to review legislation and policy
in order to liberalise and deregulate the market.30 In 1991, the Minister of
Commerce considered reviewing and reforming the competition law by establishing
expert committees to develop the Price Fixing Act.31 The committee found two
drawbacks of the Price Fixing Act:
‘First, the primary objective of the Price Fixing Act was to control the market
prices of goods and services for the benefit of consumers, and its
antimonopoly provisions only served as an additional measure of controlling
prices.
Second, in order to enforce the price fixing Act’s antimonopoly provisions, it
first was necessary to enforce the price fixing provisions’.32
Moreover, the Price Fixing Act provided no clear rules on determining anti-
competitiveness and no clear consideration of business market power and the abuse
of power.33 Thus, these drawbacks created legal and political difficulties for
employing the Price Fixing Act to cope with market distortion from the abuse of
market power by monopolies and oligopolies. The drafting committee then turned to
the reform of the Act by following the competition law frameworks in South Korea
and Taiwan.34The drafting committee considered that Thailand has similar economic
characteristics to South Korea and Taiwan, which have fewer dominant firms, and
most firms are SMEs.35 The drafting committee also analysed the Japanese Anti-
Monopoly Law 1947 and the German Act against Restraints of Competition for

30
Apisith John Sutham, 'The Asian Financial Crisis and The Deregulation and Liberalisation of
Thailand's Financial Service Sector: Babarians at the Gate' (1997) 21(5) Fordham International law
journal 1890.
31
Paopongsakorn above n 12,188.
32
Sakda Thanitkul, 'Competition Law in Thailand: A Preliminary Analysis' (2001) Washington
University Global Study Law Review 171.
33
Ibid.
34
Ibid.
35
Ibid.
 48

drafting competition law.36 After eight months, the cabinet approved the draft of the
new competition law, but it was debated for eight years before the law was passed in
1999.37
The eight years of government debate resulted from political uncertainty and
the bargaining power between interest groups that were linked with politicians.38
These issues of political–business influence are discussed in the next section, which
displays the influence of political business groups on competition law enforcement.
However, the crucial factor that facilitated the adoption of the Thai
Competition Act B.E.2542 (1999) was the International Monetary Fund’s (IMF’s)
influence on the economic reform package for Thailand during the Asian financial
crisis in 1997.39 The adoption of the Thai Competition Act B.E.2542 (1999) was
under the condition that the IMF provide financial assistance to Thailand during the
collapse of its economy in 1997.40 Moreover, the adoption of the Thai Competition
Act B.E.2542 (1999) was derived from an important change to the 1997 Constitution
of Thailand. The Constitution, which was widely accepted as a landmark democratic
constitution obligates Thailand in sections 50 and 87 to support the free-market
economy and to govern market competition and consumers’ interests.41 The
influence of these sections contributed to the adoption of the Competition Act in
1999.42

36
Ibid.
37
Paopongsakorn above n 12.
38
Phongpaichit above n 6.
39
Mark William, 'The Competition Law in Thailand: Seed of Success or Fated to Fail?' (2004) 27(3)
World Competition 459; Mark Williams, Competition policy and law in China, Hong Kong and
Taiwan (Cambridge University Press, 2005), 60-61; Mark Williams, 'The Thai Competition Act
1999: What's Gone Wrong ' (2006) <http://www.asialaw.com/Article/1971894/Search/Results/The-
Thai-Competition-Act-1999-Whats-Gone-Wrong.html?Keywords=Competition+Act>.
40
Ibid.
41
See Thai constitution 1997 section 50, 87 from <http://www.admincourt.go.th/amc_eng/02-
LAW/laws/ContitutionBE2540-1997.pdf>.
42
Sakda Thanitkul, Explanation and Case Studies: Thai Competition Act 1999(BE2542) ( translarted
from Thai language) (Wiyuchon Publication House, 2011).
 49

2.2.3 Competition legislation

After eight years of parliamentary debate, the Thai Competition Act
B.E.2542 (1999) (hereafter referred to as the Act) was passed and became the main
statute for dealing with anti-competitive conduct in Thailand. The Act contains
important chapters on establishing the Thai Trade Competition Commission; setting
up the office of the Trade Commission; prohibiting monopolies and anti-competitive
conduct, mergers and acquisitions and; penalising with fines and imprisonment.

Trade Competition Commission and its office

The Act vested authority for the enforcement of the Act with the Thai Trade
Competition Commission (hereinafter, Competition Commission), which consists
of:43
- Minister of Commerce as Chairman;
- Permanent-Secretary for Commerce as Vice-Chairman;
- Permanent-Secretary for Finance;
- Secretary-General shall be a member and secretary;
- Eight to 12 qualified persons from the private sector.
Each of the 8–12 qualified members of the Competition Commission is
under a two-year term.44 The Competition Commission has a duty to make
recommendations to the Minister of Commerce, issue codes of business operators
that possess dominant market shares and sale volumes, and require sub-committees
to accelerate investigations into breaches of conduct in the Act.45 In addition, the
Competition Commission has the power to file criminal actions46 and administrative
orders,47 and to take action for the damages and losses by consumers. The
Competition Commission is also able to assign sub-committees and obtain
knowledge and expertise from various disciplines to analyse and investigate
competition law cases.48

43
Trade Competition Act B.E. 2542 (1999) (herein after TCA 1999) section 6, 23, 24.
44
TCA 1999 section 9.
45
TCA 1999 section8 subsections 1, 2 and 10.
46
TCA 1999 section 8 subsections 13 and section 16.
47
TCA 1999 section 8, 30, 31.
48
TCA 1999 section 12.
 50

Figure 2.1 Organisation structure of Thai competition law

Ministry of Commerce

Trade Competition Commission The Appellate Committee

Specialized Inquiry
Sub-Committee Sub-Committee

Office of the trade Competition Commission

(Department of Internal Trade)

Secretariat Section Legal Section Monitoring & Operation Section

(Business Competition (Legal Division) (Monitoring & Operation Bureau)

49
Source: Office of Trade Competition Commission

The Office of Trade Competition Commission is a support office to the

Competition Commission.50 The office is headed by the Director-General under the
Department of Internal Trade, Ministry of Commerce. The office’s duties involve
supporting the Competition Commission, monitoring and researching products and
conduct in operating businesses in order to assist the Competition Commission.51
The office is the first point of contact for complaints that alleged business conduct in
breach of the competition law.52

Substantive provisions of the Competition Act

The Act has core sections on proscribing business conduct that is
undermines market competition. Section 25 of the Act deals with the abuse of
market power by prohibiting businesses that occupy dominant market positions from
fixing the prices of goods and services, directly or indirectly tying sales to restrict

49
See The Office of Trade Competition Commission’s website at
<http://otcc.dit.go.th/otcc/content_en/catcontent_detail.php?typeId=11&catId=112&ID=82>.
50
TCA 1999 Chapter II.
51
TCA 1999 section 18.
52
TCA 1999 Section 18 subsection 4 and 5.
 51

the free supply and demand of goods and services, and intervening in the operation
of other businesses without reasonable objectives.53 The criteria for classifying
whether businesses are dominant market competitors are that:
- ‘Business operator, in any goods or services, with a market share in the
previous year over 50% and at least 1,000 million baht turnover; or
- The top three business operators, in any goods or services, with
combined market share in the previous year over 75% and at least 1,000
million baht turnover. The exception is for a business operator with the
market share less than 10% or turnover less than 1,000 million baht in the
previous year’.54
Section 26 requires that business mergers and acquisitions, which can result
in a high degree of market power, seek permission from the Competition
Commission.55
Section 27 forbids collusive and cartel agreements that affect market
competition. It details the prohibited agreements, such as price fixing, fixing an
agreement or condition in a collusive manner to enable one party to win the market
bid, fixing geographical areas or customers, restricting quantities of goods and
services, appointing a sole distributor, and fixing the conditions or procedures of
purchases or distribution.56However, the business agreements that aim to fix areas of
competition can be considered compliant with competition law when the business
parties have gained permission from the Competition Commission.
Section 28 proscribes business entities from entering into international
agreements or conduct that deter competition by limiting opportunities to purchase
goods or services from business operators outside Thailand.
Section 29 provides a broad description of businesses undertaking a fair,
competitive approach; firms must conduct business in a free and fair manner without
intention to restrict or exclude market competitors. This section can be viewed as the
rules that protect business operators against more powerful business rivals. It

53
TCA 1999 section 25 subsections 1,2,3 and 4.
54
Notifications of Trade Competition Commission On Criteria for Business Operator with Market
Domination, 2007, Office of trade competition commission, http://www.dit.go.th/otcc/indexen.asp.
55
TCA 1999 section 26; see more detail in the Act.
56
TCA 1999 section 27; see more detail in the Act.
 52

provides a remedy for small businesses that are damaged or that face difficulties due
to unfair competition by large firms.
In the case for claiming compensation for damages from prohibited market
abuse or cartel conduct, the Act permits both the government (by Competition
Commission or public prosecutor) and the private sector to lodge compensation
claims for economic injuries from conduct in breach of the Act. For a private claim,
the Consumer Protection Board57, or an association with standing under the law of
consumer protection,58 is entitled to lodge the civil claim for compensation of
damages on behalf of harmed consumers, but the claim must be within one year of
the date of the damage recognition.59
However, a business operator suspended by order of the Competition
Commission can appeal to the Appellate committee.60 The four-year-term Appellate
committees consist of seven qualified people appointed by the Council of the
Minister. The committees determine the appeal against the Commission order within
90 days, and their decision is final.61
Moreover, the Thai competition law contains criminal penalties ranging from
one to three years in jail and fines ranging from two to six million baht
(approximately US$187,500 at~ 32 baht per dollar).62 Repeated offences can be
subjected to double penalties,63 which would provide considerable power for the
Commission to take legal action for non-compliance with competition law and to
discourage businesses from entering into anti-competition conduct.
The Act contains sections that stipulate important prohibitions against anti-
competitive conduct, infringement penalties and a procedure for enforcing the Act
(see below figure).

57
See the information regarding to Consumer Protection Board at <http://www.ocpb.go.th/>
58
Consumer Protection Act, B.E. 2522 (1979) and Consumer Protection Act (2nd) B.E. 2541 (1998).
59
TCA 1999sections 40 and 41.
60
TCA 1999 sections 42-47.
61
TCA 1999 sections 44, 45, and 47.
62
TCA 1999 section 50.
63
TCA 1999 section 50.
 53

Figure 2.2 Thai Competition Law Case Procedure

Thai competition law case procedure

Abuse their market
domination in
prohibited manners
(Sec. 25)
Merge businesses
which may lead to
monopoly or unfair
competition without
the Commission’s
permission (Sec. 26)
Enter into an agreement with another
business operator which will result in
monopoly, reduction of competition or
restriction on competition in any
manner without the Commission’s
permission (Sec. 27)
Agree with other entrepreneurs outside the
Kingdom to restrict the opportunities of the
person in the Kingdom to purchase goods or
services directly from entrepreneurs outside the
Kingdom (Sec. 28)

Violation or non compliance

Office of trade Competition Commission (Sec.18)

Inquiry

Trade Competition Commission - TCC (Sec. 6,7,8,15)

TCC submits the decision to the public prosecutor for the

prosecution or non-prosecution order (Sec.15)

The Public Prosecutor

non-prosecution order Prosecution order the Appellate Committee

Chairman of TCC disagrees (Sec.16)

Disagrees with the TCC’s decision

Director-General of Public Prosecutor’s for final decision

Violated the Committee’s order

non-prosecution order prosecution order

criminal prosecution
criminal prosecution in court

Court Court

Penalties, imprisonment for a term of not exceeding three years, or fine exceeding six million baht and in the case of
repeat violation, shall be liable to the double penalty (Sec.51)

64
Source: Office of Competition Commission

64
See the Office of Competition Commission’s website at
<http://www.dit.go.th/otcc/contentdet_en.asp?TypeID=12&catid=102&id=79>.
 54

Competition law exemption

As exemption to the Act is the main issue with respect to enforcement in the
electricity sector, it is important to highlight the Act’s exemption provision, which
creates considerable limitations to competition law enforcement for Thai SOEs. The
Act contains an exemption provision in section 4, which states that it will not apply
to:65
- government entities;
- SOEs;
- farmers’ groups, cooperatives or cooperative societies recognised by law
and having objective to benefit farmers; and
- businesses, in whole or in part, permitted by the Ministerial Regulation.
The above are excluded from competition law enforcement and are able to
engage in anti-competitive conduct because, by receiving government support and
exemption from competition law enforcement, SOEs can leverage their market
power that serves to expand the scale and scope of their large scale operations.66
During 1997–2005, the Thai Government implemented a policy on the rapid
liberalisation and deregulation of the public sector to improve Thailand’s
economy.67 The SOEs were directed towards corporatisation and privatisation. An
important priority relied on the Corporatization Act of 1999,68 which purported to
implement the corporatisation and privatisation of seven essential SOEs. However,
the Thai government remains the holder of `golden shares’ of privatised and
corporatised SOEs.69 The SOEs in the energy sector that are involved with the

65
TCA 1999 section 4.
66
David E. M. Sappington and J. Gregory Sidak, 'Competition law for state-owned enterprises' (2003)
71(2) Antitrust Law Journal 479, 479; Louise du Plessis, Judd Lurie and Amy van Buuren,
'Competition legislation and policy – is it necessary in a developing economy?' (Paper presented at
the Fifth Annual Competition Law, Economics and Policy Conference, University of Johannesburg -
School of Tourism & Hospitality, Bunting Road, Auckland Park, 2011)
<http://www.compcom.co.za/assets/Uploads/events/Fifth-Annual-Conference/FINAL-PAPER-
2011.pdf>.
67
Douglas Webster and Patharaporn Theeratham, 'Policy Coordination, Planning and Infrastructure
Provision: A Case Study of Thailand' (ADB-JBIC-World Bank East Asia, 2004)
<http://siteresources.worldbank.org/INTEAPINFRASTRUCT/Resources/855084-
1137106254308/Thailand.pdf>.
68
Corporatization Act BE 2542(1998) the Act can be accessed from website of
<http://www.sepo.go.th/mbc/Uploads/Files/1224556766.pdf>.
69
See futher discussion about golden shares in OECD, Privatising State-Owned Enterprises An
Overview of Policies and Practices in OECD Countries (OECD, 2003). Golden shares provide
governments with special powers and veto rights in the fully or partially privatised companies, and
 55

electricity markets are the EGAT, MEA, PEA and Petroleum Authority of Thailand
(PTT).70
The SOEs involved with the electricity market are under the sectoral
regulation Energy Industry Act B.E. 2550 (2007). This Act was enacted as the main
regulation for Thailand’s energy sector and to establish the Energy Regulatory
Commission’s priority to regulate and supervise the energy markets (gas and
electricity).71 The electricity sector and regulation will be discussed further in
Chapter 3.
This section has discussed the framework of Thai competition law based on
(1) substantive provisions prohibiting anti-competitive conduct, (2) the Competition
Commission and (3) the exemption provision limiting the scope of enforcement to
SOEs. The next section will identify and investigate the problems that contribute to
the ineffective enforcement of Thai competition law.

2.3 Problems relating to Thai competition law

The Thai Competition Act of 1999 is purported to be a legal remedy dealing
with anti-competitive conduct; however, no cases have been filed with the Civil
Court of Justice72, and no decisions have been made by the Competition
Commissions to curb anti-competitive conduct in the Thai economy. In its report on
complaints relating to competition law abuse, the Competition Commission stated

have served governments as a means of protecting the newly privatised company from hostile
takeovers on national security or on public policy grounds, where this has been deemed to be
necessary. However, it has to note that golden shares would also deter process of market competition
in the liberalised utility sector under discrimination issues. See the discussion relating to concern over
golden shares and discrimination issues in Amaryllis Verhoeven, 'Privatisation and EC Law: Is the
European Commission “Neutral” with Respect to Public Versus Private Ownership of Companies?'
(1996) 45(4) International and Comparative Law Quarterly 861.
70
See Thai State Owned Enterprises Policy office, Grouping of SOEs by business activities from the
website of <http://www.sepo.go.th/b03.1.html>.
71
Energy Industry Act B.E. 2550 (2007) section 10.
72
See further details regarding to Judicial System in Thailand from Central Intellectual Property and
International Trade Court of Thailand, The Judicial System in Thailand: An Outlook for a New
Century (Institute of Developing Economies-Japan External Trade Organization(IDE-JETRO), 2001)
 56

that there were 78 competition law complaints during 1999–2012.73 However, until
now, no cases have been brought forward to the court, as shown in Table 2.1.74

Table 2.1: Enquiries to the Office of Competition Commission: October 1999–September 2011

Years Section Section Section Section Section Total Case to

25 26 27 28 29 court
1999 1 - - - 1 2 -
2000 2 - - - 2 4 -
2001 3 - 1 - 3 7 -
2002 2 - 1 - 4 7 -
2003 3 - 8 - 2 13 -
2004 - - 3 - 9 12 -
2005 - - 2 - 7 9 -
2006 - - 1 - 6 7 -
2007 3 - 1 - 5 9 -
2008 - - - - 4 4 -
2009 1 - - - - 1 -
2010 - - - - 1 1 -
2011 - - - - 2 2 -
Total 15 17 46 78 0
75
Sources: Trade Competition Commission

The above table 2.1 shows that since the enforcement of the Act, there have
been complaints relating to infringement of the Act but there has been no court
action regarding the anti-competitive conduct. It is clear that there are monopoly
abuses and anti-competitive conduct in the Thai economy,76 but that the competition
law has not been enforced to deal with them.
In practice, Thai business monopolies and oligopolies are able to employ
their market powers to deter market competition, which is not in the consumers’
interests. The competition law in its current form shows no signs of having effective

73
Trade Competition Commission, 'Complaints received' (2010)
<http://www.dit.go.th/otcc/contentdet_en.asp?TypeID=12&catid=105&id=105>.
74
Ibid and see The Office of Tha Trade Competition Commsion, 'About The Office of Tha Trade
Competition Commsion' (2010) <http://www.dit.go.th/otcc/upload/Combined.pdf>.
75
Trade Competition Commission, 'Complaints received' (2010)
<http://www.dit.go.th/otcc/contentdet_en.asp?TypeID=12&catid=105&id=105>.
76
See later part of this chapter regarding to the anticompetitive conducts in Thailand’s economy; See
also in UNCTAD, 'Review of Recent Experiences in the Formulation and Implementation of
Competition Law and Policy in Selected Developing Countries: Thailand, Lao, Kenya, Zambia,
Zimbabwe' (UNCTAD, 2005) <http://www.unctad.org/en/docs/ditcclp20052_en.pdf>.
 57

application to business and market competition.77 The main factors rendering the
ineffective enforcement of Thai competition law are based on:
- the inadequacy of the Act;
- institutional problems regarding the Competition Commission;
- lack of coordination with sectoral regulators;
- lack of public recognition and competition advocacy.

2.3.1 Inadequacy of the Competition Act

The main factors giving rise to the inadequacy of the Act and, hence
contributing to the ineffectiveness of Thai competition law, are (1) lack of a clear
objective, (2) problems with market dominance provision, (3) poor interpretation
and (4) the hurdles associated with imposing a criminal penalty.

2.3.1.1 Lack of a clear objective

While competition legislation in South Korea and Japan contain explicit
sections stating their objectives, the Thai Competition Act of 1999, which was
drafted based on that legislation, does not state its objective.78 The lack of a clear
objective could create difficulties for the interpretation and enforcement of the Act
in promoting and protecting market competition and consumers in Thailand.
The World Bank–OECD and UNCTAD models on competition legislation
state the objective of the law in the first section.79 The objective helps to clarify the
purpose of available remedies in the competition law and provides a clear
understanding to all parties involved.80 Moreover, an objective section provides

77
Simon J Evenett and Douglas H Brooks, Competition Policy and Development in Asia (Palgrave
Macmillan, 2005), 4.
78
See example of objectives of competition law from Korea China and Japan. Those competition
legislations include the objective section– Korean Monopoly Regulation and Fair Trade Act article 1;
Chinese Fair Trade Act article 1; Japanese Antimonopoly Act (AMA) article 1.
79
World Bank and OECD, A Framework for the Design and Implementation of Competition Law and
Policy (World Bank and OECD,, 1999); UNCTAD, Model Law on Competition (United Nations,
2003)
80
Cassey Lee, 'Model Competition Laws: The World Bank-OECD and UNCTAD Approaches
Compared' (Centre on Regulation and Competition (CRC) Working papers - 96/2005, 2005)
<http://ageconsearch.umn.edu/handle/30694>.
 58

direction for enforcement and a benchmark for evaluating whether the competition
law has been enforced to promote a competitive outcome..81 Without a clear
objective section, there would be no clear direction and scope in relation to
enforcement of the Act.82

2.3.1.2 Definition of market dominance

One problem regarding the Thai Competition Act B.E.2542 (1999) relates to
the definition of market dominance. Nikomborirak pointed out that the threshold of
a 50 per cent market share and at least 1,000 million baht in yearly sales would
severely limit the boundary of competition law application because only a small
group of companies would be determined to be as dominant.83 The threshold was
derived from lobbying by the private sector, which attempted to narrow down the
competition law application to only small business groups.84
In addition, the threshold of the market share on which Competition
Commissions mainly rely is not flexible for analysing cases where the specific
market has inelastic or less elastic characteristics. For example, in the Abbott case,85
the Competition Commission found that the Abbot pharmaceutical company, which
supplied drugs for HIV patients, was not in breach of Thai competition law because
it did not have a market share of over the 50 per cent threshold. In this decision, the
Competition Commission did not consider the market dominance of the business,
where the dominant position is the result of inelasticity of product substitutability.86
However, the Commission paid significant attention to the market share threshold.

81
Supachai Panitchpakdi, 'The role of competition policy in promoting economic development' (Paper
presented at the Sixth United Nations Conference to Review All Aspects of the Set of Multilaterally
Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, Geneva,
2010) <http://www.unctad.org/sections/wcmu/docs/tdrbpconf7_s3_UNCTAD.pdf>.
82
Michal S. Gal, 'The Ecology of Antitrust: Preconditions for Competition Law Enforcement in
Developing Countries' in Competition, Competitiveness and Development :Lessons from Developing
Countries (UNCTAD, 2004) , 35.
83
Deunden Nikomborirak, 'The Political Economy Of Competition Law: The Case Of Thailand'
(2006) 26(3) (Spring2006) Northwestern Journal of International Law & Business 597, 606.
84
The business groups subjected to the threshold are mainly on the state owned enterprises that are
exempted from competition law.
85
UNCTAD, 'Recent important competition cases involving more than one country' (UNCTAD-
Report from Intergovernmental Group of Experts on Competition Law and Policy Ninth session
Geneva 15–18 July, 2008, 2008) <http://www.unctad.org/en/docs/tdbc2clpd71_en.pdf>.
86
Decker, Chris and Tim Keyworth, 'Competition Law and Commodity Markets: The case of
Wholesale Electricity' (2002) 22(4) Economic Affairs 32.
 59

Flynn criticised the Competition Commission’s decision that the

Competition Commission was in error in deciding that the Abbot case because The
Competition Commission relied only on the market share threshold to decide the
case.87 The Competition Commission neglected that the market power can be
considered from other factor such as power to control prices or to exclude
competition.88 Thus, the Competition Commission, in relying on only to market
share threshold, does not provide effective analyses to Abbot’s market power.89
Moreover, UNCTAD’s report on the Abbott case also points out that the
Thai competition law faces challenges in relation to potential anti-competitive
conduct under the refusal-to-supply doctrine and on the application of competition
law to compulsory licenses for medicines and other life-saving products.90 The
report then provides further comments by comparing the case with the excessive
pricing of medicines in South Africa, where the South African Competition
Commission decided that the pharmaceutical companies were in breach of
competition law due to their dominant position in the HIV medicine market, and that
they had abused their dominance with excessive pricing and by refusing to license
generics.91 The Thai Competition Commission appeared to neglect the fact that
Abbot has a dominant position in the Thai medicine market because the drug cannot
be replaced by another.
Further, according to Thanikul, the Thai Competition Commission focuses
too much on market dominance, with scarce consideration of market misconduct,
which can contribute to ineffective enforcement.92 The Abbott company case
validates Thanikul’s belief that competition law enforcement overemphasises market
dominance analysis (structure approach) and overlooks the concerns of market
misbehaviour (behaviour approach) that affect mass consumers.93 In the Abbott
case, the Competition Commission, by restricting itself on the 50 per cent market-
87
Sean Flynn, 'The appeal of the decision on Abbott case' (2008)
<<http://www.thaingo.org/writer/view.php?id=634> .
88
UNCTAD, above n 85.
89
Ibid.
90
Ibid.
91
Ibid.
92
Thanitkul above n 32.
93
Ibid; See also in Evenett and Brooks above n 77- Thai competition law that tends to follow Korean
competition law has different enforcement approach on that , while Korean Fair trade commission
focus on behavior of firm, but Thai competition commission tend to consider on the structure of
market share. This would conflict with origin objective of Thai competition act.
 60

share threshold, were trapped into structural consideration to assess Abbot’s

conduct. Thus, with the main focus on the definition of market dominance, the
enforcement of competition law would be controversial in deciding the case of
market power abuse that deters inelastic demand and supply in the medicine market.

2.3.1.3 Poor interpretation of the Competition Act

The Thai Competition Act appears to provide a high degree of discretion in
relation to the Act’s interpretation and enforcement, but the Competition
Commission does not use that discretion to enforce the Act. In section 8, the
Competition Commission has the duty and power to interpret the Act to promote
effective enforcement. Thus, the Competition Commission can investigate and take
action on anti-competitive conduct,94 which gives it significant enforcement power.
However, a high level of discretion could lead to ineffective enforcement, where the
Commission can use the interpretation gap to avoid making decisions in anti-
competitive cases.
For example, in the United Broadcasting Corporation (UBC) cable TV
95
case, the Competition Commission decided that UBC’s price increase for the
standard package was not in breach of the Thai Competition Act B.E.2542 (1999)
and that no sanction should be applied because, at that time, there was no
Competition Commission’ Notification on definition of market dominance.96 The
Competition Commission only decided to report UBC’s conduct to the Mass
Communication Organisation of Thailand (MCOT) to require UBC, under the terms
of its operating license, to increase consumer choice.97 This case shows that the
Commission resorted to the gap in the competition law legislation to avoid making
a decision on a controversial case relating to business and politics.
In addition, there are undefined phrases in provisions of the Act that may
contribute to an ambiguous interpretation. In section 27, the unclear phrase ‘free and

94
See section 8 on duty and power of competition commission.
95
Paopongsakorn above n 12,193.
96
William above n 39.
97
UNCTAD above n 76.
 61

fair trade’98 creates loopholes for businesses and the public to interpret the types of
practices that can be classified free and fair.99 Anand also observed that many
provisions contain the terms ‘unreasonably’ and ‘without justifiable reasons’, which
results in an interpretation gap and, with a lack administrative transparency, it could
result in the Act being used for discriminatory purposes.100
Moreover, the broad discretionary power of the Competition Commission to
interpret the Act and issue any rules prohibiting anti-competitive conduct can create
gaps for competition enforcement because the Competition Commission tends to be
inactive in issuing rules to prevent conduct undermining market competition.
According to McEwin, there are types of competition law frameworks
regarding enforcing power: (i) competition law legislation that is clear to businesses,
regulators and courts and leaves little discretion to decision makers, but that may
yield the wrong outcome, and (ii) competition law that provides broad standards and
considerable discretion to the Competition Commission, but that may involve
‘political’ judgments that redistribute income rather than promote better economic
outcomes.101
Thus, the Thai competition law is classified as the second type, as it provides
broad discretion that enables its Competition Commission to determine the existence
or otherwise of market dominance and prohibited business conduct.
Nevertheless, the Competition Commission rarely employs the discretionary
power conferred by the Act to tackle anti-competitive conduct. The commission is
inactive and ineffective in managing its enforcement power, rarely issuing
notifications for clarification on the unclear provision of the Act.102 Thus, influential
businesses and political groups are able to maintain their anti-business conduct and

98
TCA Section 27.
99
Chantida Kalampakorn, 'Unfair Trade Practices Under Thai Trade Competition Act' (Paper
presented at the The 3rd APEC Training Program on Competition Policy, Indonesia, 2004)
<http://www.jftc.go.jp/eacpf/05/APECTrainingProgramDecember2004/Kalampakorn_Thai.pdf>.
100
Ananchal Anand, 'Thailand' in Pradeep S Mehta (ed), Competition regimes in the world-A Civil
Society Report (CUTS, 2006).
101
Ian McEWIN, 'Competition Law In A Small Open Economy' (2003) 15 University of NSW Law
Journal 246, 260-251.
102
According to the 10 years enforcement of Thai competition law, the competition commission
issues only one Notification on Criteria for Business Operator with Market Domination, 2007. There
is not notification prohibits business deterring competition such as predatory pricing, resale price
maintenance, exclusive dealing, and secondary boycotts.
 62

avoid the competition law or, in the worst case, to employ competition law to their
benefit.

2.3.1.4 The legal challenges of a criminal penalty

Criminal prosecution for anti-competitive conduct is a significant obstacle
for the enforcement of the Act.103 This is because, in criminal cases, the Thai legal
system requires clear standard of proof beyond a reasonable doubt to prove the
alleged breach of the law.104
Paopongsakorn pointed out that one of the difficulties for enforcement is
that, while investigating an economic case, the Competition Commission must
follow criminal charge procedures.105 Further, the drafters of the Act were mostly
conservative lawyers and bureaucrats who considered criminal action the most
important penalty for conduct infringing the Act.106 However, criminal penalties
could create difficulties for enforcement because the burden of proof lies with the
Competition Commission.107
In criminal proceedings, the prosecutor has the burden of proof for
determining that the defendant’s conduct is in breach of the law. The Competition
Commission must establish guilt in respect to the competition law offences, and the
proof needs to be beyond reasonable doubt in order to sufficiently satisfy that it is a
criminal offence. The burden of proof in criminal action would have a disturbing
effect on the business sectors and it would reduce the Competition Commission’s
efficiency when it needs to put more resources into the criminal case.108 The
criminal action and proceeding would require various authorities (public prosecutors

103
Siripol Yodmeungchareon, 'The Urgency of Thai Competiton law' (Paper presented at the ASEAN
Conference on Fair Competition Law and Policy, Indonesia, 2003)
<http://www.jftc.go.jp/eacpf/04/thailand_p.pdf>
104
Thailand legal system has a standard of proof in criminal case under the Criminal Procedure Code
BE 2477 (1934). The 227 paragraph 2 of the Criminal Procedure Code that where any reasonable
doubt exists as to whether or not the accused has committed the offence, the benefit of doubt shall be
given to him or her.
105
Paopongsakorn above n 12,201.
106
Ibid.
107
Ibid.
108
Caron Beaton-Well and David K Round, 'Cartel Criminalisation and the Competition Authority:
Public Value, Authorising Environment, Operational Capability' (Paper presented at the Annual
Socio-Legal Studies Association Conference, 2011)
<http://www.sussex.ac.uk/law/newsandevents/slsa-conference/programme>.
 63

and police) to take part in the long investigation process,109 and the Competition
Commission may face obstruction rather than help from the criminal penalty
provision in the Act.110
Further, in enforcing competition law, the Competition Commission must be
cautioned to focus on the economic approach. According to the Institut Economique
Molinari, the antitrust law is unlike criminal law because sellers cannot know
whether their actions are criminal or whether the prices that business operators want
to trade makes them criminals.111As a result, the Institut Economique Molinari
points out that the enforcement of competition law under criminal action may
neglect the economic justification.112 When applied to Thailand, where the
Competition Commission does not possess the maturity of competition law
experience, the law may be enforced, with or without intention, without economic
consideration, which will severely deteriorate economic competition and efficiency.
Thus, various factors contribute to the inadequacy of the Thai Competition
Act. However, an ineffective Competition Commission also contributes to
ineffective enforcement, which is discussed in the next section.

2.3.2 Ineffective Competition Commission

An ineffective Competition Commission is a major contributing factor to the
ineffective enforcement of the Thai competition law. The factors that result in an
ineffective Commission are: (1) lack of independence, (2) financial constraints and
(3) lack of expertise.

109
Trebilcock M and Iacobucci EM, 'Designing competition law institutions: values, structure and
mandate' (2010) 41 Loyola University Chicago Law Journal 1455 .
110
Kohpaiboon etal above n 29.
111
Institut Economique Molinari, 'The shaky foundations of antitrust policy Monopoly price theory'
(Institut Economique Molinari- Economic Note November, 2004)
<http://www.institutmolinari.org/IMG/pdf/note200411.pdf>.
112
Ibid.
 64

2.3.2.1 Lack of independence

A significant problem in the Competition Commission is that it is influenced
by private and political pressure.113 The Competition Commission comprises four
government officers and 12 members appointed by the cabinet.114 Pouongsakorn
stressed that the composition of the Competition Commission clearly affects its
degree of independence, contributing to a conflict of interest because half of the
Competition Commission is from the business sector.115 This may lead to a conflict
of interest when Commissioners from the business sector have to consider
investigating cases on business conduct.116
The Competition Commission’s decisions tend to be compromised by
businesses and political influence.117 The example is in the commission decision on
the cases of illegal tying of whisky and beer.118 Takasila and Chitmunchaitham
researched the relationship between the Commissions and a whisky company and
found that one of the Commissioner has ever in the position of director of a
company affiliated with the powerful whisky conglomerate.119 The case significantly
represents a conflict of interest in the Commission’s decision.120 It has to noted that
conflict of interest is not solidly confirmed, there is merely the suspicion of the
conflict of interest. The further research and investigation on the conflict of the
interest may be an interesting future matter.
In the UBC case, the Competition Commission’s decision was compromised
by political influence.121Although the sub-committee, which was established by the
Competition Commission, found that the excessive increase in TV subscription fees
was in breach of the competition law and rendered a negative effect on consumers’
interests, the Competition Commission decided not to take any action and

113
Nikomborirak, above n 83.
114
In Thailand, alignment of politician and business sector is notorious and creates corruption.
115
Nikomborirak, above n 83.
116
Paopongsakorn above n 12.
117
William above n 39.
118
Nikomborirak, above n 83.
119
William above n 39 and see Suriyasai Takasila and Rajitkanok Chitmanchaitham, 'Monopolies and
Politics' (Paper presented at the Paper presented at the Conference on Building Constituency for
Competition Policy and Competition Law, Bangkok, 2002).
120
Nipon Poapongsakorn, 'Institutional Arrangements for the Competition Authority in Thailand'
(Paper presented at the The Fith Workshop Of The APEC-OECD Co-operative Initiative On
Regulatory Reform, Paris, <http://www.oecd.org/dataoecd/28/44/32689476.pdf>.
121
Takasila and Chitmanchaitham above n 119.
 65

transferred the case to MCOT.122 Transferring the case was understood as the
political compromise because politicians who control MCOT would have decided
the case in favour of UBC.123 The result of the case was that MCOT never undertook
an investigation to scrutinise UBC’s conduct.124
Moreover, according to UNCTAD’s report, the Competition Commission is
not independent because its office and staffs are an administrative agency. 125 The
Office of Trade Competition and Commission is significantly influenced by
bureaucratic and political pressures. The head director of the office is the
government director-general of the internal trade department and must report to the
Ministry of Commerce. The staff in the Competition Commission are treated as
government subordinates under the Ministry of Commerce and can be transferred,
by order of the minister and the director general, to other government units (when
officers do not obey orders from the government, they will usually be transferred to
a less important part of the ministry).
In addition, Paopongsakorn pointed out that the Office of the Competition
Commission has no autonomy in dealing with anti-competitive cases because the
office relies on the orders of higher-level government agencies, and the office’s
decision to pursue any cases may be faced with pressure from political and higher
authorities.126 In working to implement and enforce competition law, staff members
must consider the administrative commands from their higher authority.127 Thus, the
office’s actions, which should be raised to deal with uncompetitive business
conduct, rarely appear.
The independence issue also stems from consideration of the office’s annual
budget, which is received from the Government. If the Competition Commission

122
Ibid.
123
Nikomborirak, above n 83; William above n 39; UNCTAD, above n 97.
124
Deunden Nikomborirak, 'Exemptions and Exceptions: Implications for Economic Performance:
The Case of Thailand' in UNCTAD (ed), Competition, Competitiveness and Development: Lessons
from Developing Countries (UNCTAD, 2004).
125
UNCTAD above n 76.
126
Paopongsakorn above n 12.
127
Martin Painter, 'Thaksinocracy Or Managerialization? Reforming The Thai Bureaucracy' (2005)
Working Paper Series No. 76 <http://www.cityu.edu.hk/searc/WP76_05_Martin.pdf>Martin state
that despite comprehensive reform in Thai government, Thai bureaucratic system remains in
hierarchically organized giving priority to personal relations of patronage and dependency, with
deference and loyalty being more important than merit; and it emphasized above all else security for
its members. The legal authority and political power inherent in the traditional formal and informal
structures of the bureaucratic establishment have not been swept aside over-night.
 66

investigates cases or makes an order that affects the interests of political and
business groups, the office may receive less financial support. This implies that
government lobbying by political and business groups results in decreased financial
support for the Commission, which reduces the possibility of the competition law
being enforced.

2.3.2.2 Financial constraint

The Competition Commission rely on financial support from the Ministry of
Commerce. The Minister of Commerce and the cabinet usually approve an annual
budget of around US$0.1–0.3 million128 for the Office of Competition Commission.
The amount appears to be insufficient for the Competition Commission to work
effectively and enforce the competition law, which leads to difficulties in recruiting
and retaining professionals who have experience in, and knowledge of economic and
competition law.129 The professionals would prefer higher financial incentives from
businesses rather than to work with the Office of Competition Commission. 130
Compared to international competition law agencies, the Thai Competition
Commission and office are granted a very small portion of the government’s budget.
Japan’s Fair Trade Commission and Korea’s Fair Trade Commission have an annual
budget of around US$80 million131 and US$17 million132 respectively, which allows

128
The author was confirmed by government officer from Trade Competition Commission that the
office receive annual budget of Baht7,342,000(2005) , Baht7,596,950(2006) , Baht2,797,510(2007),
Baht 5,942,000 (2008); Approximately, the US$1 equal to Baht 32.
129
Michael Nicholson, 'An Antitrust Law Index For Emprical Analysis of International Competition
Policy' (2008) 4(4) Journal of Competition Law and Economics 1009 - Michael provide study on
comparative budget for competition commission of each 38 countries. Even though there is no
Thailand in comparative table but what it can be seen is that many countries have input high financial
resources for their competition authority and they can gain effective work of competition law
enforcement.
130
John Preston et al, 'Competition Policy Reform, Growth and Poverty Reduction ' (Paper presented
at the Asia Regional Consultative Conference on the Business Environment, Bangkok, 2006)
<http://www.dfid.gov.uk/pubs/files/competition-policy-reform-briefing.pdf>.
131
Japan Fair Trade Commission, Staff and Budget (FY1995-2007), <http://www.jftc.go.jp/e-
page/reports/statistics/staff_budget.html>.
132
Joseph Seon Hur, 'How the KFTC prosecuted the graphite electrode international cartel' (Paper
presented at the Intergovernmental Group of Experts on Competition Law and Policy UNCTAD’s 7th
Session, Geneva, 2006) <http://www.unctad.org/sections/wcmu/docs/c2clp_ige7p9_en.pdf>.
 67

them to effectively enforce their competition laws and and advocate competition
policies to publics.133
Thus, the small annual budget can affect the office’s ability to conduct
investigations and bring lawsuits against businesses with substantial financial and
political power.134
In addition, the Commissioners do not function as a full-time body, but
operate in occasional meetings for which they receive a small fee of US$6.67 per
Commissioner for each meeting. This raises difficulties for some Commissioners
who have to work full time in other government sectors or businesses and may not
be able pay sufficient attention to complex competition law cases that they consider
as a charity work.135

2.3.2.3 Lack of expertise

The Competition Commission who analyse cases and develop competition
law, although have outstanding experience in their professionals, may have inadequate
knowledge about the objective, substantive, and procedural elements of the Thai
Competition Act.136 Also the members of the Competition Commission, by being
under part-time basis do not have an opportunity to gain experience and expertise on
enforcing competition law.137 The Thai government reported to the OECD that,
‘Since the Act is quite a new law in Thailand, it caused difficulties, in the very first
year, for operational staff to have a deep understanding about the context of the
Act’.138 Experts in competition law and economics are required to achieve effective
enforcement.139
Yodmuangchareon, the director of the Department of Internal Trade,
submitted that the Office of Competition Commission faces a significant challenge

133
See the JFTC and KFTC website for information of their advancement on competition law.
134
Paopongsakorn, above n 12.
135
Nikomborirak, above n 83.
136
UNCTAD above n 76 at p 34.
137
Ibid- In the UNCTAD report, the authors states that there are just around 5 Competition
Commission meeting per years, at 34.
138
OECD, 'Global Forum of competition law- Contribution from Thailand' (OECD, 2001)
<www.oecd.org/dataoecd/40/45/2491524.doc>.
139
Ibid.
 68

in hiring experts,140 and it must seek technical and training assistants from
international Commissions in Japan, Taiwan and the US.141
In addition, Paopongsakorn states that inexperienced and part-time
Commissioners may not be able to cope with competition law cases that require
complex analysis.142 The officers who help prepare data, research and reports are
usually former price-control regulators or commodity experts, and newly recruited
officials also have inadequate research experience in the industrial organisation
discipline.143
Therefore, the Competition Commission and its office must recruit
competent professionals who have knowledge of, and experience in, law,
economics, and political and social analysis in order to solve the shortage of
expertise and enhance the enforcement of the competition law. In addition, there
must be an increase in financial support to attract the expert staff.

2.3.3 Lack of coordination with sectoral regulators

Coordination between the competition law and sectoral regulators is critical
to improve competition in the market economy. Both provide complementary roles
for each other: while sectoral regulations typically deal with corporate ex ante
aspects such as structure and the pricing of utility services, competition law focuses
on prohibiting ex post aspects such as the abuse of market power and the conduct of
business cartels.144 Sectoral regulators must also consider other social purposes of
utilities services such as universal services and cross-subsidies for poor consumers,
whereas competition law emphasises economy-wide competition and economic

140
Siripol Yodmuangchareon, 'Toward Effective Implementation of Competition Policies in East
Asia : Thai’s Perspective' (Paper presented at the The 2nd East Asia Conference on Competition Law
and Policy, Bogor, Indonesia, 2005) <http://www.jftc.go.jp/eacpf/06/6_02_13_01.pdf>.
141
Ibid.
142
Paopongsakorn above n 12.
143
Ibid.
144
ICN, 'Antitrust Enforcing in Regulated Setors Working Group' (Paper presented at the International
Competition Network 2004 Annual Conference, Soul, Korea, 2004)
<http://www.internationalcompetitionnetwork.org/media/library/conference_3rd_seoul_2004/aers_int
ro_seoul.pdf>.
 69

efficiency.145 Countries have considered the importance of establishing and

managing the relationship between competition law and sector-specific regulation.
Countries such as the US,146 Mexico,147 the UK,148Australia,149 New Zealand150 and
South Korea151 have established effective relationships between competition law and
sectoral regulation, and they can enhance market competition in their utilities
markets, which will result in economic efficiency.
However, the Thai Competition Commission has not established
relationships with sector-specific regulators to improve competition in the utility
sector, nor has it been involved in developing any regulations or policies adopted by
utility regulators. For example, in the energy sector SOEs are able to dominate the
sector and have the power to restrict market competition. In the oil and gas sectors,
the Competition Commission has not coordinated with the Thai Energy Commission
to deal with uncompetitive oil and gas market structures, which are controlled by
PTT Plc(formerly the Petroleum Authority of Thailand) which is considered a
national oil and gas company.152 PTT Plc was privatised in 2001 and 32 per cent of
its equity was sold through the Bangkok Stock Exchange.153 However, after its

145
Rod Shogren, 'Implementing an effective competition policy : skills and synergies' in Erlinda M.
Medalla (ed), Competition policy in East Asia (Routledge, 2005) 48-49.
146
FTC, 'Creating Constructive Relationships Between Competition Policy and Sectoral Regulators:
Submission of the United States' (Paper presented at the Latin American Competition Forum Fourth
Annual Meeting, San Salvador, 2006)
<http://www.bid.org.uy/europe/files/news_and_events/2006/LACF2006/LACF2006.pdf>.
147
John C. Hilke, 'Improving Relationship between Competition Policy and Sectoral Regulation'
(Paper presented at the the Latin American Competition Forum Fourth Annual Meeting, San
Salvador, 2006) <http://www.oecd.org/dataoecd/30/38/38819635.pdf>; The Federal Competition
Commission of Mexico, 'Improving Relationships Between Competition Polocy and Sectoral
regulation Mexico's Contribution' (Paper presented at the Latin American Competition Forum Fourth
Annual Meeting, San Salvador, 2006)
<http://www.bid.org.uy/europe/files/news_and_events/2006/LACF2006/LACF2006.pdf>.
148
Dept of Trade and Industry and HM treasury, 2006, Report on Concurrent competition powers in
sectoral regulation, <www.berr.gov.uk/files/file29454.pdf>.
149
ACCC, 2004, The role of the ACCC in Australia's new regulatory regime,
<http://www.accc.gov.au/content/index.phtml/itemId/577228>.
150
Paula Rebstock, 'New Zealand Experience in Utility Regulation' (Paper presented at the ACCC
conference 2004, Sea World Nara Resort, Gold Coast, 2004)
<http://www.accc.gov.au/content/item.phtml?itemId=506371&nodeId=a43efe73d2b95a13c6ab9940c
38997c7&fn=Session%203:New%20Zealand%20Experience%20-
%20Paula%20Rebstock%20paper.pdf >.
151
Park Jae Gul, 'The relationship between regulators and competition authorities in Korea' (Paper
presented at the 4th APEC Training Program on Competition Policy Kuala Lumpur, 2004)
<www.jftc.go.jp/eacpf/05/APECTrainingProgramMarch2004/korearelationships.pdf>.
152
See Thailand Energy Data, Statistics and Analysis - Oil, Gas, Electricity, Coal, 2007,
<www.eia.doe.gov>.
153
Ibid.
 70

privatisation, PTT Plc could exclusively monopolise the oil and gas supply to
industries and mass consumers.154 PTT Plc owns all aspects of the oil and gas
businesses, including refineries, transportation, wholesale and retail sales.155 PTT
Plc owns five of the seven oil refining plants156 and has significant shares in retail
business, with 34 per cent of consumers using PTT Plc’s services.157 To date, the
Competition Commission and the Energy Commission do not coordinate to promote
market competition in the oil and gas sectors. In addition, they have not cooperated
to prevent PTT Plc’s potential abuse of market power.
Moreover, there is no cooperation between the Competition Commission and
the Energy Commission to promote and protect market competition in the electricity
sector, which is still under the monopoly control of SOEs. Further discussion of the
uncompetitive conditions in Thailand’s electricity sector is presented in Chapter 3.
While the exemption section of the Act means that competition law does not
apply to Thailand’s SOEs, it does not mean that the Competition Commission
should not play a role in promoting competition in the utility sectors. It would at
least be able establish communication and coordination with utility regulators.
However, at present, the Competition Commission and sectoral regulators have not
established any communication or coordination to stimulate and protect market
competition in the utility sectors. If it is established, there might be opportunities for
regulated utility markets to become competitive, leading to economy-wide
efficiency.158 Coordination between the competition law and sectoral regulation in
the electricity sector is discussed further in Chapters 4 and 5, which focus on
international experiences.

154
PTT annual report 2007.
155
Ibid, 23-26.
156
Ibid, 36-39.
157
Ibid, 32.
158
Giorgio Monti, ‘Managing the Intersection of Utilities Regulation and EC Competition Law'
(2008) 4(2) The Competition Law Review 123.
 71

2.3.4 Lack of public recognition and competition advocacy

Social awareness is one of the most important factors determining successful
competition law enforcement. The experiences of many developing countries prove
that the enactment of competition law alone does not guarantee effectiveness; it
requires public-wide recognition of the law.159This is similar to Thailand’s situation,
as its enactment has not been widely recognised by the public and has not been
commonly used as a remedy against business conduct that deters efficient market
competition. Thai consumers do not understand that the competition law can protect
them from being the economic victims of the misuse of market power and cartels.160
According to a survey conducted by the Confederation of Consumer
Organization, the business community, consumers and civil society groups in
Thailand have limited knowledge of the competition law and its benefits for the
economy.161 Consumers will pay attention to the law only when there is an excessive
price increase and, in most cases, they will call for the government to adopt price
control measurements without realising that the measurements will lead to a
distortion of long-term market prices and, in the final stage, it may not provide any
benefits for consumers.162
Further, education in the area of competition law and policy is limited in
university courses. A study found that only 15 universities in Thailand offered a
course in the industrial organisation of competition at the undergraduate level, and
only five at the graduate level.163 The university programs at law faculties have
recently recognised the importance of interrelationships between economics and
law. The prevailing law schools have offered initial graduate courses in business and
economic law in recent years.164 The small number of students that specialise in
economic and competition law is insufficient for the number of competition law
cases in the private and government sectors.

159
Michal, above n 82.
160
OECD, above n 138, 5.
161
Nikomborirak, above n 83.
162
Deunden Nikomborirak, 'Thailand' in Simon J. Evenett and Douglas H. Brooks (eds), Competition
Policy and Development in Asia (Macmillan Publishers, 2005), p 283.
163
Nikomborirak, above n 83, 610.
164
The existing law schools from Chulalongkorn University and Thammasat University have just
opened their courses on economic and competition law in 2006 and 2008 respectively.
 72

In addition, although the Competition Commission claims that it has

provided effective advocacy to the public,165 the data from competition law cases are
rarely accessible. The decisions of the Competition Commission are not published
on the Office of Fair Trading’s website, and investigation processes are not provided
to the public.166 Therefore, a significant challenge for the Competition Commission
is to increase public awareness by making information accessible regarding case
investigations, and increasing public education of the competition law.

2.4 Conclusions
The competition law in Thailand is ineffective and unable to effectively deal
with anti-competitive conduct in all economic sectors. When considering the
electricity sector, ineffective competition law will not help to promote and protect
market competition in the electricity sector. The main factors contributing to
ineffective competition in the electricity sector are:
Competition law legislation: the Competition Act has various sections that
create difficulties in developing effective enforcement. The legislation provides
discretion to the Competition Commission, which does not have the capacity to use
that discretion. The law exemption substantially limits the Act’s application in the
electricity sector, which is under control of SOEs.
Institution problems: the Competition Commission is under the influence of
the government and businesses. It would not be able to fight anti-competitive
conduct by private and public enterprises. In the electricity sector, the Competition
Commission, which lacks independency from various influences, would not be able
to deal with the SOEs. The Competition Commission also lacks financial and human
resources. Without an adequate budget and staff members to consider complicated
cases, the Competition Commission would not be able to deal with anti-competitive

165
Santichai Santawanpas, 'Competition Law & Enforcement Agency Experiences from Thailand'
(Paper presented at the Training Workshop on Setting up an Effective Competition Agency JFTC
Japan, 2008).
166
See website of office of Thai Competition Commission that provide no information on
competition law cases at
<http://www.dit.go.th/otcc/contentdet_en.asp?TypeID=12&catid=105&id=105>.
 73

conduct in Thailand’s economy. Thus, the Competition Commission cannot keep up

with the anti-competitive conduct of SOEs in the electricity sector.
Lack of coordination with sectoral regulators: the Competition Commission
does not coordinate its work with sectoral regulators. It rarely recommends or
arranges consultations with sectoral regulators relating to economy-wide anti-
competitive cases. Regarding the electricity sector, the Competition Commission
does not cooperate with the Energy Commission to build and protect market
competition in the electricity sector. The Energy Commission, which is the sectoral
regulator of Thailand’s electricity sector, will be discussed further in Chapter 3.
Public recognition: consumers do not recognise legal remedies available
from the competition law, which leads to ineffective enforcement of The Thai
Competition Act. In addition, consumers do not know that the Competition
Commission can deal with uncompetitive conditions and anti-competitive conduct.
When considering the electricity sector, consumers would rather deal with the
government and sectoral regulators for issues relating to electricity markets; they do
not know that the competition law is an important legal mechanism that deals with
market inefficiency in the uncompetitive electricity sector under control of SOEs.
What can be seen from this thesis chapter is that Thailand’s competition law
is ineffective and is not enforced to promote and protect market competition in the
electricity sector. The next chapter explores the current regulation of Thailand’s
electricity sector and the problems that create hurdles to the promotion and
protection of market competition.
 74

Chapter 3: Sectoral regulation of the electricity

sector

Aim of this chapter: This chapter discusses the regulation of Thailand’s electricity
sector and examines the current problems relating to electricity regulation in
Thailand. The chapter aims to answer the first thesis question: What is the current
framework in the Thai electricity sector, and are there any problems regarding
competition law and sectoral regulation?

Chapter 3 focuses on current sectoral regulation and the problems that lead to
an uncompetitive electricity sector under SOEs’ monopolistic control.

3.1 Introduction
Thailand attempted to introduce reforms to the electricity sector in the areas
of market structure, organisational efficiency and regulation in 1992.1 The initial
step of electricity liberalisation occurred in 1992 with the introduction of private
participation of independent power producers (IPPs) and small power producers
(SPPs) in the electricity sector.2 The next step involved the policy of market-
oriented reform by adopting a corporatisation plan. The government in 1998 claimed
that the plan would lead to an increase in efficiency of electricity services, a
decrease in electricity prices and a lowering of the government’s financial burden.3
However, the reform was inadequate as it used an inappropriate regulatory
framework that did not consider creating structural change and increasing market
competition. The implementation of the reform only purported to transfer the SOEs’
market power to private investments.

1
Electricity Generating Authority of Thailand Act B.E. 2511(1968) amendment No. 5(1992).
2
Electricity Generating Authority of Thailand Act B.E. 2511(1968) amendment No. 5(1992).
3
National Energy Policy Office, 'Privatisation and Liberalisation of the Energy Sector in Thailand'
(National Energy Policy Office, (NEPO), 1999) <http://www.eppo.go.th/doc/idp-07-
Priv29Mar99.html>.
 75

The first part of the chapter attempts to explore issues relating to regulatory
reform and liberalisation leading to competition in Thailand’s electricity sector. The
second part focuses on the current market structure of the Thai electricity sector,
which remains under the monopoly control of SOEs. The third part explores the
process of liberalisation and deregulation of the Thai electricity sector, which
contributes to an uncompetitive structure. This part also notes the Supreme
Administrative Court’s decision in 2006 to revoke the inappropriate liberalisation of
SOEs. The fourth part discusses the issues and problems relating to the Energy
Commission and the Energy Industry Act BE 2550 (2007) (hereafter referred to as
the Energy Act), which contribute to the uncompetitive structure of the electricity
sector.

3.2 Current market structure of the electricity sector

This section discusses the structure of Thailand’s electricity sector, with a
focus on the dominant market players referred to as SOEs in generation,
transmission, distribution and retail. In addition, it examines gas supply in Thailand,
which is a primary source of electricity generation that is also under the control of
SOEs.

3.2.1 Market players: SOEs’ market control

3.2.1.1 Generation and transmission
As an SOE, Electricity Generating Authority of Thailand EGAT has the sole
right to generate and transmit electricity. EGAT is presently the largest electricity
producer in Thailand, owning and operating its own power plants throughout the
4
country. Its capacity to generate electricity accounts for 63,930.68 million kWh,
which equates to 43.14 per cent of the country’s total electricity generation.5 It also
has the sole right to purchase power from other private producers under the

4
See EGAT website at <http://www.egat.co.th/en/>.
5
EGAT, 'Annual report 2008' (Electricity generation Authority of Thailand, 2009)
<http://www.egat.co.th/en/>
 76

government regulation of the enhanced single buyer (ESB) scheme.6 It purchases

approximately 84,270.25 million kWh of electricity from private producers, which is
equal to 56.86 per cent of the country’s total electricity generation.7 In 2008, EGAT
purchased 67,420.14 million kWh (45.49 per cent) from domestic IPPs, 14,065.20
million kWh (9.49 per cent) from SPPs and 2,784.91 million kWh (1.88 per cent)
from neighbouring countries.8
Moreover, EGAT maintains its shareholding in the country’s three
independent power producers IPPs–Ratchaburi Electricity Generating Holding
Public Company Limited (RATCH) at 45 per cent, Electricity Generating Public
Company Limited (EGCO) at 25.41 per cent and District Cooling System and Power
Plant Co. Ltd (DCAP) at 35 per cent.9 Although there are many IPPs and small
power producers SPPs supplying electricity to the EGAT grid, RATCH and EGCO
are the two largest IPPs, with market shares of countrywide electricity generation at
14 and 11 per cent, respectively.10 Figure 3.1 displays the current market share of
electricity in Thailand.

6
EPPO, 'The restructuring of electricity tariffs (translated from Thai language- การปรับโครงสร้ างอัตราค่ าไฟฟ้า)'
(Energy Policy & Planning Office, Ministry of Energy)<(http://www.eppo.go.th/power/FT-2548/ft-
2548.html>
7
EGAT above n 5 15.
8
Ibid, 16.
9
Ibid, 24.
10
EGCO, 'Corporate Presentation Quarterly Financial Results Ended 31 March 2009' (EGCO, 2009)
<http://www.egco.co.th/_admin/uploadfiles/ir_presentations/pre_thumb_en_40.pdf>; RATCH,
'Ratchaburi Electricity Generating Holding Public Company Limited (RATCH) annual report 2008'
(RATCH 2009)
<http://www.ratch.co.th/ratch.cms/download/pdf/11._2008_Power_Industry_and_Competition.pdf>.
 77

Figure 3.1 Thailand’s Electricity-generating Capacity

Installed Generating Capacity

May 2011 EGAT hold majority
share of two largest
IPPs (Ratchaburi
ElectricityGenerating
Holding PCL and
Electricity
IPP 12,152 MW (39%) Generating Company
Limited)
EGAT 14,998MW (47%)

SPP 2,182MW (7%)

Import & Exchange 2,185MW (7%)

Total 31,517MW

11
Source: Energy Policy & Planning Office (EPPO)

As shown, EGAT has a monopolistic position and is able to control

electricity generation and transmission because (1) it operates its own power plants
(around 50 per cent of market share of Thailand’s electricity generation), (2) it has
entitlement as a monopolistic buyer of electricity generated from IPPs, SPPs and
neighbouring countries, and (3) it has the majority share control over the two largest
IPPs.12
Although it is possible to liberalise Thailand’s electricity supply by
connecting with neighbouring countries under the ASEAN power grid
interconnection policy,13 all imported electricity from neighbouring countries such
as Laos, Cambodia and Malaysia must be traded with EGAT, which is the sole

11
EPPO, Thai Electricity Generation Capacity (2011),
http://www.eppo.go.th/info/5electricity_stat.htm
12
EGAT has market share at 43.14 per cent–the EGAT affiliated company and subsidiary (RATCH
and EGCO) have market shares at 25 per cent.
13
ASEAN, ASEAN Ministers on Energy Meeting (AMEM) (2009) ASEAN
<http://www.asean.org/19586.htm>.
 78

electricity supplier in the country.14 Thus, EGAT has a monopoly on wholesale

electricity supply in Thailand. EGAT is the only firm that is permitted to buy
electricity from various electricity generators (IPPs, SPPs and neighbouring
countries) and supply it to distributors and retailers in Thailand.15 The wholesale
supply of electricity in Thailand is thus under the monopolistic control of EGAT,
and there is no market competition. As a result, EGAT is able to restrict electricity
generation16 and constrain supply from interconnected electricity from neighbouring
countries.17
Based on this, to evaluate market power in Thailand’s electricity sector, the
market definition appears to be unnecessary,18 as all wholesale electricity is solely
under EGAT’s grid and transmission control. This is because the market definition
typically requires the identification of potential suppliers and the ability of
consumers to substitute an electricity supply.19 However, as no alternative supplier
is available and EGAT is the sole trader permitted to supply wholesale electricity,
distributors and retailers are obliged to buy electricity only from EGAT.

3.2.1.2 Distribution and retail

For the distribution and retail sectors, the Thailand’s electricity markets are
oligopolies that are geographically separated under The Provicial Electricity
Authority of Thailand (PEA)20 and Metropolitan Electricity Authority of Thailand
(MEA)21. The PEA is the sole distributor and retailer of electricity in the provincial
areas of Thailand. PEA is responsible for serving 73 provinces of Thailand and,

14
Electricity Generating Authority of Thailand Act B.E. 2511(1968).
15
Electricity Generating Authority of Thailand Act B.E. 2511(1968) and see EPPO above n 6.
16
Pittman Russell, 'Restructuring the Russian electricity sector: Re-creating California?' (2007) 35(3)
Energy Policy 1872.
17
Laura Deitz, Lindsay Stirton and Kathryn Wright, 'South East Europe's electricity sector:
Attractions, obstacles and challenges of Europeanisation' (2009) 17(1) Utilities Policy 4
18
Even though there is the potential suppliers enter the market, the definition of market would be
defined under the EGAT’s dominant position. The Electricity Generating Authority of Thailand Act
B.E. 2511(1968) would still define electricity sector under dominant market power of EGAT.
19
Damien Geradin, Remedies in Network Industries: EC Competition Law Vs. Sector-Specific
Regulation (Intersentia, 2004 ); Diana Moss, 'Electricity and Market Power: Current Issues for
Restructuring Markets (A Survey)' (American Antitrust Institute Working Paper No. 05-01 2005)
<http://ssrn.com/paper=1103663>.
20
See the PEA’s website at <http://www.pea.co.th/th/eng/>.
21
See the MEA’ website at <http://www.mea.or.th/home/index.php?l=en&l=en>.
 79

according to the 2009 annual report, it supplied 90,145 million kWh of electricity
for Thailand’s provincial customers.22 PEA is vertically linked with EGAT, and it
purchased 88,630 million kWh of EGAT’s electricity in 2006.23 MEA is responsible
for supplying electricity to the Bangkok Metropolis, Samut Prakan and Nonthaburi
provinces. In 2008, it serviced around 42,235.9 million kWh to the three major
urban areas. MEA also is vertically linked with EGAT’s electricity supply. PEA and
MEA are thus local and regional monopolists, and Thai consumers are obliged to
rely on their operations for distribution and retail because there are currently no
other choices.
With the current structure of Thailand’s electricity, EGAT, PEA and MEA
have both individual and collective monopoly power in Thailand’s electricity sector.
These SOEs have no direct competition, and they are able to act as the government
authority by the law of their establishment under the Ministry of Interior.24 Figure
3.2 provides a clearer picture of the current uncompetitive structure of Thailand’s
electricity sector.

22
PEA, 'Annual report 2009' (Provincial Electricity Authority, 2010)
<http://www.pea.co.th/annualreport/2009/AnnualReportEngPEA.2009.pdf>.
23
Ibid.
24
See the law for establishment of EGAT PEA and MEA in 1)Electricity Generating Authority of
Thailand Act, B.E. 2511 (1968), 2) Provincial Electricity Authority Act, B.E. 2503 (1960), 3)
Metropolitan Electricity Authority Act BE 2501(1958). The three Acts requires three entities to be
under the Ministry of Internal Affairs. See also the information on the website of Thai State
Enterprise Policy Office Retrieved 20 August 2010 from www.sepo.go.th.
 80

Figure 3.2 Current Market Structure of the Electricity Sector under SOEs

Competition law exemption to SOEs

Electricity Authority of Thailand (EGAT) is a

monopoly of generation and electricity trade Generation sector
under enhanced single buyers scheme.

Transmission sector
EGAT is a monopoly of Transmission sector

Provincial Metropolitan
Electricity Electricity Distribution sector
Authority (PEA) Authority
(MEA)

Consumers in Consumer in
Provincial Areas Metropolitan areas Retail sector

Source: Pornchai (2012)

3.2.2 Reliance on gas supply for electricity generation: the

PTT monopoly
In Thailand, electricity is produced by various resources but is highly
dependent on natural gas. In 2008, 70 per cent of Thailand’s electricity was
generated by natural gas, 12.6 per cent by lignite, 8.2 per cent by coal and 4.6 per
cent by hydro.25 In generating electricity, EGAT relies heavily on natural gas for its
12 large thermal power plants.26 It is also expected that EGAT will become more
dependent on natural gas, as indicated by the Thai Energy Policy and Planning
Office’s (EPPO) statistics on the increase in gas usage for electricity plants.27 Figure

25
EPPO, above n 11.
26
EGAT, Location map of EGAT's Thermal Power Plants, (EGAT 2009)
<http://www.egat.co.th/en/index.php/egat-power-plants/49-location-map-of-egats-thermal-power-
plants >
27
EPPO, above n 11.
 81

3.3 below indicates the information of highly reliance on gas supply for electricity
generation in Thailand.

Figure 3.3 National Plans on Sources of Electricity Generation

Nuclear
320,000 Diesel
Renewable energy
280,000 Import
Oil
240,000 Import Coal
Lignite
200,000 Gas
Hydro
160,000

120,000

80,000

40,000

0
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020
28
Source: Energy Policy & Planning Office (EPPO)

However, the gas supply market is monopolised by The Petroleum Authority

of Thailand Public Company Limited (PTT), which is a corporatised SOE. PTT is an
essential energy supplier for consumers, industries and power plants. It is the sole
purchaser, transporter and distributor of natural gas in Thailand.29 PTT purchases
unrefined gas from various producers, including its subsidiary, PTT Exploration and
Production (PTTEP), and resells the gas through its pipeline to consumers.30

28
EPPO, Electricity demand forecast and power development plan in Thailand(in Thai language)
(2007),<http://www.eppo.go.th/power/poo2/egat-pdp2-ppt.pdf>.
29
Deunden Nikomborirak, 'Gas in Thailand ' in Christopher Findlay (ed), The Impacts and Benefits of
Structural Reforms in Transport, Energy and Telecommunications Sectors (APEC Policy Support
Unit 2011)
30
Ibid
 82

Figure 3.4 Share of Power Generation

31
Source: Energy Policy & Planning Office (EPPO)

In addition, PTT is able to retain market power for control over Thailand’s
gas supply through its Memorandum of Understanding (MOU) with the Treasury
Department, which determines the criteria for charging compensation for the use of
assets as at 1 February 2008.32 The MOU permits PTT to employ the state assets of
gas pipelines for its gas business.33 The MOU also provides 30 years rental for the
gas pipeline to PTT, with the rental fee set at the progressive rate and with a
minimum annual rental fee of Baht 180 million and a maximum annual rental fee of
Baht 550 million.34 The license for the pipeline operation under the MOU would
give PTT a significant monopoly over the gas market, which correlates with

31
EPPO above n 11.
32
PTT, 'Annual General Meeting of Shareholders' (PTT, 2008)
<http://www.pttplc.com/Files/Business/attach/ShareHolder/ShareholdersMeeting.pdf>
33
Ibid.
34
Ibid.
 83

electricity production.35 PTT’s 3,100 km of gas pipelines are linked with all gas
fields and are connected to EGAT’s electricity plants.36
In 2008, EGAT reported that it used natural gas in its own generation
facilities that amounted to 339,786 million cubic feet, supplied from various gas
fields including the Gulf of Thailand, Nam Phong, Phu Hom, Sirikit, the A-18 field
of the Thai–Malaysian joint development area (JDA) in the Gulf of Thailand, Arthit,
and Myanmar’s Yadana and Yetakun gas fields.37 These pipelines are directed to the
EGAT generation plants and are under PTT operation, and the price of gas is set by
PTT’s marketing and margin cost.38 PTT determines its marketing margin charge as
a percentage of the gas pool price.39 This charge is classified according to different
categories of customers. For example, PTT charges a marketing margin to EGAT
and IPPs at 1.75 per cent of gas pool prices, but it charges SPPs at 9.33 per cent.40
The different gas margin prices for EGAT, IPPs and SPPs also determines the
position of advantage in the market. EGAT and IPPs would be able to generate
electricity at a cheaper rate compared to SPPs. This may lead to price discrimination
and may lead to a margin squeeze by EGAT and IPPs on potential competitors, as
they have cheaper costs of gas to generate their electricity supply.
Moreover, EGAT’s reliance on PTT’s gas supplies contributes to a double
marginalisation structure in the electricity market. This occurs when two monopoly
firms are able to add their margins to profit from electricity generation.41 For
example, if an upstream monopoly, which is the main source of electricity
generation, adds a monopoly margin42 to its production costs, then a downstream

35
Ibid.
36
Nikomborirak, above n 29.
37
EGAT above n 5
38
PTT, 'Gas Unit' (PTT, 2010) <http://www.pttplc.com/en/ap_oil3-1.aspx>; PTT, 'Gas Unit – Gas
transmission pipeline' (PTT, 2010) <http://www.pttplc.com/th/ap_oil3-3.aspx>.
39
Thanawat Nakawiro and Subhes C. Bhattacharyya, 'High gas dependence for power generation in
Thailand: The vulnerability analysis' (2007) 35(6) Energy Policy 3335.
40
Ibid.
41
Paul Joskow, 'Vertical integration.' (2010) 55(3) Antitrust Bulletin, 545; Jean Tirole, The Theory of
Indutrial Organization (MIT Press, 1994).
42
The monopoly margin refers to prices at marginal cost which benefits the monopoly firm. In the
context of Thailand’s gas and electricity sectors, a PTT as a upstream monpoly in gas sector set its
margin to its benefit level , and the EGAT as downstream firms which is a monopoly in electricity
generation set it margin to its benefit level. When there is no market competition in both Thailand’s
gas and electricity markets, the margin to benefit PTT and EGAT then create double marginal cost to
consumers.
 84

monopoly, which is a monopoly firm in electricity generation, adds another margin

to the price it pays to the upstream firm.43
This can be applied to the current Thai electricity structure, whereby PTT, as
a gas monopoly, charges gas costs to EGAT, and EGAT, as a monopoly in
electricity generation, is able to add its margin to the gas cost for its electricity
generation. This double marginalisation structure in gas and electricity generation
would create inefficiency of gas and electricity prices. Figure 3.5 illustrates the
current market structure of double marginalisation in the electricity and gas sectors.
A further concern is that the double marginalisation in the electricity sector would
create an issue regarding electricity security and environmental concern regarding
the search for other available resources to sustainably generate electricity.44

Figure 3.5: Thai Energy Sectors under SOEs

EGAT–monopoly of Monopoly gas

supply
PTT–monopoly
power generator oil and gas

Gas is the major

source of
electricity

MEA-Metropolitan and
PAE-Provincial
suburban distributors
distributor and retailer
and retailer

45
Source: Pornchai (2012)

43
Joskow, above n 41.
44
Ken Costello, “Increased Dependence on Natural Gas for Electric Generation’ (The National
Regulatory Research Institute at The Ohio State University 2004)
<http://www.hks.harvard.edu/hepg/Papers/Costello.NRRI.nat.gas.elec.gen.Apr.04.pdf>
45
Pornchai (2012) adapted from information based on EPPO, ‘Summary of the Conference
Proceeding on the Thai electricity Development Plan’ (Paper presented at the Thai Electricity
Development Plan 2007–2020- Translated from Thai language 2007).
 85

3.3 Development of the electricity sector and

regulation
In this section, the thesis explores the development of electricity regulation,
which contributes to the current market structure under the control of SOEs. It
focuses on the development of sectoral regulation based on (1) the early
development of the sector, (2) the liberalisation arrangement during 1980–1998, (3)
new reform arrangements from 2002, and (4) the Supreme Administrative court’s
decision on the privatisation of the electricity sector.

3.3.1 Early development of the electricity sector

The early period of the Thai electricity sector can be traced back to the
government’s policy to centralise and modernise the sector. In 1950, the Thai
government established an electricity generator called the Bangkok Electricity
Authority within the Ministry of Interior.46 The electricity generator was purported
to be a centralised metropolitan electricity generator. In 1958, the sector was
reformed by the Metropolitan Electricity Authority Act BE 2501(1958) which
established the MEA as the sole authority to operate the electricity infrastructure for
Bangkok and suburban areas.47 It entitles MEA to generate, transmit, distribute and
retail the electricity supply.48 Thus, MEA has the power to expropriate people’s
properties and develop electricity lines over and under properties.49
For the provincial areas, the electricity supply was initiated by the 1930
establishment of a rural electricity division in the Ministry of Interior.50 In 1934, the
Department of Provincial Electricity was established.51 Nakorn Pathom was the first
province that built a power plant to supply electricity to its areas and nearby

46
Metropolitan Electricity Authority (MEA), Background of The Electricity Generating Authority of
Thailand (Thai Language) <http://www.mea.or.th/menu1_2.htm>.
47
Metropolitan Electricity Authority Act BE 2501(1958) s 6.
48
Metropolitan Electricity Authority Act BE 2501(1958) 11.
49
Metropolitan Electricity Authority Act BE 2501(1958) 11.
50
PEA, History of PEA, http://www.pea.co.th/th/about/aboutPEA_history.htm
51
Ibid.
 86

provinces.52The provincial electricity services then spread to the main provincial

areas, followed with an expansion by opening government concessions to small
electricity plants in various provinces.53 Most provincial power plants operated only
at night and supplied an uneven service.
It became clear that MEA and PEA were established as centralised entities
for supplying of electricity to Thai consumers in separated geographic markets.
However, there was a considerable increase in electricity demand, and MEA and
PEA could not expand their capacity to satisfy the increased demand. Thus, the Thai
government had to establish a central generator responsible for generating electricity
supply to PEA and MEA.54 The establishment of the generator was according to the
National Social and Economic Development Plan 1961–1967, which recommended
the construction of the state’s largest power plants to solve the shortage of electricity
in the metropolitan and provincial areas.55According to the plan, various state power
plants such as the Yanhee Electricity Authority, the Lignite Authority and the
Northeast Electricity Authority were consolidated into one entity under EGAT in
1968.56 The consolidation was based on the passing of the Electricity Generating
Authority of Thailand Act B.E. 2511(1968).57 The Act grants extensive power to
EGAT to generate and supply electricity,58 and expropriate public assets to operate
its businesses.59 Thus, EGAT became an important enterprise that dominated the
generation and transmission sections of the Thai electricity sector.
Thus, Thailand had MEA, PEA and EGAT as electricity operators that are
vertically integrated for the electricity supply industries. The three SOEs became
oligopoly enterprises, controlling all four sections of electricity supply—generation,
transmission, distribution and retail service—within a given geographical area.

52
Ibid.
53
Ibid.
54
Thai Ministry of Energy, History of Thai Energy Sector development(Prawat Khan Pattana
Kijakarn Plang Ngan Thai), 31, <http://www.energy.go.th/moen/Index.aspx?MenuID=24>.
55
Ibid.
56
See The Second National Economic and Social Development Plan BE 2510 – 2514 (1967-1971).
57
Electricity Generating Authority of Thailand Act B.E. 2511(1968) subsections 3 and 7.
58
Electricity Generating Authority of Thailand Act B.E. 2511(1968) subsection 6.
59
Electricity Generating Authority of Thailand Act B.E. 2511 (1968) subsections 28 and 35.
 87

The three SOEs played a significant role in providing electricity to meet the
high demands of rapid economic development in Thailand in the 1980s.60 However,
the increase of electricity capacity for Thailand’s economic development provided a
rapid, centralised approach, which signified the three SOEs’ crucial role in the
government’s services. The three SOEs were able to employ their economic power
to gain political influence and rapidly expand their large-scale organisations.61
The rapid expansion of these government-centralised agencies created both
highly successful but has been costly to Thailand. The three SOEs could help
facilitate the rapid development of the electricity infrastructure to satisfy high
demand from businesses and industries. The SOEs were able to maintain industrial
confidence for all investments regarding the reliability and effectiveness of the
electricity supply.62 This contributed to the rapid development of Thai businesses
and industries. Conversely, the expansion of electricity supply capacity led to a
substantial increase in Thailand’s international debt. The three SOEs owned a share
of the international debts for nearly half of Thailand’s external borrowing between
1967 and 1971.63According to the World Bank, this was due to the rapid flow of
international funding, which recommended that developed countries be confident in
financing the SOEs’ plans to build electricity generation at exceptionally low
interest rates with long repayment periods.64
As a result, an influx of financial investment was directed towards the SOEs
for their large-scale capacity expansion. However, the result of the expansion was a
tripling national debt, reaching 39 per cent of GDP.65 While the capacity was
expanded by the influx of investment, the tariffs were set at a low and uneconomic
level that did not cover the investment costs of the capacity expansion.66 This
contributed to significant financial depreciation for the SOEs, resulting in financial

60
James H. Williams and Navroz K. Dubash, 'Asian Electricity Reform in Historical Perspective'
(2004) 77(3) Pacific Affairs 412.
61
Supannika Wattana, Deepak Sharma and Ronnakorn Vaiyavuth, 'Electricity Industry Reforms in
Thailand: A Historical Review' (2008) 2 GMSARN International Journal 41.
62
Ibid.
63
Darryl S.L. Jarvis, 'Risk, Regulation & Governance: Institutional Processes and Political Risk in the
Thai Energy Sector' (Lee Kuan Yew School of Public Policy National University of Singapore,
2009), p 6.
64
Chuenchom Sangarasri Greacen and Chris Greacen, 'Thailand's electricity reforms: privatization of
benefits and socialization of costs and risks' (2004) 77(3) Pacific Affairs 517, 520.
65
Ibid.
66
Ibid.
 88

problems. The problem was made worse by the oil crisis in 1980, which resulted in a
significant increase in public debt.67 The substantial rise of public debt resulted in
Thailand seeking a structural adjustment program from the World Bank in 1982,
which recommended that Thailand reform the electricity sector by increasing
electricity prices and privatising electricity utilities.68 A condition of the adjustment
program was that EGAT should be privatised and the tariffs liberalised. However,
the privatisation and liberalisation were met with fierce resistance from labour
unions and academics, and the program ultimately failed.69

3.3.2 Liberalisation of electricity 1980–1998

With significant debt in the electricity sector, the Thai government
recognised that the sector is an important part of the economy which requires
particular attention. The government thus considered controlling the electricity
policy and planning that were mainly subjected to the SOEs electricity. The
government arrived at a solution to liberalise the electricity sector and establish an
agency to make policies for the electricity sector.70
The Thai government adopted the policy of liberalisation for state enterprises
to allow private investment in the electricity sector and reduce public debt.71 The
government policy on electricity deregulation and liberalisation was initiated with
the establishment the National Energy Policy Council (NEPO), which is responsible
for planning and implementing liberalisation.72 NEPO was established by the
National Energy Policy Council Act, BE 2535(1992) and had exclusive rights to
prepare a national energy liberalisation plan and policy for cabinet.73 NEPO was also

67
Pasuk Pongpaichit and Christ Baker, Thailand’s Boom and Bust (1998).
68
World Bank, Report and Recommendation of The president the International Bank for Construction
and Development to the executive Directors on a structural adjustment Loan to The Kingdoms of
Thailand (World
bank,1982).<http://wwwwds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2000/01/
01/000178830_98101902390062/Rendered/PDF/multi_page.pdf>.
69
Nakawiro and Bhattacharyya, above n 39.
70
Greacen and Greasen, above n 64.
71
Ibid.
72
EPPO, 'Energy Policy and Planning Office' (Energy Policy and Planning Office, Ministry of
Energy, 2006) <http://www.eppo.go.th/admin/index.html,
http://www.eppo.go.th/admin/book2006/eng.pdf>.
73
National Energy Policy Council Act, B.E. 2535 (1992) s 6.
 89

placed as the key agency that directly reported to the Prime Minister’s office.74
Thus, NEPO became the most influential energy authority, assuming considerable
power over all facets of energy policy, planning and pricing.
NEPO played a significant role as the strong institution facilitating the
process of liberalisation of Thailand’s electricity market. It received good results in
lobbying and recommending reforms for the electricity market.75 NEPO initiated the
first step towards liberalisation by introducing SPPs and IPPs. NEPO proposed that
the Thai electricity law be amended to allow SPPs and IPPs to participate in the
sector. Thus, in 1992, EGAT Act BE 2511 (1968) was amended to permit EGAT to
cooperate with private participators from SPPs and IPPs.76 EGAT and NEPO then
cooperated to implement SPP programs by allowing private generators to sell up to
60 MW to EGAT, and the remaining capacity could be sold to nearby industries.77
These amendments to the law also established an IPP program that permitted
IPPs to sell electricity production to EGAT’s grids. The first IPP was EGAT’s
wholly owned subsidiary, the Electricity Generating Public Company Limited
(EGCO),78 which was incorporated on 12 May 1992.79 EGCO was listed as a public
company on 23 March 1994, and its shares started trading on the Stock Exchange of
Thailand (SET) on 16 January 1995.80 Later, the other IPP, Ratchaburi Electricity
Generating Holding Public Co., Ltd. (Ratchaburi), was incorporated as a subsidiary
of EGAT to operate a power generation business. Shares of Ratchaburi were offered
and traded in the Thailand stock market in October 2000, with EGAT as the
majority shareholder at 45 per cent.81
After the initial step of liberalisation of the electricity sector by introducing
an SPP and IPP program, NEPO implemented a second stage to further establish

74
See the Act on the Administrative Organization of the State Affairs (No.3), B.E. 2536 (1993) and the
Act Organizing Ministries, Sub-ministries and Departments (No.9), B.E. 2536 (1993.)
75
Greacen and Greasen, above n 64.
76
Electricity Generating Authority of Thailand Act B.E. 2511(1968) amendment No. 5.
77
Pei Yee Woo, 'Independent Power Producers in Thailand' (Program on Energy and Sustainable
Development, Standford University, Working Paper No. 51, 2005)
<http://pesd.stanford.edu/publications/20978.
78
See EGCO’s website at <http://www.egco.com/en>.
79
EGCO, History of EGCO (2010) <http://www.egco.co.th/en/corperate_profile_history.asp>.
80
Ibid.
81
National Energy Policy Office, 'Privatisation and Liberalisation of the Energy Sector in Thailand'
(National Energy Policy Office, (NEPO), 1999) <http://www.eppo.go.th/doc/idp-07-
Priv29Mar99.html>.
 90

regulatory reform of the Thai electricity sector towards market competition. In 1998,
NEPO stated its plans for the liberalisation and deregulation of the electricity sector,
with the focus on building market competition. The plans are to first reform the
electricity supply industry (ESI),82 second use EGAT as the primary power
purchaser (1998–2001),83 third use EGAT as the central supplier of power, with a
gradual introduction of competition during 2001–200384 and fourth use competitive
wholesale power pool/introduction of retail competition from 2003 onwards).85 The
stages are displayed in Figure 3.6 below.86

82
The reform is to restructure and privatise Thai electricity supply industry (ESI)to promote
competition and private sector participation. The cabinet resolution of 1 September 1998 stated the
consent on the Master Plan for State Enterprise Sector Reform (the Master Plan) that envisaged the
future structure of the ESI, based on competitive model by making the separation of generation,
transmission, and distribution sections. Accordingly, for plan to reform in this stage require the 5 year
process of unbundling and restructuring on electricity sector.
83In this stage, there will be limitation on private sector participation in generation in order to gain
the capital needs of EGAT. The long-term central power planning under EGAT’s responsibility. The
sector will be improved to competitive circumstance between generators with expected result of
productivity efficiencies. The commercial risk of electricity trading will be shared by private sector
and government -owned entities. No customer access to competitive power, except through SPPs.
There will be establishment of independent regulator-See National Energy Policy Office (1999)
Privatisation and Liberalisation of the Energy Sector in Thailand, NEPO <
http://www.eppo.go.th/doc/idp-07-Priv29Mar99.html>.
84
EGAT will continue its role as the central agency for long-term planning and system operation but
it will face competition in bulk purchase and supply of power by permitting private participation in
both generation and retail supply and by permitting generators to sell directly to large customers.
Electricity Generators will be required to compete with other market participants in supplying
electricity to large customers, thus enhancing the efficiency drivers on the generation sector. The
transmission and distribution prices will be regulated by efficiency incentive scheme of the
independent regulator. MEA and PEA will be placed on level playing field with new competitors.
Although the EGAT will be a central agency for long-term planning and system operation, there will
be an increase of private investments in electricity generation- See National Energy Policy Office
(1999) Privatisation and Liberalisation of the Energy Sector in Thailand, NEPO <
http://www.eppo.go.th/doc/idp-07-Priv29Mar99.html>.
85
Generation owned by EGAT would be unbundled into separate groups. An independent system
operator would be established. PEA would be separated into distribution companies. The energy
consumption in each provincial areas would be determined by new distribution entity’s performance
 91

Figure 3.6 NEPO’s Plan for a Liberalised Electricity Sector

IV: Competitive
III: EGAT as the
wholesale
II: Using EGAT central supplier
I: Reform of power pool /
as the primary of power, with
Electricity introduction of
power gradual
Supply Industry retail
purchaser introduction of
(ESI) competition
(1998-2001) competition.
(From year
(2001-2003)
2003 onward)

87
Source: National Energy Policy Office

NEPO’s planned stages were aligned with the enactment of the State
Enterprises Corporatization Act 2542 (1999) (hereafter referred to as
Corporatization Act), which aims to corporatise the whole or part of government-
owned enterprises to be either a private or public limited company.88 The
Corporatization Act was passed in the aftermath of the Asian financial crisis,
whereby the Thai government proposed to the IMF the financial restructuring of
loans with a Letter of Intention to privatise its SOE utilities.89 The Corporatization

and its customers. A separate supply function would be established and corporatized, either owned or
independent from the distributors. Private sector could participate in both generation and retail
supply. Competitive neutrality between state-owned and private sector generation companies,
fostering real competition in bulk and retail supply of power will be established. With the correct
design of a competitive structure, there would be strong efficiency drivers in power generation and
retail supply. Market signal then will replace central planning system and new electricity generation
capacity will only be added as economically justified by competitive supply-and-demand of market-
See National Energy Policy Office (1999) Privatisation and Liberalisation of the Energy Sector in
Thailand, NEPO < http://www.eppo.go.th/doc/idp-07-Priv29Mar99.html>.
86
National Energy Policy Office, above n 3.
87
Adapted from National Energy Policy Office (1999) Privatisation and Liberalisation of the Energy
Sector in Thailand, NEPO < http://www.eppo.go.th/doc/idp-07-Priv29Mar99.html>.
88
State Enterprise Act 2542(1999) section 4.
89
Decharut Sukkumnoed et al, 'Governing the Power Sector: An Assessment of Electricity
Governance in Thailand' (World Resources Institute, National Institute of Public Finance and Policy
and Prayas Energy Group, 2006)
<http://electricitygovernance.wri.org/files/egi/egi_thailand_report_0.pdf>.
 92

Act required the establishment of a committee of state enterprises to advise the

cabinet on issues relating to strategies for the corporatisation of the SOEs.90
The Thai government expected to liberalise the electricity sector and
corporatise EGAT according to NEPO’s plans to reform the electricity utility.91
EGAT would be unbundled into three companies with the establishment of the spot
power pool market. EGAT would maintain its hold on sole electricity transmission,
and MEA and PEA would be separated into electricity delivery companies to face
the competitive market.92
However, NEPO’s plan for the liberalisation of the electricity sector was
substantially affected by the new government policy under Prime Minister Taksin.
The Taksin’s government created a new structure for Thai ministerial authorities by
enacting the Organization of State Administration Act BE 2545 (2002) and the Act
Amending Ministry, Sub-Ministry and Department BE2545 (2002). Both Acts
restructured the ministries so there were 20 ministries, including the Ministry of
Energy that have duties to administer the Thai energy market.93 The Ministry of
Energy then assumed control of NEPO. Under the Ministry of Energy, NEPO’s role
in electricity reform and policy was limited,94 which significantly reduced its power
to conduct the restructuring and liberalisation of the electricity sector. NEPO was
then downgraded to EPPO, which is subject to the authoritative control of the
Ministry of Energy.

90
State Enterprise Act 2542(1999) section 5.
91
Supannika Wattana, Deepak Sharma and Ronnakorn Vaiyavuth, 'Electricity Industry Reforms in
Thailand: A Historical Review' (2008) 2 GMSARN International Journal 41.
92
Ibid.
93
Organization of State Administration Act B.E. 2545 (2002).
94
Sukkumnoed et al, above n 89.
 93

3.3.3 New reform arrangement for the electricity sector

After the establishment of the new Ministry of Energy and the downgrading
of NEPO in 2002, the government established a new plan for reforming and
privatising the electricity market. Under Taksin’s cabinet, NEPO’s reform of
electricity liberalisation plan was rejected, and the cabinet ordered a review of the
plans to liberalise the electricity sector.95 Various organisations proposed new
models for regulatory reform, as outlined in Table 3.1.

Table 3.1 Proposed plans to liberalisation the electricity sector, 2002–2003

ESI Model Year Organisation
New Electricity Supply Trading Arrangement 2002 EPPO
Multiple buyers/Multiplesellers 2002 EGAT
Partialliberalisation model

Cost-based power pool 2002 Kema Consultants and Siam

Commercial
Bank
Commissioned by EGAT

Transitional model to 2002 Asian Institute of Technology

net pool (AIT)
Commissioned by EGAT
Electricity Relation 2002 Electricity Relation
Committee’s model Committee
Commissioned by EGAT
Selection of five models on1) Full Competition (FC), 2) 2003 Conducted by Boston
Competitive Bilateral Contract (CBC), 3) Partial Consulting Group
Competition (PC), 4) Enhanced Single Buyer (ESB) Commissioned by Ministry of
and 5) Super National Champion (SNC)96 Energy

Sources: Puree Sirasoontorn (2005); Supannika Wattana, Deepak Sharma and Ronnakorn
97
Vaiyavuth (2008)

95
EPPO, 'The Electricity Supply Industry Reform, ' (Paper presented at the Seminar of the electricity
supply industry reform, Sofitel Central Plaza, Bangkok, 2002).
96
Boston Consulting Group is the only organisation which proposed 4 models of electricity reform to
the Ministry of Energy. The Ministry of Energy thus choose the 3 model of enhance single buyer.
This means there will be change to the electricity structure the only change is to create a
corporatisation of EGAT.
97
Derived from Puree Sirasoontorn ‘Regulatory regime and finance: Electricity distribution in
Thailand’ (2005) 23(4) Thammasat Economic Journal 114; Supannika, Sharma and Vaiyavuth, above
n 91.
 94

It is interesting to note that, while various models were proposed by

organisations, the Ministry of Energy also hired the Boston Consulting Group (BSG)
in 2003 to prepare a possible model for liberalising the electricity sector.98 After
receiving the choice of models from the BSG, the government decided to pursue
liberalisation according to the ESB proposed by the BSG.99
The Enhance Single Buyers (ESB) model would give significant market
power for EGAT, turning it into a national electricity firm. The government’s
decision was under significant political pressure from EGAT to maintain its market
power over the electricity sector.100 This is because the ESB model is similar to the
current Thai electricity structure, which signifies that EGAT is the dominant power
generator and transmitter.
Under the ESB model, EGAT would not be unbundled and new generation
competitors would have to compete directly with EGAT. The government selection
of the ESB model reflects less consideration of reform but more emphasis on
transferring EGAT’s ownership from the state to private investors. After making the
decision, the government scheduled the next move on electricity liberalisation by the
initial public offering (IPO) of EGAT’s shares on the Thai stock market in the fourth
quarter of 2004. However, the implementation of the initial public offering (IPO) of
EGAT shares faced high levels of protest from EGAT’s labour union and
consumers. Taksin’s cabinet then postponed the plan to privatise EGAT.101
The plan to corporatise EGAT was then resurrected after Taksin’s successful
re-election in early 2005. Taksin’s government pursued corporatisation by enacting
two decrees: (1) Royal Decree stipulating powers, rights and benefits of EGAT Pcl,
BE 2548 (2005) and (2) Royal Decree stipulating time clause for repealing the law
governing EGAT, BE 2548 (2005).
The first royal decree authorised EGAT to have special rights and receive
protection as prescribed and granted by the EGAT Act 2511 (1968) and other laws
applicable to EGAT.102 By the decree, EGAT would have state enterprise rights to
expropriate and use land, similar to a state authority. EGAT’s employees would also

98
Ibid.
99
Greacen and Greasen, above n64.
100
Ibid.
101
Ibid.
102
Royal Decree stipulating powers, rights and benefits of EGAT Pcl, B.E. 2548 (2005) s 4.
 95

have official powers under the Criminal Code.103 EGAT employees would be able to
act as a government officer, cooperating with a police officer and a prosecutor in
making arrests and bringing criminal charges in court. This is because people who
violate the EGAT Act 2511(1968) are subject to criminal conduct and can be brought
to a criminal case.
The decree also gave EGAT significant independence in making policies for
building power plants and transmission lines by establishing an Electricity
Generating Business Committee, which would have a close relationship with
EGAT.104 The second royal decree set the time to repeal the EGAT Act at 24 June
2005, which means that EGAT would become a public limited company on that
date. EGAT’s shares of 25 per cent would be traded on the Thailand stock market.
The royal decrees required the importance of implementing reform in the
electricity sector and the corporatisation of EGAT. However, the adoption of royal
decrees can be seen as the government’s intention to corporatise EGAT without
market restructuring to preserve the monopolistic position of EGAT, which would
be transferred to private hands via the issuance of EGAT’s IPO in the Thailand stock
market. The Foundation for Thai Consumers105 thus petitioned the Supreme
Administrative Court in 2006 regarding whether corporatisation was in accordance
with the Thai constitution.

3.3.4 Supreme Administrative court decision on EGAT

corporatisation
The Thai Supreme Administrative Court is the highest independent court
established for hearing disputes between the government and the people who are
affected by government policy.106 As previously described, the electricity sector was
liberalised without consideration of structural change towards market competition.

103
Royal Decree stipulating powers, rights and benefits of EGAT Pcl, B.E. 2548 (2005) s 45, 46, and
48.
104
Royal Decree stipulating powers, rights and benefits of EGAT Pcl, B.E. 2548 (2005) s 6 and 9.
105
See further information about the Foundation for Thai consumers from
<http://www.consumerthai.org/main/index.php?option=com_content&view=article&id=1436>.
106
See further information of Thai Supreme Court in website of
<http://www.admincourt.go.th/amc_eng/login_eng.aspx>
 96

The Foundation for Thai Consumers thus petitioned the Supreme Administrative
Court regarding the lawfulness of the royal decrees on the corporatisation of EGAT
that stemmed from the cabinet’s misuse of government power and led to
unavoidable economic effects for consumers.107 The case reflects the doubts about
government policy on the corporatisation of EGAT and whether it can lead to public
benefits.
In this case, the Foundation of Thai Consumers made a claim to the Court
that the two royal decrees for the corporatisation of EGAT were unlawful because
there was a conflict with public interest under the Thai constitution. The reasons
behind the claims were that both royal decrees had been issued without appropriate
public hearings and were against the interest of the people and contrary to the
intention of the State Enterprise Corporatization Act, BE 2542 (1999).108 The
claimants claimed that they had not been able to participate in policy planning and
implementing of EGAT’s corporatisation.109 The decrees also transferred the
authoritative right and power of EGAT as the public and government entities to
EGAT, without considering that such a transfer would contribute to negative effects
on the rights and freedoms of Thai citizens according to Chapter V of the Thai
constitution BE 2540 (1997), which requires the government to operate public
utilities so that it can maintain benefits in the public’s interest.110
After hearing the case, the Supreme Administrative Court held in favour of
the Foundation of Thai Consumers and stated that the two royal decrees should be
revoked and the corporatisation process of listing EGAT on the stock exchange was
nullified. The Court provided three main reasons for its decision: (1) a conflict of
interest by the unqualified committee for implementing EGAT’s corporatisation,111

107
Thai Supreme Administrative court, (2006) Decision on Black case no. For. 14/2548 and Red
Case No. For.5/2549.
108
Thai Supreme Administrative court, (2006) Decision on Black case no. For. 14/2548 and Red
Case No. For.5/2549.
109
Thai Supreme Administrative court, (2006) Decision on Black case no. For. 14/2548 and Red
Case No. For.5/2549.
110
Thai Supreme Administrative court, (2006) Decision on Black case no. For. 14/2548 and Red
Case No. For.5/2549,p 1; Thai constitution BE 2540 (1997) Chapter V on Directive Principles of
Fundamental State Policies at section 87 stipulates that the State shall encourage a free economic
system through market force, ensure and supervise fair competition, protect consumers, and prevent
direct and indirect monopolies, repeal and refrain from enacting laws and regulations controlling
businesses which do not correspond with the economic necessity.
111
Thai Supreme Administrative court, (2006) Decision on Black case no. For. 14/2548 and Red
Case No. For.5/2549, pp 42, 44 and 46.
 97

(2) a conflict of interest in the appointment of a chairman for the public hearing
committee and the improper process of the hearings,112 and (3) an issue within
EGAT that entitles it to have state power of land expropriation after corporatisation,
creating unfair competition in the electricity sector.113
It appears that the corporatisation of EGAT, without appropriate market
restructuring and prudential regulatory framework for creating market competition,
would provide substantial market power in generation and transmission to EGAT. It
is thus important to undertake reform of the market structure and regulation, which
would lead to fair market competition. However, after the Supreme Administrative
Court’s decision declaring the corporatisation of EGAT null, the reform of the
electricity market was put on hold. The Taksin government was unable to gain
public confidence regarding the merit of electricity reform.114 The public comprised
two groups: those who supported Taksin’s government and those who wanted to see
a change. The conflict between these groups was followed by the military coup
d’état that took place on 19 September 2006, when the Royal Thai Army completed
a coup against the elected government of Prime Minister Taksin.115 The Junta
government then assumed cabinet power and passed the new Energy Industry Act
B.E. 2550 (2007) (hereinafter the Energy Act) as the main energy sectoral
regulation. While the Act provides a significant step in reforming the electricity
sector, there are still issues that will create difficulties for further reforms.

112
Thai Supreme Administrative court, (2006) Decision on Black case no. For. 14/2548 and Red
Case No. For.5/2549, 45.
113
Thai Supreme Administrative court, (2006) Decision on Black case no. For. 14/2548 and Red
Case No. For.5/2549,51-52.
114
Björn Dressel, 'Judicialization of politics or politicization of the judiciary? Considerations from
recent events in Thailand' (2010) 23(5) (2010/11/18) The Pacific Review 671.
115
James Ockey, 'Thailand in 2006: Retreat to Military Rule' (2007) 47(1) Asian Survey 133.
 98

3.4 Current electricity regulation

After the Junta government assumed power and passed the Energy Act,
which was purported to be the main sectoral regulation for all Thai energy sectors,
including electricity, difficulties became evident regarding the potential for
developing an efficient and competitive market. This is because (1) the Energy
Regulatory Commission, established by the Act as the new, established regulator,
still has difficulty regulating the SOEs,2) the Energy Commission must support the
monopoly position of SOEs, (3) there is no provision relating to access to essential
facilities and (4) price regulation favours SOEs rather than consumers.

3.4.1 Energy Regulatory Commission

The Energy Regulatory Commission (ERC) was established by the Energy
Act as a sectoral regulator for the Thai energy sector, including the electricity
industries. Its aim was to separate policymaking and regulatory functions in the
electricity and natural gas sectors. According to the Act, the ERC will focus on the
regulatory supervision of the operation of the electricity and natural gas industries,
including related interconnection networks, and the Ministry of Energy and NEPO
will consider the energy policy-making function.116
In considering the efficiency of energy utilisation, plant operations and
market competition, the ERC is entitled to give licenses to firms that would like to
operate in the Thai electricity and fuel industry.117 It appears that the ERC will be
the important sectoral regulator that will regulate the incumbent SOEs and create a
more competitive electricity sector. The establishment of the ERC is thus seen as a
significant attempt to liberalise the Thai electricity sector.
On assuming the power to regulate Thai energy, the ERC has outlined the
important strategic framework for its work. The framework states that the ERC will
regulate the energy industry’s operations to establish a reliable and efficient energy

116
WTO, 'Trade Policy Review-Report by the Secretariat Thailand Revision' (WTO, 2008)
117
Energy Industry Act BE 2550 (2007) s 51
 99

system.118 The framework also sets key goals for the ERC’s work, which includes
licensing electricity operators in a transparent manner, promoting an efficient
electricity industry and fair market competition, and preventing the abuse of
power.119
However, the ERC may not be able to implement its framework, according
to Jarvis’ study on Thailand’s energy regulation. 120 Jarvis indicates that, through his
interview with the chairman of the ERC, there are various problems and issues in the
ERC:
- There is no clear line of authority in reviewing and setting tariffs because
the tariff setting process is under bargaining situation with the ERC,
NEPO and the Ministry of Energy. This would lead to the ERC having a
role as a commentator rather than a serious regulator for electricity and
gas tariffs.
- There is a lack of regulatory capacity because the ERC has limited
personnel and funds. There is a lack of adequate staff members who are
able to supervise and analyse the complicated electricity and gas sectors.
The ERC structure and research on the energy sector mostly rely on
private sector consultancies, with insufficient internal input into the
adequacy of energy market development.
- The application of the UK energy regulatory model in the Thai
bureaucratic system and governance may create significant risks, leading
to an ineffective institution.
- The ERC will have to compete with EGAT, which has a monopoly in the
transmission sector and over price determination for transmission
rates.121
It is doubtful that the ERC will be the main sectoral regulator to create
electricity market reform. The institutional problems may render the ERC unable to
have a regulatory role as the sectoral regulator for reforming an electricity market in

118
Direk Lavansiri, 'Regulatory Guidlines of The Energy Regulatory Commission' (ERC, 2008)
<http://www.erc.or.th/ERCWeb/Upload/Document/ERC%20Regulatory%20Guidelines%20@%207J
un08.pdf>
119
Ibid
120
Darryl S. L. Jarvis, 'Institutional processes and regulatory risk: A case study of the Thai energy
sector' (2010) 4(2) Regulation & Governance 175.
121
Ibid, 190-194.
 100

which liberalisation has been stalled within an uncertain political situation, and in
which the sector is under the monopoly control of politically strong SOEs. To date,
the ERC has not progressed any structural reform towards market competition. It has
made some progress on work relating to the governance of the electricity sector,122
in developing the Thai Electricity Development Plan123 and in establishing the Thai
Energy Development Fund.124 However, the ERC has neglected to deal with
rudimental problems in the uncompetitive market structure and the market power
and control of the SOEs. While the ERC is purported to be an important regulator
tackling sector uncertainty and promote competitive efficiency, it appears that it has
not dealt with the significant problems that hinder the creation of market
competition.

3.4.2 Uncompetitive provisions in the Energy Act

While requiring the ERC to create market competition, the Energy Act
obligates the ERC to support SOEs in the electricity sector. It prescribes the role of
the ERC as promoting competition within the energy market by stating that the
objectives of the Act are to:
… promote competition in the energy industry and prevent abusive use of
dominance in the energy industry operation and to promote fairness and
transparency of the service provision of the energy network systems, without
unjust discrimination.125
However, the provisions requiring the promotion of competition in the
electricity market appear to be insufficient for reforming the electricity market
structure. As described above, the market is vertically integrated and under the

122
ERC, Governing Energy sector - การกํากับกิจการพลังงาน (2010),
<http://www.erc.or.th/ERCWeb2/Front/StaticPage/StaticPage.aspx?p=7&Tag=การกํากับกิจการพลังงาน&mui
d=23&prid=85>.
123
ERC, Summary of Power Development Plan 2010-2030 in Thai language
สรุ ปสาระสําคัญแผนพัฒนากําลังผลิตไฟฟ้ าของประเทศไทย พ.ศ .2553-2573 (PDP 2010) (2010)<
http://www.erc.or.th/ERCWeb2/Front/StaticPage/StaticPage.aspx?p=111&Tag=แผนพัฒนาพลังไฟฟ้ า%20(แผ
น%20PDP)&muid=23&prid=22>.
124
ERC, Policy on Energy Development Fund - Thai language นโยบายเกีRยวกับกองทุนพัฒนาไฟฟ้ า (2010) ERC
<http://portal.erc.or.th/PDFPortal/Front/StaticPage/StaticPage.aspx?p=29>.
125
Energy Industry Act BE 2550 (2007) section 7 (3), (4).
 101

monopoly control of EGAT as the single electricity buyer. There are no provisions
stipulating the reformation of the market structure or managing EGAT’s market-
dominant position. This tends to be very different to the energy regulations in
various countries that contain the important provision obligating the unbundling of
the electricity sectors as well as decreasing the market power of incumbent SOEs.
For example, the energy regulations of the UK,126 Australia,127 New Zealand128 and
India129 contain a provision for the unbundling of the electricity sector to create
structural reform towards market competition. This discussed further in Chapter 5.
Moreover, the Energy Act not only lacks a provision obligating a
restructuring of the electricity sector, but it also preserves the market-dominant
position of the three SOEs as the main suppliers of electricity. This can be seen in
section 8(5) of the Energy Act, which requires the ERC to:
Support the electricity industry as the fundamental public utility, the
maintenance of the power system security and reliability; in this regard, the
government will be responsible for the operation of the power network
system business, the power system operator and hydropower plants – with the
Electricity Generating Authority of Thailand being the operator of the power
transmission system, and the Metropolitan Electricity Authority and the
Provincial Electricity Authority being the operators of the power distribution
systems -- including the retention of an appropriate share of the power
generation capacity of the state-owned electricity industry.130
Section 8(5) champions and maintains the current market structure by
retaining the dominant roles of SOEs in Thailand’s electricity market. It is
considered that the provision would also make it difficult for the ERC to conduct
any liberalisation reforms regarding privatisation and deregulation in order to
increase private participation that may offer more cost efficient and better services to
Thai consumers. Under the obligation of section 8(5), the market power deriving

126
UK Electricity Act 1989, Part II and see UK Utilities Act 2000, section 30 (2).
127
Tasmanian Department of Treasury and Finance, Market and Regulatory Framework (2010)
<http://www.tenders.tas.gov.au/domino/dtf/dtf.nsf/v-
energy/BA435B8D47A8DC9DCA2573FE001C00A5>; Ibid.
128
New Zealand Electricity Industry Reform Act 1998, section 2(1A).
129
Indian Electricity Act 2003 part V and VI- See also Tripta Thakur et al, 'Impact assessment of the
Electricity Act 2003 on the Indian power sector' (2005) 33(9) Energy Policy 1187.
130
Energy Industry Act BE 2550 (2007) s 8(5).
 102

from the monopoly structure in the electricity sector remains with the SOEs. The
Energy Act, which supports SOEs having control and market power over the
electricity sector, then contribute to difficulty for reforming the sector towards
competitive efficiency. The SOEs, who control electricity supply, may exercise their
market power, thus affecting vulnerable consumers.131 In the UK, Norway, Alberta
and California, firms in electricity sectors have also abused their market power,
although the electricity sectors have been reformed and restructured to solve such
problems.132
It may be that section 8(5) of the Energy Act was included as a compromise
between market reform and political influence to retain control of monopoly SOEs
in the electricity sector. This can be seen in a similar experience in India, where
electricity reform is politically sensitive133and political influences affect market
reform. Under a liberalisation policy, the government has to maintain its ownership
over restructured electricity entities because there is an undersupply of electricity,
while at the same time, the electricity entities are suffering losses.134 The retention of
government ownership over a restructured electricity sector does not contribute to
the development of the sector because the political government is not able to revise
the tariffs to meet the needs of electricity infrastructural improvements.135 This
means that the problems plaguing the electricity sector, such as low quality and
brown-out supply, cannot be adequately addressed, even though there is a
liberalisation reform.136
However, a different twist on state ownership in the experiences of India and
Thailand is that the SOEs in the Thai electricity sector gain significant profits rather
than facing losses. Section 8(5) thus contributes to a significant benefit for Thai
SOEs because they can operate as monopoly firms in the Thai market.

131
Oana Diaconu, Gheorghe Oprescu and Russell Pittman, 'Electricity reform in Romania' (2009)
17(1) Utilities Policy 114.
132
World Bank, The World Bank' s Role in Electric Power Sector Policy for Effective Institutional,
Regulatory, and Finacial Reform (World Bank, 1993).
133
See example in Navroz K. Dubash and D. Narasimha Rao, 'Regulatory practice and politics:
Lessons from independent regulation in Indian electricity' (2008) 16(4) Utilities Policy 321;
Bhattacharyya Subhes C, 'The Electricity Act 2003: will it transform the Indian power sector?' (2005)
13(3) Utilities Policy 260.
134
Joseph Kelli L, 'The politics of power: Electricity reform in India' (2010) 38(1) Energy Policy 503.
135
Ibid.
136
Ibid.
 103

An interesting point is that the draft of the Energy Act does not contain any
provisions supporting the SOEs. 137 The draft was changed to include section 8(5),
which supports the dominant market position of EGAT and the existing structure of
the public electricity utility under the SOEs.138 This discourages private participants
from entering and competing with the existing SOEs when they consider their
disadvantage in business competition under the Energy Act.139
Moreover, the ERC is unable to take action against anti-competitive conduct
because there is no provision prohibiting the misuse of market power in the Energy
Act. The Energy Act overlooks the possibility that EGAT and other SOEs may
employ their market power to create a market barrier with their essential electricity
infrastructures. Thus, the ERC may be unable to deal with the behaviours of market
abuse by the SOEs.
Further, it must be noted that general competition laws are unenforceable
against SOEs. As discussed in Chapter 2, section 4 of the Thai Competition Act
BE2542 (1999) provides an enforcement exemption for government entities and
SOEs. As SOEs, EGAT, PEA and MEA can enjoy privileged rights through their
competition law exemption and over non-regulatory mechanisms prohibiting their
conduct as an abuse of market power. This could be a risk and a threat to any new,
incoming private participants that would like to enter the market and operate at a
competitive rate with the three SOEs.140 When private participants are in conflict
with SOEs, there will not be any remedy by which they can seek protection from
potentially anti-competitive conduct.

137
See draft of Energy act at section 7, from EPPO website Retrieved on June 20 2010 from
http://www.eppo.go.th/power/EnergyAct-rev27feb50-E.pdfand Energy Industry Act 2007 section 8
for a comparison.
138
Ibid.
139
Richard Geddes, Competing with the Government: Anti-Competitive Behavior and Public
Enterprises (Hoover Institution Press, 2004).
140
Fereidoon P. Sioshansi and Wolfgang Pfaffenberger., Electricity market reform : an international
perspective (Elsevier, 2006).
 104

3.4.3 Lack of open access to essential facilities

The legal framework of access to essential facilities (AEF) for the Thai
electricity sector is not included in the Energy Act. AEF for transmission and
distribution infrastructures is an important framework for creating fair and efficient
competition in the electricity market. Such a framework would give participants
operating in the electricity sector to legally enforceable rights to access and use
various electricity network facilities owned by other companies. This issue is
discussed in more detail in Chapter 5.141
However, the Energy Act lacks any legislative provision directing
incumbents to open their network facilities to other sector participants.142 The SOEs
in the Thai electricity sector are free to allow or exclude private participants from
essential electricity infrastructure. A lack of provision relating to AEF discourages
new market participants to enter the energy market.143 If any new investors would
like to enter the electricity market then, in reality, they have to rely considerably on
permission from the SOEs..144 Thus, without a legal provision for access to an
essential facility, the incumbent Thai SEOs would be able to prevent private
participants from gaining access and operating electricity infrastructure owned by
the SEOs.
Moreover, it must be noted that, while there is no provision in the Energy
Act, as the main sectoral regulation, the legal mechanism for requiring the
incumbents to open access to their essential facilities should ordinary be within
competition law. However, this is not the case in Thailand because the Thai

141
Aleksander Kotlowski, 'Third-party Access Rights in the Energy Sector: A Competition Law
Perspective' (2007) 16(3) Utilities Law Review 101; Robert Pitofsky, 'The Essential Facilities
Doctrine Under United States Antitrust Law' (US Federal Trade Commission, Competition and
Intellectual Property Law and Policy in the Knowledge-Based Economy: Notice of Public Hearings
and Opportunity for Comment, 2001)
<http://www.ftc.gov/os/comments/intelpropertycomments/pitofskyrobert.pdf>; Spencer W. Waller
and William Tasch, 'Harmonizing Essential Facilities and Refusals to Deal' (2009) 76(3) Antitrust
Law Journal 741.
142
The Energy Industry Act BE 2550 (2007) may contain the provision relating to the AEF on the
section 7(6) which states that ‘protect the rights and liberty of the energy consumers, local
communities, general public and licensees in terms of participation, accessibility, utilization and
management of energy under the criteria that are fair for stakeholders. But this is the provision does
not directing the SOEs to open the network and the provision is only focus on protecting consumers
but neglect the market operators that have to rely on the SOEs electricity infrastructures.
143
See chapter thesis chapter 5 section 5.3.2.3 about the importance of AEF.
144
The EGAT, MEA and PEA are able to employ legal authority to permit or prohibit other
electricity participants to operate with them.
 105

competition law currently provides an exemption to the SOEs, and even when there
is no exemption, the competition law still has problems due to ineffective
enforcement.145 The competition law is rarely employed to fight against anti-
competitive conduct in the Thai economy. During the 12 years of its enforcement
since 1999, the Thai competition law has not been used as a method of dealing with
the anti-competitive behaviour of the monopoly firms. This means that Thai
competition law has never been employed in a case of refusal to deal or refusal to
open access to infrastructure networks in the electricity sector. Thus, without the
AEF regulatory regime in the Energy Act, the electricity sector will not be
liberalised and reformed towards a competitive market.

3.4.4Price tariff regulation with rate-of-return regulation

and floated Fuel Adjustment Charge
As discussed above, while there are difficulties in promoting market
competition in the electricity sector, there are also issues relating to tariff regulation
that are still under an unclear line of authority, and the Energy Commission can only
be a consultative institution rather than a regulator that can directly regulate
electricity tariffs. Currently, Thailand’s electricity tariff is based on the two main
costs of electricity production: based operational cost and fuel adjustment charge
(Ft).146
The based operational cost is classified as the rate-of-return (ROR)
regulation that sets the electricity tariff based on the revenue requirement of the
SOEs’ electricity utilities to ensure the stability of their financial position and their
ability to expand the operations of the power utilities.147 EGAT, PEA and MEA
must estimate their revenue requirements by considering their financial status, fuel
prices, inflation rate or consumer price index (CPI), efficiency improvement of the

145
This can be referred to chapter 2 of the thesis.
146
EGAT, 'Ft Cost and Restructuring of Electricity Tariffs- in Thai language ค่า Ft
กับการปรับโครงสร้างอัตราค่าไฟฟ้ าใหม่ ' (EGAT, 2011)
<http://www.egat.co.th/wwwthai/index.php?option=com_content&view=article&id=544>.
147
Puree Sirasoontorn, 'Tariff Regulation in Electricity Supply Industry in Thailand' (Discussion
Paper No. 0007, Faculty of Economics, Thammsat Univerisity, 2008).
 106

transmission system, distribution system and retail business (X factor).148 The three
utilities must also determine their plans for future capacity investment by estimating
the electricity load forecast, which is prepared by the Thailand Load Forecast Sub-
committee (TLFS).149 Upon development of investment plans for the power utilities,
an appropriate level of revenue for each utility is determined.
However, the existing ROR regulation does not contribute to the efficiency
and appropriate electricity prices for consumers.150 While the ROR regulation can
provide stability of business finance to the SOEs, it favours the financial status of
the three SOEs’ utilities,151 which is evidenced from the annual profit reports of
EGAT, PEA and MEA. Annually, the SOEs make a significant profit from their
businesses. The consumers who have to rely on monopoly supply have to bear the
ultimate cost of electricity, which generates significant profits to the SOEs. This is
shown in Table 3.2, which presents the annual profits of the three SOEs from 2007
to 2009.

Table 3.2 Annual profits of the three SOEs in the electricity sector
Year 2007 2008 2009
million Thai Bht million Thai Bht million Thai Bht
EGAT 28943.91 25451.35 27648.19

PEA 11330.16 10169.06 14000.29

MEA 6291.73 4783.97 7259.92

152
Sources: EGAT; PEA; MEA

148
Prayas Shantanu Dixit, Pune Navroz Dubash and Smita Nakhooda, 'Electricity Governance in
Thailand Benchmarking Best Practice and Promoting Accountability in the Electricity Sector'
(Confederation of Consumer Organizations, Health Systems Research Institute, King Prajadhipok’s
Institute, Thailand Environment Institute, Palang Thai,, 2006)
<http://www.palangthai.org/docs/electricitygovernance.pdf>
149
EPPO, 'Electricity demand forecast and power development plan in Thailand( In Thai language)'
(EPPO, 2007) <http://www.eppo.go.th/power/poo2/egat-pdp2-ppt.pdf>.
150
Sirasoontorn, above n 147.
151
Ibid.
152
EGAT, PEA and MEA 2007–2009 annual reports: EGAT—
<http://www.egat.co.th/thai/index.php?option=com_docman&task=cat_view&gid=70&Itemid=134>;
PEA—<http://www.pea.co.th/annualreport/2009/reportPEA52.swf>; MEA—
<http://www.mea.or.th/internet/annual52/year52.pdf>
 107

In addition, the price tariff regulations that provide high returns to the three
utilities would not improve performance or efficiency, or reduce costs. This is
because the ROR regulation has two drawbacks: encouraging overcapitalisation and
the disincentive of efficiency improvement.153 Based on the ROR regulation, the
more investment in their capacity to supply electricity, the more utility firms will
increase electricity tariffs. Thus, the ROR regulation facilitates electricity firms
investing in their capacity to increase the permit on a limited level of return on
investment. The increase in capacity investment then leads to overcapacity in the
supply of electricity, which can result in inefficiency.154 As a result, the oligopoly
utilities can transfer the cost to consumers via an increase in the electricity tariff.
This can be applied to the current electricity tariffs, enabling the SOEs to increase
the tariff to offset their overcapacity in electricity production.155
In addition, electricity tariffs include the calculation of a Fuel Adjustment
Charge (Ft), which gives risk-free business to the SOEs. The Ft is one part of
electricity prices, based on the uncontrollable fluctuation of energy prices of gas and
oil used for electricity production.156 The Ft can maintain the stability of the
electricity operation where these fuel prices are rapidly rising and threatening the
SOEs with revenue flows that are insufficient to meet rising fuel prices.157 The Ft
also helps to reduce regulatory lag where there is a fluctuation in energy prices
relating to the cost of fuel in order to meet the automatic adjustment to the cost of
electricity generation for the SOEs.158

153
David Parker and Cohn Kirkpatrick, 'Regulating prices and profits in utility industries in low-
income economies: Rate of return, price cap or sliding-scale regulation?' (2005) 18(3) International
Journal of Public Sector Management 241, 245.
154
Ibid.
155
Jitima Bansang, 'The deep study on Electricty forcast policy - Thai Title "Jor Nayoby Judha Faifa
Songcram ChuanChea"- เจาะนโยบายจัดหาไฟฟ้ าชาติ สงครามชวนเชืRอ?' (Thai Universities For Healthy Public
Policy (THHP), 2011) <http://www.tuhpp.net/files/189.pdf>; Chom Greacen, ' Power sector issues
through case study of Thailand' (Paper presented at the MEENet workshop, Thailand, 2010)
<http://www.meenet.org/images/power/81296461202_file.pdf>; Chris Greacen, 'Power Sector in
Thailand: from Problematic Planning and Governance to Feed-in Tariffs' (Paper presented at the
Helvetas seminar Power Sector Governance in the Mekong Region: Challenges and Opportunities in
Thailand and implications for Laos, Vientienne, Laos, 2011)
<http://www.riselaos.org/rise/fileadmin/publications/Power_Sector_in_Thailand_English.pdf>.
156
EGAT, What is Ft in Thai electricity prices? (2010) <http://www2.egat.co.th/ft/definition.html >
157
Frank M. Gollop and Stephen H. Karlson, 'The Impact of the Fuel Adjustment Mechanism on
Economic Efficiency' (1978) 60(4) The Review of Economics and Statistics 574.
158
Ibid; Pradeep S. Mehta, Competition and Regulation in India (CUTS, 2007).
 108

While the Ft is considered the appropriate factor for calculating Thailand’s

electricity prices, it is used by the SOEs to transfer fuel risks to consumers. Whether
the gas and oil prices increase or decrease, there are no risks for the SOEs running
the electricity industry.159 The Ft thus allows the SOEs to pass the risk onto
consumers, and the SOEs then have little incentive to efficiently choose and use fuel
sources to generate electricity for consumers.160 Thus, the SOEs can enjoy risk-free
business and maintain a monopoly position.
Moreover, an interesting point in the regulatory process of setting up
electricity tariffs is that the ERC, as the independent energy regulator, has a minor
role in determining and setting up electricity tariffs. The key institutions that are able
to decide tariffs are the Ministry of Energy and EPPO. Thus, the electricity sector is
still under the control of the government rather than the ERC, and the worst-case
scenario is that the government can employ the electricity sector for its political gain
without considering the development of competitive efficiency in the sector.161
Figure 3.6 below demonstrates the process of electricity tariff setting in Thailand.

159
Paul Joskow, 'Transmission Policy in the United States' (Cambridge Working Papers in
Economics, Faculty of Economics, University of Cambridge, 2004)
<http://ideas.repec.org/p/cam/camdae/0454.html>; Catherine Wolfram, 'The Efficiency of Electricity
Generation in the U.S. After Restructuring' (Working paper No CSEM WP 111 - Center for the Study
of Energy Markets, University of California Energy Institute, UC Berkeley, 2003)
<http://www.ucei.berkeley.edu/PDF/csemwp111.pdf>.
160
James M. Griffin and Steven L. Puller, Electricity deregulation : choices and challenges (2005);
Paul L. Joskow and Jean Tirole, 'Transmission Rights and Market Power on Electric Power
Networks' (2000) 31(3) The RAND Journal of Economics 450.
161
Mustafa S Durakoğlu, 'Political institutions of electricity regulation: The case of Turkey' (2011)
39(9) Energy Policy 5578.
 109

Figure 3.6 Processes of Setting Electricity Tariffs

Ministry of Energy Energy

and EPPO Regulatory EPPO
Setting up electricity Commission Recheck the
policy and tariff Setting regulation ERC’s tariffand
according to the set open discussion
policy and tariff with SOEs and

EPPO
Announce the set
tariff to be used

162
Source: Kavin Tangsupanich (2011)

It is evident that price regulations relating to electricity in Thailand require

further scrutiny. The current electricity regulations provide SOEs with non-
competitive pressure and a risk-free business operation, which leads to inefficiency
of the electricity sector. This is compounded by the oligopoly position of the SOEs’
utilities and combined with inappropriate price regulation, which leads to
inefficiency in the sector. The important issue is that the sectoral regulator lacks the
ability to make regulatory decisions on tariff setting and is limited to accepting
decisions from the Ministry of Energy and EPPO.

162
Derived from Kavin Tangsupanich, ‘The change on electricity tariff structure 2011–2015’(in Thai
language, การปรับโครงสร้างค่าไฟฟ้ าปี 2554-2558) (ERC, 2011)< http://www.preclub.org/file/โครงสร้าง...pdf>.
 110

3.5 Conclusion
This chapter provided an overview of Thailand’s electricity sector, in which
SOEs are the main dominant players, and it showed the difficulties relating to the
implementation of regulatory reform to create market competition. The SOEs are
vertically linked and control the generation, transmission, distribution and retail
sales in the sector. In addition, the sector, which primarily relies on gas supply under
the PTT monopoly, contributes to the double marginalised structure of gas and
electricity prices for consumers.
The chapter also discussed the development of the electricity sector and
regulations since the sector’s early days, which mainly give the SOEs’ control of the
electricity supply. The chapter also showed that the liberalisation plan, which aimed
to create market competition and efficiency in the energy sector, was affected by a
change to the government’s liberalisation policy, which neglected the importance of
structural change to reduce the market power of the politically strong SOEs.
The liberalisation plan, set to create market competition and efficiency in the
Thai energy sector, was affected by the change of the government’s implementation
of the liberalisation plan, which neglected the importance of structural change to
reduce market power of the SOEs. Thus, implementing the liberalisation of the
market under the corporatisation of SOEs in the electricity sector was revoked by the
Supreme Administrative Court because there is a lack of market restructuring
towards market competition. After the decision was handed down, there was
political uncertainty, and the junta government assumed power and passed the
Energy Act, which purports to be sectoral regulation and will establish an Energy
Commission that will be an independent sectoral regulator.
However, the chapter also highlighted that the passing of the Energy Act and
the establishment of the Energy Commission in 2007 did not contribute to any steps
towards reform in the electricity market. The Energy Act has a provision that
maintains the current monopoly structure of the electricity sector, and it also lacks
an important provision requiring structural change towards a competitive market, as
well as a provision regarding access to essential facilities. The chapter also argued
that the Energy Commission, under the unclear autonomy to regulate electricity
tariffs and create market liberalisation, would not be able to effectively regulate the
 111

sector and create liberalisation towards competition. It appears that there has been an
attempt to establish an effective regulatory system in passing the Energy Act, but an
effective regulatory system has not been achieved.
When considering Chapter 2’s discussion about ineffective competition law
and the exemption of competition law for SOEs, the remedy from the Thai
Competition Act BE 2542 (1999) would not be a legal mechanism to promote
competition in the electricity sector. With ineffective enforcement, the competition
law would not be able to establish free and fair access to create market competition.
This means that both competition law and sectoral regulation would not be able to
help promote and protect market competition in Thailand’s electricity sector.
The conclusion drawn from this chapter is that Thailand’s electricity sector
faces difficulties in moving towards market competition because of problems
relating to the competition law and sectoral regulation. This raises the question of
how to develop the competition law and energy regulation to facilitate liberalisation
and competition in the electricity sector.
Therefore, it is necessary to explore the appropriate development of the
competition law and sectoral regulation to promote and protect competition. Thus,
the thesis chooses to explore international experiences as possible examples for the
development of competition law and sectoral regulation in Thailand. Part II of this
thesis explores international experience regarding the development of competition
law and sectoral regulation that help promote and protect market competition in
electricity sector. The international experience provides possible ideas for the future
development of competition law and electricity regulation in Thailand.
 112

Part II: International experience as a possible

framework for Thailand

With the thesis having examined the current frameworks and problems
relating to Thai competition law and sectoral regulation, Part II of the thesis focuses
on international experience in competition law and sectoral regulation. This
international experience may provide a paradigm for the reform and development of
Thailand’s competition law and sectoral regulation. Chapter 4 explores international
experiences relating to competition law in the electricity sector, while Chapter 5
explores international experiences relating to sectoral regulation. These chapters
provide a platform for Chapter 6, which discusses the possible reform of the current
competition law and sectoral regulation in Thailand’s electricity sector.

Chapter 4: International experience in competition

law in the electricity sector

Aim of this chapter: This chapter explores international experiences in the

development of competition law as a mechanism to protect and build market
competition in the electricity sector. The chapter intends to answer the second thesis
question: What is the international experience regarding the shaping of competition
law and sectoral regulation when seeking to transform the electricity sector into a
competitive market?

4.1 Introduction

As discussed in Chapter 2, Thailand currently faces a problem of ineffective

competition law and competition law enforcement. When considering the utility
sectors, especially the electricity sector, the Thailand’s competition law is not
effective in protecting and promoting market competition. This chapter researches
 113

the international experience in competition law that may provide a development

framework for competition law in Thailand. It will focus on competition law in
general and then on the application of competition law to the electricity sector. The
chapter also examines similarities in various countries’ experiences regarding their
use of competition law enforcement to protect and promote market competition. The
chapter is intended to reveal a framework that can guide the development framework
for Thailand so as to enhance competition law enforcement in the electricity sector.
The chapter is divided into five sections. The first section provides an
introduction, and the second section deals with the general objectives and functions
of competition law. The third section examines competition law in the electricity
sector. The fourth section explores the interactions between competition law and
sectoral regulators. The fifth section presents the chapter’s conclusions.

4.2 Objective and function of competition law

Before exploring competition law in the electricity sector, the chapter will
discuss the objective and function of competition law because this knowledge will
provide ideas on how to set the objective and function of competition legislation in
Thailand. When considering the ineffective enforcement of competition law in
Thailand, understanding the rudimentary ideas behind competition law will help to
reform and develop Thailand’s competition law and its application to the electricity
sector.

4.2.1 Objective of competition law

In recent years, there has been a rapid proliferation of enacting competition
law in at least 100 countries.1 The reason for the adoption of competition law is that
countries realise that their market efficiency can be distorted by anti-competitive
conduct from monopolies and oligopolies in which competition law may be a

1
Taimoon Stewart, Julian Clarke and Susan Joekes, Competition law in Action:Experiences from
Developing Countries (IDRC, 2007) 4.
 114

preferable legal remedy.2 Thus, competition law comprises legal rules that maintain
market efficiency by discouraging and punishing anti-competitive conduct.3
Competition law plays an important role when the competitive market system does
not work effectively.4
For example, the US Sherman Antitrust Act was passed in 1890, when cartels
and collusive conduct were restraining trade in the US market.5 Scholars state that
the Sherman Antitrust Act was derived from the common law doctrine dealing with
monopoly conduct and contracts that affected consumers.6
Since its birth from the Sherman Antitrust Act, the antitrust, or competition
law, has been accepted by many countries and international organisations as an
important legal mechanism to enhance the protection and promotion of market
competition. United Nation Conference on Trade and Development (UNCTAD)
considers competition law a significant driver of economic development, and it
provides a model law of competition with the following platform objectives:
To control or eliminate restrictive agreements or arrangements among
enterprises, or mergers and acquisitions or abuse of dominant positions of
market power, which limit access to markets or otherwise unduly restrain
competition, adversely affecting domestic or international trade or economic
development.7
Competition law thus becomes the rules for governing the competition of the
market so as to have an efficient economy. The World Bank8 and OECD9 provided a
joint report derived from international experience on the possible framework
2
Ibid; It is also noted that the adoption of competition law is from the external pressures. For
example, in WTO meetings, there was an establishment of he Working Group on the Interaction
between Trade and Competition Policy (WGTCP) in order to facilitate the adoption of competition
law and to study various aspects of this issue, with the participation of all WTO Members- See the
website of WTO at <http://www.wto.org/english/tratop_e/comp_e/comp_e.htm>.
3
Richard Whish, Competition Law (LexisNexis, 5th ed ed, 2003).
4
Mark Furse, Competition Law of the EC and UK (Oxfors University Press, 2008).
5
Pieter J. Slot and Angus C Johnston, An Introduction to Competition Law (Hart Publishing, 2006), 3.
6
William L. Letwin, 'The English Common Law concerning Monopolies' (1954) 21(3) The University
of Chicago Law Review 355; Harvey J. Goldschmid, 'Antitrust's Neglected Stepchild: A Proposal for
Dealing with Restrictive Covenants under Federal Law' (1973) 73(6) Columbia Law Review 1193;
See also in cases of Nat’l Soc’y of Prof’l Eng’rs v. United States 435 U.S. 679, 688 (1978).
7
UNCTAD, 'MODEL LAW ON COMPETITION' (UNCTAD, 2004). The model can be access from
the UNCTAD’s website at< http://r0.unctad.org/en/subsites/cpolicy/docs/Modelaw04.pdf>.
8
World Bank’s website regarding competition law and policy at
<http://econ.worldbank.org/WBSITE/EXTERNAL/EXTDEC/0,,menuPK:476823~pagePK:64165236
~piPK:64>165141~theSitePK:469372,00.html.
9
OECD’s website regarding competition law and policy at <http://www.oecd.org/daf/competition/>.
 115

determining competition law that competition law legislation would have various
objectives on:
- ‘Maintenance of competitive process of free competition;
- Protecting freedom of trade, choice and access to market;
- Prohibiting adverse effects of government intervention in the market
place;
- Preventing abuse of economic power; and
- Achieving economic efficiency’.10
The joint report provides a review of objectives of competition legislation
from countries such as the US, Canada, Germany and France. The report states that,
between 1980-1999, the rapid trend of employing competition law as a tool to
achieve economic efficiency has surged.11 This consideration of economic efficiency
is that the competition law enforcement should be adhered to the prudent analysis of
competition principles as to promote economic efficiency.12
However, the objectives of competition law are determined and expressed
through various ideas. For example, the OECD’s report states that most jurisdictions
have two basic objectives of competition law: (1) to promote and protect the
competition process and (2) to attain greater economic efficiency.13 The expression
of the objectives varies across jurisdictions.14 The different expressions of
competition law objectives are:
- To achieve greater economic efficiency and increase economic welfare
or the welfare of society by providing consumers with competitive
prices and product choices;

- To promote efficient resource allocation by means of workable or

effective competition;
- To protect consumers, consumer interests, free enterprise, free
competition, competition, free market environment or ‘competition in
markets for the long-term benefit of consumers’ by restraining or
10
WorldBank and OECD, 'A Framework for the Design and Implementation of Competition Law and
Policy' (World Bank and OECD, 1999), 2-3.
11
Ibid.
12
Ibid.
13
OECD, 'The Objectives of Competition Law and Policy and The Optimal Design of a Competition
Agency' (2003) 5(1) OECD Journal of Competition Law & Policy 7, 15.
14
Ibid 15-17.
 116

preventing anti-competitive practices or the abuse of economic power;

and
- To improve the competitiveness of enterprises to promote economic
development or to lower the monopolisation level in the economy.15
Thus, competition law has diverse objectives and forms in different
jurisdictions. However, the core consideration to be derived is that the competition
law is purported to be used to prevent uncompetitive conduct that deters efficient
market competition and to promote market competition in order to enhance
consumers’ economic welfare. These objectives form the general principles
underpinning this thesis’ view of competition law.

4.2.2 Function of competition law

The objectives of competition law thus lead to the law performing various
functions, which are discussed in this section. The functions are to (1) protect
market competition and efficiency, (2) protect public interests, consumers and the
distribution of consumer welfare, (3) disadvantage businesses and (4) market
integration process.

Protecting market competition and efficiency

It is generally agreed that the main function of competition law should be
based on the economic theory of competition by seeking to protect and develop the
competitive process in the pursuit of optimal levels of efficiency.16 Competition law
deals with the abuse of market power and firms’ anti-competitive conduct. It also
limits the possibility of market distortion by monopoly and oligopoly conduct such
as mergers with substantial market power, price fixing among firms and the refusal
to deal collectively and individually.17 Where the competition law can ensure that
firms’ market power and conduct do not deter the competition, it can simultaneously
stimulate competitive progress. By protecting market competition, competition law

15
Ibid.
16
Alec Zuo David K Round, 'The Welfare Goal of Antitrust Laws in Asia: for whom should the law
toil?' (2008) 22(2) Asian-Pacific Economic Literature 31, p 32 see also in OECD above n 13 15.
17
Carl Kaysen and Donald F. Turner, Antitrust policy; an economic and legal analysis (1959) 14.
 117

produces various outcomes of allocative, productive and dynamic efficiencies.18

Allocative efficiency occurs when the competition law can guarantee that when
there is a reduction of output, a producer or seller who possesses a substantial degree
of market power cannot influence market prices.19
Competition law contributes to efficiency when it can reduce the costs of
production to the lowest possible point by competitive encouragement.20 For
example, when business rivals use strategies to decrease their production costs in
order to be prevail over other businesses.21 In addition, competition law can lead to
dynamic efficiency by assisting and maintaining the development of a competitive
market environment, which will contribute to new innovations from businesses
competitors.22 When business operators or producers are able to adopt new
innovative products or services for the market, dynamic efficiency is enhanced.23
Public interest, consumer protection and distribution of consumer welfare
In many jurisdictions, the function of competition law is to protect
consumers from unfair competitive conduct. The former chairman of the UK Office
of Fair Trading points to competition law as the instrument for protecting consumers
by stating that it is essential to the successful operation of a market economy and the
protection of consumers.24 An essential element within the competition law is
enforcement, and it is important that competition agencies take action to prohibit,
punish and deter anti-competitive conduct that is harmful to consumers.25
Similarly, the former European Commissioner stated that the EU competition
law is an important legal mechanism that deals with anti-competitive conduct in the
market in order to protect and enhance consumers’ welfare.26

18
Whish above n 3.
19
Simon Bishop and David Walker, The Economics EC Competition Law Concepts, Application and
Measurement (2 ed Sweet& Maxwell, 2002), 20-21.
20
Whish above n 3.
21
Ibid.
22
Ibid.
23
Ibid.
24
Philip Collins, 'Opening Keynote Speech to the British Institute of International and Comparative
Law’s Conference on Reform of Article 82' (Paper presented at the British Institute of International
and Comparative Law’s Conference on Reform of Article 82, UK, 2006),
<http://oft.gov.uk/shared_oft/speeches/spe0206.pdf>.
25
Ibid.
26
Neelie Kroes, 'European Competition Policy - Delivering Better Markets and Better Choices'
(Paper presented at the European Consumer and Competition Day, London, 2005),
http://ec.europa.eu/competition/speeches/text/sp2007_11_en.pdf.
 118

In addition, to protecting consumer welfare, the competition law can be a

mechanism to promote welfare distribution. By protecting market competition and
increasing the competitive environment, competition law can contribute to the
distribution of wealth to consumers by weeding out monopolies and cartels that
draw high profits by taking advantage of their market power.27 Competition law
must then maintain rivalry that contributes to fair welfare distribution from the
effective work of market competition.28 The welfare redistribution function of
competition law is also based on the notion that the law should promote economic
equity in society.29 This can be seen from the experience of adopting competition
law as the instrument to protect public interest. Many developing countries have
employed competition law as the means to enhance public welfare, particularly on
the merger control.30
In a study on South African competition law, Stephen Hanival stated that
‘the competition law mixes considerations of purely economic efficiency with those
of equitable wealth distribution and considers the particular needs of firms that are
owned or controlled by previously disadvantaged racial groups’.31 This aspect of
using competition law is also seen in Central American countries, which direct their
competition law to address the high level of economic concentration.32 Thus, it can
be considered that competition law has an important function in protecting
consumer’s interests and ensuring that there is a decrease in unfair wealth
concentration in order to enhance equal welfare distribution.

Disadvantage businesses
Competition law also functions to prevent business competitors from
engaging in anti-competitive conduct where they have significant market power.33
The experiences of market barriers and difficulties accessing essential facilities are
27
Harry First, Eleanor M. Fox and Robert Pitofsky, Revitalizing Antitrust in its Second Century:
Essays on Legal, Economic, and Political Policy (Greenwood Publishing Group,1991).
28
K J Cseres, 'The Controversies of the Consumer Welfare Standard' (2007) 3(2) Competition law
Review, 124.
29
Whish, above n 3, 17.
30
Ibid, 10.
31
Stephen Hanival, 'CASE STUDY: South Africa, Equal Opportunity to Compete' (International
Development Research Centre, CASE-COMPETITION-6E, 2008).
32
Stewart et al, above n 1.
33
See the later part of this chapter in section 4.3.2.3 discussing on the “refusal to deal” regarding to
essential facilities.
 119

an important aspect of competition law enforcement. The firms that would like to
participate in monopolies or oligopolies may face severe difficulties in entering and
tapping into the essential facilities. The incumbent firms may engage in anti-
competitive conduct by refusing to grant new participants access to essential
facilities to maintain their market power. Thus, competition law plays a role to
support new market competitors by maintaining fair access to essential facilities and
discouraging anti-business conduct by incumbent firms. For example, in liberalised
utility markets such as telecommunications, transportation, water and energy, the
competition law must support new competitors and provide remedies when they face
difficulties accessing to essential facilities or competing with existing market
incumbents.

Market integration process

Another function of competition law is to facilitate economic integration.34
For example, the enforcement of EU competition law purports to enhance EC
market amalgamation. Professor Ulrich at the College of Europe, states that the
initial objective of incorporating competition law rules in a common market treaty is
to safeguard market integration against business interests that tend to segregate the
market to obtain the benefits from the distorted competition regarding price
differentials.35 The competition law then guides internal market integration by
prescribing the anti-competitive conduct in different economic boundaries.36 Both
the EU Commission and the Court of Justice have used competition law to combine
and assimilate the differences in markets from various countries.37 While the EU
Commission has not required the harmonisation of competition law in European
countries, there is a rapid proliferation of national compliance of EU competition

34
Mario Monti, 'Applying EU Competition Law to the newly liberalised energy markets' (Paper
presented at the World Forum on Energy Regulation, Rome, 2003), 2
<http://ec.europa.eu/competition/speeches/index_theme_26.html>.
35
Hanns Ullrich, 'Anti-Unfair Competition Law and Anti-Trust Law: A Continental Conundrum?'
(European University Institute,Department of Law Working Paper LAW No. 2005/01 , , 2005) ,
11<http://cadmus.eui.eu/bitstream/handle/1814/2832/law05-01.pdf?sequence=1>.
36
Ibid.
37
Spencer W. Waller, 'National Laws and International Markets: Strategies of Cooperation and
Harmonization in the Enforcement of Competition Law' (1996) 18(3) Cardozo Law Review 1122.
 120

rules in EU members, which maybe one factor that contributes to the successful
integration of the EU’s single market.38
Thus, a clear objective and function will provide clear goals of competition
law enforcement and help to create the effective use of competition law as a
mechanism to promote and protect market competition. Reviews on the objectives
and functions may suggest some ideas for the reform of Thailand’s competition law,
which could include a section that states the objective and function. This point is
discussed further in Chapter 6, which aims to apply international experiences to a
reform of Thailand’s competition law. The next section examines the main aspects
of competition law enforcement in the electricity sector. It explores international
experiences in employing competition law as a significant mechanism to create and
protect market competition.

4.3 Competition law in the electricity sector

This section explores the international experiences of competition law in the
utility and electricity sectors in order to obtain ideas for the reform and development
of Thailand’s competition law. The ideas would provide a possible plan for the
reform and development of Thailand’s competition law discussed in Chapter 6. The
main aspects to be explored include (1) application of competition law to the utility
sector, with a special emphasis on the electricity sector, (2) substantive rules of
competition law, including prohibiting cartels, the misuse of market power and
firms’ mergers and acquisitions, and (3) competition law enforcement institutions.

4.3.1 Application of competition law to the utility sector

In the past, the electricity sector was traditionally operated under state monopoly
enterprises. Thus, the states may provide a competition law exemption to their
monopoly or oligopoly entities that operate public utilities such as telephone, water, gas
and electricity. However, with the increasing trend towards liberalisation of the SOEs
towards market competition, exemption is being scrutinised as an improper legal

38
Ibid.
 121

privilege for privatised or corporatised SOEs.39 This is because SOEs can employ the
exemption for controlling market competition and to determine the competitive
circumstances of the market, which is unfair for private participants that attempt to
compete with SOEs. Therefore, this section briefly explores the application of
competition law to the utility sectors in the EU and various countries such as the US, ,
the UK, Australia, New Zealand, Korea and Japan. These countries were selected
because they can represent the effective application of competition law to regulated
utility sectors.
In the US, the experience of applying competition law to public utility sectors is
unique from other countries because the utility service sectors in the US were originally
operated by private businesses rather than by the state government.40Thus, the US has
no issues applying its competition law to the public service utilities that are normally
under SOEs. Although the US competition law is not applied to the few public regulated
sectors, the US antitrust enforcement authority is empowered to investigate and lodge
claims against anti-competitive conduct in many public utility sectors.41 The US
Department of Justice42 can thus investigate utility firms regarding the Sherman
Antitrust Act, the Robinson Patman Act and the Clayton Acts.43
In the EU, competition law also applies to the utility sectors. This is because the
EU Commission tends to position competition law as the main rules that facilitate the
efficiency and integration of the European market.44 Articles101 and 102 of the EU
treaty of Lisbon 2009 cover two prohibitions on the agreements of firms that create
restrictions in market competition and on the abuse of dominant positions.45 For
example in the Deutsche Telekom(DT) case, the EU Court hold that the EU

39
ICN, 'Antitrust Enforcement in Regulated Sectors Working Group' (Paper presented at the The
Third ICN Annual Conference, Soul 2004)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc379.pdf>.
40
David E. M. Sappington and J. Gregory Sidak, 'Competition law for state-owned enterprises'
(2003) 71(2) Antitrust Law Journal, 481.
41
Stuart M. Chemtob, 'The Role of Competition Agencies in Regulated Sectors' (Paper presented at
the 5th International Symposium on Competition Policy and Law, Beijing, China 2007)
<http://www.usdoj.gov/atr/public/speeches/225219.htm>.
42
It is noted that US competition law or antitrust law is enforced by two main authorities-US
department of Justice and Federal Trade Commission. However, the US department of Justice will
normally cooperate with the sectoral regulator in investigation of the antitrust breach and merger
acquisition cases.
43
Ibid.
44
Michelle Everson and Julia Eisner, The making of a European constitution: judges and law beyond
constitutive power (Routledge, 2007), 65.
45
EU competition commssion, 'Antitrust Overview' (EU competition commission,
<http://ec.europa.eu/competition/antitrust/overview_en.html >.
 122

Competition Commission correctly enforce competition law to the DT that had

conducted the margin squeeze46 by charging anti-competitive tariffs for access to its
local networks.47Another example is that the EU fined the German E.ON and the
French GDF Suez €553 million each for market-sharing in the French and German
gas markets.48 The EU Commission also took action in the electricity market by
fining producers of power transformers €67.6 million for market-sharing cartel.49
The UK experience of applying competition law to the utilities sectors can be
traced back to the implementation of liberalisation and privatisation of the
government’s public utilities.50 With the implementation of the liberalisation and
privatisation policy onto government-owned utilities, sectoral regulators have been
established to promote the interests of consumers, maintain market competition,
support economic efficiency and encourage research and development in utility
markets. Each regulator is required to cooperate with Competition Commission and
the UK Office of Fair Trading (OFT) in dealing with market abuse from privatised
utilities.51 The OFT and sectoral regulators have concurrent powers in enforcing the
UK Competition Act 1998 and the Enterprise Act 2002 on regulated utility sectors.52

46
The ‘Margin Squeeze’ will be discuss further below on the competition law rules for utility firms.
47
Commission fines Deutsche Telekom for charging anti-competitive tariffs for access to its local
networks,
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/03/717&format=HTML&aged=1&lang
uage=EN&guiLanguage=en> and see the decision of Court of First instance that Competition:
Commission welcomes Court judgment wholly upholding margin squeeze decision against Deutsche
Telecom,
<http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/232&format=HTML&aged=0
&language=EN&guiLanguage=en>.
48
Commission fines E.ON and GDF Suez €553 million each for market-sharing in French and
German gas markets.
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1099&format=HTML&aged=0&lan
guage=EN&guiLanguage=en>; See also in Charles Forelle, EU Slaps $1.53 Billion Fine on Natural-
Gas Cartel Case of French, German Energy Giants Signals a Push to Force Open Competition, Punish
Anticompetitive Firms, July 9, 2009, Wall Street journal-finesare the second highest ever assessed in
an EU cartel case reflects the desire of the European Commission, the bloc's executive arm, to force
EU-wide competition in the energy sector -- despite reluctance from some member countries.
49
Commission fines producers of power transformers € 67.6 million for market sharing cartel,
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1432&format=HTML&aged=0&lan
guage=EN&guiLanguage=en>.
50
David Parker, 'The Competition Act 1998: Change and Continuity in UK Competition
Policy', (2000) Jul The Journal of Business Law 283-302.
51
UK Department of Trade and Industry and HM Treasury, 'Concurrent Competition Powers in
Sectoral Regulation ' (UK Department of Trade and Industry and HM Treasury Doc No. URN
06/1244, 2006) <http://www.bis.gov.uk/files/file29454.pdf>;See also in The UK Competition Act
1998 (Concurrency) Regulations 2004.
52
Ibid; See also in OFT, 'Overview of the Enterprise Act:The competition and consumer provisions'
(OFT, 2003) <http://www.oft.gov.uk/shared_oft/business_leaflets/enterprise_act/oft518.pdf>.
 123

Thus, the UK experience shows that both the competition law and sectoral
regulators are able to enforce competition law to protect and promote market
competition in utility sectors that govern anti-competitive activities.53
In Australia, the liberalised and privatised utility market is subject to the
Trade Practice Act 1974 (TPA) (renamed the Competition and Consumer Act
2010).54 The Australian Consumer and Competition Commission (ACCC),
established by the TPA, has the power to investigate the abuse of market power in
the utility industries such as communications, water, post and transport.55 The
ACCC also has a development role for sectoral regulation.56 For example, in the
energy sector, the ACCC cooperates with the Australian Energy Regulator (AER),
which is the authority dealing with monitoring, compliance and enforcement
regulation for national electricity and gas markets.57 Moreover, there is a National
Competition Council (NCC) and independent advisory bodies established by all
Australian state governments to advise on the regulation of third-party access to
monopoly infrastructure.58 According to the National Access Regime,59 the NCC
will recommend relevant ministers in relation to applications for the declaration of
services and the certification of state or territory infrastructure access. The NCC
provides significant direction on facilitating and building market competition in all
utility sectors.60
New Zealand employs competition law to govern the liberalised and
privatised infrastructure utilities after the implementation of liberalisation and
privatisation programs and the abolition of state statutory monopolies. The
Commerce Act 1986, which is the New Zealand competition law, plays a significant
role in prohibiting liberalised utilities’ firms from taking advantage of their market

53
David Parker, 'Reforming Competition Law in the UK: The Competition Act 1998 ' (Occasional
Paper 14 Center for study on regulated industries, University of Bath, 2000).
54
Trade Practices Act 1974 was renamed the Competition and Consumer Act 2010, effective 1
January 2011. This name change does not have any impact on the numbering or content of the
competition provisions in the Act.
55
ACCC, What we do, 2012, ACCC, <http://www.accc.gov.au/content/index.phtml/itemId/54137>.
56
ACCC, 'The role of the ACCC in Australia's new regulatory regime' (Paper presented at the 2004
Energy Reform Summit, Sydney, 2004 )
<http://www.accc.gov.au/content/index.phtml/itemId/577228> at 3 October 2012.
57
Trade Practice Act 1974,Part IIIAA.
58
See National Competition Council Website, <http://www.ncc.gov.au/index.php/about/about_us>.
at 3 October 2012
59
Trade Practices Act 1974,Part IIIA.
60
Ibid.
 124

power.61 The law also authorises the New Zealand Commerce Commission to
investigate prohibited conduct that restricts competition in utility infrastructure
firms, both in telecommunications and electricity.62 However, there is an inadequate
application of competition law for utilities firms, and consequently specific-sector
regulation has been established to deal with the limited area of market behaviour that
generic competition law could not adequately address.63
In Korea, competition law prohibits the anti-competitive conduct of
privatised utility firms. The Korean Monopoly Regulation and Fair Trade Act
(MRFTA)64 is applied to the liberalised utility firm to forbid anti-competitive
conduct from the utility monopoly that has changed from government to private
ownership due to the implementation of privatisation. The MRFTA has its main
authority as the Korean Fair Trade Commission (KFTC), which applies competition
law and consultative authority for the utility regulators where there is regulation that
can affect market competition.65 In the energy sector, the KFTC investigated the
anti-competitive conduct and merger acquisition cases of Korea Oil Pipeline
Corporation (KOPC), which is a privatised firm that owns the nationwide
distribution of pipeline that transmits oil and other products from oil refineries near
the seaside to major areas.66 The KFTC also considers the essential facilities of the
oil pipeline equipment and refineries.67 In the telecommunication sector, the KFTC
has the power to address the collusion of network prices, interest rates and
Commissions, and it collaborates in making decisions in anti-competitive cases with
61
Commerce Act 1986 section 36
62
Commerce Commission of New Zealand, Legislation Overview,
<http://www.comcom.govt.nz/TheLegislation/Overview.aspx> , See also example case of Commerce
Commission v Southpower Limited (unreported, High Court, Christchurch Registry, 8 August 1997,
CP 26/97.
63
Paula Rebstock, 'New Zealand Experience in Utility Regulation' (Paper presented at the ACCC
conference 2004, Sea World Nara Resort, Gold Coast, 2004)
<http://www.accc.gov.au/content/item.phtml?itemId=506371&nodeId=a43efe73d2b95a13c6ab9940c
38997c7&fn=Session%203:New%20Zealand%20Experience%20-
%20Paula%20Rebstock%20paper.pdf> .
64
See Korean Monopoly Regulation And Fair Trade Act 1990,
<http://eng.ftc.go.kr/legislation/statues/monopoly.jsp>.
65
Park Jae Gul, 'The relationship between regulators and competition authorities in Korea' (Paper
presented at the The 4th APEC Training Program on Competition Policy Kuala Lumpur, 2004)
<www.jftc.go.jp/eacpf/05/APECTrainingProgramMarch2004/korearelationships.pdf>.
66
Hak-kuk Joh, 'Privatization of Natural Monopolies & Competition Issues: Korea’s Experience'
(Paper presented at the International Conference on Competition Policy, 2003)
<http://eng.ftc.go.kr/search/search.jsp;jsessionid=1x71uJ2Z3x8VxEiMjvw9vRpZfU6G90NUhQBe94
tb4QTs1SniNwDKEOcvcw539f6P>, 8.
67
Ibid.
 125

the Korean Communication Commission (KCC).68 When there is an issue of

jurisdiction, the KFTC and the KCC will call for an ad hoc committee that provides
consultation to solve the issues.69
In Japan, the Act on Prohibition of Private Monopolization and Maintenance
of Fair Trade 1947 is the main legislation applying to anti-competitive conduct in
the utilities sectors. The Japan Fair Trade Commission (JFCT)70 deals with utility
firms in the telecommunication sector. The JFTC issued a warning according to the
Anti-monopoly Act against Nippon Telegraph and Telephone Corporation (NTT),
the privatised state incumbent that owns the local telecommunication networks and
excludes new entries into the DSL (Digital Subscriber Line) services.71Another case
demonstrating JFTC enforcing competition law in the utility sector is the anti-
competitive conduct of electricity firms in 2005, when the JFTC issued a warning to
Kansai Electric Power Co. Inc. regarding unfair trade behaviour in breach of Article
19 of the Anti-monopoly Act.72 In this case, Kansai Electric favoured housing
developers who used electric energy rather than those who used gas.73
Thus, it can be seen that many developed countries apply competition law in
their utility sectors. The reason behind applying the competition law is that utilities
that were previously considered natural monopolies have commercial aspects in
which market competition can be introduced. Demsetz, in his research notices, that
government’s claims to use regulation regarding natural monopoly aspect of utility
industry is unclear to create economic efficiency and the regulation for utility should
be reviewed.74 This is similar to the study of DiLorenzo, who states that the
argument that the utility industries are natural monopolies is a myth created by the
government in order to use regulation to control the utility infrastructure of

68
Tran Van Hoa, Competition policy and global competitiveness in major Asian economies (Elgar,
2003), 97.
69
Hak-kuk Joh. above n 66 ,13.
70
See information about Japan Fair Trade Commission at <http://www.jftc.go.jp/en/> at 3 October
2012
71
Hiroshi Ueno, 'Competition Advocacy Activities by the Japanese Competition Authority' (Paper
presented at the ICN Second Annual Conference, merida, Mexico, 2003) <http://www.jftc.go.jp/e-
page/policyupdates/speeches/icn2ueno.pdf>.
72
Fair Trade Commission of Japan, 'Operations and Roles of Local Office' (JFTC 2005)
<http://www.jftc.go.jp/eacpf/05/jicatext2/0902Ope.pdf>.
73
Ibid.
74
Harold Demsetz (ed), Efficiency, Competition, and Policy (Blackwell, 1989) 78; Harold Demsetz,
'Why Regulate Utilities? ' (1968) 11(1), Journal of Law and Economics 55.
 126

businesses.75 The regulation is thus considered a potential obstacle to creating

competition.76
A practical example of the utility sector as a natural monopoly is the
telecommunication industry. Posner pointed out that:
“With the advent of cellular phones, cable television, satellite systems, and
low-cost fiber-optic networks, even local telephone service is rapidly
becoming naturally competitive, though the refusal of state regulatory
agencies to abandon their control over the pricing structure of local telephone
service means that most of the benefits of the new competition have gone to
business users”.77
Another example is the electricity sector, where it is noticed that modern
technological changes have created a natural monopoly.78 The electricity sector is
found to have a decline in economies of scale, resulting in substantial electricity
deregulation and reorganisation by vertical unbundling of the generation and sale of
power from its delivery.79
The change in the economic attitudes of utility sectors that are natural
monopolies in the competitive market leads to the rapid expansion of liberalisation,
deregulation and privatisation of the government-owned utilities. This contributes to
the fear that the privatised utility firms with private ownership and significant
market power will abuse their economic power by deterring market competition
with minimal incentives for technical efficiency gains.80 This leads to the increasing
role of competition law to the liberalised and privatised utility sectors in order to
75
Thomas J. DiLorenzo, 'The myth of natural monopoly' (1996) 9(2) The Review of Austrian
Economics 43.
76
Peter Z. Grossman and Daniel H. Cole., The end of a natural monopoly : deregulation and
competition in the electric power industry (2003); See also the US experience on government
regulation that cause economic inefficiency from Robert W. Crandall, 'Letting Go? The Federal
Communications Commission in the Era of Deregulation' (2008) 17 (4) Review of Network
Economics 3.
77
Richard A. Posner, 'Effects of Deregulation on Competition: The Experience of the United States'
(2000) 23(2) Fordham International law journal 6.
78
Matthew W. White, Paul L. Joskow and Jerry Hausman, 'Power Struggles: Explaining Deregulatory
Reforms in Electricity Markets' (1996) Brookings Papers on Economic Activity. Microeconomics
201.
79
Ibid.
80
Mark D. Domney, Heather I.M. Wilson and Er Chen, ' Natural monopoly privatisation under
different regulatory regimes: A comparison of New Zealand and Australian airports' (2005) 18(3)
International Journal of Public Sector Management 274 ; Claudia Schatan and Eugenio Rivera,
Competition Policies in Emerging Economies:Lessons and Challenges from Central America and
Mexico (IDRC, 2008).
 127

cope with the uncompetitive conduct of incumbent utility firms and the cartelisation
among firms.81
Thus, it can be seen that various countries apply competition law to the
utility sectors to promote competition and prevent anti-competitive conduct. When
considering the electricity sector, the application of competition law is an important
mechanism to promote and protect market competition. However, to ensure that the
application of competition law is effective, consideration must be given to an
important aspect of competition law: substantive rules. Thus, the next section
explores international experiences regarding substantive rules of competition law,
which provide remedies for promoting and protecting market competition.

4.3.2 Competition law: substantive rules for the electricity

sector
This section focuses on substantive rules of competition law to promote and
protect market competition. The rules of the competition law that will be explored
are: (1) dominant market position and significant market power, (2) abuse of market
power, (3) refusal for access to essential facilities, (4) predatory pricing, (5) margin
squeeze, (6) cartelisation and anti-competitive agreements, and (7) mergers and
acquisitions.

4.3.2.1 Dominant market position and significant market power

The prohibition on incumbents’ abuse of market power is a significant
characteristic of competition law. The general competition law outlaws firms’
conduct that causes harm to market competition. Competition law for dealing with
market power usually rules that:
… company that has a dominance market power in a market must not take
advantage of that power in that or any other market for restricting the new
entry, preventing or deterring competition, and eliminating competition.82

81
John Cubbin, 'Competition and regulated indutries' in Roger Clarke and Eleanor J. Morgan. (eds),
New developments in UK and EU competition policy (Edward Elgar Publishing, 2006) , 169.
 128

Thus, in enforcing the law, it must consider whether the firms have dominant
market power and whether their conduct constitutes a breach of the competition law.
The main consideration in assessing the anti-competitive conduct of the firm
in the market is whether the firms possess significant market power.83 Firms that
have significant market power are usually in a position of economic strength, which
enables them to deter competition by employing their power to behave, to an
appreciable extent, independently of their competitors, customers and consumers.84
The main factors determining market power are market shares, competitive
conditions and the degree of buyer power from the customers.85
Market share is an important factor that is used as a determinant of firms’
market power.86 Generally, firms that have significant market power must have
shares ranging from 40 to 50 per cent of all market shares.87 This can be seen in the
case of AKZO Chemie BV v. EC Commission,88 in which the court found that the
firm might be classified as having market power whenever the firm has a market
share larger than, or equal to, 50 per cent. If firms posses market shares over 50
percent, it can be presumed that they have significant market power or a dominant
market position.89

82
The author derive words of competition law from the provision from Sherman Act section 2, EC
Treaty Article 82 , UK competition law 1998 section 18, New Zealand Commerce Act 1986 section
36,Australian Trade Practice Act 1974 section 46.
83
See BoralBesser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA
5.9 at 163 (Australia); Thomas G. Krattenmaker, Robert H. Lande and Steven C. Salop, 'Monopoly
Power and Market Power in Antitrust' (US Department of Justice, 1987)
<http://www.justice.gov/atr/public/hearings/single_firm/docs/222144.htm>; William M. Landes and
Richard A. Posner, 'Market Power in Antitrust Cases' (1981) 94(5) Harvard Law Review 937; Sangin
Park, 'Market Power in Competition For The Market' (2009) 5(3) (September 1, 2009) Journal of
Competition Law and Economics 571.
84
DG Competition, 'DG Competition discussion paper on the application of Article 82 of the Treaty
to exclusionary abuses' (EUROPEAN COMMISSION, 2005)
<http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf>.
85
OFT, 'Assessment of market power: Understanding competition law' (UK Office of Fair Trading,
document No 415, 2004), 5.
86
Thomas G. Krattenmaker, Robert H. Lande and Steven C. Salop, 'Monopoly Power and Market
Power in Antitrust Law' (1987) 76 Georgetown Law Journal 1:, See also Stephen A. Rhoades,
'Market share as a source of market power: Implications and some evidence' (1985) 37(4) Journal of
Economics and Business 343.
87
OFT, above n 85.
88
AKZO Chemie BV v Commission (1993) 5, Case C62/86.
89
However, it is also accepted that the market shares can be ranged from any percentage from 40 per
cent or 60 per cent or 90 per cent or whatever percentage of a relevant market is believed to be
enough.
See Robert H. Lande, 'Market Power Without A Large Market Share: The Role of Imperfect
Information and other "Consumer Protection" Market Failures ' (Paper presented at the US
 129

Moreover, apart from market shares, it must consider the competitive

conditions of the market. Two main conditions help to determine the market power
of firms. The first condition is the numbers of exiting market competitors. If firms
attempt to exercise their market power by sustaining their prices above the
competitive level, they may lose their market power because their customers may
switch to firms that provide cheaper prices.90 The second condition is the barrier to
entry into the market.91 When the market barrier is low, new firms can easily enter
into the market to compete with existing firms. The new firms’ entry contributes to
the decrease of market power and the increase of market competition. In contrast,
when the barrier is high, new firms will face difficulties in accessing the market.
Thus, the higher the market barrier, the greater the ability of dominant firms to
control the potential competition.92 These two factors help to determine the
competitive condition of the market.
Further, buyers’ bargaining powers in the market must be taken into account
when considering the degree of firms’ market powers. Buyers’ power on price
bargaining with suppliers or firms arises when buyers can force sellers to reduce
their prices lower than the level that would appear in a competitive market.93When
the market contains considerable buyer power, the firms that supply products or
goods have to rely on buyers or customers’ prices. These prices are usually below a
supplier’s normal selling price, which may or may not be the competitive price.94
This means that the more power that buyers have, the less market power supplier
firms have to control market competition. The degree of firms’ market power is
based on their market shares, the market’s competitive conditions and buyers’
bargaining power.
In the liberalised and privatised electricity sector, to some extent, incumbents
firms posses a dominant market power. This is because privatised electricity firms
are able to preserve their monopoly positions after the implementation of

Department of Justice/ Federal Trade Commision Hearing on Single Firm Conduct, 2007)
<http://www.justice.gov/atr/public/hearings/single_firm/docs/222102.htm >.
90
OFT, above n 85, 9.
91
See the good discussion on the concept of barrier to entry in Randolph P. McAfee, Hugo M.
Mialon and Michael A. Williams, 'What is a Barrier to Entry?' (2003) SSRN eLibrary.
92
Furse, above n 4, 17.
93
Roger Noll, 'Buyer Power’ and Economic Policy' (2005) 72(2) Antitrust Law Journal 589.
94
Zhiqi Chen, 'Buyer Power: Economic Theory and Antitrust Policy' (2007) 22 Research in Law and
Economics 23.
 130

liberalisation and privatisation.95 In a number of cases, a monopoly position for

certain duration has been granted by governments to private investors as a means of
encouraging and attracting adequate private capital to ensure successful
privatisation.96
For example, in California’s liberalised electricity market, the electricity
generators tend to have significant market power.97 The dominant market power of
electricity firms is also based on specific characteristics of electricity businesses,
including:98
- high sunk costs facing suppliers;
- limitations of the transmission system in moving power across
geographic areas;
- concentration of generation assets among relatively few owners; and
- limited ability of consumers to respond to price changes in the short run;
These characteristics provide opportunities for firms to possess market
power and exercise that power.99 Privatised electricity firms with a large capacity
can dominate the market and control the competition.100 This can be seen in the case
of the liberalised electricity generation, in which generators tend to exercise
significant market power after liberalisation.101 The electricity firm’s market power
would contribute to unfair electricity prices for consumers.102

95
Al Sweetser, 'Measuring a dominant firm's market power in a restructured electricity market, a case
study of Colorado' (1999) 7(4) Utilities Policy 243.
96
Luis Guasch, 'Granting and Renegotiating Infrastructure Concessions Doing it Right' (WBI
Development Studies, World Bank, 2004)
<http://info.worldbank.org/etools/docs/library/240056/Granting%20and%20renegotiating%20infrastr
ucture%20concessions%20%20doing%20it%20right.pdf>.
97
Seth Blumsack, Dmitri Perekhodtsev and Lester B. Lave, 'Market Power in Deregulated Wholesale
Electricity Markets: Issues in Measurement and the Cost of Mitigation' (2002) 15(9) The Electricity
Journal 11
98
James D. Reitzes, Robert L. Earle and Philip Q Hanser, 'Deregulation and Monitoring of Electric
Power Markets' (2000) 13(8) The Electricity Journal 11.
99
Ibid.
100
David M. Newbery, 'Problems of liberalising the electricity industry' (2002) 46(4-5) European
Economic Review 919.
101
R. Tamaschke, G. Docwra and R. Stillman, 'Measuring market power in electricity generation: A
long-term perspective using a programming model' (2005) 27(2) Energy Economics 317.
102
Frank A. Wolak and Robert Nordhaus, 'Comments on “Staff Recommendations on Prospective
Market Monitoring and Mitigation for the California Wholesale Electricity Market”. California ISO
Market Surveillance Committee' (Standford University, 2001) < www.stanford.edu/˜wolak.>, 2-3.
 131

Moreover, the market power of electricity firms can be derived from their
horizontal and vertical relationships in the market.103 The market power from the
horizontal relationship arises when firms conduct a price increase through control on
a single activity such as electricity generation, where it occupies a significant share
of the total capacity available to supply the entire market.104 Several studies have
found evidence of market power in horizontal relationships in the UK and the US in
deregulated electricity markets where electricity prices are above competitive
levels.105
The market power from the vertical relationship arises when firms involved
with two related electricity activities, such as generation and transmission, use their
dominant positions in one area to increase prices and gain profits for the overall
enterprise.106 This vertical relationship provides the privatised incumbent electricity
firms with both the market power and the incentive to restrict market access through
their control over the network of electricity supply.107 Although in some instances
vertical integration can mitigate the market power of firms,108 there are cases where
privatised electricity firms have dominant market power through vertical
integration.109

103
Robert L. Steiner, 'Vertical competition, horizontal competition, and market power' (2008) 53(2)
(Summer2008) Antitrust Bulletin 251.
104
Office of Economic Electricity and Natural Gas Analysis, 'Horizontal Market Power in
Restructured Electricity Markets' (U.S. Department of Energy, 20585, 2000).
<http://www.pi.energy.gov/documents/HMPReport.pdf>.
105
Ibid. p 4 - In U.K. early 1992 both system marginal prices and capacity payments rose
dramatically. After investigating, OFFER determined that National Power and PowerGen, the two
largest generating companies, which together accounted for 70 percent of total capacity in the pool
were biddingprices in excess of their marginal costs; See also study in USA from Severin Borenstein,
James Bushnell and Christopher R. Knittel1, 'Market Power in Electricity Markets: Beyond
Concentration Measures' (Working papers series of the Program on Workable Energy Regulation
(POWER), Univeristy of California, Berkeley, 1999)
<http://www.ucei.berkeley.edu/PDF/pwp059r.pdf>.
106
Sophie Meitet, 'L'émergence de pouvoir de marché dans les marchés électriques: Le cas des Etats-
Unis", Problèmes Economiques, La documentation Française, n°2.852, 2004 (Market power in
electric market: The case of the United States). ' (Center of Geopolitics of Energy and Raw
Materials,University of Paris, Dauphine, 2004)
<http://www.dauphine.fr/cgemp/Publications/Presentations/MeritetMarketPower.pdf>.
107
Paolo Saba, 'Privatizing Network Industries: The Competition Policy Perspective' (Paper presented
at the The 12th Advisory Group on Privatisation: Session on Competition, Regulation and Capital
Markets Helsinki, 1998)
<http://www.oecd.org/document/61/0,3343,en_2649_34847_2057789_1_1_1_1,00.html>.
108
Erin T. Mansur, 'Upstream Competition and Vertical Integration in Electricity Markets' (2007)
50(1) The Journal of Law and Economics 125.
109
Severin Borenstein and James Bushnell, 'An Empirical Analysis of the Potential for Market Power
in California's Electricity Industry' (1999) 47(3) Journal of Industrial Economics 285; Kai-Uwe Kühn
 132

The liberalisation of electricity sectors is prone to firms’ significant market

power. This raises concerns regarding the abuse of market power.110 Various studies
have shown that wholesalers abused their market power in liberalised and
restructured electricity sectors.111

4.3.2.2 Abuse of market power

After determining firm’s market power, consideration must be given to
whether firms exercise conduct that constitutes an abuse of their market power,
which may infringe competition law. The abuse of market power can be seen in
excessive pricing, predatory pricing, margin squeeze and refusal to open essential
market facilities.

Excessive monopoly pricing

The abuse of market power by excessive pricing is when dominant firms
charge their customers a high and uncompetitive price.112 The high price is a
violation of competition law because the high price can result in a loss of consumer
welfare.113 To calculate whether the high price is excessive, consideration must be
given to the different indicators, including the cost measures of the dominant firm,
the prices of other dominant firms and the prices of firms that offer similar products

and Matilde P. Machado, 'Market Power and Vertical Integration in the Spanish Electricity Market'
(CEPR, 2004) <http://www.ugr.es/~xxjei/JEI(44).pdf>; Michael H. Riordan, 'Anticompetitive
Vertical Integration by a Dominant Firm' (1998) 88(5) The American Economic Review 1232.
110
ABA Section Of Antitrust Law, 2002 Annual Review of Antitrust Law Developments (American
Bar Association, 2002) 68 and see also in Jonathan B. Baker, 'The Case for Antitrust Enforcement'
(2003) 17(4) Journal of Economic Perspectives 27.
111
Paul L Joskow and Edward Kahn, 'A Quantitative Analysis of Pricing Behavior In California’s
Wholesale Electricity Market During Summer 2000' (2002) 23(4) Energy Journal 1; Severin
Borenstein, James B. Bushnell and Frank A. Wolak, ' Measuring Market Inefficiencies in California's
Restructured Wholesale Electricity Market ' (2002) 92(5) American Economic Review 1376 ; James B
Bushnell. and Celeste Saravia, 'An Empirical Assessment of the Competitiveness of the New England
Electricity Market. ' (University ofCalifornia Energy Institute, Berkeley, California. Working Paper
No. 101., 2002); Frank A. Wolak, 'An Empirical Analysis of the Impact of Hedge Contracts on
Bidding Behavior in a Competitive Electricity Market' (2000) 14(2) International Economic Journal
1.
112
OECD, Roundtable on Excessive Prices held by the Competition Committee (Working Party No.2
on Competition and Regulation, 2011) 31.
113
David S. Evans and A. Jorge Padilla, 'Excessive Prices: Using Economics To Define
Administratable Legal Rules' (The Center for Monetary and Financial Studies (CEMFI), CEMFI
Working Paper No. 0416, 2004) <ftp://ftp.cemfi.es/wp/04/0416.pdf> 2.
 133

to the dominant firm.114 The EU court stated that prices from firms are classified as
excessive if there is no rational relation to the economic cost of the product supplied
to consumers.115 However, firms’ excessive pricing is an attraction for new firms
that enter the market and compete. 116 The example is from OFT Director General’s
opinion that:
“Where high prices are temporary and/or likely to encourage substantial new
investment or new entry, they are unlikely to cause concern…High prices and
profits will lead to timely new entry or innovation and thereby increase
competition.”117

New firms would perceive that they would be able to win the market
competition by offering lower prices than those set by the existing monopolising
firm.118 Nevertheless, there are cases where excessive pricing does not stimulate the
new entry when there is predation of conduct of the incumbent firm119 or where
there is a significant barrier to entry.120 Thus, it is legitimate to prosecute the
monopolising firm where the market competition mechanism is not self-correcting,
namely where entry barriers are high or even impossible.121 In particular, in newly
liberalised utility sectors, high entry barriers can discourage the interest of new
entrants to participate in market competition because the incumbent firms, especially
in the electricity sector, often obtained their positions through state support rather
than through superior efficiency.122

114
Massimo Motta and Alexandre de Streel, 'Exploitative and Exclusionary Excessive Prices in EU
Law' (Paper presented at the Annual European Union Competition Workshop, Florence, 2003)
<http://www2.dse.unibo.it/mmotta/Papers/ExcessivePrices18122003.pdf> - The authors provide very
comprehensive study on determining the excessive pricing that can be in breach of competition law.
115
United Brands v Commission [1978] ECR 207, [1978] 1 CMLR 429 at paragraph 250 (United
Brands). See also the decision of the European Commission in Deutsche Post AG – Interception of
cross-border mail OJ [2001] L331/40.
116
OFT, 'Assessment of Individual Agreements and Conduct Guideline' (OFT 414, 2004)
<http://www.oft.gov.uk/shared_oft/ca98_public_register/decisions/companieshouse.pdf>
117
Ibid.
118
Ariel Ezrachiand David Gilo “Are Excessive Prices Really Self-Correcting?” (2008) 5(2), Journal
of Competition Law and Economics, 249.
119
See the discussion the predatory behaviour in the below section 4.3.2.4.
120
Furse, above n 4, 338.
121
Philip Lowe, 'How different is EU anti-trust? A route map for advisors – An overview of EU
competition law and policy on commercial practices' (Paper presented at the ABA 2003 FALL
MEETING, Brussels, 2003) <http://ec.europa.eu/competition/speeches/text/sp2003_038_en.pdf>.
122
Ibid.
 134

Examples of cases of excessive prices in the EU’s liberalised electricity

sector include the decisions of Bundeskartellamt—the German competition authority
and the Danish Competition Council (DCC). The Bundeskartellamt decided that the
grid operators, having a monopoly power set excessive electricity prices that are not
correlated with costs, and the prices represent arbitrary fees for consumers.123 The
DCC made a similar decision regarding the electricity generation company Elsam
A/S (Elsam), which abused its dominant market position by imposing excessive
prices on the wholesale market for electricity in Western Denmark.124
Moreover, in the liberalised Californian electricity market, although no case
was brought to the court, research found that firms exercised market power by
conducting excessive price volatility.125A dominant electricity firm that exercises
market power by pricing excessively can cause significant economic harm for a
sustained period.126
Thus, excessive pricing from dominant firms in the liberalised electricity
market is a subject of importance for competition law, which should protect
consumers from being exploited by electricity firms with a monopoly in the sector.

4.3.2.3 Refusal for access to essential facilities

Apart from the abuse of market power, the substantive rules of competition
law should prohibit a firm’s refusal to access essential facilities because a firm can
exercise its market power by refusing to allow new entries to the market to connect
with its essential network facilities.127 In a normal situation, according to the free
market mechanism, firms are free to conduct commercial activities with any entities
they consider appropriate. However, in a case where the firms occupy essential

123
Romano Subiotto and Robbert Snelders, Antitrust developments in Europe 2001 (Kluwer Law
International, 2001), 105.
124
Danish Competition Authority, 'Eslam : The Council Meeting 20 June 2007' (Danish Competition
Authority 4/0120-0204-0038/ISA/MOL 2007)
<http://www.konkurrencestyrelsen.dk/en/competition/decisions/decisions-2008-and-earlier/national-
decisions-2007/konkurrenceraadets-moede-den-20-juni-2007/elsam/ >
125
Afzal S. Siddiqui, Chris Marnay and Mark Khavkin, 'Excessive Price Volatility in the California
Ancillary Services Markets: Causes, Effects, and Solutions' (2000) 13(6) The Electricity Journal 58.
126
Frank A. Wolak, 'Managing Unilateral Market Power in Electricity' (World Bank Policy Research
Working Paper No. 3691, 2005) <http://ssrn.com/paper=801464>.
127
OECD, 'The Essential Facilities Concept' (OECD Report No OCDE/GD(96)113, 1996)
<http://www.oecd.org/dataoecd/34/20/1920021.pdf> at 3 October 2012.
 135

facilities, anti-competitive behaviour can arise when they refuse competitors’

requests to gain entry to the facilities.
An example of this type of anti-competitive behaviour is in the early US
anti-trust case of Terminal Railroad Litigation,128 where a group of railroad firms
that jointly owned the terminal facilities accessing the railroad bridges that were
essential to rail transportation denied the competing railroad firms’ requests to
connect to the facilities. The court ruled that all railroads must be given reasonable
access.129 This judgment established the ‘essential facilities’ doctrine, which
obligates a firm that occupies an infrastructure facility to open the facility to its
competitors when no realistic substitute is available.130
This doctrine was further developed in MCI v. AT&T131, where MCI claimed
that AT&T, the incumbent telephone company controlling the local line systems
necessary to connect both ends of long-distance phone calls, was in contravention of
the anti-trust law because it refused to interconnect with MCI’s superior microwave
communication technology so that MCI customers’ calls could be completed. The
US Supreme Court in the case provides that in determining whether the firm’s
refusal to open access to essential facilitates violates US antitrust law, the
consideration should be on:
‘1. The monopolist controls access to an essential facility;
2. The facility cannot be reasonably duplicated by a competitor;
3. The monopolist denies access to a competitor; and
4. It was feasible for the monopolist to grant access’.132
The competition law authority and courts in various countries have
developed similar doctrines in their consideration of competition law. For instance,
the European Court in Bronner v. Mediaprint133 provided important factors
determining the contravention of competition law:134

128
United States v . Terminal R.R. Ass'n, 224 U.S. 383 (1912).
129
Ibid.
130
Paul L. Joskow and Roger G. Noll, 'The Bell Doctrine: Applications in Telecommunications,
Electricity, and Other Network Industries' (1999) 51(5) Stanford Law Review 1249- See also the
example cases relating with essential facility doctrine in Hecht v Pro-Football Inc570 F 2d 982
(1977).
131
MCI Commc'ns Corp. v. AT&T Co., 708 F.2d 1081, 1132-33 (7th Cir. 1983).
132
Ibid. at 1132–33.
133
Case C-7/97 Bronner v. Mediaset[1998] ECR I-7791.
134
Ibid.at paras. 38-41.
 136

1. Firms must have a dominant position in the supply of the product or

service;
2. The firms’ refusal to open the facilities must be likely to eliminate all
competition on the part of the company requesting it;
3. Access must be necessary because there is no actual or potential
substitute; and
4. The refusal must be incapable of being objectively justified.’
The UK and Australia also developed their ‘essential facilities doctrine’ as
the competition law remedy to prevent dominant firms from refusing to open their
facilities to competitors. The UK OFT provides general rules—that the facility is
considered essential because the duplication of the facility is impossible or
extremely difficult owing to physical, geographical or legal constraints.135 When
there is evidence that the dominant firm’s refusal to allow access can cause
substantial harm to market competition, the refusal will be subject to the violation of
competition law.136
In Australia, the doctrine was adopted and developed by Hilmer’s report in
1993, which was purported to reform legislative obstacles to competition.137 The
report contributed to the inclusion of ‘access to essential facilities’ in Part IIIA of the
Trade Practices Act (now the Competition and Consumer Act 2010), requiring an
138
incumbent firm to open access to its essential facilities. Part IIIA of access to the
essential facilities regime, according to Brenda and Rachael, has two main elements:
‘The first involves having the particular service ‘declared’ to be open to
access by third parties, with disputes about the terms and conditions of access
then resolved through private negotiations or arbitration by the Australian
Competition and Consumer Commission (ACCC). The second enables the
owner of a facility to enter into an access undertaking with the ACCC setting

135
OFT, above n 85, 31.
136
Ibid.
137
Frederick C Hilmer, Mark Rayner and Geoffrey Taperell, 'National Competition Policy'
(Commonwealth of Australia, 1993) <http://www.ncc.gov.au/images/uploads/Hilmer-001.pdf>.
138
Ibid 239.
 137

out the terms and conditions under which third parties will be provided with
access to the services of the facility’139
Thus, the essential facilities doctrine should be considered one of the crucial
aspects of the competition law remedy in prohibiting the dominant firms from
excluding competitors from the market competition by refusing to provide access to
essential facilities. In addition, the doctrine significantly relates to the issues of the
competition in liberalised utility infrastructures (telecommunication, transportation,
water, gas and electricity) that have a very high degree of network connections and
of monopolistic bottlenecks.140 With the emphasis on the essential facilities doctrine,
the competition law is a remedy for firms and the competition law authority to claim
against the anti-competitive behaviour of incumbent firms’ conduct.
The competition law plays a considerable role in dealing with refusals to
provide access to essential facilities. In the case of Otter Tail Power Co. v. United
States,141 the US Supreme Court held that Otter Tail Power, an electricity generator
that sold electricity directly to consumers and to municipality distributors who
resold to consumers, contravened the US Antitrust law by refusing to supply
electricity at wholesale prices, instead serving customers directly. The case is also
important because it involved a fully integrated electric power company’s refusal to
connect or distribute power to a municipality.142 Another US case is the City of
Malden v. Union Electric Co.,143 in which a municipal electricity company (the City
of Malden), claimed that Union Electricity and Missouri Utilities refused to grant
access to electricity lines that would enable Malden to receive electricity, which is in
contravention of the US competition law. The court and jury disagreed with the City
of Malden’s claim and held in favour of Union Electric. However, the court and
juries found that the electricity transmission was the essential aspect of the
facility.144

139
Brenda Marshall and Rachael Mulheron, 'Access to 'Essential Facilities' under Part IIIA of the
Trade Practices Act: Implementing the Legislative Regime' (1998) 10(1) Bond Law Review 99.
140
John Temple Lang, 'Defining Legitimate Competition: Companies' Duties to Supply Competitors
and Access to Essential Facilities' (1994) 18 Fordham International Law Journal, 437.
141
410 U.S. 366, 377-79 (1973).
142
Ibid. at 368, 370-71.
143
887 F.2d 157 (8th Cir. 1989).
144
Ibid. at 160 But the jury found that the city had other alternatives which feasibly could have been
implemented and that Missouri Utilities had not arbitrarily prevented the city from wheeling power
over its transmission line.
 138

In the EU, the doctrine relating to the electricity market is based on Directive
2003/54/EC of the internal market in electricity.145 The directive obligates electricity
incumbents in EU member states to open electricity flows and access to other
competitors in EU member countries in a non-discriminatory manner.146 A case on
opening the electricity access according to the directive is the case of Citiworks147
where EU Court of Justice held that German law, exempting the monopoly
electricity supplier at the Leipzig-Halle Airport to restrict market access to
Citiworks, contravened the EU Directive 2003/54/EC.148
Another example is the Mainova AG case,149 in which, in October 2003, the
German Federal Cartel Office (FCO) prohibited the energy supplier Mainova AG
from denying GETEC net GmbH and Energieversorgung Offenbach AG (EVO)
connection to its medium-voltage network. FCO reasoned that Mainova AG’s
refusal to allow the necessary connection would deter competition for the operation
of electricity networks’ facilities on premises used for business or housing purposes,
and to supply end customers located there with electricity generated by the
companies themselves or by third-party suppliers.150 The FCO decision was upheld
by the Düsseldorf Higher Regional Court in 2004 and by the Federal Court of
Justice in 2005.151
The refusal to open essential facilities for electricity market suppliers has
also occurred in Australia. In the case of NT power,152 the Power and Water
Authority (PAWA) refused to open electricity market access for the NT Power
Generation Pty Ltd, and it was found to be in breach of competition law (section 46
of Trade Practice Act 1974). The High Court of Australia upheld the Full Court’s
decision that the PAWA’s refusal was an exercise of its substantial degree of market

145
See the EU Commission- Directive 2003/54/ EC EU website of EU competition commission on
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:176:0037:0037:EN:PDF
146
See EU Commission- Directive 2003/54/ EC EU para 5.
147
Citiworks AG v Flughafen Leipzig/Halle GmbH and Bundesnetzagentur,(Case C-439/06) [2008].
148
Ibid.
149
OECD, 'Policy Roundtables: Refusals to Deal' (OECD,DAF/COMP(2007)46,2007),p143,
<http://www.oecd.org/dataoecd/44/35/43644518.pdf>.
150
Ibid.
151
Ibid.
152
NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48.
 139

power by refusing to open access to electricity transmission and distribution lines

and infrastructure.153
As discussed, the essential facilities doctrine is a significant aspect of
competition law remedy in a market with network dependency of competitors. Thus,
rules, prohibiting the refusal to open access to essential facilities should be set into
the competition law to promote and protect market competition in the utility sectors,
especially the electricity market.

4.3.2.4 Predatory pricing

Predatory pricing is the unfair conduct of lowering product prices in order to
remove competitors from the market.154 Low prices are usually seen as a successful
outcome of the process of market competition,155 as they can represent existing
competition among firms in the markets.156 Firms that are able to legitimately use
their size to reduce their costs and the prices at which they sell their products to
consumers may represent pro-competitive conduct.157 However, the lowering of
prices by the dominant firm can also be classified as an action to the competition by
cutting prices to the point that small or new competitors cannot sustain the low price
and have to retreat from the business.158 According to a study by Areeda and Turner,
firms that drive out or exclude competitors by selling products at uneconomic prices
are not competing on merits; rather, they are engaging in anti-competitive behaviour
that may be called predatory.159 Thus, these firms must face the consequences of
competition lawsuits and be subject to fines from the cost of deterred competition.

153
Ibid. at 150, 205.
154
Slot and Johnston, above n 5,121.
155
Furse. above n 4, 329.
156
F. M. Scherer, 'Predatory Pricing and the Sherman Act: A Comment' (1976) 89(5) Harvard Law
Review 869
157
ACCC, 'Predatory pricing (s46(1) and s46(1AAA))' (2009)
<http://www.accc.gov.au/content/index.phtml/itemId/816375 >.
158
Donald A. Hay and Derek J. Morris, Industrial Economics and Organization: Theory and Evidence
(Oxford University Press, 1991), 580.
159
Phillip Areeda and Donald F. Turner, 'Predatory Pricing and Related Practices under Section 2 of
the Sherman Act' (1975) 88(4) Harvard Law Review 697- See further discussion in enforcement of
competition law on the predatory pricing in various jurisdiction in ICN, 'Report on Predatory Pricing
Prepared by The Unilateral Conduct Working Group: Presented at the 7th Annual Conference of the
ICN Kyoto, April 2008' (International Competition Network, 2008)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc354.pdf >.
 140

In the liberalised utilities sectors, an example of a predatory practice lawsuit

is France Télécom SA v. Commission,160 in which the EU Court of Justice affirmed
the Competition Commission’s finding and the Court of First Instance’s decision
that the broadband prices of France Telecom’ subsidiary Wanadoo were artificially
low and consequently contravened EU competition law. Wanadoo had priced its
products below average variable cost (AVC) and below average total cost (ATC) to
drive competitors out of the broadband market.161 This case represents the
importance of competition law enforcement relating to predatory pricing conduct in
the liberalised EU telecommunications market. This is similar to Vicker’s concern in
his study on predatory pricing in the liberalised UK telecommunication market,
which found that:
… the entry and growth of new firms in the telecommunications industry is
essential for creating competition, but it is unlikely to occur if privatised
British telecom (BT) is allowed to behave in predatory fashion, or if it can
credibly threaten to do so.162
Predatory pricing cases were also subjected to competition law investigation
in the liberalised airline industry.163 The Australian Competition and Consumer
Commission (ACCC) took action against Qantas for predatory conduct because
Qantas exercised its market dominance in capacity dumping—that is, significantly
increasing capacity beyond expected demand, leading to the intention to eliminate or
substantially damage its competitor, Virgin Blue.164
A similar competition law enforcement occurred in the Canadian
Commissioner of Competition v. Air Canada case,165 which found that Air Canada
was in breach of competition law from predatory pricing behaviour. Air Canada
reacted to the market competition from the new entry of WestJet Airlines and CanJet

160
C-202/07 P - France Télécom vs. the Commissionen.
161
Ibid.
162
Jonh Vickers, 'The Economics of Predatory Practices' (1985) 6(3) Fiscal Studies 24.
163
Peter Forsyth, Competition versus Predation in Aviation Markets – A Survey of Experience in
North America, Europe and Australia (Ashgate Publishing, 2005).
164
John Martin, 'Role of ACCC in Promoting Competition in Aviation Industry' (Paper presented at
the Regional Aviation Association of Australia Convention, Maroochydore, 2002)
<http://www.accc.gov.au/content/item.phtml?itemId=95920&nodeId=32bbdd5af8e67582487b967a3a
9895bc&fn=Martin_241002%5b1%5d.pdf>.
165
Canada (Commissioner of Competition) v. Air Canada, [2003], 26 C.P.R. (4th) 476(Comp. Trib.)-
The case can be accessed from the Federal Court of Canada at
<http://reports.fja.gc.ca/eng/2001/2001fc27050.html>.
 141

Airlines on routes in seven cities in eastern Canada by increasing its capacity and
decreasing its ticket prices.166
In a case relating to the electricity sector, in the case of Youngstown Thermal
v. Ohio Edison,167 Youngstown Thermal filed a complaint with the Public Utilities
Commission of Ohio, claiming that Ohio Edison had engaged in predatory pricing
by providing services at less than cost when servicing the cooling system of the
county jail with the aim of eliminating market competition. The Commission
decided in favour of Youngtown’s claim that the conduct of Ohio Edison was in
contravention to the competition rules of Ohio’s public utility legislation.168 The
decision was then challenged in the Supreme Court of Ohio and, by adhering only to
the conflict of the issue between the Ohio Revised Code chapter 4928: Competitive
Retail Electric Service (Prohibition Statute)169 and Ohio Revised Code Chapter
4905.34: Free service or reduced rates (Free Service Statute)170 rather than the
competitive question of the case, the court decision of the Commission was in error
by the prevalence of. the Free Service Statue 171 This case showed that, although the
anti-competitive behaviour of predatory pricing was immune to the free service
analysis of the court, the case was an important example of predatory behaviour in
firms providing electricity to the market.
Another significant example is the Californian electricity crisis in 2001. The
liberalisation of California’s electricity sector originated in the regulatory failure172
that derived from limited expertise in analysing anti-competitive market
circumstances and the lack of performing required market surveillance to ensure that
electricity prices are just and reasonable.173 Thus, firms could engage in predatory

166
Ibid
167
Youngstown Thermal Ltd. v. Ohio Edison Co., 163 P.U.R.4th 471 (Ohio P.U.C.,
168
Kenneth W. Costello and Robert J. Graniere, 'The outlook for a restructured U.S. electric power
industry: lessons from deregulation' (1997) 10(4) The Electricity Journal 23.
169
See the statue from Government of Ohio State’s website at <http://codes.ohio.gov/orc/4928> .
170
See the statue from Government of Ohio State’s website at < http://codes.ohio.gov/orc/4905.34>.
171
John E. Ferren, 'Ohio Edison v. Public Utility Commission of Ohio: Affirming the Charitable and
Municipal Exception to the Policy Against Anti-Competitive Behavior ' (1997-1998) 31(2) Akron
Law Review 297.
172
Frank A. Wolak, 'Lessons from the California Electricity Crisis,' (University of California Energy
Institute CSEM WP-110, 2003), 2.
173
Bill Lockyer, 'A Law Enforcement Perspective on The California Energy Crisis Recommendations
for Imporving Enforcement and Protecting Consumers in Deregulated Energy Markets' (Attorney
General's White Paper, State of California Attorney General, 2004)
<http://www.ag.ca.gov/publications/energywhitepaper.pdf>, 29-31.
 142

conduct using congestion management policies combined with carefully chosen bids
to cut off one or more of the generators of the other company.174
Moreover, it is a concern in the electricity market competition that the
incumbent firm may use its market power to redirect excess profits in one section to
another section.175 For example, an electricity generator that has significant market
power in generation may engage in predatory pricing in the distribution section by
providing cheaper electricity prices to its own electricity or partner distributors.176
Thus, it can drive competitors out of the electricity market.
As shown, predatory behaviour can create an anti-competitive market in the
liberalised utility sectors. Competition law requires rules that prohibit liberalised
firms in various sectors, especially infrastructure utility, from engaging in predatory
conduct and attempting to eliminate market competitors because, if dominant firms
can successfully eliminate market competitors, consumers will have no service
choices and may be exploited by the dominant firms.

4.3.2.4 Margin squeeze

Dominant firms can abuse their market power by using a margin squeeze. A
price, or margin, squeeze is an anti-competitive practice used by a vertically
integrated firm to exercise market power of the upstream market to squeeze the
margins of its downstream competitors. Crocioni and Veljanovski provide a good
explanation of margin squeeze:
… the margin squeeze arises when a vertically integrated undertaking, with
market power in the provision of an ‘essential’ upstream input, prices it,
and/or its downstream product or service, in such a way and for a sufficiently
long period of time to deny an equally or more efficient downstream rival a
sufficient profit to remain in the market.177

174
V. Petrov, C. W. Richter and G. B. Sheble, 'Predatory gaming strategies for electric power markets'
(Paper presented at the Electric Utility Deregulation and Restructuring and Power Technologies,
2000. Proceedings. DRPT 2000. International Conference on, 2000), 1.
175
Costello and Graniere, above n 168.
176
John Vickers, 'Regulation, competition, and the structure of prices' (1997) 13(1) (March 1, 1997)
Oxford Review of Economic Policy 15.
177
Pietro Crocioni & Cento Veljanovski, ‘Price Squeezes, Foreclosure and Competition Law
Principles and Guidelines’(2003) 4(1) Journal of Network Industries 28.
 143

A common example is vertically integrated firms that have business interests

in both wholesale and retail sales; they have market power at the wholesale level and
compete with non-integrated competitors at the retail level.178 The small margin
difference between the downstream retail price and the wholesale price charged for
an input would thus render the firms to survive as a retail competitor.179
In the rise of liberalisation and deregulation in the utility sector, utility firms
may exercise their market power by price squeezing. The dominant utility firm
would employ its market position as an essential supplier to competitors and
downstream sellers to create a reduction in competitors’ profits.180 For example, in
the telecommunications sector in the case of Deutsche Telekom,181 the Court upheld
the decision of the EU Competition Commission in fining Deutsche Telekom
EUR12.6 million for abusing its dominant position in the market for local access to
its fixed network. The Commission found that, between 1998 and 2003, the German
telecom incumbent charged its competitors a higher price for wholesale access to
subscriber lines than what it had charged its own retail operators for subscribing to
the fixed network.182 The Court confirmed the Commission’s decision by stating that
‘ the Commission correctly found that, from the beginning of 1998 to the end of
2001, and from 2002 to the adoption of the decision, DT had sufficient scope to end
or reduce the margin squeeze, while complying with the price ceiling imposed by
the German Regulatory Authority (RegTP)’.183

178
OECD, 'Roundtables On Competition Issues in Electricity Sector:United States of America'
(OECD, Working Party No. 2 on Competition and Regulation, Document No.
DAFFE/COMP/WP2/WD(2002)30, 2002)
<http://www.ftc.gov/bc/international/docs/compcomm/2002--
Rdtable%20on%20Competition%20Issues%20in%20the%20Electricity%20Sector.pdf> ,143.
179
Ibid.
180
Robert O Donoghue and A Jorge Padilla, The Law and Economics of Articl 82 EC (Hart
Publishing, 2007) 303.
181
Deutsche Telekom AG v. Commission, (Case T-271/03) [2008].
182
EU competition commission, 'Commission fines Deutsche Telekom for charging anti-competitive
tariffs for access to its local networks ' (2008)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/03/717&format=HTML&aged=1&lang
uage=EN&guiLanguage=en >.
183
EU competition commission, 'Competition: Commission welcomes Court judgment wholly
upholding margin squeeze decision against Deutsche Telecom ' (2008)
<http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/232&format=HTML&aged=0
&language=EN&guiLanguage=en >.
 144

Another recent case of price squeeze in the liberalised telecommunications

market was the case of Telefónica,184 where the European Commission imposed a
fine on Telefónica, the Spanish incumbent telecoms operator for €151,875,000 for
abusing its dominant position by conducting a margin squeeze between the
broadband wholesale prices it charged to competitors and the retail prices it charged
to its own customers. This is similar to the Wanadoo case,185 in which the EU
Competition Commission imposed a fine of EUR10.35 million on Wanadoo for
price squeezing.186 The decision of the EU Commission was challenged in the EU
Court of First Instance and in the EU Court of Justice. Both courts agreed that
Wanadoo was in breach of Article 82 by conducting margin squeeze in ADSL
Internet services.187
Another example of price squeezing is found in a decision that the EU
Commission adopted against RWE AG for suspected infringement of EU
competition law.188 The concerns related to a possible foreclosure of RWE’s
competitors from access to its gas network and a possible margin squeeze to the
detriment of RWE’s competitors.189 To resolve the identified concerns, RWE
offered to divest its entire German gas transmission network.190
The margin squeeze issues appear to involve large-scale competition law
enforcement because it relates to the anti-competitive conduct of corporate firms that
provide utility network services that have a degree of vertical integration between
upstream and downstream businesses.
Margin squeeze has also occurred in the electricity market. Brunekreeft and
Twelemann found that the German electricity market has a high degree of margin

184
EU competition commision, 'Antitrust: Commission fines Telefónica over €151 million for over
five years of unfair prices in the Spanish broadband market ' (2007)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1011&format=HTML&aged=0&lan
guage=EN&guiLanguage=en>.
185
EU Commission Decision, 16 July 2003, Proceeding under Article 82 of the EC Treaty,
(COMP/38.233 - Wanadoo Interactive).
186
Ibid. at 409.
187
Court of first instance - France Télécom SA v. Commission, Case T-340/03 andCourt of Justice-
France Télécom SA v Commission of the European Communities(Case C-202/07 P)
188
EU Commission Decision, 18 March 2009, Proceeding under Article 82 of the EC Treaty and
Article 54 of the EEA Agreement (COMP/39.402)
<http://ec.europa.eu/competition/antitrust/cases/dec_docs/39402/39402_576_1.pdf > at 3 October
2012.
189
Ibid.
190
Oliver Koch et al, 'The RWE gas foreclosure case: Another energy network divestiture to address
foreclosure concerns' (2009) <http://ec.europa.eu/competition/publications/cpn/2009_2_7.pdf>
 145

squeeze191 because, while the retail price is under regulation, the network charges
are unregulated, resulting in a margin squeeze at the competitive stage.192 Moreover,
Humphrey examined margin squeeze behaviour that, due to the efficiencies of
wholesale distribution, are primarily based on large-scale generation and
transmission, and smaller retailers can only compete once the electricity has been
transmitted to the region by a wholesale utility.193 Municipally owned utilities and
rural cooperatives are faced with rivals that are vertically integrated utilities in local
markets for the retail distribution of electricity they have purchased at wholesale
prices from vertically integrated utilities.194
An example of price squeezing behaviour in the electricity sector can be
found in the case of the City of Mishawaka v. American Elec. Power Co.195 The
Court held that American Electric conducted illegal price squeezing because it
charged wholesale prices to power distribution systems greater than the rate at which
it charged its own retail subsidiaries.196 The Court found that this price squeeze
made it impossible for the utility’s wholesale customers to compete against the retail
customers.197
As utility firms and electricity markets increase their intense competition,
and as utilities establish their own power market subsidiaries, it can be expected that
price squeeze issues will become more prevalent and the cost of connecting power
may implicate price squeeze issues in certain power markets.198
Thus, margin squeeze is still an important issue for competition law
enforcement, especially in the liberalised utility sectors. The utility firms with
considerable market power in the upstream sections can deter price competition in
wholesale and retail markets by employing the price squeeze strategy. This suggests

191
Gert Brunekreeft and Sven Twelemann, 'Regulation, Competition and Investment in the German
Electricity Market: RegTP or REGTP' (2005) Energy Journal 99.
192
Ibid. 124.
193
Andrew G. Humphrey, 'Antitrust Jurisdiction and Remedies in an Electric Utility Price Squeeze'
(1985) 52(4) The University of Chicago Law Review 1090, 1092.
194
Ibid.
195
City of Mishawaka Indiana v. American Electric Power Company Inc, 616F 2d 976 (7th Cir.
1980).
196
Ibid.
197
Ibid.
198
Terry F. Moritz, 'Antitrust Issues and the Restructuring of the Power Industry' (1999) 12(9) The
Electricity Journal 11.
 146

that consideration should be given to creating a rule that prohibits firms from
conducting margin squeezes in order to protect fair competition in the utility sectors.

4.3.2.5 Cartelisation and anti-competitive collusion

In addition to the above competition law prohibition, there is a need to
protect market competition from firms’ collusive conduct that affects market
competition. Corporate temptation to raise profits by cartel has, over the years, led
many businesses to discard fierce competition with their rivals and move to
cooperative relations.199 Instead of competing with each other, firms collude with
each others’ agreed course of action, which decreases their incentives to provide
new or better products and services at competitive prices, resulting in a loss in
consumer interest.200 It is the competition law’s role to protect consumers from
firms’ cartel conduct by stating that firms must not engage in agreement or:
- directly or indirectly fix purchase or selling prices or any other trading
conditions;
- limit or control production, markets, technical development or
investment;
- share markets or sources of supply;
- apply dissimilar conditions to equivalent transactions with other trading
parties, thereby placing them at a competitive disadvantage;
- make the conclusion of contracts subject to acceptance by the other
parties of supplementary obligations, which, by their nature or according
to commercial usage, have no connection with the subject of such
contracts.201

199
Margaret C. Levenstein and Valerie Y. Suslow, 'What Determines Cartel Success?' (2006) 44(1)
Journal of Economic Literature 43.
200
EU Commission, 'Cartel: Overview' (2008)
<http://ec.europa.eu/competition/cartels/overview/index_en.html>- See also in Thomas G.
Krattenmaker and Steven C. Salop, 'Competition and Cooperation in the Market for Exclusionary
Rights' (1986) 76(2) The American Economic Review 109.
201
See US legislation in Sherman act section 1 and Clayton Antitrust Act of 1914 that outlaw the
firms’ anticompetitive activity on price discrimination, exclusive dealing agreements and tying
arrangements.
 147

The above rules of competition law contribute to the prohibition of cartels

and collusion in business activities that can be seen in price fixing, bid rigging and
customer allocation. Price fixing takes place when two or more competing firms
agree to a set price charge, such as by agreeing that they will increase, decrease or
maintain prices at a certain level.202 Bid rigging occurs when two or more firms
agree to place bids in such a way that a designated firm submits the winning bid.203
Customer allocation occurs when there is an arrangement between competitors to
divide their markets for customers, such as by geographic area, to reduce or
eliminate competition.204 It is widely recognised that the business conduct of cartels
and agreements among competitors to fix prices, restrict output, submit collusive
tenders and share markets are among the most serious and harmful forms of anti-
competitive conduct205 because they can significantly exploit consumers’ interests
and economic efficiency.206
In the liberalised and deregulated sectors, firms have engaged in cartels that
contribute to the reduction of consumers’ interests. For example, in the liberalised
airline industry in the case of Airline Tariff Publishing Co. (ATPCO),207 the US
Department of Justice (US DOJ) took action against Airline Tariff Publishing Co.
and eight major airlines, alleging that the airlines were cartelising on the ATPCO
electronic fare submission and dissemination system to fix prices. The case
ultimately entered into consent decrees banning the improper signalling of future
pricing intentions by the airlines, saving airline passengers billions of dollars in
travel expenses.208 Another cartel example is the Australian deregulated airline

restraint of trade or commerce among the several States, or with foreign nations; See article 101 of
EU treaty; and see section 45 of Trade Practice Act 1974 . the authors use mainly the words from
article 101 of EU treaty but there is similar words contain in the US and Australian legislations
202
U.S. Department of Justice, 'Antitrust Enforcement and the Consumer' (U.S. Department of Justice,
2008) <http://www.justice.gov/atr/public/div_stats/211491.pdf >; See also in see Mark Furse and
Susan Nash, The Cartel Offence (Hart Publishing, 2004), 31-34.
203
Ibid.
204
Ibid.
205
Ibid.
206
OECD, 'Report On The Nature and Impact of Hard Core Cartels under National Competition Laws'
(OECD, report No. DAFFE/COMP(2002)7, 2002)
<http://www.oecd.org/dataoecd/16/20/2081831.pdf>.
207
United Stated v. Airline Tariff Publishing Co., 1994-2 Trade Cas. (CCH) 70,687, (D.D.C August
10, 1994) (final consent decree).
208
U.S. Department of Justice, 'Competition in The Airline Industry Testimony of Jel I. Klein before
the Committee on Commerce, Science and Transportation United States Senate' (US Department of
Justice, 1999) <http://www.ftc.gov/speeches/other/confbd4.shtm>.
 148

sector in the Qantas price fixing case,209 in which the Australian Federal Court
ordered Qantas Airways Limited to pay $20 million in penalties for contravening the
price fixing of Qantas’ agreement with other international airlines in relation to fuel
surcharges on air cargo across its global network between 2002 and early 2006.
Moreover, in the liberalised and deregulated energy sector, there is a case
relating to firms’ cartel conduct in the case of E.ON and GDF Suez,210 in which the
EU Competition Commission imposed fines on E.ON and GDF Suez for €553
million each for market sharing in the French and German gas markets. In these
cases, E.ON and GDF Suez are the leading suppliers of natural gas in Germany and
France respectively, and they are the two largest players in the European gas
industry.211 Both companies made an agreement in 1975 to jointly build the
MEGAL pipeline across Germany to import Russian gas into Germany and France,
and they agreed not to sell gas transported over this pipeline in each other’s home
markets.212 After the liberalisation of the EU gas market in 2005, they continued
with the market sharing agreement, which led to the first EU Competition
Commission imposed fines for the anti-trust infringement of a cartel in the energy
sector.213
In the electricity sector, the application of competition law in relation to
cartels or collusion is rare. However, it is expected that there will be an increase of
competition law scrutiny in the liberalised electricity market. For example, the EU
Competition Commission suspected that E.ON,214 a large EU integrated power and
gas company, might collude with Rheinisch-Westfälisches Elektrizitätswerk (RWE),
a large electricity group, in the German wholesale electricity market. The
information collected and the analysis conducted by the Commission found that

209
ACCC, 'Court orders Qantas to pay $20 million for price fixing' (2008)
<http://www.accc.gov.au/content/index.phtml/itemId/853210>.
210
EU competition commission, 'Antitrust: Commission fines E.ON and GDF Suez €553 million each
for market-sharing in French and German gas markets' (2009)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1099&format=HTML&aged=0&lan
guage=EN&guiLanguage=en >.
211
Ibid.
212
Ibid.
213
Ibid.
214
Philippe Chauve et al, 'The E.ON electricity cases: an antitrust decision with structural remedies'
(2009) <http://ec.europa.eu/competition/publications/cpn/2009_1_13.pdf >.
 149

E.ON might infringe the EU competition law by colluding with other electricity
firms.215
Moreover, in the US, there was an important case of cartel and collusion in
California’s electricity market.216 In this case, energy consumers brought a class
action alleging that firms conducted price fixing and market manipulation.217 They
claimed that wholesale firms in generators, sellers and traders collusively
manipulated the wholesale electricity market in California, forcing consumers to pay
rates that were grossly inflated.218 While the court held that the firms were not in
breach of competition law because the electricity charge rate accorded with Federal
Energy Regulatory Commission (FERC)’s regulation,219 the case illustrates the
fundamental loophole in FERC’s current approach to protecting consumers from
unjust and unreasonable prices.220
The emergence of cartel behaviour in the electricity sector may be facilitated
under oligopoly conditions. This occurs when the small number of electricity firms
is aware that collusive or parallel decisions by each of them can impede market
competition. 221 Liberalised electricity sectors are considered to be under oligopoly
conditions where electricity suppliers make decisions strategically, thereby
influencing prices through market shares and power as well as through cooperation
(collusion) among firms.222 In Nunez’s research on the experience of electricity
liberalisation in various countries, it was found that there are oligopolistic conditions
in liberalised electricity sectors, leading to significant losses to market efficiency
and consequently to consumers.223 Accordingly, competition law has to be used as

215
Ibid.
216
Wholesale Electricity Antitrust Cases I & II Cal. Ct. App., 4th Dist., Nos. 4204, 4205, 2/26/07
(2007 Cal. App. LEXIS 261)- See the case brief from <http://apps.americanbar.org/antitrust/at-
committees/at-exemc/pdf/main-exemptions/mccarran/Wholesale-Electricity.pdf>.
217
Ibid.
218
Ibid.
219
It can be seen that the court adhered with the Noerr-Pennington doctrine that private firms are
immune from liability under the antitrust laws for an enforcement of laws, even if the laws they
advocate for would have anticompetitive effects.
220
Frank A. Wolak, 'Supreme Court Agrees: FERC Must Regulate Wholesale Markets' (2008) 21(7)
The Electricity Journal 8.
221
Posner, Richard A., 'Oligopoly and the Antitrust Laws: A Suggested Approach' (1969) 21(6)
Stanford Law Review 1562; Enrico Adriano Raffaelli 'Oligopolies and Antitrust Law' (1995) 19 (3)
Fordham Law Review 915.
222
Maiorano, A., Y. H. Song and M. Trovato, 'Imperfect competition: modeling and analysis of
oligopoly electricity markets' (1999) 19(5) Power Engineering Review, IEEE 56
223
Alberto Nuñez ‘Liberalisation of the Electricity Sector in the European Union:
 150

a remedy for dealing with the firms’ collusion under oligopolistic conditions.224
Ahdar in his research in New Zealand’s deregulated electricity sector found that
although there are shortcomings in the enforcement of competition law in New
Zealand’s oligopolistic electricity sector, competition law was a useful legal
mechanism to deal with collusion and oligopolistic conditions in this sector.225 He
argues that competition law is a viable legal mechanism and should be developed to
address collusion and oligopolistic conditions in the liberalised electricity sector.226
Thus, in the liberalised utility market, especially the electricity sector,
consideration must be given to enforcing competition law on firms’ cartel and
collusion conduct. Conduct that reduces output and raises prices can substantially
affect consumers who rely on utility and electricity services.227 Competition law
provides a significant remedy for protecting consumers by prohibiting cartels, and
preventing the emergence of oligopoly conditions and collusive practices.

4.3.2.6 Mergers and acquisitions

Competition law must also consider protective analysis to control mergers
and acquisitions that can result in an anti-competitive situation. The aspect of
competition law that controls mergers and acquisitions is based on preventing
market concentrations that may cause future abuse.
In the case of Gencor Ltd v. Commission,228 the EU Court of First Instance
stated that the purpose of employing merger and acquisition control is because of;
‘the need to avoid the establishment of market structures which may create
or strengthen a dominant position, and not on the need to control directly possible
abuses of a dominant position’.229

Present State and Some Open Questions’<www.worldenergy.org/documents/p001104.pdf>.

224
James E Meek., 'Concentration in the Electric Power Industry: The Impact of Antitrust Policy'
(1972) 72(1) Columbia Law Review 64, 76.
225
Rex Ahdar, 'The New Zealand electricity industry and the limits of competition law' (2010) 18(2)
Utilities Law Review 51-61.
226
Ibid
227
OECD. above n 206.
228
Gencor Ltd v. Commission T-102/96 [1999] ECR II-753.
229
Ibid para 106.
 151

An abuse of market competition by mergers and acquisitions relates to two

factors: the possibility of extending firms’ market power, which causes the rise of
market barriers, and the possibility of market concentration, which leads to collusion
among firms.230 The merger and acquisition control of competition law is based on
ex ante intervention to prevent mergers and acquisitions that impede competition in
the future or create a dominant position.231 The ex ante approach applies competition
law to the structural adjustment of market competition.232 The competition law
usually rules that firms must not engage in corporate mergers and acquisitions that
can reduce competition in the market.233
Mergers and acquisitions are classified into three types:
1) horizontal mergers and acquisitions that are actual or potential suppliers
of substitutable goods or services;
2) vertical mergers and acquisitions, which relate to firms operating or
potentially operating at different functional levels of the same vertical
supply chain
3) conglomerate mergers and acquisitions, which involve firms that interact
or potentially interact across several separate markets and supply goods
or services that are related in some way; for example, products that are
complementary in demand or supply.234
It appears that the types of mergers and acquisitions can contribute to the
negative effect on market competition and the economy.235 Thus, the competition
law must prohibit mergers and acquisitions that can decrease market competition.

230
Furse, above n 4, 373.
231
See further discussion on the ex ante and ex post approaches of competition law on the merger and
acquisition control in; François Lévêque and Howard A. Shelanski, Merger remedies in American
and European Union competition law (Edward Elgar Publishing, 2003); Milena Stoyanova,
Competition Problems in Liberalized Telecommunications: Regulatory Solutions to Promote
Effective Competition (Kluwer Law International, 2008), 70-71.
232
Colin Blackman and Lara Srivastava Telecommunications Regulation Handbook, (10th ed, 2011),
33-35.
233
General rules of competition law on merger and from US Clayton act section 7 and 15 , EC treaty
article 81,82,83 and Council Regulation (EC) No 139/2004, and Australian Trade practice Act 1974
section 50.
234
ACCC, 'Merger Guidline' (ACCC 2008)
<http://www.accc.gov.au/content/item.phtml?itemId=809866&nodeId=7cfe08f3df2fe6090df7b6239c
47d063&fn=Merger%20guidelines%202008.pdf >,5.
235
Ibid.
 152

However, the competition law provides opportunities for firms to request

permission from the competition law authority to proceed with mergers and
acquisitions in cases that lead to an increase in economic efficiency.236 In allowing
competition law to permit firms’ mergers and acquisitions, consideration must be
given to whether they are economically efficient. The competition authority, on
deciding to approve or oppose firms’ requests for mergers or acquisitions, must
conduct prudential analysis based on:
- ‘Relevant product and geographic markets;
- market competitive effects of the merger and acquisition;
- firms’ efficiency gain or fail; and
- relevant consumer benefits’.237
Considering the above factors will ensure that the merger and acquisition
process will not lead to firms’ exercising substantial market power.238
In the liberalised utility sectors, merger and acquisition control is an
important aspect of competition law enforcement. For example, in the case of MSG
Media Services,239 the EU Competition Commission disapproved the request from
Bertelsmann, Kirch and Telekom to set up a joint venture named MSG.240 The
Commission reasoned that the joint venture could see the MSG become a long-term
durable monopoly on the market for technical and administrative telecommunication
services in Germany.241 This case is significant in the liberalised
telecommunications sector because the competition authority had to consider the
possible anti-competitive circumstances of the merger and acquisition. Competition

236
See the US The Hart-Scott- Rodino Act 1976 which obligates firms that before making mergers,
tender offers or other acquisition transactions, both firms must file a ‘Notification and Report Form’
with the Federal Trade Commission and the Department of Justice; Australian TPA section 95; EU
Commission, EU Competition Law Rules Applicable to Merger Control (2009).
237
The main factors derive from1) U.S. Department of Justice and the Federal Trade Commission,
'Horizontal Merger Guidelines' (U.S. Department of Justice and the Federal Trade Commission,
1997)(U.S. Department of Justice and the Federal Trade Commission, 1997), 2) OFT, 'Mergers
Jurisdictional and procedural guidance' (UK, Office of Fair Tradeing, 2009) and See ACCC, above n
228.
238
Ibid.
239
EC commission Decision , Case No.M.469 1994,
<http://ec.europa.eu/competition/mergers/cases/decisions/m469_19941109_610_en.pdf>
240
Ibid, at 8.
241
Ibid, at 55-73.
 153

law will face an increase in the number of mergers and acquisitions in the
telecommunications sector.242
In the liberalised and deregulated gas and electricity sectors, cases have
examined the application of competition law on firms’ mergers and acquisitions.
The case of Endesa and Gas Natural243 is a significant example because Gas
Natural, the largest Spanish gas supply, attempted to acquire Endesa, one of the two
largest electricity firms.244 The EU Commission pronounced that it had to refrain
from considering the case because the acquisition deal was outside its jurisdiction.245
The case was then under the consideration of the Spanish Competition Commission
to determine whether to authorise the acquisition deal. After taking two months to
assess the case, the Commission approved the deal and recommended that the
Spanish government prohibit the acquisition.246
The application of competition law on the merger and acquisition on the
liberalised electricity can also be seen from the case of E.ON/Ruhrgas,247in which the
German competition authority refused to grant permission to a merger proposal
between E.On (the largest electricity and gas firm in Germany and the UK) and
Ruhrgas (the largest gas firm in Germany).248 The authority reasoned that ‘the
merger would strengthen dominant positions in the electricity sector because
Ruhrgas’s natural gas supply is the most dominant and primary energy source for
electricity generation’.249 The merger and acquisition could strengthen the dominant
positions of E.ON and RWE (with its subsidiary Thyssengas).250

242
Petros Iosifidis, 'The Application of EC Competition Policy to the Media Industry' (2005) 7(3)
International Journal on Media Management 103.
243
Julian Barquin et al, 'The Acquisition of Endesa by Gas Natural: Why the Antitrust Authorities Are
Right to Be Cautious' (2006) 19(2) The Electricity Journal 62.
244
EUcommission, 'Mergers: Commission rejects Endesa’s complaint; declares proposed Gas Natural
takeover of Endesa falls outside Commission’s competence' (European Commission, IP/05/1425
2005).
245
Ibid.
246
Barquin above n 237.
247
WuW/E DE-V 573-598 – E.ON/Ruhrgas and WuW/E DE-V 643-653 – E.ON/Ruhrgas in
Bundeskartellamt( German office of fair competition), 'Competition Policy, Industrial Policy and
National Champions' (Paper presented at the Global Forum on Competition, 2009).
248
Bundeskartellamt, 'Bundeskartellamt prohibits E.ON/Gelsenberg (Ruhrgas) merger'
(Bundeskartellamt 2002)
<http://www.bundeskartellamt.de/wEnglisch/News/Archiv/ArchivNews2002/2002_01_21.php>.
249
Ibid.
250
Ibid.
 154

Thus, the enforcement of competition law on mergers and acquisitions is

important to prevent firms from abusing their market positions. Attention must be
paid to cases in the liberalised utility sector, especially electricity and gas, which
tend to have a high degree of market concentration. The rapid trend towards the
creation of national champions and the proliferation of recent merger deals among
gas and electricity firms can cause serious concerns about abuses of market power
and risks of future collusion.251 Taking into account market concentration resulting
from mergers and acquisitions in the electricity sector, this raises great challenges
for competition law authorities and regulators. This authority and regulator also
have to deal with complex assessments of mergers and acquisitions, which may
result in anti-competitive circumstances that decease consumers’ economic
welfare.252 Thus, it must be stated that the competition law on mergers and
acquisitions is important for liberalised and deregulated utility infrastructures such
as telecommunications, gas and electricity.253
As shown, there is a need to establish competition rules that provide
remedies for prohibiting and dealing with various anti-competitive conducts in order
to promote and protect market competition in the utility sectors. However, the rules
would not lead directly to enforcement. Thus, competition institutions are required
to act as agencies and apply the competition rules to promote and protect market
competition. The next section explores competition law institutions that help to
enforce the competition rules in the utility sectors, especially the electricity sector.

251
Fabio Domanico, 'Concentration in the European electricity industry: The internal market as
solution?' (2007) 35(10) Energy Policy 5064.
252
Richard J Gilbert and David M Newberry, 'Electricity Merger Policy in the Shadow of Regulation'
(2006) <http://www.escholarship.org/uc/item/7bh5f7rn>, See also in Gotz Drauz, Thomas
Chellingsworth and Mention Hertta, 'Recent Developments in EC Merger Control' (2009)
(December 8, 2009) Journal of European Competition Law Practice l004.
253
American Antitrust Institute, 'US Federal Energy Regulatory Commission Comments of The
American Antitrust Institute Regarding Filing Requirements For Public Utility Mergers' (American
Antitrust Institute, DOCKET NO. RM98-4-000 1998)
<http://www.antitrustinstitute.org/Archives/3.ashx>, , See also Arndt Christiansen, 'Regulation and
EU Merger Control in the Liberalised Electricity Sector' (2005) SSRN eLibrary
<http://ssrn.com/paper=870551>.
 155

4.3.3 Competition law enforcement institutions

The adoption of competition law legislation does not contribute to the
enforcement of the law per se. It requires the Commissions or authorities that
administer competition legislation in an effective way to promote and protect market
competition. However, the establishment of competition law Commissions alone
may not result in effective enforcement. After discussing the problems of the
competition law institution in Thailand in Chapter 2, this section explores the
international experiences of design and the establishment of competent competition.
This will yield ideas on how to create an institutional framework for Thailand’s
competition law and on the effective application of competition law on the utility
and electricity sectors.
The OECD questionnaires on ‘The optimal design of a competition agency’
found that institutional arrangements for competition law authorities and
Commissions are broad in scope, including status, structure and enforcement
resources (budget and human).254 However, the main elements that determine the
competency and credibility of competition law enforcement institutions are: (1)
independence, (2) sufficiency of enforcement resources, (3) ability to advocate or
collaborate with public and private sectors, and (4) private enforcement
mechanisms.

4.3.3.1 Independence of competition law enforcement agency

A significant factor that contributes to the credible and effective enforcement
of competition law is the independence of competition law authorities and
Commissions from political and business influences.255 While Commissions and
authorities must consider political and economic factors when enforcing the law, in
order to be successful in promoting and protecting market competition, they must be

254
OECD Secretariat, ‘Optimal Design of A Competition Agency’(OECD, Global Forum on
Competition, CCNM/GF/COMP(2003)2, 2003)< http://www.oecd.org/dataoecd/58/29/2485827.pdf>.
255
Paolo Buccirossi et al, 'Deterrence in Competition Law' (Governance and Efficiency of Economic
System, Discussion Paper No. 285, 2009), 17 <http://www.sfbtr15.de/dipa/285.pdf>.
 156

able to work without the interference of political and business agents.256 By making
independent decisions, the political and business sectors that conduct anti-
competitive behaviour would not be able to influence the competition law authority.
Independence in enforcing competition law can be derived from establishing
the competition authority or Commission in a way that eliminates direct and indirect
influences. Direct influences that affect independence include a higher level of
government giving directions on making an individual case, and overruling the
decision of the authority on political grounds.257 Indirect influences include the
ability to determine the nomination or removing of the head and other leading
officials of competition authorities, and the ability to determine a budget for the
authority.258
Thus, to eliminate the direct and indirect influences that can deter the
independence of competition law authorities and Commissions, the various factors
for establishing an independent competition law authority should be recognised:
- ‘Degree of Autonomous agency: This is the most important condition
for dealing with the political pressures on competition law enforcement.
This requires that the authority must be a separate body and not an
integral part in a government department.
- Non-political and business nomination of the Commission Director: the
head of the Commissions significantly determines the enforcement
targets and decisions. The head, thus, has to be free from the interference
of political and business sectors.
- Independent budget: It is crucial that the fiscal position of competition
law Commission should not be impaired by the political and business
control. If its budget is controlled by the political or business sectors, the
Commission would not be able to make any independent enforcement
decision relating to political and business group.

256
Ibid. and see Pradeep S Mehta, Manish Agarwal and Dr Singh, 'Politics Trumps Economics–
Lessons and experiences on competition and regulatory regimes from developing countries' (Paper
presented at the Intergovernmental Group of Experts on Competition Law and Policy, Geneva, 2007)
<http://www.unctad.org/sections/wcmu/docs/c2clp_ige8p11Cuts_en.pdf>.
257
UK Department of Trade and Industry and HM Treasury, 'Concurrent Competition Powers in
Sectoral Regulation ' (Department of Trade and Industry and HM Treasury URN 06/1244 2006)
<http://www.berr.gov.uk/files/file29454.pdf>.
258
Ibid, 3.
 157

- Transparent and checkable decision. This is an important way to decrease

the political and business influences by ensuring the transparency of
antitrust decisions to public scrutiny.’259
In Australia, Canada, the UK and the US, competition law Commissions are
able to maintain their independence from political and business influences when
enforcing anti-trust laws.260 The competition law Commission has been changed to
an independent agency that focuses on economic competition in markets.261 In the
1980s and 1990s, the Western EU countries focused on establishing an independent
competition Commission, which has significant power to promote and protect
market competition.262
In developing countries, independent competition law authorities have
emerged to cope with anti-competitive conduct in business competition. For
example, Argentina and Mexico created an independent and professional law
enforcement body with administrative powers,263 and Indonesia and South Africa
institutionalised an independent Commission and entrusted it with the power to
enforce competition law and decrease government policies, which may have
negative effects on the market and market competition.264

259
Michal S. Gal, 'The Ecology of Antitrust: Preconditions for Competition Law Enforcement in
Developing Countries' in Competition, Competitiveness and Development :Lessons from Developing
Countries (UNCTAD, 2004).
260
See US-Federal Trade Commision, 'A Guide to the Federal Trade Commission' (2004)
<http://www.ftc.gov/bcp/edu/pubs/consumer/general/gen03.shtm>; Canada -Thomas W. Ross,
'Viewpoint: Canadian Competition Policy: Progress and Prospects' (2004) 37(2) The Canadian
Journal of Economics / Revue canadienne d'Economique 243,.; UK - Peter Freeman, 'The
effectiveness of competition authorities: prioritization, market inquiries and impact' (Paper presented
at the The Third Annual Competition Commission, Competition Tribunal and Mandela Institute
Conference on Competition Law, Economics and Policy South Africa, 2009)
<http://www.competition-commission.org.uk/our_role/speeches/index.htm>,); Australia- The
Australian Competition and Consumers Commission is established by TPA 1974 as an independent
statutory authority.
261
Mark Thatcher, 'Regulation after delegation: independent regulatory agencies in Europe' (2002)
9(6) Journal of European Public Policy 954.
262
Ibid.
263
OECD, 'Policy Brief: Competition Law and Policy in Argentina' (OECD document No. 37409587,
2006).
264
Mari Pangestu et al, 'The Evolution of Competition Policy in Indonesia' (2002) 21(2) Review of
Industrial Organization 205.
 158

4.3.3.2 Adequacy of enforcement resources

For Commissions to effectively enforce competition law, they require
adequate financial and human resources. A lack of resources may contribute to
difficulties in persistently enforcing the competition law against anti-competitive
firms that have significant personnel and finances. An example of insufficient
financial resources that affected the Competition Commission’s work is the study of
Pierluigi, where data could be obtained from firms involved in the case, but data
relating to consumers’ damages had to be collected from the field study, which
required significant finances.265 Competition law authorities may be reluctant to
investigate cases when faced with budget constraints.266
Finance for Competition Commissions is generally based on state budgets
and levies from fines and fees.267 To increase the effectiveness and consistency of
competition law enforcement, states must provide sufficient budgets for operations
and investigations. The annual revenue of the Competition Commission should
enable it to work effectively and persistently in the market to maintain the
development of market competition.268
The Competition Commission should be encouraged to pursue investigations
against anti-competitive firms by levying fines. Pierluigi pointed out that to
encourage the competition authority to enforce competition law, there should be an
incentive structure by providing levy of the fines to competition authority.269 In
Portugal, Bulgaria and Peru, this type of incentive for the Competition Commission
has been employed to encourage anti-competitive investigations.270
In cases where the Competition Commission has insufficient financial
resources to fund the operation and investigation, the Commission can also expect to
face a shortage of personnel. The OECD collated responses from various countries
and found that insufficient budgets contribute to limited possibilities to employ

265
Pierluigi Sabbatini, 'Assessing the Impact of Antitrust Intervention by the Italian Competition
Authority' (2008) 156(4) De Economist 491, 495.
266
Ibid, p 496.
267
UK Department of Trade and Industry and HM Treasury, above n 251.
268
Simon J. Evenett, 'Links Between Development and Competition in Developing Countries' (United
Kingdom’s Department for International Development, 2003)
<www.alexandria.unisg.ch/EXPORT/DL/22249.pdf>.
269
Sabbatini, above n 259.
270
Ibid. However, the finance provided by fines should be additional and not in substitution of the
governmental funding and it would be only used for some specific purposes.
 159

investigation experts and to train economists and lawyers to work accordingly to the
needs of the Competition Commission.271
The Commission also faces difficulties retaining and recruiting good
professionals because there is a significant difference in pay between positions in the
Competition Commission and positions in the private sector.272 The small financial
resources of the Competition Commission adhere to general government salary
schedules, which can lead to pay levels that are too low to attract and retain
professionals.273

4.3.3.3 Advocacy on competition focus

To create a business environment that does not lead to difficulties for
efficient competition, the Competition Commission must pay attention to the
advocacy roles on policies relating to market competition. This advocacy can
complement the law enforcement activities of the Commission. The advocacy role
refers to activities conducted by the competition Commission relating to the creation
of a competitive environment for economic activities by means of non-enforcement
mechanisms—mainly by increasing public awareness of the benefits of competition
and consulting other government entities that adopt regulations that affect market
competition.274

271
OECD, 'Global Forum on Competition: Qustionare on The Challenges Facing Young Competition
Authorities - Contribution from the United States' (OECD Document No.,
DAF/COMP/GF/WD(2009)63, 2009) <http://www.oecd.org/dataoecd/31/41/41970521.pdf >; OECD,
'Global Forum on Competition: Qustionare on The Challenges Facing Young Competition
Authorities -Contribution from Contribution from Lithuania' (OECD Document
No.,DAF/COMP/GF/WD(2008)57, 2009) <http://www.oecd.org/dataoecd/31/41/41970521.pdf >;
OECD, 'Global Forum on Competition: Qustionare on The Challenges Facing Young Competition
Authorities -Contribution from Slovenia' (OECD Document No., DAF/COMP/GF/WD(2009)14
2009) <http://www.oecd.org/dataoecd/31/41/41970521.pdf >.
272
Ibid.
273
Ibid.
274
Advocacy Working Group, 'Advocacy and Competition Policy' (ICN, Report from ICN’s
Conference Naples, 2002)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc358.pdf>,p 25
 160

The advocacy for building public awareness of competition law enforcement

can be seen in many methods:
- Being open to the public regarding current competition law enforcement
(cases and comments) by regularly publishing enforcement activities;275
- holding press conferences or public meetings to create an understanding
of competition law and policy;276 and
- disseminating brief guidelines as helpful compliance tools to establish a
fast understanding of competition laws.277
Combining the above methods enables consumers to recognise and
understand the importance of competition law and their right not to be exploited by
firms’ anti-competitive behaviours. Thus, consumers will recognise the remedy
available if they are exploited by a monopoly or cartel. Accordingly, it is vital to
create competition law awareness in consumer organisations, private sectors, media
and other stakeholders that might otherwise be ignorant of the law and its virtues.278
Awareness would also raise the credibility and convincing power of the Competition
Commission.279
Consultation with other government authorities is also an important aspect of
the advocacy for effective competition law enforcement. The Competition
Commission should play a proactive role in communicating and coordinating with
the other government agencies in reforming or analysing regulations that cause
difficulties for the creation of market competition. For example, the UK’s
Competition Commission plays a considerable role in assisting the government to
shape various regulatory changes relating to the creation of market competition. 280
The UK OFT usually provides its opinion to the UK Department for Business,

275
This can be seen in the EU Competition Commission that always updates its decision and its
activity of investigating cases at hand-See EU competition commission website that provide good
information for its activities at <http://ec.europa.eu/competition/index_en.html>.
276
See the US FTC website for its effective works on making press and public conferences for
competition law education at <http://www.ftc.gov/ftc/workshops.shtm>
.277 See the UK OFT about the very good and concise guidelines relating to the competition law rules
and enforcement at
<http://www.oft.gov.uk/advice_and_resources/publications/guidance/competition-act/>.
278
Gal, above n 253, 29.
279
Ibid.
280
OFT, 'OFT: Partnership Working' (OFT 2009), and see Peter Freeman, 'Competition Advocacy in
Time of Recession the UK Competition Approach' (Paper presented at the International Competition
Forum, Warsaw, 2009).
 161

Enterprise and Regulatory Reform and various government agencies where there are
issues relating to regulation in market competition.281 Similarly, the National
Competition Council (NCC) and the ACCC play advocacy roles for Australian
government agencies in issues of regulatory reform or the abolishment of
regulations that obstruct market competition.282 The advocacy role for government
regulatory changes would help harmonise all market regulations to promote market
competition.
Moreover, competition law advocacy that is directed towards government
regulatory changes is important for deregulation and regulatory change involving
utility liberalisation and privatisation. Under the pivotal role of competition law
advocacy, the Competition Commission must create and spread the culture of free
market competition in utility sectors that have traditionally been immunised from
market forces and competition.283 Specifically, the Competition Commission has to
employ advocacy roles is when there is a policy planning and implementing of the
privatisation and liberalisation in utility sectors.284 This is because there is a
tendency that governments in the privatisation and liberalisation process will confer
market power, if not a monopoly, upon the entity to be divested in order to
maximise its value.285 To prevent future market abuses, the Competition
Commission must try and introduce competition as much as possible to the

281
Ibid.
282
The example of the NCC’s advocacy roles is that NCC actively provides advice to minister
regarding to regulatory reform in infrastructure sector. The NCC’s advocacy roles can be seen from;
NCC, ‘Strategic Plan 2010-2015’(NCC 2010) <
http://www.ncc.gov.au/images/uploads/NCCSP1015-001.pdf> at 3 October 2012. The example of
ACCC’s advocacy roles is that ACCC normally provide its recommendations to various government
agencies regarding to competition issues in infrastructure utility sectors. The ACCC’s advocacy, for
instance, can be seen from ACCC, Submission to the Department of Broadband, Communications
and the Digital Economy ; National Broadband Network: Regulatory Reform for 21st Century
Broadband (ACCC 2009).<
http://www.accc.gov.au/content/item.phtml?itemId=889815&nodeId=54ed3cd392aa9e20df994d16b4
a17931&fn=ACCC regulatory reform submission (June 2009).pdf>.
283
ICN, 'Competition Advocacy in Regulated Sectors: Examples of Success' (Paper presented at the
International Competition Network 2004 Annual Conference, Soul, Korea, 2004)
<http://www.internationalcompetitionnetwork.org/media/library/conference_3rd_seoul_2004/capacit
ybuild_sg4_seoul.pdf>.
284
John Clark, 'Competition Advocacy: Challenges for Developing Countries' (2005) 6(4) OECD
Journal of Competition Law & Policy 69.
285
Ibid.
 162

privatisation process in network infrastructure utilities such as telecommunications,

rail, gas and electricity.286
For example, in the US, the Department of Justice’s (DOJ) Antitrust
Division participates formally in rule making proceedings under sectoral regulations
in telecommunications, railroads, airlines, gas and electricity.287 In Japan, Mexico
and Argentina, Competition Commission agencies are engaged in similar advocacy
work with other agencies that regulate utility sectors. The Japan Fair Trade
Commission (JFTC) pursues the advocacy role for sectoral regulators by creating
joint guidelines in the anti-monopoly Act and business laws for the infrastructure
utility sectors.288 The Mexican Competition Commission informs sectoral regulators
in its diagnosis of the effects of proposed regulations on competition conditions that
prevail in the liberalised utility market, and it helps to apply the principles of
competition policy to specific institutional, legal and economic conditions that
characterise each regulated infrastructure market.289 A similar advocacy role can be
found in the Argentinean Competition Commission, which provides advocacy to
utility regulators by deciding on the merger review of liberalised infrastructure
utilities.290
Therefore, the advocacy role of the Competition Commission is a significant
aspect for the effective enforcement of competition law. By performing the
advocacy role, the Competition Commission can proactively create recognition of
the competition law in the government, business and consumer sectors.
Combining the elements of an independent agency, sufficient resources for
operations and the ability to advocate competition in the public and private sectors

286
Ibid.
287
Bruce M. Owen, 'Competition Policy in Latin America' (Standford University, Stanford Law and
Economics Olin Working Paper No. 268 2003) <http://ssrn.com/paper=456441>.
288
Hiroshi Ueno, 'Competition Advocacy Activities by the Japanese Competition Authority' (Paper
presented at the ICN Second Annual Conference, merida, Mexico, 2003) <http://www.jftc.go.jp/e-
page/policyupdates/speeches/icn2ueno.pdf,Yasumasa KURIYA, 'The Relationship Between
Competition Authority and Sectoral Regulators" JFTC's Experience' (Paper presented at the
UNCTAD's Seventh Session of the Intergovernmental Group of Experts on Competition Law and
Policy, Geneva, 2006) <http://www.unctad.org/sections/wcmu/docs/c2clp_ige7p8_en.pdf>.
289
Georgina Santiago, 'COMPETITION ADVOCACY AND SECTOR REGULATION UPDATING
The Mexican Experience' (Paper presented at the The 1st APEC Training Program on Competition
Policy, Bangkok, Thailand, 2002) <http://www.jftc.go.jp/eacpf/05_04_01.html>.
290
John Clark, 'Competition Law and Policy in Argentina: A Peer Review' (OECD, document no
37970045, 2006) <http://www.oecd.org/dataoecd/36/57/37970045.pdf>.
 163

will contribute to the competency and credibility of the Commission in effectively

enforcing competition law.

4.3.3.4 Private enforcement

Another factor that determines the effectiveness of competition law
enforcement is private enforcement. Although it is now noted that private
enforcement is intended to be a supplementary mechanism to public enforcement by
giving private sectors claims for compensation for anti-competitive conduct, private
enforcement is an important step in developing the effectiveness of a mature
competition law system.291 A blueprint of a plan for the reform of UK competition
law has stressed that: 292
… in markets where competition is distorted, consumers' interests are
harmed. It is essential that where this happens, consumers can obtain redress.
Private actions are therefore a very important limb of an effective
competition regime. Where behaviour is illegal under competition laws,
parties who are harmed should be able to bring action against the
perpetrators.293
In the US, the Sherman Act of 1890294 and the Clayton Act of 1914295 gave
significant power to any firms that took court action against anti-competitive
conduct that caused damage to market competition and losses to businesses and
consumers. Private enforcement has thus been widely employed in the US. It is
estimated that 90 percent of all competition law cases in the US are initiated by
private actions.296 This is because the US anti-trust law entitles anyone who is

291
McAfee, R. Preston, Hugo M. Mialon and Sue H. Mialon, 'Private v. public antitrust enforcement:
A strategic analysis' (2008) 92(10-11) Journal of Public Economics 1863.
292
UK Department of Trade and Industry, A World Class Competition Regime (The UK Stationery
Office, 2001)
293
Ibid at 47.
294
Section 7.
295
Section 4.
296
Clifford A. Jones, Private Enforcement of Competition Law in the EU, UK and USA (Oxford
University Press, 1999).
 164

injured by the violation of the anti-trust law to bring cases for three times their
actual damages.297
In the EU, although public agencies play a major role in enforcing
competition law, private action is recognised as one of the important mechanisms of
competition law enforcement. According to the Ashurst report,298 which explores
the obstacles of successful damages action in EU competition law, private
enforcement for damages for infringements of EC competition law are of marginal
relevance in the EU countries because there were only 60 cases of private actions
during 1962–2004. The EU Commission followed the Ashurst report by adopting
the Green Paper299 in 2005 to examine solutions to further develop private damages
actions. The Commissions then passed the White paper300 to facilitate private actions
claiming damages from anti-competitive conduct breaching EU competition law.
In Australia, private action plays an important role in competition law
enforcement against firms’ conduct in breach of competition law.301 Private action
via class action in Australia has been successfully claimed against the price-fixing
cartel and cartel conduct.302 Private action is expected to increase due to a rise in
successful private actions under the competition law.303 Thus, it is considered that
private enforcement in various countries is the remedy for taking action against
firms’ anti-competitive conduct.
Moreover, private enforcement can be an effective tool for enforcing
competition law where cases involve a large group of consumers because they can
make a class action suit when they are exploited by the firms’ competitive

297
Spencer Weber Waller, 'Towards a Constructive Public-Private Partnership to Enforce Competition
Law' (2006) 29(3) World Competition 367, 369.
298
Denis Waelbroeck, Donald Slater and Gil Even-Shoshan, 'Study on the conditions of claims for
damages in case of infringement of EC competition rules' (Ashurst, 2004).
299
EU commmison, 'GREEN PAPER Damages actions for breach of the EC antitrust rules' (EU
commission, COM(2005) 672, 19.12.2005, 2005) <http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2005:0672:FIN:EN:PDF>.
300
EU commison, 'White Paper on Damages Actions for Breach of the EC antitrust rules' (EU
commison, COM(2008) 165, 2.4.2008 2008)
<http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html#greenpaper>.
301
Kent Roach and Michael J. Trebilcock, 'Private Enforcement of Competition Laws OF
COMPETITION LAWS' (1997) 34(3) Osgoode Hall Law Journal .
302
Michael Pollitt, 'Electricity reform in Argentina: Lessons for developing countries' (2008) 30(4)
Energy Economics 1536.
303
Preston, Mialon and Mialon, above n 285.
 165

conduct.304 Private enforcement via class action tends to be a cost-effective form of

litigation when individual claims are relatively small, thereby denying offenders
their anti-competitive gains.305 Rosenberg and Sullivan, professors of Law and
Economics at Harvard University, pointed out that:
‘Private antitrust class actions not only provide an efficient means for
augmenting and overcoming structural, financial and other operational limits
on public enforcement. They also serve as a hedge against the potential (real
or perceived) for under-enforcement by public agencies vulnerable to
bureaucratic slack and stagnation, political and personal conflicts of interest,
and chronic under-funding.’306
Class actions can be used as private enforcement in competition law cases.
For example, in the case of Bogosian v. Gulf Oil Corp307,Bogosian and Parisi sued
their respective lessors, Gulf and Exxon, alleging that the lease contracts were in
violation of US anti-trust laws.308 The case contributed to the establishment of the
concept of ‘presumed impact’, allowing individual plaintiffs to prove injury simply
by showing that the anti-trust violation resulted in higher prices than would be paid
in a competitive market, and that the plaintiff made purchases at the higher price.309
Another significant example is in vitamin cartel cases, with class action
being taking in relation to the vitamin manufacturers’ conduct of price fixing in the
EU, the US and Australia.310 The class action contributed to a significant amount of
compensation to consumers from the international cartel of prefixing the prices of

304
John H. Johnson and Gregory K. Leonard, 'Economics and The Rigorous Annalysis of Class
Certification in Antitrust Cases' (2007) 3(3) (September 1, 2007) Journal of Competition Law and
Economics 341.
305
Edward D. Cavanagh, 'The Private Antitrust Remedy: Lessons From The American Experience'
(2009) The Selected Works of Edward D. Cavanagh, 22 <
http://works.bepress.com/edward_cavanagh/4 >.
306
Michael Rosenberg and James P. Sullivan, 'Coordinating Private Class Action and Public Agency
Enforcement of Antitrust Law' (The Harvard John M. Olin Discussion Paper Series, Discussion Paper
No. 523, 2005) 2 <http://ssrn.com/paper=795524>.
307
Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977).
308
Ibid.
309
Paula Render and Andrea Renaldi, 'Bogosian’s Legacy Uncertain in Wake of Recent Third Circuit
Decision in Hydrogen Peroxide' (2009) March 2009 Newsletter: ABA antitrust law section.
310
For the US and EU case of vitamin cartel please see Stratis G. Camatsos and Albert A. Foer,
'Cartel Investigation in the U.S.A: A Primer' (The American Antitrust Institute, AAI Working Paper
No. 07-05, 2007) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1103624 >, and see the
Vitamin cartel case in Australia at Darwalla Milling Company Pty Ltd. & Ors v F. Hoffmann- La
Roche Ltd. & Ors (No. V359 of 1999).
 166

raw vitamins.311 The settlement in this case provided significant competition law
enforcement in terms of adding private class action lawsuits as a means of protecting
the interests of cartel victims.
Thus, private enforcement is an important mechanism for the effectiveness of
competition law enforcement. It can provide the consumers, by individual or by
class action, with a legal remedy in competition law in cases where public
enforcement is not effective. In addition, when private enforcement is used in
liberalised utility sectors, it can help both the competition law Commission and the
sectoral regulators to police the anti-competitive conduct of the utility firms.
In summary, competition law enforcement is needed for the promotion and
protection of market competition in the electricity sector. The main elements of
competition law are that (1) the competition law must be able to apply to protect
market competition from anti-competitive conduct in the utility sectors, (2) there is a
need to establish competition rules that provide remedies for dealing with anti-
competitive behaviours in the utility sectors, especially electricity, and (3) there is a
need to build effective competition law institutions that can enforce the competition
law in the utility sectors. However, beyond a pure focus on competition law, it is
important to consider the interaction between competition law and sectoral
regulation. This factor helps to create consistency between the competition law and
sectoral regulation to promote and protect market competition in the electricity
sector. This interaction is explored in the next section.

311
Ibid and see Peta Spender, 'The Class Action as Sheriff: Private Law Enforcement and Remedial
Roulette', in Jeffrey Berryman and Rick Bigwood (ed.), The Law of Remedies: New Directions in the
Common Law, 695-726.
 167

4.4 Interactions between competition law and

sectoral regulation
This section explores the interactions between competition law and sectoral
regulation in order to promote the development of market competition in the
electricity sector. This will help to generate ideas for a possible reform of Thailand’s
competition law and electricity regulation discussed in Chapter 6.
It is important to explore these interactions because they play an important
role in creating and protecting market competition in the electricity sector.
Interaction is vital where the competition law and sectoral regulation can be
complementary mechanisms to enhance market competition and protect the
competitive environment in the liberalised and reformed electricity sector. Although
there is no absolute framework for the interaction,312 it is clear that a framework
must be established in order to institute the cooperative works helping to promote
and protect market competition in the electricity sector.
Therefore, this section explores important international experiences
regarding the interaction between the competition law and sectoral regulation, which
facilitate the creation of market competition in the electricity sector. The main
aspects of the framework focus on substantive and institutional aspects, including:
(1) the complementary role to sectoral regulation, (2) the overlaps and conflicts, and
(3) the establishment of cooperation between competition law and sectoral
regulation.

4.4.1 Complementary role to sectoral regulation

Complementary remedies between competition law and sectoral regulation
are based on the mix of ex ante and ex post approaches for the governance of market

312
Stefano Vannini, 'Competition and Regulation in Network Industries: Not an Easy Balance to
Strike. Comments on Koski and Kretschmer' (2004) Journal of Industry, Competition and Trade 49.
 168

competition. Both approaches provide critical remedies to create and protect market
competition in the network industries, especially the electricity sector.313
The ex ante approach focuses on the creation and protection of market
competition via structural change or the anticipated anti-competitive conditions of
network industries.314 Thus, sectoral regulation tends to be the available remedy
based on the ex ante approach when there is a need to create structural change
towards market competition and when there is anticipation of anti-competitive
conduct in the electricity sector.315 For example, sectoral regulation obligates the
structural separation of the electricity sector to create market competition in business
parts of the electricity sector (generation, transmission, distribution and retail) and to
reduce the incumbent firm’s market power.316 Sectoral regulation, which is under the
ex ante approach is discussed further in Chapter 5 and explores the international
experiences of regulation in the electricity sector.
In contrast, the ex post approach focuses on the punitive measure, which
imposes fines or criminal punishment to correct firms’ conduct subjected to the
infringement of the competition law and to award compensation to the damaged
parties affected by the infringement.317 The competition law thus helps to protect
market competition where there is an occurrence of anti-competitive behaviour in
the market sector. For example, in the electricity industry, where the incumbent
electricity firm behaves anti-competitively to remove other competitors, the law
issues fines or other punishments to the incumbent firm and issues an order to
restore the competitive process of market competition.318

313
See Gregory Sidak, 'Remedies and the Institutional Design of Regulation in Network Industries'
(2003) 2003(3) Michigan State DCL Law Review 741.
314
Damien Geradin, Remedies in Network Industries: EC Competition Law Vs. Sector-Specific
Regulation (Intersentia, 2004).
315
Gregory Sidak, 'Remedies in Network Industries-A View from United States' in Damien Geradin
(ed), Remedies in Network Industries: EC Competition Law vs Sector Specific Regulation
(Intersentia, 2004).
316
See example from the EU Directive 2009/72/EC concerning common rules for the internal market
in electricity and repealing Directive 2003/54/EC. The directive is the main sectoral regulation which
require a structural reform in EU electricity sectors. The futher detail about the ex ante approach of
regulation would be presented in Chapter 5 of the theis relating to “regulation for competition”.
317
Michael J. Frese, 'Fines and Damages Under EU Competition Law Implications of the
Accumulation of Liability' (2011) 34(3) World Competition Law and Economics Review 397.
318
Ibid.
 169

Although the competition law and sectoral regulation appear to have

different remedies under the ex ante and ex post approaches, they complement each
other in order to promote and protect market competition in the electricity sector.
According to Armstrong and Sappington, the ex ante and ex post approaches
to competition law and sectoral regulation play vital and complementary roles in
dealing with the market power of incumbent firms in the liberalised electricity
sector.319 This is because the increase of competition law enforcement and
regulatory oversight of the electricity sector can ensure that competition has the
opportunity to develop to an efficient level.320 For example, the complementary
roles of the competition law and sectoral regulation are employed by the EU to
promote and protect market competition in the electricity sector.321 The EU
Commission employs the ex ante approach via regulatory obligation to order the
open market of member countries and to employ competition law enforcement to
drive out anti-competitive conduct and market barriers.322 Thus, in the EU’s single
market, the regulatory mechanism and competition law enforcement are
complementary to facilitate an open electricity market and create market
competition.323
The complementary nature of competition law and sectoral regulation can
also be seen when the ex ante regulatory obligation is not able to deal with anti-
competitive conduct in the market because the regulatory mechanism usually deals
with obligations in structural change and the standard setting of the sector.324 The
regulation would not deal directly with the anti-competitive conduct. For example,
in the refusal-to-deal case described earlier, the ex ante approach is not able to deal
with the anti-competitive conduct of the incumbent firm; however, competition law
enforcement can complement the regulation by obligating the incumbent firm to deal
with the market participants in operation of interdependent electricity networks. The
319
Mark Armstrong and David E.M. Sappington, 'Regulation, Competition and Liberalization' (2006)
44(2) Journal of Economic Literature 325.
320
Ibid.
321
Geradin above n 308.
322
EU competition commission, 'Energy:Overview on Liberalisation of the electricity and gas
markets' (2010) <http://ec.europa.eu/competition/sectors/energy/overview_en.html>; Ulrich Scholz
and Stephan Purps, 'The Application of EC Competition Law in the Energy Sector' (2010) 1(1)
(January 1, 2010) Journal of European Competition Law Practice 37.
323
See EU Commission Directive 2003/54/EC and See case of Citiworks AG v Flughafen
Leipzig/Halle GmbH and Bundesnetzagentur,(Case C-439/06) [2008].
324
Stoyanova above n 225.
 170

competition law enforcement then helps to correct the market and promote market
competition.325
Moreover, competition law and sectoral regulation can play complementary
roles to protect and promote market competition when sectoral regulation is captured
by firms’ influence.326 Competition law enforcement can help overcome the fear that
sectoral regulation with or without intention may provide regulations that favour
firms in the sector rather than market competition and efficiency.327 Competition law
enforcement, which is independent of the concentrated influence of firms in the
regulated sector, can play a significant role in protecting market competition in the
electricity sector. In the research of Carlton and Picker on the US’ experience of
anti-trust (competition law) and sectoral regulation, the competition law
enforcement, through an independent judiciary, can overcome the special interests of
firm in the regulated sector and help to promote market competition that delivers
lower utility prices.328
The competition law, which tends to be an ex post remedy, can also
complement ex ante sectoral regulation in the electricity sector using the merger and
acquisition remedy. Competition law can complement sectoral regulation when there
is consideration of the potential creation of an uncompetitive structure derived from
mergers and acquisitions of firms in the electricity sector. Thus, the competition law
can be seen as a complementary remedy when there is a potential rise in
uncompetitive conditions derived from electricity firms’ mergers and acquisitions.329
In addition, the competition law can be a useful complementary remedy for
sectoral regulation when the regulated firm uses its market power in one utility

325
See case of Citiworks AG v Flughafen Leipzig/Halle GmbH and Bundesnetzagentur,(Case C-
439/06) [2008].
326
ICN, Report of the ICN Working Group on Telecommunications Services:Appendix II Different
Models of Allocating Oversight Responsibilities,(2006)
ICN<http://www.internationalcompetitionnetwork.org/uploads/library/doc384.pdf> 86 at 3 October
2012
327
OFT, Government in markets Why competition matters –a guide for policy makers (Office of Fair
Trading, 2009) <http://www.oft.gov.uk/shared_oft/business_leaflets/general/OFT1113.pdf> at 3
October 2012; Giorgio Monti, 'Managing the Intersection of Utilities Regulation and EC Competition
Law' (2008) 4(2) The Competition Law Review , 123 at 128.
328
Dennis W. Carlton and Randal C. Picker, 'Antitrust and Regulation' (US National Bureau Of
Economic Research, Working Paper 12902, 2007) <http://www.nber.org/papers/w12902.pdf>.
329
ICN, 'Antitrust Enforcement in Regulated Sectors Working Group:Subgroup 3: interrelations
between antitrust and regulatory authorities' (Paper presented at the The Third ICN Annual
Conference, Soul 2004)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc379.pdf>.
 171

sector to engage in anti-competitive conduct in another sector.330 This can be seen

from the EU experience in which competition law can help deal with incumbent
firms’ cross-sector abuse of market power.331 The incumbent firms in energy
sectors, especially the gas and electricity sector, tend to increase their business
convergence to other utility firms and use their market power and infrastructure
facilities to create anti-competitive conduct and barriers in other utility sectors such
as telecommunications and transportation.332 Thus, competition law enforcement
complements the limited ambit of sectoral regulation that focuses on a specific
utility sector.

4.4.2 Overlaps and conflicts

Although the interaction between competition law and sectoral regulation is
complementary, it also creates overlap and conflict between them. Competition law
enforcement may intervene in the regulatory sector’s decision on specific utility
sectors. Where there is an overlap of the work of two authorities over sector-specific
utilities, there is a conflict between both authorities. The decision by the sectoral
regulator to intervene in the market by regulatory obligation might conflict with
competition law enforcement. The example is from the EU’s experience in the
Deutsche Telecom case.333 In this case, the EU Competition Commission made a
decision to fine Deutsche Telecom on the grounds of margin squeeze conduct
intervening the EU’s competition law. Deutsche Telecom defended itself, stating
that the conduct was under regulatory permission and supervision and that the EU

330
ICN, Antitrust Enforcement in Regulated Sectors Working Group' (Paper presented at the The
Third ICN Annual Conference, Soul 2004)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc379.pdf>.
331
Damien Geradin, 'Regulatory Issues Raised by Network Convergence: The Case of Multi-Utilities'
(2001) 2(1) Journal of Network Industries.
332
Rolf W Kunneke, 'Economies of Convergence: Towards a Redefinition of the Energy Business'
(2001) 2(1) Journal of Network Industries 7 ; Jon Moore and William Melody, 'Converging
Infrastructures: Telecommunication Synergies in the US Rural Electricity Sector' (2001) 2(1) Journal
of Network Industries 77 ; Frank Van Overbeeke, 'Changing Identity of an Energy Distribution
Company' (2001) 2(1) Journal of Network Industries 69.
333
Deutsche Telekom AG v. Commission, (Case T-271/03) [ 2008],EU Union, 'The Court of First
Instance upholds the fine imposed on Deutsche Telekom for its local network access charges between
1998 and 2002 ' (EUUnion,2008)
<http://europa.eu/rapid/pressReleasesAction.do?reference=CJE/08/26&format=HTML&aged=1&lan
guage=EN&guiLanguage=en>.
 172

Competition Commission had committed errors in making such a decision.334

Deutsche Telecom also argued that the Commission’s decision infringed legal
certainty and the protection of legitimate expectations because the alleged margin
squeeze conduct was under the regulatory decision of the sectoral regulator,
Regulierungsbehörde für Telekommunikation und Post (RegTP), and Deutsche
Telecom was only complying with the regulatory order.335 The EU’s Court of First
Instance subsequently decided that the EU Competition Commission was correct in
making a decision against Deutsche Telecom, and it provided that the decisions of
RegTP in respect of telecommunications law do not in any way affect the
Commission’s authority to find infringements of competition law.336
An example of the overlap and conflict can be seen in the US’Trinko case,337
in which the US Supreme Court had to decide whether the sectoral regulator—the
Federal Communications Commission (FCC) and New York’s Public Service
Commission (NYPC)—or the private plaintiff (Trinko) under the class action right
of competition law (Sherman Act) had the power to take action against the
incumbent Verizon telecommunication company. The court decided that sectoral
regulation338 would be an applicable remedy for the case,339 and that private action
did not recognise competition law enforcement under the essential facility
doctrine.340 Thus, there is an overlap of authority between competition law
enforcement and sectoral regulation, which might create regulatory conflict in the
promotion and protection of market competition in the utility sector.
In addition, an overlap might arise when the competition law enforcement’s
decision conflicts with the sectoral regulatory decision, which creates a marker
barrier to the utility sectors. For instance, the Chilean Competition Commission
reported that it must be involved with issues of jurisdictional conflicts with sector
regulators because the latter imposes legal barriers on entry that affects the creation

334
Ibid.
335
Ibid.
336
Ibid.
337
Verizon Communications v. Law Offices of Curtis V. Trinko, LLP540 U.S. 398 (2004).
338
US Telecommunication Act 1996.
339
Ibid. at 405.
340
Ibid. at 407.
 173

of market competition in the utility sectors.341 The Commission must make a formal
request to the court to ask the sectoral regulator to re-examine, amend or remove the
regulatory decision, which contributes to the market barrier threatening
competition.342
Moreover, it is noted that overlap and conflict can occur when competition
law enforcement and sectoral regulation have to consider the merger and acquisition
of firms in the utility sectors. As discussed above, the competition law helps to
promote and protect market competition by through merger control of firms in the
utility sectors. Thus, the merging firms have to notify and seek permission from the
Competition Commission prior to establishing a merger and acquisition.343
However, the Competition Commission that approves or disapproves the merger and
acquisition could run into a conflict with the sectoral regulator’s decision, as shown
in the case of the different merger policies between the US DOJ/FTC and the
FERC.344 The difference in the merger policies may create a conflict in the approach
to prevent the merger and acquisition, which results in anti-competitive
conditions.345
The overlap and conflict between the competition law and sectoral regulation
results from the different approaches to governing market competition. While the
competition law aims to protect the process of competition rather than firms, and
tells the firms in the market what they should not do, sectoral regulation does the
reverse, telling market agents what to do.346 Thus, coordination and cooperation
must be established between the competition law and sectoral regulation to minimise
conflict and enhance the promotion and protection of market competition. The
establishment of cooperation relating to institutional cooperation between the
competition law and sectoral regulation is discussed below.

341
Chilean competition commission, 'Issues Relates to Competition Law' (APEC Competition Policy
& Law Database, 2009) <http://www.apeccp.org.tw/doc/Chile/Admin/admin02.html>.
342
Ibid,
343
Wei Wang, 'Structural Remedies in EU Antitrust and Merger Control' (2010) 34(4) World
Competition, 571-596.
344
Milton A. Marquis, 'DOJ, FTC and FERC Electric Power Merger Enforcement: Are There Too
Many Cooks in the Merger Review Kitchen?' (2002) 33 Loyola University Chicago Law Journal.
345
Ibid.
346
Cornelius Dube, 'Competition Authorities and Sectoral Regulators: What is the Best Operational
Framework?' (2008) <http://www.cuts-international.org/pdf/Viewpointpaper-
CompAuthoritiesSecRegulators.pdf>.
 174

4.4.3 Establishment of cooperation between the competition

law and sectoral regulation
It is important to focus on how to create coordination and collaboration
between the competition law and sectoral regulation in order to prevent potential
regulatory conflict between them. Institutional cooperation would take place with
the establishment of formal rules requiring cooperation and coordination between
the competition law and sectoral regulation. The establishment of the rules would
prevent potential regulatory conflict while creating an institutional competition and
coordination between the competition law and sectoral regulation.
For example, the UK concurrency regulations gives concurrent jurisdiction
for both the OFT and sectoral regulators to enforce competition law and sets out
clear procedures for determining who can exercise competition law in the utility
sectors.347 The concurrency regulation sets out that where OFT or the sectoral
regulator is enforcing competition law, it is required to inform the other competent
authority in order to create an understanding of who should enforce the competition
law.348 If agreement cannot be reached, the Secretary of State will decide who
should enforce the competition law.349 The concurrency regulations states that not
more than one authority may exercise competition law in the same case to avoid the
risk of double jeopardy.350 The concurrency regulations also sets out rules that
enable the OFT and sectoral regulators to shares their staffs to assist in cases being
conducted by each authority.351 By the concurrency regulations, there is
coordination between the competition Commission and sectoral regulators, and the
regulation helps to prevent conflict between both authorities in exercising their
power to promote and protect market competition in the utility sector.
Another example of the rules that help set up coordination between the
competition law and sectoral regulation is the Australia’s experience, which
suggests that coordination between the competition law and sectoral regulation is by

347
The Competition Act 1998 (Concurrency) Regulations 2004.
348
Ibid. section 4.
349
Ibid.
350
Ibid, section 6.
351
Ibid, section 8.
 175

staff sharing and by the mutual arrangements of the relevant competition and
sectoral regulatory bodies. The ACCC and Energy Regulator are established as
separate institutions, but the Consumer and Competition Act 2010 requires that
Australian Energy Regulator’s (AER’s) staffs, resources and facilities will be
provided from the ACCC.352 By sharing personnel and facilities, the ACCC and the
AER are able to coordinate to make a decision to promote and protect market
competition in the gas and electricity sectors. Moreover, the unique experience is
that the ACCC and the AER established a Memorandum of Understanding (MOU)
with other state regulators to promote effective communication, cooperation and
coordination in regulating energy sectors.353 By sharing personnel between the ACCC
and the AER, and through the MOU between the ACCC, AER and state regulators,
they must notify and consult with other agencies before adopting any regulatory
decisions. The competition law and sectoral regulation overlap under the
consistency and cooperation approach to promote and protect efficient market
competition in Australia’s gas and electricity sectors. Thus, the interaction between
the competition law and sectoral regulation is important in promoting and protecting
market competition. This would lead to the establishment of institutional
cooperation and coordination to exert consistency and ensure that the competition
law and sectoral regulation are complementary.

4.5 Conclusion
The first part of this chapter provided an introduction that aimed to explore
the international experiences of competition law to promote and protect market
competition. The chapter then provided some principle for dealing with Thailand’s
current ineffective competition law discussed in Chapter 2 of the Thesis. This was
followed by possible significant reform of Thailand’s competition law, which will
be discussed further in Chapter 6.

352
See Australian Competition and Consumer 2010 part II section 8B and Part IIIAAA section
44AAC
353
AER, Memoranda of Understanding and agreements with other agencies (2011)
<http://www.aer.gov.au/content/index.phtml/itemId/680477>.
 176

The second part of the chapter explored the general objectives and functions
of competition law, thus providing some ideas about setting the objectives and
functions of competition law for a reform of Thailand’s currently ineffective
competition law.
In the third part, the chapter explored competition law relating to the
electricity sector, including (1) the application of competition law to the utility
sectors from various jurisdictions, (2) the substantive rules of competition law in the
utility sectors, including the electricity sector, and (3) competition law institutions as
important agencies to promote and protect market competition. It found that various
countries apply competition law as an important legal mechanism to promote and
protect market competition in the utility sectors.
It also found that there are substantive rules of competition law that provide
important available remedies for dealing with anti-competitive conduct in the utility
sectors, especially the electricity sector. This includes prohibitions on (i) abuse of
market power, (ii) refusal for access to essential facilities, (iii) predatory pricing, (iv)
margin squeeze, (v) cartelisation and (vi) firms’ mergers and acquisitions. In
addition, the third part of the chapter explored competition law institutions that play
a significant role in enforcing the substantive rules of the law. It found that the
crucial elements of effective competition law institutions include (i) independence,
(ii) sufficient human and financial resources and (iii) private enforcement that is
supplementary to the agency enforcement.
In the fourth part, the chapter explored the interaction between the
competition law and sectoral regulation, which is important for the development of
the competition law and sectoral regulation in the electricity sector. It found that the
competition law and sectoral regulation are complementary to each other in
promoting and protecting market competition in the utility sectors. It also showed
that there are overlaps and conflicts between the competition law and sectoral
regulation, which requires the establishment of cooperation between the competition
law and sectoral regulation to help create consistency of interactions. The
exploration and discussion in Chapter 4 provided some ideas for possible reforms of
the currently ineffective Thai competition law.
 177

Chapter 5 explores the international experiences of sectoral regulation in the

electricity sector, which are presented in order to formulate ideas for possible
reforms of Thailand’s electricity regulation. When taken together Chapters 4 and 5
are important to providing a platform for the analysis of possible significant reform
to Thailand’s competition law and sectoral regulation as discussed in Chapter 6.
 178

Chapter 5: International experience on regulation on

competition in electricity infrastructure sector

Aim of this chapter: This chapter explores the international experiences with
respect to regulation in the electricity sector in order to build market competition.
The chapter intends to answer the second thesis question: What is the international
experience regarding the shaping of competition law and sectoral regulation when
seeking to transform the electricity sector into a competitive market?

5.1 Introduction
In the previous chapter, the thesis explored the international experiences of
competition law in the utility and electricity sectors. This provided a number of
ideas for the reform of Thailand’s competition law in relation to the electricity
sector. In this chapter, the thesis focuses on international experiences in sectoral
regulation that help to promote competition in the electricity sector. The chapter
aims to explore international experiences in sectoral regulation that can possibly be
relied on to help reform the framework for sectoral regulation in Thailand’s
electricity sector discussed in Chapter 3.
The second part of this chapter discusses the general ideas of regulation in
utility infrastructure by presenting the developments and trends of utility
infrastructure regulation. It displays the reasons for employing regulation as a
mechanism to control utility sectors under the public interest and capture theories. It
also presents the theories that influence the process of liberalisation, deregulation
and re-regulation of the electricity sector.
The third part of the chapter explores international experiences with the
development of regulation so as to help promote competition in the electricity
sector. The following will be considered: (1) regulatory institutions, (2) regulations
for promoting market competition and 3) regulation of market competition. This will
provide some ideas for issues and problems in Thailand’s electricity sector discussed
 179

in Chapter 3. The ideas will then be analysed for possible significant reforms to
Thailand’s electricity sector and will be presented in Chapter 6.

5.2 Overview of regulation in the utility sector

This section explores general views on regulation in the utility sector in order
to provide a picture of the trends and development of regulation. It creates a better
understanding of the use of regulation as a tool to promote competition in the utility
and electricity sectors. This section focuses on (1) defining the regulation of the
utility sector, (2) reasons to use regulation in the utility sector under the main
theories of public interest and capture theory, and (3) the trend and development
towards deregulation and re-regulation of the electricity sector.

5.2.1 What is regulation of the utility sector?

Although regulation has an unclear definition and may cover broad areas of
state controls over social and economic activities,1it is accepted that regulation is the
control of government agencies over the activities that society deems important.2
The control is purported to prevent undesirable behaviour, actions and activities or
to enable and encourage desirable activities.3 Regarding the market economy,
regulation is a set of rules for providing the government with various ways of
intervening in economic activities.4 This idea commonly derives from concepts of
the political economy literature as the efforts of state authority to steer the market
economy.5
Thus, when applied to the utility sector, the regulation becomes a set of
controls determined by the integration of institutions, laws and processes that give a

1
Robert Baldwin, Colin Scott and Christopher Hood, A Reader on Regulation (Oxford University
Press, 1998) p 4.
2
P. Selnick, 'Focusing Operational Research on Regualtion' in Roger G. Noll (ed), Regulatory Policy
and the Social Sciences (University of California Press, 1985).
3
United Nations Economic and Social Commission for Asia and Pacific, The Economic Regulation of
Transport Infrastructure Facilities and Services Principles and Issues (UN, 2001),1.
4
Jean-Jacques Laffont, 'The New Economics of Regulation Ten Years After' (1994) 62(3)
Econometrica 507
5
Baldwin, above n 1, 3.
 180

government power over the operating and investment decisions of infrastructure

firms that supply utility services.6 The utility regulation can be seen in various
instruments such as price and output controls, rate of return (in the form of profits,
margins or commissions) and the disclosure of information, standards and
ownership ceilings.7 It may also include rules of controls designed to affect the
social behaviour and activities of companies, organisations or individuals, such as
taxation, subsidisation, contractual requirements, licensing and franchising.8 In this
thesis, utility regulation is defined as government rules that control utility sectors
and firms. However, it is important to note that this chapter focuses on regulation,
which helps to promote market competition in the utility and electricity sectors.

5.2.2 Why regulate the infrastructure utility?

The reasons for utilising regulation to control the market can be seen from
the various studies on the development of regulation in infrastructure.9 However,
this thesis focuses on two main theories of utility regulation: the public interest
theory and the capture theory.

5.2.2.1 Utility regulation under public interest theory

The public interest theory provides the support for the adoption of regulation
to create market efficiency, which can be of benefit to consumers.10 Posner
suggested that economic regulations in the public utility sector by the public interest
theory were ‘simply responses of government to public demands for the rectification
of palpable, and remediable, inefficiencies and inequities in the operation of the free

6
Ashley C. Brown et al, Handbook for Evaluating Infrastructure Regulatory Systems (The
International Bank for Reconstruction and Development / The World Bank, 2006) 17.
7
R. S. Khemani and D. M. Shapiro, OECD: Glossary Of Industrial Organisation Economics And
Competition Law (OECD, 1993).
8
United Nations Economic and Social Commission for Asia and Pacific, above n 3.
9
Ibid. and See regulatory studies from Robert Baldwin and Martin Cave, Understanding Regulation,
Theory, Strategy and Practice (1999).
10
See Michael Hantke-Domas, 'The Public Interest Theory of Regulation: Non-Existence or
Misinterpretation?' (2003) 15(2) European Journal of Law and Economics 165 - Michael proposed
on his work that there is no such a public interest theory but it is not persuasive as there is general
acceptance from various researchers that the public interest theory does exist.
 181

market’.11 The regulation is employed to stimulate firms to produce output

efficiently from cost and quality with the consideration of consistency with budget–
balance constraint for the regulated firms, which allows the firms to retain their costs
of providing services while preventing their ability to exercise their market power to
exploit consumers by charging excessive prices.12
The regulation under public interest theory is the rules used when the utility
market is inefficient when only relying on the market competition. This idea can be
traced back to Insull’s opinions on the development of utility regulation of the
electricity sector in the US.13 In 1897, Insull proposed that the electricity utility
sector should be regulated by a governmental agency because, when a company
failed to give satisfactory services, the municipal government would have the right
to acquire its electricity plant at cost less depreciation.14 Insull presented that the
government regulation would benefit the public15 because regulation would give
public consumers a fair rate of electricity utility services.16
From Insull’s proposal to use regulation for electricity utility sector,, the
competition was treated as an inefficient method of managing the electricity
market.17 The market competition was then considered in business sectors, such as
electricity, as an undesirable way to increase efficiency in the electricity market, and
should therefore be eradicated by state regulation.18 The public interest theory then
led to the 1907–1938 trend of passing public regulations, which created state-
protected public electricity utility monopolies.19 The passing of the regulation is also
based on the economic theory of natural monopoly, pointing out that the utility
sector (electricity), containing economies of large-scale production will not be

11
Richard A Posner, 'Theories of Economic Regulation' (1974) 5(2) The Bell Journal of Economics
and Management Science 335.
12
Paul L Joskow, 'Incentive Regulation and Its Application to Electricity Networks' (2008) 7(4)
Review of Network Economics 547.
13
Forrest McDonald, 'Samuel Insull and the Movement for State Utility Regulatory Commissions'
(1958) 32(3) The Business History Review 241.
14
Ibid, 241.
15
Ibid.
16
See Richard H.K. Vietor, 'The Hubris of Regulated Competition: Airlines, 1925-88' in Jack C.
High (ed), Regulation: economic theory and history (University of Michigan Press, 1997) 152.
17
McDonald above n 13.
18
Horace M Gray, 'The Passing of the Public Utility Concept' (1940) 16(1) Journal of Land & Public
Utility Economics 9.
19
Ibid.
 182

operated with efficiency and economy unless it occupies a monopoly position in its
market.20
During the 1930s–1950s, the public interest theory became a mainstream
idea of the government that required regulation of public utility as the necessary
mechanism to manage the efficiency of utility markets for the benefit of
consumers.21 Moreover, academics also started to refer to the idea of public interest
as a rationale for regulation. For example, in 1955, Bernstein presented that the
regulation is the mechanism for protecting public interest from the influence of
pressure groups.22 He explained that regulation is inspired by the public pressures
that request compensation from the abuse of business firms.23A similar idea was
proposed by Fainsod and Gordon, who considered regulation the mechanism for
alleviating aggrieved public groups.24 The regulation under public interest theory
was then use as a legitimated government mechanism to protect consumers from the
utility firm’s abuse of market power.25 However, the public interest theory providing
the legitimacy of government market regulation was challenged by scholars who
reconsidered the regulation under capture theory as a mechanism for protecting the
26
interests of business groups rather than the public. The next section discusses the
capture theory of regulation.

5.2.2.2 Utility regulation under capture theory

The capture theory of utility regulation originated from scepticism of the
legitimacy of the public interest theory.27 Researchers on capture theory questioned
the optimistic view of public interest theory on utility regulation by proposing that
the regulation may be subject to capture by private interests and so serve the
interests of the business rather than the public. Stigler and Friedland embarked on a

20
James C Bonbright, Principle of Public Utility Rates (1969) 11.
21
Michael Hantke-Domas, 'The Public Interest Theory of Regulation: Non-Existence or
Misinterpretation?', (2003) 15(2), European Journal of Law and Economics, 165, 178-181.
22
Bernstein S and Cashore B, 'Can non-state global governance be legitimate? An analytical
framework' (2007) 1 Regul. Gov. 347
23
Ibid.
24
Merle Fainsod and Lincoln Gordon, Government and the American economy (W.W. Norton, 1941).
25
Ibid.
26
Michael E. Levine and Jennifer L. Forrence 'Regulatory Capture, Public Interest, and the Public
Agenda: Toward a Synthesis' (1990) 6 Journal of Law, Economics, & Organization 167, 169.
27
Ibid.
 183

study of the effects of regulation on the electricity sector.28 However, while they
found no solid effects of regulation on the electricity sector, they noticed that the
regulation does not control electricity firms to operate under expected efficient
electricity market.29
After the inefficiency of regulation noted by Stigler and Friedland, Noll
continued the study on government regulation and concluded that ‘the regulatory
agencies made decisions which are not in the public interest and the decisions reflect
to an effort to maintain the economic status of the regulated firms.’30 This is similar
to Demsetz’s study on the public regulation of utility sectors, which suggested that
the underlining economics of natural monopoly is incorrect,31 and the true rationale
for adopting the regulation of utility sectors is based on the influence of firms
operating in utility sectors.32 He concluded that regulation is a legal mechanism for
firms to prevent the creation of market competition in utility sectors.33
Demsetz’s standpoint is reaffirmed by Stigler‘s research on utility regulation,
which states that rules and regulations in the utility sector are influenced by the
industry and are designed and operated primarily for firms’ benefit.34 Stigler’s
research contributed to increasing scepticism on the regulation of the utility sector,
especially electricity that tends to be controlled by significant incumbent private
firms.35 Moreover, the capture theory on regulation is also in Moore’s research,
which tested whether the electricity price is higher due to the regulation.36 His
research found that regulation was ineffective because it led to perverse price
effects.37 Jarell then determined the relationship between government regulation on

28
George J. Stigler and Claire Friedland, 'What Can Regulators Regulate? The Case of Electricity'
(1962) 5 Journal of Law and Economics 1.
29
Ibid.
30
Roger Noll, 'The Economics and Politics of Regulation' (1971) 57(6) Virginia Law Review 1016
31
Ibid - Noll found that the economic theory of natural monopoly is exceedingly brief and, we shall
see, exceedingly unclear.
32
Harold Demsetz, 'Why Regulate Utilities?' (1968) 11(1) Journal of Law and Economics 55.
33
Ibid.
34
George J. Stigler, 'The Theory of Economic Regulation' (1971) 2(1) The Bell Journal of Economics
and Management Science 3.
35
Ibid.
36
Charles Guy Moore, 'Has electricity regulation resulted in higher prices? An econometric evaluation
utilizing calibrated regulatory input variables' (1975) 7(2) Economic Inquiry 207.
37
Ibid.
 184

the price of electricity and the profits of electricity producers.38 Jarell’s study
contributes to critiques on the basic rationale of adopting regulation as a means to
protect public interests from natural monopolistic industries.39 Jarell concluded his
study by stating that electricity firms were politically more powerful than consumers
in influencing state regulation on allowing entry and determining the creation of
competitive conditions in the electricity market.40 Thus, capture theory displays a
hindside of regulation under public interest theory that the regulation does not
protect public interest but the regulation is rather become a mechanism for utility
firms to protect firms’ interest.41
As the capture theory reconsiders the purposes and uses of regulation on the
utility sectors, it contributes to important policy movements towards the
deregulation and liberalisation of the utility markets. The capture theory has
influenced changes to government policy from using regulation to intervene in
markets to instead promoting deregulation, which opens markets to competition.42
This led to a period of the deregulation and liberalisation of the utility sectors, and
regulation was treated as an inefficient mechanism for fear that it may be subject to
the capture of private interest groups.43 This stemmed from the point that regulation
that provides the exclusive monopoly right to firms to operate utilities tends to
create inefficiency in the market. The approach of economic liberalisation under the
capture theory then contributes to the economic reform of deregulation,
liberalisation and privatisation of previously regulated utility sectors. By supporting
the mechanism of market competition, the reform of goods and services, which the
government tends to operate ineffectively or inefficiently, can be seen in important

38
Gregg A. Jarrell, 'The Demand for State Regulation of the Electric Utility Industry' (1978) 21(2)
Journal of Law and Economics 269.
39
Ibid.
40
Ibid.
41
Ibid.
42
Owen E. Hughes, 'Pro-Competitive regulation as A Role of Government' (1995) 54(3) Australian
Journal of Public Administration 364, 367.
43
See Milton Friedman, Capitalism and freedom (University of Chicago Press 1962); Richard A.
Posner, Economic analysis of law (1972) (1972); Sam Peltzman, 'Toward a More General Theory of
Regulation' (1976) 19(2) Journal of Law and Economics 211; Sam Peltzman, Michael E. Levine and
Roger G. Noll, 'The Economic Theory of Regulation after a Decade of Deregulation' (1989)
<http://www.jstor.org/stable/2534719>
 185

utility infrastructures such as telecommunications, transport (airline), and energy

and electricity.44
Thus, there is a theoretical swing relating to the consideration of regulation
and competition. While the public interest theory claims that regulation can replace
competition for creating economic efficiency, the capture theory treated regulation
as the inefficient characteristic for the economy and prefers deregulation for the
increase of market competition.
This thesis relies on both theories of regulation by trying to utilise the
advantage point of each theory to find the appropriate regulation because market
competition cannot create itself. It needs to be created by removing inappropriate
regulation or by promoting deregulation and adopting, where appropriate, regulation
that helps create market competition in the utility sector. This point is discussed
further below.

5.2.2.3 Deregulation and re-regulation in the electricity sector

The reason that the thesis uses the regulation theories discussed above is that
the market competition cannot be derived or established without any assistance of
regulation.45 This means that the public interest theories, which favour regulation to
intervene in an inefficient market, can help to facilitate market competition, which is
the main objective of capture theory, preferring a free flow of market competition
rather than regulation intervention. Many countries moved towards a policy of
liberalisation and deregulation by opening the utility sector to create market
competition;46 however, the liberalisation and deregulation can be seen as a form of
‘re-regulation’ to make the market more competitive and efficient.47 That is,
countries have reframed their regulation from an inefficient one to a new form of

44
Newbery D.M, 'Privatisation and liberalisation of network utilities' (1997) (41) European
Economic Review 359.
45
Bernard Tenenbaum, 'The Real World of Power Sector Regulation' (1995) June(Note No. 50)
World Bank Public Policy for Private Sector - Bernard explain that the regulation is still important
for liberalisation implementation because the regulation for the electricity market reform can be the
important mechanism for protecting consumers and ensure the certainty of business for investors.
46
Stilpon Nestor and Ladan Mahboobi, 'Privatisation of Public Utilities:The OECD Experience '
(OECD, 1999) <http://www.oecd.org/dataoecd/48/24/1929700.pdf>.
47
Severin Borenstein and James Bushnell, 'Electricity restructuring: Deregulation or reregulation?'
(2000) 23(2) Regulation 46.
 186

regulation that can promote market competition in network industries.48 This means
that there is still a need for market regulation before the establishment of market
competition.49 Thus, regulation and competition is seen as the interplay between
public interest theory and capture theory.50
Important examples can be found in the experiences of the US and the UK,
which were the first and second countries to adopt liberalisation in their network
utility sectors. Both countries, when implementing privatisation and liberalisation
policies, reframed their utility regulation to the competitive-based regulation to help
restructure the utility markets towards market competition.51 The reform in both
countries was then followed by other countries, which reframed their existing
regulations on network utility towards efficient regulations that helped to create
market competition.52 Countries in the EU, Asia and Latin, although implementing
various styles of liberalisation and deregulation, reformed their policy and
reregulation for restructuring their networks’ industries towards market
competition.53
In the electricity sector, the reform of regulation also aims to create
competition. The regulation has been reshaped to promote market competition and
to ensure that market competition works as efficiently as possible.54 The main
reform can be seen in aspects of the reform on 1) regulatory institution, on 2) the
regulation for competition, and on 3) the regulation of competition. Further detail of
the three aspects of electricity regulation will be discussed in detail in the next
section.

48
Ibid.
49
Michel Ghertman and Claude Ménard, Regulation, Deregulation and Reregulation: Institutional
Perspectives (Edward Elgar, 2009).
50
Jorgen Gronnegaard Christensen, 'Public interest regulation reconsidered From capture to credible
commitment' (Paper presented at the ECPR Regulatory Governance Standing Group, University
College, Dublin, 2010) <http://regulation.upf.edu/dublin-10-papers/1J1.pdf>.
51
David M. Newbery, Privatization, Restructuring, and Regulation of Network Utilities (.Cambridge,
MA: The MIT Press, 1999); M. E. Beesley and S. C. Littlechild, 'The Regulation of Privatized
Monopolies in the United Kingdom' (1989) 20(3) The RAND Journal of Economics 454.
52
Ibid and see Ghertman and Ménard, above n 49.
53
David G. Victor and Thomas C. Heller, The Political Economy of Power Sector Reform: The
experience from Five Major Developing Countries (Cnambridge University Press, 2007) ; David
Hall, Stephen Thomas and Violeta Corral, 'Global experience with electricity liberalisation' (Public
Services International Research Unit (PSIRU) 2009).
54
Timothy J. Brennan, Karen Palmer and Salvador Martinez, 'Implementing Electricity Restructuring:
Policies, Potholes, and Prospects' (Resources for the Future, Discussion Paper 01–62, 2001)
<http://www.rff.org/documents/RFF-DP-01-62.pdf>.
 187

5.3 Regulation of market competition in the

electricity sector
As shown above, there should be a reform of regulation to facilitate market
competition in the electricity sector. This section will explore international
experiences of reform of regulation, which helps to promote competition in the
electricity sector. It focuses on three main aspects: (1) regulatory institutions of
electricity regulators, (2) regulation for structural change towards market
competition and (3) regulation of electricity.55 In exploring the three main aspects of
regulation reform in electricity sector, this section employs a descriptive approach to
examine international experiences and provide an analytical discussion of the
development of regulation in the electricity sector.

5.3.1 Regulatory institutions

The International Energy Agency and the OECD reported that the reform of
regulatory institutions and functions for the electricity sector is a key ingredient of
successful reform.56 The establishment of institutions or regulators must be the first
priority in reshaping the electricity sector towards a competitive and efficient
sector.57 Researchers also pointed out the importance of establishing a regulator to
supervise the electricity and utility sectors that were liberalised or privatised.,
especially as failing to establish an effective regulator would damage the emergence

55
John Kay and John Vicker, 'Regulatory Reform: An Apprisal ' in Giandomenico Majone (ed),
Deregulation or re-regulation? : regulatory reform in Europe and the United States (1990) -Kay and
Vicker provide that Economic regulation consists of two types of regulations: structural regulation
and conduct regulation. ‘Structural regulation’ is used for regulating market structure. Examples are
restrictions on entry and exit and rules against individuals supplying professional services in the
absence of recognized qualifications. ‘Conduct regulation’ is used for regulating behaviour in the
market. By this the chapter then derive with the main aspects of regulation that helps promote
competition in electricity sector under the establishment of regulatory institution which can exert the
regulation for market competition (structural regulation) and the regulation of market competition
(behavior regulation).
56
International Energy Agency, 'Regulatory Institutions in Liberalised Electricity Markets'
(OECD/IEA, 2001)< http://www.oecd-ilibrary.org/energy/regulatory-institutions-in-liberalised-
electricity-markets_9789264189317-en>.
57
Ibid; See also from OECD, 'Review Of Regulatory Reform in the United Kingdom: Regulatory
Reform in Gas and Electricity and the Profession'(OECD 2002)
<http://www.oecd.org/regreform/2766184.pdf> .
 188

of market competitive efficiency.58 This is because, according to North, regulators

and institutions play supervision roles so the economic sector can foster the
development of efficiency.59 Guasch and Spiller have a similar view of the regulator
as the main institution that fine-tunes the changes of the economic sector to achieve
competitive efficiency.60 Thus, it is important to consider the appropriate regulatory
institution to stimulate the effective development of competition and efficiency in
the electricity sector.61
In exploring the appropriate regulatory institution that can oversee and
support the creation of market competition in the electricity market, this chapter
focuses on the international experiences of countries that have implemented a reform
of regulatory institutions that help promote competition creation in the electricity
sector. This will provide some ideas of setting up regulatory institutions for
competition creation in the electricity sector.62 The experiences are based on the US,
the UK, Australia, New Zealand, Korea and Japan.

5.3.1.1 United States of America

In relation to the US experience of regulatory institutions for electricity
reform, the Federal Energy Regulatory Commission (FERC)63 was established as a
main and independent regulator, playing a key role in liberalising the electricity
sector. FERC is authorised to regulate the interstate transmission of natural gas, oil

58
Gérard Roland, 'On the Speed and Sequencing of Privatisation and Restructuring' (1994) 104(426)
The Economic Journal 1158 ; see also in Chaim Fershtman, 'The Interdependence between
Ownership Status and Market Structure: The Case of Privatization' (1990) 57(227) Economica 319.
59
Douglass C. North, Institutions, Institutional Change and Economic Performance (1991).
60
J. Luis Guasch and Pablo Spiller, 'Managing the regulatory process : design, concepts, issues, and
the Latin America and Caribbean story' (World bank Document No. 19633, 1999) <http://www-
wds.worldbank.org/external/default/main?pagePK=64193027&piPK=64187937&theSitePK=523679
&menuPK=64187510&searchMenuPK=64187283&siteName=WDS&entityID=000094946_990923
12334341>.
61
See Brian Levy and and Pablo T. Spiller, 'The Institutional Foundations of Regulatory
Commitment: A Comparative Analysis of Telecommunication Regulation' (1994) 10(2) Journal of
Law Economics and Organisation 201 - Levy and Spiller pointed out that institutional aspects
regulation need attention if the regulatory reform has to be effective in creating and sustaining
environment for attracting and retaining private investment in the regulated industries; See also in
Jean-Jacques Laffont, Regulation and Development (Cambridge University Press, 2005),198.
62
Gilbert Richard J and Kahn Edward P, International Comparisons of Electricity Regulation (1999)
9.
63
See Federal Energy Regulatory Commission (FERC) at <http://www.ferc.gov/>.
 189

and electricity.64 According to the Federal Power Act 1935, FERC has the power to
regulate the electricity sector in to ensure that US wholesale electricity prices are
‘just and reasonable’.65
FERC plays a considerable role in creating structural change in order to
create a competitive market. It has stated that it focuses on the national policy to
foster competition in wholesale power markets.66 FERC issued regulatory order,
which helps to open up the wholesale market by encouraging the new entry of
electricity generators to compete in the market.67 In 1996, FERC issued order No.
888, which purported to create competition through better access to transmission
facilities68 for the stated purpose of helping to create market competition.69 In 1999,
FERC issued order No.2000, which affected access to electricity transmission.70
Moreover, FERC actively strengthened the enforcement of Energy Policy Act
2005—the legal framework for continuing wholesale competition as federal
regulatory framework for the US market.71 In introducing wholesale competition
and transforming the electricity market’s structure, FERC focused on employing a
regulation to establish competition in wholesale electricity generation.72 However, it
also considered that its main goal was to achieve the best possible mix of regulation
and competition to protect consumers from the exercise of monopoly power.73

64
Ibid.
65
Ibid.
66
US Federal of Energy Regulatory Commission, Electric Competition (2010) US Federal of Energy
Regulatory Commission <http://www.ferc.gov/industries/electric/indus-act/competition.asp>.
67
Ibid.
68
US Federal of Energy Regulatory Commission: Order No. 888 (1997) on Promoting Wholesale
Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities;
Recovery of Stranded Costs by Public Utilities and Transmitting Utilities <
http://www.ferc.gov/legal/maj-ord-reg/land-docs/order888.asp> .
69
See section A and C of the US Federal of Energy Regulatory Commission: Order No. 888 (1997)
on Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission
Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting
Utilities.
70
US Federal of Energy Regulatory Commission, 18 CFR Part 35 [Docket No. RM99-2-000; Order
No. 2000 ] Regional Transmission Organizations.
71
Ibid.
72
Ibid.
73
US General Accounting Office, 'Electricity Markets: FERC’s Role in Protecting Consumers' (US
General Accounting Office, GAO-03-726R FERC Consumer Protection, 2003)
<http://www.gao.gov/new.items/d03726r.pdf>US General Accounting Office, 'Electricity Markets:
FERC’s Role in Protecting Consumers' (US General Accounting Office, GAO-03-726R FERC
Consumer Protection, 2003).
 190

FERC tended to focus on fostering the market competition and monitoring the anti-
competitive behaviour of electricity firms rather than intervening in the market.74
Further, the US competition agencies—DOJ and the US Federal Trade
Commission (FTC)—are other important regulatory institutions that govern the
competition of the US electricity market.75 FTC is able to seek coordination with
FERC to create market competition and prevent the abuse of market power by
electricity firms.76 The DOJ, FTC and FERC have concurrency power to review
mergers and acquisitions of US electricity firms.77 By reviewing the mergers and
acquisitions, the agencies would be able to maintain a competitive business structure
for the electricity sector. Moreover, FTC can provide advice to FERC in making
regulatory changes that can create market competition.78 The FTC provides the
important report on regulatory reforms, which urges FERC to adapt its regulation
that contributes to the increase of consumers by competitive efficiency in the
electricity market.79
The US regulatory framework in the electricity sector is an independent
regulator that focuses on creating a competitive structure in reforming the electricity
market. However, it is also noticed that the regulatory oversight in US electricity
market are under both sector-specific regulators and anti-trust agencies. Denis and
Randal assert that, although the sectoral regulator would bear the main responsibility
of regulating the electricity sector, the anti-trust agency is also of significance to
complement the sectoral regulator because the anti-trust agency would be important
to deal with the distortion of competition under firms’ abuse of market power in the

74
Ibid.
75
See US DOJ’s role on energy sector, including electricity from the website at <
http://www.justice.gov/atr/about/tea.html> at 04 October 2012; See FTC’s role on elecetricity sector
from the website at < http://www.ftc.gov/reports/elec/electricityreport.pdf>.
76
FTC, Comment of the Staff of the Federal Trade Commission on Third-Party Provision of
Ancillary Services; Accounting and Financial Reporting for New Electric Storage Technologies( FTC
2012) < http://www.ftc.gov/os/2012/09/120912fercstaffcomment.pdf>.
77
OECD, 'Roundtables On Competition Issues in Electricity Sector:United States of America'
(OECD, Working Party No. 2 on Competition and Regulation, Document No.
DAFFE/COMP/WP2/WD(2002)30,2002)
<http://www.ftc.gov/bc/international/docs/compcomm/2002--
Rdtable%20on%20Competition%20Issues%20in%20the%20Electricity%20Sector.pdf>.
78
US Federal Trade Commission, 'Staff Report: Competition and Consumer Protection Perspectives
on Electric Power Regulatory Reform' (FTC, 2000) <http://www.ftc.gov/be/v000009.shtm>.
79
Ibid.
 191

electricity sector.80 The regulatory institutions of the US electricity sector are thus
primarily under both the role of sectoral regulation and the oversight of the anti-trust
institution

5.3.1.2 United Kingdom

In the UK, the regulatory framework for electricity reform is an independent
sector-specific regulator.81 In the initial period of liberalisation, the UK
Government established two sector-specific regulators: The Office of Electricity
Regulation (OFFER) and Office of Gas Supply (OGAS). The OFFER, established
by the UK Electricity Act 1989,82 was the regulator, having a duty to create
competitive change for the electricity sector. The OFGAS, established by the Gas
Act 1986,83 also played an important role in creating the efficiency of the UK gas
market by creating competition. However, with the UK Utilities Act 2000 having a
purpose to increase the efficiency of regulatory framework for electricity and gas,
OGEM and OFGAS were merged to become the Office of the Gas and Electricity
Markets (OFGEM).84
After its establishment, OFGEM worked effectively to become the main
regulatory institution to guard consumers’ interests by promoting competition in the
UK’s electricity and gas sectors.85 OFGEM played a considerable role in
establishing the reform framework and ensuring that progression towards a
competitive electricity market emerged.86 It facilitated the creation of a competitive
market by dealing with the incumbent firm and licensing the new competitors into
the electricity and gas markets.87

80
Dennis W.Randal C. Picker, 'Antitrust and Regulation' (US National Bureau Of Economic
Research, Working Paper 12902, 2007), 51 <http://www.nber.org/papers/w12902.pdf>- Carlton and
Picker state that antitrust will remain in the background as a club that firms can use if regulators
allow incumbents to acquire market power either through merger or predatory acts.
81
Beesley and Littlechild, above n 51..
82
UK Electricity Act 1989, s 1.
83
UK Gas Act 1986 s 1.
84
UK Utilities Act, part I s 1.
85
OFGEM, About Us (2007) <http://www.ofgem.gov.uk/About%20us/Pages/AboutUsPage.aspx>.
86
Alan Jones, 'Social Responsibility and the Utilities' (2001) 34(3/4) Journal of Business Ethics 219.
87
OFGEM, Industry Governance (2007) <http://www.ofgem.gov.uk/Licensing/Pages/Licensing.aspx
>
 192

Moreover, OFGEM was approached to increase market competition in the

wholesale and retail electricity markets.88 In the wholesale market, OFGEM focused
on reform by removing market barriers that deter the entry of new market
investors.89 OFGEM also provided greater transparency of information to businesses
and consumers, and, when necessary, it used its authority to monitor and address
anti-competitive behaviour or practices.90 In the retail market, OFGEM initiated the
electricity supply choices to keep the pressure on costs and encourage a greater
choice of services for consumers, such as fixed and capped prices, which are now
available to domestic customers.91 OFGEM refrained from a role of regulatory
intervention to be the market referee by coordinating with the OFT on enforcing
92
competition law in the electricity market. OGEM stated that it ‘withdraws from
direct price regulation and increasingly relies on competition powers to regulate
companies’ behaviour and protect domestic and commercial consumers’ interests’.93
OGEM’s power to apply competition law rules to the electricity sector was
established from the concurrency arrangement that authorises OFGEM to have
concurrent power with OFT in enforcing competition law in the electricity sector.94
OGEM as the main regulatory institution for the electricity sector in the UK can thus
work inter-institutionally with OFT in bringing suit to electricity firms for breaches
of the UK Competition Law Act 1998 and the UK Enterprise Act 2002.95 OFGEM is
then able to initiate the enforcement action in relation to suspected infringements of
UK competition law. In cases where an electricity firm is found to have infringed on
UK competition law, OGEM can issue an order to stop the behaviour, and it can

88
OFGEM, Energy Supply Probe - Proposed Retail Market Remedies, (OFGEM 2009) <
http://www.ofgem.gov.uk/Markets/RetMkts/ensuppro/Documents1/Retail package - decision
document.pdf>.
89
OFGEM, 'Wholesale Markets ' (2007)
<http://www.ofgem.gov.uk/Markets/WhlMkts/Pages/WhMrkts.aspx>
90
OFGEM, 'Working to promote competition and efficiency ' (2007)
<http://www.ofgem.gov.uk/Markets/WhlMkts/CompandEff/Pages/CompandEff.aspx><http://www.o
fgem.gov.uk/Markets/WhlMkts/CompandEff/Pages/CompandEff.aspx>.
91
OFGEM, 'Retail Markets' (2007)
<http://www.ofgem.gov.uk/Markets/RetMkts/Pages/RetMrkts.aspx >.
92
OFGEM, 'Office of Gas and Electricity Markets resource Accounts 2008-09' (OFGEM Ordered by
the House of Commons to be printed 29 April 2009, 2009).
93
Ibid.
94
OFT, Current Application to Regulated Industries (OFT 2004).
<http://www.oft.gov.uk/shared_oft/business_leaflets/ca98_guidelines/oft405.pdf> at 04 October 2012
95
UK Competition Act 1998 (Concurrency) Regulations 2004).
 193

impose a financial penalty.96 The advantage of inter-institutional concurrency

between OFGEM and OFT is that OFGEM’s specific expertise in the electricity
sector would provide a better analysis of the anti-competitive infringement of
electricity firms,97 and that there is harmonisation in the work approach between
OFGEM and OFT in promoting and protecting market competition.98
Therefore, the regulatory framework for the UK electricity market was
initiated by the sector-specific regulator which then shifted towards more inter-
institution work with the competition law authority.

5.3.1.3 Australia
In Australia, the regulatory framework for the liberalised and privatised
electricity sector involves cooperation with the sectoral regulator and the
competition agency. Before the mid1990s, the sector was government owned and
operated as a public service rather than a profit-making commercial venture.99 When
liberalisation and deregulation were adopted, regulatory institutions were established
to control and supervise the market. Each Australian state then had to establish a
regulator to control and supervise the electricity market of each state.100 By mid
2004, the electricity sector was under 13 separate state regulators.101 However, in
2005, consideration was given to establish a national regulatory body that could help
facilitate liberalisation and create competition in the electricity market.102 This
contributed to the establishment of the Australian Energy Market Commission
(AEMC) in 2005. The AEMC, by agreement with the Council of Australian

96
OFGEM, 'Enforcing competition law ' (2007)
<http://www.ofgem.gov.uk/About%20us/enforcement/Powers/CompLaw/Pages/EnforceCompLaw.as
px>.
97
OFT and Ofgem, 'Application in the energy sector : Understanding competition law' (Office of Fair
Trading and Office of Gas and Electricity Markets Authority, 2007)
<http://www.oft.gov.uk/shared_oft/business_leaflets/ca98_guidelines/oft428.pdf>.
98
Vincent Smith, 'Competition concurrency between the OFT and sector regulators' (2004) 12(2)
Utilities Policy 61.
99
Ann Rann, 'Background Paper 21 1997-98 Electricity Industry Restructuring-A Chronology ' (1998)
<http://www.aph.gov.au/library/pubs/bp/1997-98/98bp21.htm>.
100
Australian Energy Market Commission, Who we are? (2010) <http://www.aemc.gov.au/About-
Us/Who-we-are.html>.
101
Ibid.
102
Australian Energy Market Commission, The Law (2010) < http://www.aemc.gov.au/retail/the-
law.html>.
 194

Governments (COAG), and through the Ministerial Council on Energy (MCE), was
established to be the rule maker for liberalisation and competition promotion in the
energy sector.103 Upon its establishment, AEMC became the main national
independent rule maker and developer for the nation’s electricity sector.104 The work
of the AEMC focuses on developing effective competition at wholesale and retail
levels, and on utilising regulation for transmission and distribution, where it is
considered the best way to deliver efficiency and reliability to consumers.105
Moreover, the Australian electricity sector is also under the AER, which is
responsible for pursuing economic regulatory, compliance and enforcement
functions.106 The AER was established as an independent legal entity, but under a
constituent entity of the ACCC under Part IIIAA of the Trade Practices Act 1974
(now the Competition and Consumer Act 2010 (Cth)).107 Part IIIAA states that one
of the members of the AER must be a Commissioner of the ACCC.108 This created
the link in of regulatory enforcement between the AER and the ACCC, where both
are able to coordinate to enforce sectoral regulation and competition law in the
electricity sector to promote and protect market competition.109
Thus, the Australian regulatory framework for the electricity sector appears
to employ a combination of ACCC and sectoral regulators in governing the utility
market.110 The ACCC and AER, as the co-institutional regulator, work closely to
supervise and enforce regulation to increase and protect efficiency and competition.
However, both authorities also have effective regulatory relationships with the
AEMC in determining the policy environment and governance structures that shape
the development of Australia’s electricity markets. This can be seen from the MOU

103
Australian Energy Market Commission, Change and challenge in energy (2009)
<http://www.aemc.gov.au/Media/docs/AEMC%20Profile%202009-b24a7a70-e27c-48dd-af08-
f94c934a394e-0.pdf>.
104
Australian Energy Market Commission, above n 100.
105
Ibid.
106
AER, 'About Us' (2012) <http://www.aer.gov.au/node/449>.
107
Trade Practices Act 1974 was replaced by Competition and Consumer Act 2010.
108
Australian Energy Regulator, 'AER Stategic Plan and Working Program 2009 –11' (AER, 2009),
11
<http://www.accc.gov.au/content/item.phtml?itemId=882100&nodeId=97e6ed47a9206ce5b162c338
642ab5f9&fn=AER%20Strategic%20plan%20and%20work%20program%202009%E2%80%9311.p
df>.
109
ACCC, 'Electricity' (2010) <http://www.accc.gov.au/content/index.phtml/itemId/3877>.
110
Ed Willett, 'The AER and its ‘fit’ with the ACCC model' (Paper presented at the Trade Practices
Law Council Workshop, Canberra, 2006)
<http://www.accc.gov.au/content/index.phtml/itemId/754819>.
 195

among the three authorities, which stipulates cooperation among them to create the
effective regulatory framework for creating competition in the electricity sector.111
The regulatory institution of Australia’s electricity sector is under the AEMC
as a regulation maker and under the AER as a specific regulator, which combines
with the ACCC, which is a competition authority. The regulatory institution of the
Australian electricity sector is thus seen as the regulatory combination of models
that help to stimulate competition.

5.3.1.4 New Zealand

In New Zealand, the implementation of electricity liberalisation in the late
1980s was subject to a light-handed approach.112 The electricity sector was
liberalised under self-regulatory basis of firms’ agreement in the electricity sector
and competition law enforcement.113 The use of light-hand regulation relying only
on competition law enforcement was based on the view that in order to avoid costly
heavy-handed regulatory intervention, the liberalisation of the sector would be
subject to the enforcement of general competition law and the competition
authority.114 Thus, the Commerce Commission, by the power of the Electricity
Industry Reform Act 1998 and Part 4A of the Commerce Act, would have to play an
important role to maintain and create the competitive market for the electricity
sector.115

111
Australian Energy Market Commission, Memoranda of Understanding (2010)
<http://www.aemc.gov.au/About-Us/Memoranda-of-Understanding.html>.
112
Alan Bollard and David Ainsworth, 'Can The Commerce Commision Prevent Anti-Competitive
Conduct In The Electricity Markets? ' (Paper presented at the IIR Conference Competition and the
Domestic Electricity Consumer, Wellington 1999) <http://www.comcom.govt.nz/assets/The-
Commission/Speeches/Alan-Bollard-and-David-Ainsworth-Speech-at-IIR-Conference-18-
November-1997.pdf>.
113
New Zealand Electricity Authority, 'Background to regulation' (2012)
<http://www.ea.govt.nz/about-us/structure/background-to-governance-and-regulation/>.
114
Energy Policy Group New Zealand Ministry of Commerce, 'Light-Handed Regulation of New
Zealand's Electricity and Gas Industries' (Energy Policy Group, Ministry of Commerce, 2006)
<http://www.med.govt.nz/templates/MultipageDocumentTOC____20245.aspx>.
115
OECD Cometition Committee, 'Annual Report On Competition Policy Development in New
Zealand: September 2003-August 2004 ' (OECD, 2005)
<http://www.oecd.org/dataoecd/36/52/34720907.pdf>.
 196

However, liberalised electricity did not work in an efficient manner through

the regulatory supervision of the Commerce Commission alone.116 It was because
the existing electricity sector arrangements did not contribute to the effective
management of the sector,117 and competition law enforcement was not sufficient to
control pricing in the presence of the natural monopolies of transmission and
distribution.118 Hence, the New Zealand government subsequently remedied the
problem by establishing the sector-specific regulator for supervising the electricity
market. In September 2003, the government established the Electricity
Commission119 to supervise the electricity sector.120 The Electricity Commission
was established as a crown entity under the amended Electricity Act 1992 to oversee
the operation of the wholesale and retail markets in accordance with the
government’s energy policy.121
Since its establishment, the Electricity Commission,122 as the main sectoral
regulator, has pursued important roles in creating regulation that creates efficiency
and competition in the market.123 The Commission adopts regulations to supervise
the electricity by the power conferred from the Electricity Act 1992 and according to
the government policy statement that requires the Commission to ensure that there is
the security of the electricity supply and to protect consumers via the creation of
effective market competition.124

116
Paula Rebstock, 'New Zealand Experience in Utility Regulation' (Paper presented at the ACCC
conference 2004, Sea World Nara Resort, Gold Coast, 2004); See also Lewis T Evans and Richard B
Meade, Alternating currents or counter-revolution? : contemporary electricity reform in New
Zealand (Victoria University Press, 2005) Ch 5.
117
Energy Policy Group New Zealand Ministry of Commerce, above n 114.
118
Patterson R and Cornwall C, 'Light-handed regulation of electricity networks in New Zealand: the
failure of the New Zealand model' (2000) 1 Journal of Network Industries 89.
119
The Electricity Commission was replaced by the Electricity Authority from 1 November 2010.
See the information about the Electricity Authority from its website at <
http://www.ea.govt.nz/about-us/structure/background-to-governance-and-regulation/> at 4 October
2012
120
Energy Policy Group New Zealand Ministry of Commerce, above n 114.
121
New Zealand Ministry of Economic and Development, 'Government Policy Statement on
Electricity Governance ' (2009) <
http://www.med.govt.nz/templates/ContentTopicSummary____21482.aspx >.
122
New Zealand Electricity Authority, ' What the Commission did - archive' <
http://www.ea.govt.nz/about-us/ec-archive/about-the-commission/what-the-commission-
did/#important_info>.
123
Ibid.
124
New Zealand Ministry of Economic and Development, above n 121. In the policy statement of the
New Zealand Ministry of Economic and Development , it requires Electricity commission to protect
consumers and build competition between electricity retailers.
 197

Nevertheless, after the change in the regulatory preference to the sectoral

regulator under the Electricity Commission, the government still recognises the
important role of the competition authority in the electricity sector. The government
implemented the regulatory structure by coordinating between the Electricity
Commission and the Commerce Commission to harmonise sectoral regulation and
the competition law.125 This can be considered from the 2007 MOU between the
Commerce Commission and the Electricity Commission, which established
communication and coordination between the two commissions.126
Through the MOU, the two Commissions have a collaborative role in
supervising the New Zealand electricity market. The Commerce Commission
focuses on promoting and protecting the competition market to benefit of
consumers.127 The Electricity Commission has to approach the Ministry of Energy
to recommend adopting market rules to create an efficient market.128

5.3.1.4 Japan
In Japan, the Electricity Utilities Industry Law (1964)129,which had been
enforced for 30 years, was amended in 1995130 to allow initial liberalisation by
attracting IPPs in the wholesale market and facilitating structural change towards the
increase of market competition.131 After the amendment of the Electricity Utilities
Industry Law was mainly under the regulatory supervision of the Ministry of the
Economy, Trade and Industry (METI), having a duty to generate comprehensive
electricity policies and maintain the efficiency of the electricity supply with the

125
See example for the role of Commerce Commission in electricity sector from Commerce
Commission website at <http://www.comcom.govt.nz/electricity/>.
126
Memorandum of Understanding between Electricity Commision and Commerce Commision 2007,
5.
127
Memorandum of Understanding between Commerce Commission and Electricity Commission 16
August 2007 as Amended 13 November 2008.
128
Ibid.
129
The act can be accessed from website of
<http://www.enecho.meti.go.jp/denkihp/genjo/rule/electricity_utilities_industry_law2003.pdf> 4
October 2012.
130
Japan Electronic Power Information Center, Organization of the Electric Power Industry, <
http://www.jepic.or.jp/pub/pdf/EPIJ2012.pdf>.
131
Hiroshi Asano, 'Regulatory reform of the electricity industry in Japan: What is the next step of
deregulation?' (2006) 34(16) Energy Policy 2491.
 198

consideration of environment conservation.132 To liberalise according to the

amendment of the Electricity Utilities Industry Law, METI enacted a policy to
permit the new networks and private participants to supply large-scale consumers.133
This led to the 1999 amendment of the Electricity Utilities Industry Law, with the
purpose of facilitating greater deregulation by partially liberalising the retail
segment, permitting large-scale consumers to choose their own electricity
supplier.134
METI then deregulated the retail electricity market by amending the
Electricity Utilities Industry Law in June 2003.135 Under the amendment, METI had
to support the establishment of the Electricity Power Council of Japan (ESCJ),
which has a duty as the main regulator to set various rules on electric power systems
and to supervise electricity operations.136 The ESCJ was established by voluntary
efforts of the private sector while under the surveillance of the government.137 ESCJ
started its regulatory role by supervising transmission, distribution and other related
operations, and ensuring fairness, transparency and neutrality in the transmission
and distribution operations.138 The ESCJ became the regulator that coordinated with
METI to manage the efficiency of the market.139 By the power according to Article
94 of the Electricity Utilities Industry Law, ESCJ set the electricity market standards
and guidelines for the planning and operation of power and distribution systems.140
Moreover, the ESCJ has roles as (1) a dispute conciliator for electricity firms, (2) a
coordinator for operations of interconnections and (3) an agency for electricity
information and research for consumers.

132
International Energy Agency, Energy Policies of IEA Countries: Japan Review (2008).
133
OECD, 'Japan - Regulatory Reform in Electricity' (OECD, 1998).
134
Minoru Takahashi, 'The current status of electric power industry deregulation in Japan and the
influence of the California crisis' (2002) 14(3) Japan and the World Economy 341.
135
Japan Electricity Utilities Industry Law (Amended by Law No. 92 of June 18, 2003).
136
Electric Power System Council of Japan, 'For Smooth Utilization of Electric Power System' (2010)
<http://www.escj.or.jp/english/message/index.html>.
137
Ibid.
138
Ibid.
139
Electric Power System Council of Japan, 'Outline of Electric Power System Council of Japan'
(2010) <http://www.escj.or.jp/english/outline/index.html>.
140
The Rules of ESCJ Revision: 15 Effective Date: November 19, 2008; See also in Mika Goto and
Masayuki Yajima, 'A New Stage of Electricity Liberalization in Japan: Issues and Expectations' in
Fereidoon P. Sioshansi and Wolfgang Pfaffenberger (eds), Electricity Market Reform An
International Perspective (2006).
 199

The regulatory institution for the electricity sector in Japan was under the
government ministry, and METI played a key role in making structural changes to
the sector to create an efficient and competitive market context. METI also
established ESCJ as the specific regulatory institution to set rules for the electricity
industry. However, the Japan Fair Trade Commission (JFTC) plays an indirect role
in stimulating market competition. During the stage of implementing electricity
deregulation, the JFTC provided recommendation to METI for (i)a necessity for
regulations (whether there are more reasons for regulation intervention where a
market is competitive), (ii) harmful consequences of regulation intervention where it
is considered that regulation can cause market inefficiency and (iii) consideration in
promoting further steps of deregulation.141
The JFTC advises METI and electricity firms of the possibility of market
abuse from deregulation and anti-competitive conduct, subject to an infringement of
the Anti-monopoly Act. This measure enables new comers to access the existing
electricity lines and could help facilitate the creation of competition in the electricity
market.142

5.3.1.5 Korea
In Korea, the Korean Electricity Commission (KOREC)143 was established
as a regulatory institution to regulate and create competition in the liberalised
electricity market according to set step plan to create competition in generation,
wholesale and retail.144 KOREC has an important duty to supervise the liberalisation
process by taking necessary measures to protect consumers from unfair and
deceptive business undertakings and to promote fair competition among electricity
firms.145 Under the Ministry of Commerce, Industry and Energy (MCIE), KOREC

141
Shogo Itoda, 'Yesterday, Today and Tomorrow : Competition Policy of Japan' (Japan Fair Trade
Commission 2007) <http://www.jftc.go.jp/e-page/policyupdates/speeches/00-0222.html>.
142
Ibid.
143
See the Korean Electricity Commission (KOREC)’s website at < http://www.korec.go.kr/>.
144
International Energy Agency( IEA), Energy Policies of IEA Countries: The Republic of Korea
2006 Review (2006); Junki Kim and Kyuhyun Kim, 'The Electricity Industry Reform in Korea:
Lessons for Further Liberalization' (Regulatory Governance Standing Group, 2008)
<http://regulation.upf.edu/utrecht-08-papers/kkim.pdf>.
145
Korean Electricity Commission, 'What We Have Done So Far?' (2010)
<http://www.leadernews.co.kr/korec_home/eng/sub02_3.htm>.
 200

has vital regulatory functions that can be categorised as: (i) licensing electricity
companies, (ii) facilitating competition and eliminating unfair practices, (ii)
protecting the rights and interests of consumers, (iii) monitoring anti-trust activities,
(iv) supervising the operation of electricity markets and power systems, and (v)
restructuring the electricity industry.146
Since liberalisation began, KOREC has pursued regulation to creating a
competition among generation companies.147 It expects that, in a few years, a fully
competitive market will be in operation and consumers will be able to choose their
own electricity suppliers.148 KOREC stated that the regulatory institution leads the
essential tasks of restructuring the electricity industry and creating markets based on
competition.149
However, another institution that has an important function to create and
150
maintain market competition is the Korean Fair Trade Commission (KFTC). The
KFTC has a direct role to apply the Monopoly Regulation and Fair Trade Act to
firms’ activities in the electricity sector. However, the competition law does not
apply to conduct that is authorised by other regulations; thus, the application of
competition law is limited because MCIE and KOREC regulate the electricity
firms.151 Nevertheless, other unregulated aspects of the Korea Electric Power
Corporation’s (KEPCO’s) business activities are subject to the competition law
application.152 For example, KFTC issued fines to KEPCO in early 1999 for unfairly
favouring its own subsidiaries in awarding contracts by tender.153
Further, by Article 63 of the Korean Fair Trade Act, KFTC had a significant
function to consult on the adoption of regulation that may affect competition in the

146
Korean Electricity Commission, 'Objective and Current Status' (2010)
<http://korec.go.kr/korec_home/eng_new/index.htm >.
147
Seung-Hoon Lee, ' Electricity in Korea' in Christopher Findlay (ed), The Impacts and Benefits of
Structural Reforms in Transport, Energy and Telecommunications Sectors (APEC Policy Support
Unit 2011).
148
Korean Electricity Commission, 'Establishment of KOREC' (2010)
<http://www.leadernews.co.kr/korec_home/eng/sub01_1.htm>.
149
Ibid.
150
See Korean Fair Trade Commission (KFTC)’s website at <http://eng.ftc.go.kr/>.
151
OECD, 'Korea - Regulatory Reform in Electricity' (OECD, 2000), 25
<http://www.oecd.org/dataoecd/2/56/2497412.pdf>.
152
OECD, 'Regulating Market Activities by the Public Sector' (The OECD Competition Committee,
Document No. DAF/COMP(2004)36, 2004), 185
<http://www.oecd.org/dataoecd/61/5/34305974.pdf>.
153
OECD, above n 151, 25.
 201

electricity sector. Under this consultation function, where regulatory authorities wish
to enact or change laws and regulations that may create anti-competitive market
circumstances or restrictions to market entry or business activities, they are obliged
to consult with the KFTC in advance or to inform KFTC of such matters.154 In
relation to electricity regulation, KFTC thus plays an advocacy role in providing
advice to MCIE and KOREC in adopting regulation that is deemed anti-competitive
or restrictive. This contributes to the collaborative consultation between KFTC,
MCIE and KOREC.
The regulatory framework for Korea’s electricity sector is therefore under
the main sectoral regulator; that is, under the MCIE with collaboration on the
advocacy function of KFTC. In the future, it is expected that the Korean competition
law authority would increase its role in the electricity sector when the competition
develops.155

5.3.1.6 Analysis of countries’ experience of regulatory institutions in the

electricity sector
The above countries’ experiences provide crucial examples for an
appropriate regulatory framework for electricity. The experience provides essential
considerations for the development of regulatory institutions for the electricity
sector.
The first consideration is that the regulatory institution plays a
considerable role in implementing electricity reform. The regulator must be
competent in performing the structural change involved with the liberalisation of the
electricity market and it must be able to cope with any barriers to implementing
electricity deregulation and liberalising reform. This can be derived from the
154
OECD, 'Global Forum on Competition Policy, Industrial Policy and national Champion-
Contribution from Korea' (OECD, 2009) <http://www.oecd.org/dataoecd/16/13/42000615.pdf>.
155
OECD, 'OECD Reviews of Regulatory Reform: Korea Progress in Implementing Regulatory
Reform ' (OECD, 2007) <http://www.oecd.org/dataoecd/16/4/41399033.pdf>-In the report, it is
stated that the scope of exemptions from competition law is now limited. Government entities are
subject to the same rules as private enterprises. This equal treatment applies to chaebol regulation
too, as large government-related entities have been designated as groups whose transactions are
regulated, and the KFTC fined several of them for undue transactions and abuse in relationships with
contractors. Claims that anti-competitive conduct is authorised by official action are treated
skeptically. Conduct following discretionary administrative guidance that is not backed explicitly by
statute is not exempted from the MRFTA.
 202

experiences of the US, the UK, Japan and Korea, where the electricity regulators are
the main institutions that have significant roles in completing the stage plan of
liberalisation. The regulator has a significant role in supervising electricity, which
cannot be neglected when the countries attempt to implement liberalisation. The
experiences of New Zealand, Australia, Japan and Korea show that the countries’
governments have to rely on the regulator to control the market’s structural change
as well as to prevent market failure from the implementation of liberalisation of the
electricity market. In New Zealand’s first step, it neglected the role of sector-specific
regulator and pursued electricity liberalisation by relying on the supervision of its
Competition Commission. It then found that the competition authority that only
enforced a general approach to competition law was not sufficient to create market
changes towards competition. New Zealand then had to establish a sector-specific
regulator to supervise the electricity market’s change towards competition.
The second consideration is that the sectoral regulator would sustain
political change and influence. The sectoral regulator is an important institution
that helps to sustain the political change affecting electricity sector reform.
According to international experiences, the regulatory institution in the electricity
sector helps the liberalisation program to succeed, although there are changes in
politics. While there might be a new election and a change of government, the
regulatory institution still maintains the progress of reform implementation that has
been set for electricity liberalisation. A regulatory institution thus helps to create
stabilisation of the implementation plan for liberalisation and reform in the
electricity sector.156 Moreover, by having a degree of independence and experts
with specific economic information relating to the electricity sector, the regulatory
institution would not be subject to a bureaucracy hierarchy which can be affected by
political changes.157 Although it is arguable that there is an influence of the political
changes on the electricity policy, it is arguable also that at least the regulatory
institution would have discretion to reform and regulate electricity sector toward

156
Peter Cameron, Legal aspects of Eu energy regulation : Implementing the new directives on elect
ricity & gas across Europe (Oxford University Press, 2005).
157
Stacey L. Dogan and Mark A. Lemley, 'Antitrsut and Regulatory Gaming' (2009) 87(4) Texas Law
Review 685; MarkThatcher, 'Regulation after delegation: independent regulatory agencies in Europe'
(2002) 9(6) Journal of European Public Policy 954.
 203

market competition without having to consider political influence.158 That is, the
establishment of the regulatory institution of the electricity sector would depoliticise
the electricity reform policy and implementation from political influence.159
The third consideration is that the regulatory institution is an important
reference for the sector. The regulatory institution plays an exclusive role as the
reference institution that provides certainty in liberalisation reform in the electricity
sector. As discussed above, sectoral regulators are important for regulating and
facilitating competition; thus, they have a credible role of being reference
institutions where there is an uncertainty surrounding liberalisation reform
commitment. Baron showed that, where commitment in reform is not fully credible
and certain, firms would be discouraged to input their long-term plans and
irreversible investments into the liberalised electricity sector.160 Thus, the regulatory
institution would have to be a reference agency for firms seeking certainty of reform
and the liberalisation policy and implementation.161 In addition, the regulatory
institution would have to be an agency that can resolve conflicts within the sector.
The regulators must be a reference authority for all firms that participate in the
electricity sector. For example, where there is a conflict relating to pricing or
accessing essential facilities, the regulators would help to resolve the conflict in
order to maintain consistency and efficiency in the sector.162
The fourth consideration from the countries’ experiences is that the
regulator needs to be a flexible institution that can evolve over the establishment
of market competition. In the early stage of implementation, the regulator must be a
strong institution that can intervene in the electricity sector and drive the market
change towards competition. This can be seen in the experiences of the US, the UK

158
Van Dijk, 'General or specific competition rules for network utilities?' (2005) 2(1) Competition and
Regulation in Network Industries 93 ; Alfred Kahn, 'Telecommunications: The Transition from
Regulation to Antitrust' (2006-2007) 5 Journal on Telecommunications & High Technology Law 159.
159
Richard Green, 'EU Regulation and Competition Policy among the Energy Utilities' (Paper
presented at the 50 years of the Treaty, IESE Business School, University of Navara, 2007)
<http://www.bhamlive3.bham.ac.uk/Documents/college-social-sciences/business/economics/2008-
papers/2008-discussion-papers/08-01.pdf>.
160
Steven Semeraro, 'The Antitrust-Telecom Connection' (2003) 40 San Diego Law Review 555.
161
Graeme Thomson, 'Australia and New Zealand' in David Richardson and Edward Graham (eds),
Global Competition Policy (Peterson Institute for International Economics, 1997).
162
See example from Australia Energy regulator from Pornchai Wisuttisak, 'Liberalization of the
Thai energy sector: a consideration of competition law and sectoral regulation' (2012) 5(1) (March 1,
2012) The Journal of World Energy Law & Business 60.
 204

and Australia, where regulators play a strong role in the market’s structural change
in the earlier stage of liberalisation implementation. They then evolve their role to
coordinate with the competition law authority to supervise the market when the
competition has emerged. Thus, when competition and efficiency have developed,
the regulators referee the market and have less of a role in regulatory intervention.
An example is the application of anti-trust rules in the electricity market by the
coordination between FERC and FTC in the US, the concurrency role between
OFGEM and OFT in the UK, and the combination of supervision roles of ACCC
and AER in Australia. This is because regulation should be a last resort where
competition is working and can help create an efficient market.163
The fifth consideration is that, to prevent the capture issue of the electricity
regulator, the power of competition law authorities and other state agencies must
be checked and balanced. While the regulator is an important agency for the reform
and liberalisation of the electricity sector, it may be captured under the firms’
influence164 or under the asymmetric information circumstance.165 Thus, the sector
regulator must be checked by other agencies.166 For example, in the US, the UK and
Australia, the competition authorities are able to exercise their ex post competition
law enforcement to deal with market abuse conduct that may be derived from the ex
ante regulatory decision of sectoral regulators.
The sixth consideration is that the regulatory institution must coordinate
with the other institution in reforming the electricity market towards the market
competition. In the experience of the US, the UK, Australia, New Zealand, Japan
and Korea, their electricity regulators must work coordinately or concurrently with
the competition agency in promoting competition in the electricity sector. Moreover,

163
Stephen Littilechild, 'Beyond Regulation' (Cambridge Working Paper ; Electricity Policy Research
Group 2006) <http://www.electricitypolicy.org.uk/pubs/wp/eprg0516.pdf>.
164
See discussion about the capture theory of regulation in the above part of the thesis at 5.2.2.
165
Jean-Jacques Laffont and Jean Tirole, 'The Politics of Government Decision-Making: A Theory of
Regulatory Capture' (1991) 106(4) The Quarterly Journal of Economics 1089; Vikram Nehru,
'Malaysia: time to liberalise its automobile sector' (2012)
<http://www.eastasiaforum.org/2012/03/13/malaysia-time-to-liberalise-its-automobile-sector/>.
166
Richard Green, 'Checks and Balances in Utility Regulation—The U.K. Experience' (1999) World
bank
<https://openknowledge.worldbank.org/bitstream/handle/10986/11478/multi_page.pdf?sequence=1>;
See also at ICN, Report of the ICN Working Group on Telecommunications Services:Appendix II
Different Models of Allocating Oversight Responsibilities,(2006), 86
<http://www.internationalcompetitionnetwork.org/uploads/library/doc384.pdf>..
 205

the regulator must coordinate with other government agencies, which may involve
the promotion of market competition in the electricity sector. Coordination would
prevent potential conflicts between sectoral regulators and other agencies. For
example, in Japan and Korea, while the sectoral regulators have an independent
authority to regulate the electricity sector, the regulators still coordinate with the
ministries of trade and energy to produce consistent energy policies for the
promotion of competition in the electricity sector. It is also noted that the regulator
would need to coordinate with other agencies in maintaining electricity security and
dealing with environmental concerns. Through coordination with other agencies, the
sectoral regulator would be able to promote cooperation in relation to electricity
reform as well as being able to maintain an effective policy to achieve electricity
security and environment preservation.
The establishment of the main regulatory agency to supervise the electricity
sector and restructure the markets towards competition is an important element. The
regulatory agency would nurture the reform progress of the sector and help to
facilitate the creation of market competition. The agency would also be a reference
institution that would help firms with the electricity reform and resolve conflicts.
The regulatory agency would also coordinate with other agencies involved in the
reform to ensure consistency. However, as shown above, there are two other
significant elements for creating competitive electricity markets: regulation for
competition and regulation of competition. These elements will be a regulatory
mechanism for sectoral regulators to implement the competitive base reform of the
electricity sector. The regulation for and of competition are discussed below.

5.3.2 Regulation for competition

Apart from establishing the regulatory institution for the liberalisation of the
electricity sector, there is an important aspect of utilising regulation as the
mechanism for creating market competition, which Levi-Faur calls‘ regulation-for-
 206

competition’.167This means that the regulation obligates a structural change to

promote market competition in the electricity sector.168 The main aspects of
regulation that help create the electricity structural change towards competition are
(1) the regulation for unbundling the electricity market, (2) the regulation to attract
new investment for competing in the market and (3) the regulation for building
efficient access competition.

5.3.2.1 Regulation for unbinding the electricity sector

To create structural change towards market competition, the reform of the
electricity sector must rely on regulation that can help transform the market structure
via unbundling.169 The regulation for unbundling the sector is the most significant
element in creating competition.170 Politt provided arguments for and against
ownership unbundling of energy transmission networks and found that, in the
experiences of countries that have implemented unbundling, the cost of transmission
can be reduced and unbundling does not discourage investment in the electricity
sector.171 In contrast, the maintenance of an integrated structure reveals the reverse
result of a delay on transmission investment and expansions.172 In countries such as
the UK, Australia, New Zealand, the EU, Argentina, Chile and India, the unbundling
of generation, transmission and distribution provided large electricity consumers
with an option to purchase directly from generators, thus ensuring a more reliable

167
David Levi-Faur, 'The politics of liberalisation: Privatisation and regulation-for-competition in
Europe's and Latin America's telecoms and electricity industries' (2003) 42(5) European Journal of
Political Research 705.
168
Jacint Jordana and David Levi-Faur, The Politics of Regulation Institutions and Regulatory
Reforms for the Age of Governance (Edward Elgar Pub, 2005).
169
Yonghun Jung et al, 'Electricity Sector Deregulation in The Asia Pacific Region ' (Paper presented
at the 23 rd IAEE International Confernce Sydney, 2000)
<http://www.aaee.unsw.edu.au/1stcall/IAEE_forms.pdf>.
170
Ioannis Kessides, Reforming infrastructure - privatization, regulation; and competition (World
Bank and Oxford University Press, 2004) 156; Isabel Soares and Paula Sarmento, 'Does Unbundling
Really Matter? The Telecommunications and Electricity Cases' (FEP working papers No380 July
2010, CEF.UP , Faculdade de Economia, Universidade do Porto, 2010)
<http://www.fep.up.pt/investigacao/workingpapers/10.07.05_wp380.pdf>.
171
Michael Pollitt, 'The arguments for and against ownership unbundling of energy transmission
networks' (ESRC Electricity Policy Research Group, University of Cambridge, 2007), 710
<http://www.eprg.group.cam.ac.uk/wp-content/uploads/2008/11/eprg0714.pdf>.
172
Ibid, 710.
 207

supply.173 Thus, the regulation for competition should include the obligation to
unbundle the sector.
In the UK, the electricity market was unbundled by the passage of the
Electricity Act 1989, which required unbundling of the government-owned and
vertically integrated Central Electricity Generating Board into two entities:
PowerGen and National Power.174 It was followed by the regulation for structural
change that was created by the Utilities Act 2000, which required that the company
not hold a license to operate both supply and distribution in the electricity sector.175
As a result of the Electricity Act 1989 and the Utilities Act 2000, there was a
significant structural change of 12 regional area distribution and supply companies,
and five opted for ownership unbundling.176 The structural change by regulation
requiring unbundling between electricity generation and transmission proved an
effective reform that created efficient competition in the UK’s electricity sector.177
In Australia, electricity reform and restructuring is based on the unbundling
of the main electricity functions: generation, transmission, distribution and retail.
The reform was initiated by the agreement of states under the establishment of
CoAG,178 which requires the creation of a fully competitive national electricity
market (NEM) for Australia.179 The NEM was purported to restructure the
interconnection of wholesale electricity for Australian states. It is operated by the
Australian Energy Market Operator (AEMO) and the National Electricity Act

173
Peter Choynowski, 'Restructuring and Regulatory Reform in the Power Sector: Review of
Experience and Issues' (ADB- ERD Working Paper No. 52, 2004)
<http://www.adb.org/Documents/ERD/Working_Papers/wp052.pdf>.
174
UK Electricity Act 1989, Part II.
175
UK Utilities Act 2000, section 30 (2).
176
Rolf Künneke and Theo Fens, 'Ownership unbundling in electricity distribution: The case of The
Netherlands' (2007) 35(3) Energy Policy 1920.
177
Stephen Littlechild, 'Vertical separation in utility industries: UK policy and experience' (Paper
presented at the ACCC Conference on Regulation, Industry Structure and Market Power, Gold Coast,
Australia,
<http://www.accc.gov.au/content/item.phtml?itemId=259750&nodeId=c8fe767cb297603acfccf860fa
3b336f&fn=Stephen%20Littlechild%20%28slides%29%20-
%20Vertical%20separation%20in%20utility%20industries:%20UK%20policy%20&%20experience.
pdf>.
178
The Council of Australian Governments (COAG) is the peak intergovernmental forum in
Australia. COAG comprises the Prime Minister, State Premiers, Territory Chief Ministers and the
President of the Australian Local Government Association (ALGA).
179
National Competition Council, Assessment of Governments’ Progress in Implementing the
National Competition Policy and Related Reforms (2001), chapter 6.
 208

1996.180 By the NEM, electricity generators had to direct their electricity production
to the NEM’s wholesale electricity pool, from which retailers and other market
participants could buy their electricity.181 The AEMO was based on the lowest-cost
generator bids, and electricity demand determined the wholesale spot price in the
NEM.182 Thus, by establishing the NEM, the reform led to the functional unbundling
of the vertically integrated government-owned electricity authorities into separate
sectors (generation, transmission, distribution and retail sales) in each Australian
state.183 Having to use the NEM as the market for trading, the states reformed their
electricity market structure by introducing the vertical separation of generation,
transmission and distribution, and ring-fenced distribution and retail businesses.184
The purpose of the reform was to increase competition in the industry by breaking
down barriers to interstate electricity competition.185
In New Zealand’s process of electricity liberalisation, regulation is the
important element for unbundling of electricity sector. This can be referred to the
New Zealand Electricity Act 1998, which ordered the unbundling of electricity
networks.186 The Electricity Corporation of New Zealand (ECNZ) was divided into
three companies,187 to tackle the monopoly structure in New Zealand’s electricity
sector. Moreover, the Act prohibits certain interactions in electricity lines between
generation and retail that may create incentives or opportunities to deter competition
in the industry and to cross-subsidise generation or retail activities.188
In the EU, the electricity market reform towards a competitive market is
based on the regulatory order on unbundling the electricity sectors. The EU
electricity directive 2003/54/EC orders the legal unbundling of transmission and

180
National Electricity (South Australia) Act 1996.
181
AEMO, An Introduction to Australia’s National Electricity Markets (AEMO,2010)
<http://www.aemo.com.au/~/media/Files/Other/corporate/0000-0262 pdf.pdf>.
182
Ibid.
183
Tasmanian Department of Treasury and Finance, Market and Regulatory Framework (2010)
<http://www.tenders.tas.gov.au/domino/dtf/dtf.nsf/v-
energy/BA435B8D47A8DC9DCA2573FE001C00A5>.
184
National Competition Council above n 179, ch 6; The Australian Commonwealth Treasury,
'Developments in Electricity' (2000) <http://www.treasury.gov.au/documents/195/PDF/round4.pdf>.
185
Australian Energy Regulator, 'State of Energy Market' (Australian Energy Regulator, 2008)
<http://www.accc.gov.au/content/item.phtml?itemId=850040&nodeId=1e8ee202c5bbecf8f245b1568
7ac03a2&fn=State%20of%20the%20energy%20market%202008.pdf>.
186
New Zealian Electricity Industry Reform Act1998, section 2(1A).
187
Lee Dong-Wook, 'Intermediary Report On Comparative Analysis Of Electricity Reform In OECD
Pacific Countries' (2004) <http://www.iea.org/papers/2004/ele_reform.pdf>.
188
New Zealian Electricity Industry Reform Act 1998, section 2(2).
 209

distribution from the remaining units in the electricity value chain. The directive
provided that:
1) Where the transmission system operator is part of a vertically integrated
undertaking, it shall be independent at least in terms of its legal form,
organisation and decision making from other activities not relating to
transmission.189
2) Where the distribution system operator is part of a vertically integrated
undertaking, it shall be independent at least in terms of its legal form,
organisation and decision making from other activities not relating to
distribution.190
Moreover, the EU Commission adopted the directive to further obligate
structural change by separating generation, transmission and distribution in the EU
directive 2009/72EC, which states that the electricity company must not:
1) directly or indirectly exercise control over an undertaking performing any
of the functions of generation or supply, and directly or indirectly
exercise control or exercise any right over a transmission system operator
or over a transmission system;
2) directly or indirectly exercise control over a transmission system operator
or over a transmission system, and directly or indirectly exercise control
or exercise any right over an undertaking performing any of the functions
of generation or supply.191
Without the effective separation of networks from activities of generation
and supply (effective unbundling), there is an inherent risk of discrimination, not
only in the operation of the network, but also in the incentives for vertically
integrated undertakings to invest adequately in their networks.192
In Argentina, the reorganisation of the electricity sector was based on the
policy to attract new private investment to the sector via the privatisation of

189
Electricity directive 2003/54/EC article 10.
190
Electricity directive 2003/54/EC article 15.
191
EU directive 2009/72EC article 9.
192
EU Directive 2009/72/EC concerning common rules for the internal market in electricity and
repealing Directive 2003/54/EC.
 210

Argentinean SOEs.193 However, the privatisation program also came with the
enactment of the Legislative Chambers of Argentina (1992) Law No.24065,
requiring the government to adopt a complete horizontal unbundling of the
electricity market into three separate sectors, with different companies in each
sector: (a) generation, (b) transport, (c) distribution, as well as the privatisation of
almost all state-owned assets.194
In Chile, the military government’s Statutory Decree No. 1 of 1982 obligated
the establishment of a major reform policy on the liberalisation and privatisation of
the Chilean electricity sector.195 The decree also contributed to the implementation
of reform towards a competitive structure by unbundling the important parts of the
electricity sectors of generation, distribution and transmission.196
In India, unbundling was adopted by the obligation under the Indian
Electricity Act 2003. The Act requires all state electricity boards (SEBs) to be
unbundled into generation, transmission and distribution entities regarding the
efficiency of the market competition.197 The Act also prescribes a regulatory
structure governing on generation, transmission and distribution.198
The above countries’ experiences show the importance of the electricity
regulatory framework stipulating the unbundling the electricity sector into
generation, transmission and distribution. Unbundling contributes to the effective
foundation promoting new investment and competition. The new competitors are
allowed to choose to operate in generation, transmission, distribution or retail
businesses. It then facilitates the creation of market competition in electricity
193
Daniel Bouille, Hilda Dubrovsky and Crescencia Maurer, 'Reform of the Electric Power Sector In
Developing Countries: Case Study of Argentina' (Institute of Energy Economics Bariloche
Foundation and World Resources Institute, 2001) <http://pdf.wri.org/power_politics/argentina.pdf>.
194
Mario Vignolo, 'The New Electricity Supply Industry in Argentina and Chile' (Instituto de
Ingeniería Eléctrica, Working Group on Power System- Technical and economic aspects, 2000)
<http://iie.fing.edu.uy/investigacion/grupos/syspot/Argch_reg.pdf>; Alejandra Nuñez-Luna and Erik
J. Woodhouse, 'The IPP Investment Experience in Argentina' (Center for Environmental Science and
Policy, Program on Energy and Sustainable Development at Stanford University- Working Paper
#44, 2005) <http://iis-db.stanford.edu/pubs/20954/Argentina.pdf>.
195
United Nation, 'How to Utilize FDI to Improve Infrastructure – Electricity Lessons from Chile and
New Zealand' (Paper presented at the United Nations Conference on Trade and Development- Best
Practices in Invesment For Development Case Studies in FDI, 2009)
<http://www.unctad.org/en/docs/diaepcb20091_en.pdf>.
196
Ibid.
197
R. Rejikumar, 'Indian Electricity Act 2003: Agenda for Review' (2004) 39(44) Economic and
Political Weekly 4778; See Tripa Thakur et al, 'Impact assessment of the Electricity Act 2003 on the
Indian power sector' (2005) 33(9) Energy Policy 1187.
198
See Indian Electricity Act 2003 part V and VI.
 211

markets when there is an increase of competitors in the sector. However, it is also

important to adopt regulation which helps attract new investments under the
competitive neutrality basis. The regulation for attracting new investment is
explored below.

5.3.2.2 Regulation to attract new investment

Regulation for market competition that has a provision on structural change
by unbundling electricity sectors must also incorporate a provision to attract new
market participation.199 Thus, the regulation should maintain a provision for
competitive neutrality.200
According to the Asian Development Bank’s (ADB’s) recommendation, the
regulation for unbundling the utilities network into competitive and monopolistic
components can significantly decrease the need for regulation intervention and
encourage private investment to participate in the competitive component.201
However, there is a requirement to establish regulation that assures private
investments that they will have a similar treatment when they operate in liberalised
infrastructure businesses. Thus, the regulation for attracting new market participants
from private investment must contain a provision expressly requiring competitive
neutrality for all market competitors in liberalised markets. The competitive
neutrality in the utility regulation is defined, according to the OECD, as a regulatory
framework:
i. ‘within which public and private enterprises face the same set of rules
and

199
OECD “Competitive neutrality and State- Owned Enterprises: Challenges and policy options”,
(OECD Corporate Governance Working Papers No.1 2011).
<http://www.oecd.org/corporate/corporateaffairs/oecdcorporategovernanceworkingpapers.htm>
200
The Confederation of British Industry (CBI), A fair field and no favours: Competitive neutrality in
UK public service markets (CBI, 2006).
201
Asian Development Bank ( ADB), Developing Best Practices For Promoting Private Sector
Invesment In Infrastructure (2000).
 212

ii. where no contact with the state brings competitive advantage to any
market participant’.202
The requirement to maintain competitive neutrality would attract more
private participants to enter and compete in the electricity sector because there is no
risk of unfair treatment.203 This neutrality then helps to avoid unnecessary
competitive distortions and economic inefficiencies that reduce consumer welfare
where the incumbents and newcomers are not competing equally.204
In the UK, the regulatory framework for competitive neutrality in relation to
the infrastructure utilities, including electricity, is under consideration of the OFT in
its working paper on ‘Competition in mixed markets: ensuring competitive
neutrality’.205 The paper notes that competitive neutrality is important to provide a
competitive environment for public and private competitors. The methods of
establishing competitive neutrality are: (1) reviewing regulations relating to the
different types of business operators, (2) establishing the appropriate corporate
governance for SOEs and (3) introducing overarching competitive neutrality
principles or frameworks.206
In Australia, the regulatory framework for setting up competitive neutrality
is based on the Commonwealth Competitive Neutrality Policy Statement 1996207,
which proposed the Commonwealth and all Australian states and territories facilitate
nationwide reforms to competition policy.208 The Australian approach to
competition neutrality:
- ‘considers that significant Australian Government business activities do
not enjoy net competitive advantages over their private sector

202
OECD, OECD Policy Round Table: State Owned Enterprises and the Principle of Competitive
Neutrality (2009).
203
Ibid.
204
FTC, 'Round Table on The Application of Antitrsut Law To State-owned Enterprises Discussion
on Corporate Governance and The Priciple of Competitive Neutrality For State-Owned Enterprises
contribution from United States' (OECD Document No. DAF/COMP/WP3/WD(2009)40, 2009)
<http://www.ftc.gov/bc/international/docs/antitrustlawroundtable.pdf>.
205
UK Office of Fair Trading (OFT), 'Competition in mixed markets: ensuring competitive neutrality'
(OFT- working paper No. OFT1242, 2010)
<http://www.oft.gov.uk/shared_oft/economic_research/oft1242.pdf>.
206
Ibid.
207
See Commonwealth Competitive Neutrality Policy Statement 1996 from the Australia’ Treasury
Government website at <http://archive.treasury.gov.au/documents/275/PDF/cnps.pdf>.
208
Commonwealth Competitive Neutrality Policy Statement 1996.
 213

competitors (or potential competitors) simply by virtue of their public

sector ownership;
- aims to eliminate potential resource allocation distortions arising from
the public ownership of significant business activities operating in
contestable environments
- to encourage fair and effective competition in the supply of goods and
services’.209
The report from the Energy Reform Implementation Group under COAG
pays attention to improve competitive neutrality in the regulatory framework that
requires competitive neutrality between government enterprises and private
enterprises in energy market.210 The report states that, if the Australian government
wants to retain its shares in the energy enterprise, it must encourage private
investment with clear, unequivocal signals about the intention to adopt competitive
neutrality for all market participants.211 Thus, the AER provides its regulatory policy
statement—that it will develop regulation for the energy market with significant
consideration of competitive neutrality.212 This will create an attractive electricity
market for private investment, where they can be sure that they will be treated in the
same manner as government enterprises.213
In Norway, where state enterprises are important in the Norwegian economy,
competitive neutrality has been used to create an efficient market from fair
competition in public and private enterprises.214 The Norwegian state enterprises

209
Australian Department of Finance and Deregulation, Competitive Neutrality (2010)
<http://www.finance.gov.au/financial-framework/financial-management-policy-
guidance/competitive-neutrality.html>; see also in ACCC, 'Competitive Neutrality Regulating
Interconnection Disputes in The Transition to Competition' (Paper presented at the Regulation and
Competition Conference, Sydney, Manly Beach, 2002)
<http://www.accc.gov.au/content/item.phtml?itemId=259730&nodeId=5b7da1643824ee286b2f0457
39e11f89&fn=Session+2+-+Dr+Bill+Tye.pdf>.
210
Energy Reform Implementation Group, 'Energy Reform The way forward for Australia A report to
the Council of Australian Governments' (Department of Industry, Tourism & Resources, Energy
Reform Implementation Group, 2007)
<http://www.ret.gov.au/energy/Documents/erig/ERIG_exec_summary20070413112814.pdf>.
211
Ibid.
212
Australian Energy Regulator (AER), 'Regulatory investment test for transmission' (Australian
Energy Regulator- Issues Paper, 2009)
<http://www.aer.gov.au/content/item.phtml?itemId=730923&nodeId=acbf696534fdab70aa8133a570
480b73&fn=RIT-T%20issues%20paper%20%2828%20September%202009%29.pdf>.
213
Ibid
214
OECD, Regulatory Reform in Norway: Marketisation of Government Services-State-owned
Enterprises, (OECD, 2003), 24 < http://www.oecd.org/regreform/32682052.pdf>.
 214

must be operated under the Private Limited Companies Act, with a division of roles
between the owners, management and board of directors.215 Thus, state enterprises
are at a similar level as private enterprises in the commercial market.216
In Spain, a new Royal Decree on the Public Administrations’ Wealth Decree
1373/2009 was passed to build competitive neutrality in the markets where there are
active public enterprises competing with private ones.217 By the decree, the Ministry
of Economy and Finance had to work with the SOEs to determine the cost derived
from the public services and to evaluate the advantages received from the specific
regulation applicable to SOEs.218
In Korea, the government considered a competitive neutrality approach to
stimulate level playing in the competitive market. A report on the regulatory reform
of the electricity sector submitted to the OECD by the Korean government states
that there must be regulation to eliminate all potential sources of unequal treatment
between state-owned and privately owned competing firms to ensure competitive
neutrality.219 Thus, the Korean regulation on electricity must focus on regulating
competitive neutrality for SOEs and private operators.220
In India, the research from the Centre for Competition, Investment &
Economic Regulation CUTS stated that India must employ competitive neutrality
for the facilitation of private participants in the liberalised utility markets. 221 For
example, the Indian Petroleum and Natural Gas Regulatory Board (PNGRB) has
acknowledged oil and gas pipelines as a universal carrier, and the board presents that
it would guarantee competitive neutrality in the energy sector.222 In Indian electricity
regulation, it is necessary to establish competitive neutrality to eliminate the
distortion of market competition that is discriminatory towards private competitors,

215
OECD, 'State Owned Enterprises and the Principle of Competitive Neutrality' (OECD Document
No. DAF/COMP(2009)37, 2009) <http://www.oecd.org/dataoecd/43/52/46734249.pdf>, 191.
216
Ibid.
217
UK Office of Fair Trading (OFT), above n 205, 37.
218
Ibid.
219
OECD, Regulatory Reform in Korea: Regulatory Reform in Electricity Sector (2000).
220
Ibid.
221
Mehta Pradeep S, Natasha Nayak, Navneet Sharma, Saket Sharma Infusing Competition Through
Appropriate Policy Responses, (CUTS and Indian Institute of Corporate Affairs, Government of
India 2012) <http://www.iica.in/images/120608(CIRC)SynthesisPaper-NCPSectorStudies.pdf>.
222
Rajesh Kumar, 'Ensuring competitive neutrality of networks' (2009) <http://www.cuts-
ccier.org/ArticlesDec09-Ensuring_competitive_neutrality_of_networks.htm>.
 215

where the electricity sector is under the public ownership of utilities with poor
governance.223
Thus, regulation for the electricity sector must consider competitive
neutrality to encourage new participants in the liberalised utility market and to
maintain the level playing field for all market competitors. In developing countries,
where their liberalised utility sectors are usually under the control of SOE
incumbents, it is particularly important for regulatory frameworks to have a
competitive neutrality regime to prevent the disadvantage of private investment
when they have to compete with SOEs.224 Thus is particularly important for sectoral
regulation in the electricity sector to maintain competitive neutrality in order to
facilitate the decisions of private enterprises to enter into the electricity sector where
they would not be disadvantaged in competing with SOE incumbents.
Apart from regulations for unbundling the electricity sector and from the
regulation for attracting new investment, it is also important to consider the
regulation for providing efficient access to essential facilities, which is explored
below.

5.3.2.3 Regulation for access to essential facilities on non-

discriminatory terms
The regulation for efficient access to essential facilities is important to create
market competition in the electricity sector because the incumbent entities would
have a commercial incentive to restrict access to their essential facilities to other
new suppliers.225 For the regulatory framework to create market competition, it must

223
Ibid.
224
Pradeep S. Mehta, 'Competition Policy Rationale and Scope in Modern Developing Economies'
(Paper presented at the Australian and New Zealand School of Government Annual Conference 2010
on Delivering Policy Reform: Making it happen, making it stick, Melbourne, 2010)
<http://www.anzsog.edu.au/userfiles/files/News%20and%20events/Conference/Conference%202010/
Pradeep-Competition-Policy-ANZSOG-110810.pdf>.
225
Frances Perkins, Chris Nadarajah and Luke McInerney, 'Economic Roundup Summer
2007:Australia’s infrastructure policy and the COAG National Reform Agenda ' (Australian
Department of Treasury, 2007) 24 <http://www.treasury.gov.au/documents/1221/PDF/02_NRA.pdf>
; See also in Beatriz Arizu, William H. Dunn Jr and Bernard Tenenbaum, 'Why System Operators
Must Be Truly Independent' (2001) Jan (Note no. 226) World Bank Public Policy for Private Sector
<http://rru.worldbank.org/documents/publicpolicyjournal/226Ariz-1221.pdf>.
 216

allow market participants to have access to essential infrastructure facilities such as

gas pipelines and electricity grids.226
In the liberalised network utility sectors where the existing incumbent
controls access to the essential network facilities, the attempt to create competition
affecting an incumbent then raises difficulty in establishing access to the facilities.227
If the facilities can be duplicated by new market competitors, access to essential
facilities is not the issue for restricting markets towards competition.228
Nevertheless, if the facilities are not economic enough to be duplicated, there is a
need for regulation to establish open access to the facilities as well as a need for
regulation to establish the fair price or rate of using the facilities for business
operations under all market participants.229 Thus, sectoral regulation must include a
provision requiring open access to essential facilities to market competitors. It
requires a regulatory system in place that imposes an obligation on a network
monopoly to open access to its essential facilities to other market competitors.
In Australia, the access to essential facilities was developed from the
enactment of the Competition Policy Reform Act (CPA) 1995, which influenced the
establishment of the national access regime in Part IIIA of the Trade Practices Act
1974 (now the Competition and Consumer Act 2010).230 The legislative framework
established in Part IIIA is to provide an opportunity to access essential facilities to
infrastructure services provided by means of significant infrastructure facilities,
where:
- ‘the facility is of national significance having regard to the size of the
facility, its importance to constitutional trade or commerce or its
importance to the national economy;
- it would not be economically feasible to duplicate the facility; and

226
See the concept of essential facilities in International Energy Policy ( IEA), Competition in
Electricity Markets (IEA, 2001);ADB, 'Competition Law Toolkit : Competition, Privatization, and
Regulation- The Essential Facilities Doctrine and Interconnection Problems ' (2010)
<http://www.adb.org/Documents/Others/OGC-Toolkits/Competition-Law/complaw070700.asp >;
227
Public Utility Research Center university of Florida, Body of Knowledge on Infrastruture
Regulation: Competition in Utility Markets (2010)
<http://www.regulationbodyofknowledge.org/chapter2/narrative/03/>.
228
OECD, 'The Essential Facilities Concept' (OECD Report No OCDE/GD(96)113, 1996)
<http://www.oecd.org/dataoecd/34/20/1920021.pdf>.
229
Ibid.
230
OECD above n 228, 37.
 217

- access to the service is necessary in order to permit effective competition

in a downstream or upstream market’.231
Regulation on the access to essential facilities in Australia is based on three
methods: (1) declaration by the National Competition Council, (2) an undertaking to
the ACCC and (3) certification of a state or territory access regime.232 In the specific
regulatory regime of the electricity sector, the National Electricity Rules (Chapter
5.1.3) state that233all market participants should have an opportunity to connect to,
and access, essential networks of national grids.234 Moreover, the rules state that all
market participants should be able to gain access to distribution and transmission
facilities.235 According to the National Electricity Rules,236 AER is entitled to
manage the distribution and transmission controls that obligate the transmission and
distribution network service providers, controlling essential distribution and
transmission facilities to open access to other market participants.237 The rules also
prescribe that electricity distribution and transmission providers should not engage
in conduct for the purpose of preventing or hindering access to those services.238
This regulation gives all market competitors the opportunity to gain access to the
national electricity grid, distribution and transmission lines. It contributes to the
creation of efficient access to essential facilities in the Australian electricity market,
which leads to the creation of market competition.
In the EU, the regulation for opening access to essential facilities is also
established in order to facilitate the single EU electricity market and to create a

231
Australian Department of Treasury, 'The importance of competition policy for Australia:
Australian Government National Competition Policy Annual report 2004-05' (Australian Department
of Treasury, 2005)
<http://www.treasury.gov.au/documents/1056/HTML/docshell.asp?URL=Prelims.htm
http://www.treasury.gov.au/contentitem.asp?NavId=036&ContentID=1056>.
232
See Competition and Consumer Act 2010 sections 29A to 44ZZR; See further summary detail of
the access to essential facilities in Australia from National Competition Council, 'Access to
Monopoly Infrastructure in Australia: National Third Party Access Regime (Competition and
Consumer Act 2010, Part IIIA)' 2011
<http://www.ncc.gov.au/images/uploads/Access_to_Monopoly_Infrastructure_in_Australia.pdf>
233
Australian Energy Market Commission( AEMC), National Electricity Rules: Current Rules (2010)
<http://www.aemc.gov.au/Electricity/National-Electricity-Rules/Current-Rules.html>.
234
Ibid.
235
Ibid.
236
National Electricity Rules (Chapters5 and 6).
237
Australian National Electricity Rules Chapter 6 - 6.1.3 Access to direct control services and
negotiated distribution services and Australian National Electricity Rules Chapters 6A - Access to
prescribed and negotiated transmission services.
238
Ibid.
 218

competitive electricity market in the EU. The access regime was initiated by the first
EU Commission directive of 96/92/EC, embarking on the choices of liberalisation in
the market by asking member states239 to determine whether they would like to
implement their electricity liberalisation via the single buyers or via negotiated
third-party access.240
In the second EU Electricity Directive 2003/54/EC, which concerns common
rules for electricity and repeals the first directive 96/92/EC, it is a requirement of all
EU member states to open access to ensure a level playing field in generation and to
ensure non-discriminatory access to transmission and distribution networks.241 In
cases where there is a refusal to open access to the essential electricity facility, the
providers of the transmission or distribution system must prove that they lack the
necessary capacity, and they have to provide and substantiate their reasons for the
refusal.242 In the second directive, the electricity market was liberalised with open
access to essential electricity facilities for all EU market participants. However, the
two directives were still not capable of enhancing the liberalisation and competition
of the EU electricity sector.243 It then contributes to the issuance of the third
directive 2009/72/EC, which purported to create the solid structural change towards
electricity market competition and the single EU electricity market. The third
directive orders there to be non-discriminatory network access and facilitation of
cross-border access for new suppliers of electricity from different energy sources, as
well as for new providers of power generation.244 Thus, in all of the development of
electricity regulation via the EU directives above, there is a requirement to access
these essential facilities in the electricity network.
In Korea, the reform of electricity regulation by the amendments of the
Korean Electricity Business Act in early 1999 led to a license for specialised
electricity business operators that were permitted to develop a distribution and retail
business and to have access to essential facilities of transmission and distribution
239
EU directive of 96/92/EC Articles 16–18.
240
EU directive Directive 96/92/EC concerning common rules for the internal market in electricity.
241
EU directives 2003/54/EC concerning common rules for the internal market in electricity and
repealing. Directive 96/92/ECat 2 Article 20.
242
Ibid. at 2 Article 20.
243
EU commission - DG Competition, 'Report on Energy Sector Inquiry' (2007)
<http://ec.europa.eu/competition/sectors/energy/inquiry/full_report_part1.pdf>).
244
EU Directives 2009/72/EC concerning common rules for the internal market in electricity and
repealing Directive 2003/54/EC.
 219

networks of electricity enterprises—KEPCO.245 This created a substantial structural

change towards competition in the Korean electricity sector because, before the
amendment of the electricity law, only KEPCO was legally able to use KEPCO’s
transmission lines. The 1999 amendments to the Electricity Business Act thus
allowed new electricity business competitors to employ the transmission systems to
supply electricity to consumers.246 However, the implementation of access to
Korea’s essential electricity facilities still has not fully established according to the
amendment.247 This was followed by the International Energy Agency’s (IEA’s)
2007 report, which recommended that the Korean government implement
liberalisation by establishing fair access to essential facilities, and that it establishes
an independent regulator to ensure that all market participants are able to access all
essential electricity infrastructures.248 The report states that there is a requirement for
regulation to control third parties accessing transmission networks and to eliminate
any incentives or the ability for KEPCO to discriminate against any particular
transmission competitors.249
In Japan, the requirement for open access to essential facilities was
established by an amendment of the Japanese Electricity Utility Industry Act in
2000.250 The amendment of the Act was purported to include a provision requiring
the concept of regulated third-party access (TPA).251 However, the 2000 amendment
still did not lead to the full neutrality and transparency of transmission and
distribution access because incumbent firms still had discretion to open access to
their facilities.252 The access to essential facilities was then developed in the 2003
amendment to the Electricity Utility Industry Act, which requires the establishment
of fully regulated TPA under a neutral system, the introduction of behavioural
regulation and the prohibition of discriminatory conduct in opening access to
transmission and distribution systems.253 The amendment for providing clear
regulatory requirements on establishing TPA subsequently contributed to the
245
OECD above n 219, 24.
246
Ibid.
247
Ibid.
248
International Energy Agency( IEA), above n 144 40-41.
249
Ibid, 132.
250
International Energy Agency( IEA), above n 132.
251
Ibid, 125.
252
Ibid.
253
Ibid.
 220

creation of market competition in the electricity sector.254 The clear regulatory rules
also help to create a balance between the market and the allocation of inter-regional
transmission capacity.255
In Argentina, Law No.24065 of January 1992 was passed as the main
regulatory rules for governing the reform of the electricity sector and provides a
guarantee of TPA to a grid of wholesale market and to the electricity transmission
and distribution systems.256 With the regulatory rules, the Argentinean electricity
market has been moved towards competitive conditions because privatised
electricity generation plants are able to gain access to the transmission and
distribution networks, and they must compete in supplying electricity to the
wholesale markets.257 The new market participants must also be able to gain access
to operate the electricity business in the market because the regulation requires that
transmission or distribution networks connected to an integrated system must
provide open TPA under a regulated toll system unless there is a capacity
constraint.258 The rules on TPA to distribution and transmission then reduced the
incentives for anti-competitive behaviour and market foreclosure.259
In India, the regulation for the reform of the electricity sector requires open
access to electricity grids, transmission and distribution. The Indian Electricity Act
2003 allows firms in electricity generation plants to gain access to the essential
facilities of electricity networks from the generating plants to the destination of their
use.260 For the transmission system, the Act provides that there must be non-
discriminatory open access to essential facilities of transmission system competition
in supplying electricity to consumers.261 For the distribution system, the Act also

254
Ibid, 11.
255
Ibid.
256
Nuñez-Luna and Woodhouse, above n 194.
257
Bouille, Dubrovsky and Maurer above n 193, 6.
258
Pampa Energía, The Argentine Electricity Sector (2010)
<http://www.mzweb.com.br/pampaenergia/web/conteudo_en.asp?tipo=23467&idioma=1&conta=44
>;Daniel Bouille, Hilda Dubrovsky and Crescencia Maurer, 'Argentina: Market-Driven Reform of the
Electricity Sector' in Bob Livernash (ed), Power Policitcs: Equity and Environment in Electricity
Reform (2002) , 32.
259
Antonio Estache and Martin Rodriguez-Pardina, 'Light and Lightning at the End of the Public
Tunnel: Reform of the Electricity Sector in the Southern Cone' (The Economic Development Institute
of the World Bank - EDI Regulatory Reform Discussion Paper., 1998),14
<http://info.worldbank.org/etools/docs/library/64577/2074light.pdf>..
260
Indian Electricity Act 2003 Section 9.
261
Indian Electricity Act section 38.
 221

requires the introduction of non-discriminatory access to essential facilities.262 The

regulatory reform would then attract new market participants into the Indian
electricity sector. The obligation of this provision then contributes to the
development of a competitive market structure.
To reform the electricity sector towards a competitive market, there must be
a regulation to create competition by obligating the incumbents or the monopoly of
the electricity networks to open their power grids, transmission and distribution
facilities to other parties. The regulation for open access will then assure the new
market participants that they will not face anti-competitive and discriminatory
barriers when accessing the essential facilities. This contributes to structural changes
towards competitive markets by increasing the number of market participants and
increasing network inter-connections among market competitors.263 It is noted that
the sectoral regulator has to closely monitor and regulate access to the essential
facility or grid so as to create cost-effectiveness in electricity sector.264 The sectoral
regulator, by closely and carefully regulating the electricity facilities would be able
to create efficient market conditions in the electricity sector which is different from
other utility sectors. That is essentially because electricity power is not-storable
thereby requiring effective matching of electricity supply and demand through the
electricity grid.265 The sectoral regulator thus has to ensure that it effectively
regulates essential facilities so as to create efficient matching of demand and supply
under efficient market conditions.266

262
Indian Electricity Act Section 42.
263
It is noted that some countries still do not recognise the importance of the access to essential
facilities obligation. The example is in Indonesia and Thailand which passed the law without
establishing access to essential facilities. This could lead to the uncompetitive condition discouraging
new market participants.
264
See example from OFGEM, Electricity Networks, (2011)
<http://www.ofgem.gov.uk/Networks/Pages/Ntwrks.aspx>, See also in AER, Our Roles in Networks,
(2012) < http://www.aer.gov.au/node/481>.
265
Severin Borenstein, James Bushnell and Christopher R. Knittel, 'Market Power in Electricity
Markets: Beyond Concentration Measures' (1999) 20(4) The Energy Journal 65.
266
Borenstein, Severin, 'The Trouble With Electricity Markets: Understanding California's
Restructuring Disaster' (2002) 16(1) The Journal of Economic Perspectives 191
 222

5.3.2.4 Analysis of Countries experiences with regulation for

competition
The above countries’ experiences in utilising regulation to build competition
in the electricity sector shows that there are important regulations that countries
must adopt to create market competition, including regulations for (i) unbundling the
sector, (ii) attracting investment and (iii) opening access to essential facilities.
However, the international experiences in the regulation for building market
competition can provide some consideration of the development of regulation for
electricity reform towards competition.
The first consideration is the effect of market power and structural change
towards market competition. The regulation for unbundling the electricity sector is
important to reduce the market power of incumbent firms. The experiences of
electricity reforms from various countries as presented above displays that there is a
requirement to set sectoral regulation as the legal obligation to unbundle the parts of
previous monopoly electricity structures into the business section of generation,
transmission and distribution. In a study on electricity competition, Joskow and
Tirole analysed the connection between transmission ownership and market power
and showed that the ownership of physical transmission rights can increase the
ability of firms in the generation section to engage in abuses of market power
through transmission facilities.267
This is similar to the report of the Australian Ministerial Council on Energy
Standing Committee of Officials.268 The report stated that transmission firms that
integrate with competitive generation firms would obtain market power and may
reduce competition by raising the price of electricity transmission, lowering the
quality and quantity of localised electricity transmissions and reducing the
timeliness of transmissions to competitors while making strong provision for
affiliate generators.269 Thus, it is important to reduce the risk of abuses of market

267
Paul L. Joskow and Jean Tirole, 'Transmission Rights and Market Power on Electric Power
Networks' (2000) 31(3) The RAND Journal of Economics 450.
268
Ministerial Council on Energy Standing Committee of Officials, 'Consultation Regulation Impact
Statement Separation of generation and transmission ' (Ministerial Council on Energy (MCE), 2011)
<http://ris.finance.gov.au/files/2011/08/03-Separation-of-Generation-and-Transmission-RIS.pdf>.
269
Ibid.
 223

power with a regulation obligating the unbundling of the electricity sector in order to
prevent the possibility of cross-segment abuse of market power.270
Although some studies argue that the integration between distribution and
generation in parts of the electricity sector can help to create cost savings, compared
to disintegration,271 unbundling is a far greater benefit because it reduces firms’
market power and helps to promote the development of competition, resulting in an
increase in efficiency.272 Moreover, the regulation for market competition would
also create the structural change, which creates unbundled electricity sectors that
attracts new investment and new market participants. In Politt’s study, the regulation
that directs the separation of the electricity sector and open access to electricity
facilities helps to attract more investment and market participants in generation,
transmission and distribution,273 which was similar to findings by Littlechild and
Skerk.274 When there is open access for networks to connect to the essential facilities
of grids, transmission and distribution, all market participants are able to operate and
connect their electricity supply to the essential electricity facilities to compete for
consumers. Thus, the regulation encourages new market participants to compete in
the liberalised electricity market and decrease the market barriers from
discriminatory access to electricity facilities under the electricity incumbents. It
would then contribute to the improvement of competition and the efficiency of the
electricity sector.

270
OECD, 'Competition Issues in the Electricity Sector ' (2005) 6(4) OECD Journal of Competition
Law & policy 81.
271
The integration was found to be efficient, particularly when the co-owned generator and the co-
owned „distributor had high (and preferably similar) levels of electricity output- See Michael D.
Diathesopoulos, 'Energy Market Restructuring and Competition Regulation' (2010) <
http://ssrn.com/abstract=1621719>; Michael D. Diathesopoulos, 'Ownership Unbundling in EU &
Legal Problems' (2010) <http://ssrn.com/abstract=1732212 or
http://dx.doi.org/10.2139/ssrn.1732212>; Michael D. Diathesopoulos, 'Third Party Access and
Refusal to Deal: How Sector Regulation and Competition Law Meet Each Other' (2010) <
http://ssrn.com/abstract=1732210 or http://dx.doi.org/10.2139/ssrn.1732210>.
272
Newbery, above 51; OECD above n 270; Howard A. Shelanski, 'From sector-specific regulation to
antitrust law for US telecommunications: the prospects for transition' (2002) 26(5–6)
Telecommunications Policy 335; David Starkie, 'Airport regulation and competition' (2002) 8(1)
Journal of Air Transport Management 6.
273
Michael Pollitt, 'Electricity Reform in Chile Lessons for Developing Countries' (Center for Energy
and Environment research , MIT- Document No. 04-016 September 2004
2004) <http://tisiphone.mit.edu/RePEc/mee/wpaper/2004-016.pdf>.
274
Stephen C. Littlechild and Carlos J. Skerk, 'Regulation of Transmission Expansion in
Argentina:Part I – State Ownership, Reform and the Fourth Line' (Cambridge Working Papers in
Economic CWPE 0464, 2004) <http://www.econ.cam.ac.uk/electricity/publications/wp/ep61.pdf>.
 224

The second consideration is that the regulation for market competition

would give a clear direction to public and private enterprises and consumers on
how liberalisation reform towards competition would occur. The clear regulation
on how to transform the sector is significant to assure all stakeholders that there is a
predictable plan to create liberalisation and competition in the electricity sector.
When there are clear rules, current firms in the sector would be able to have a clear
view of how they would have to be changed according to the regulation for
competition creation.275 In addition, the regulatory rules would help to provide a
clearer view of the new investments about available opportunities and operations in
the electricity sector when the regulation for market competition is adopted. The EU
Union of the Electricity Industry provides that the regulation should be stable, clear,
predictable, fair and transparent in order to create liberalisation and to attract new
investments for stimulating sector competition.276 Without a clear regulation for
structural reform and competition creation, current and new firms in the electricity
sector would not be able to have their predictability and certainty to invest in the
liberalisation of electricity, which facilitates the development of the sector.277
The third consideration is that the regulation for building electricity
market competition must be under the competitive neutrality approach. As
discussed above, Countries have implemented a regulatory framework to provide
competitive neutrality to assure new market participants that they will not face
disadvantages in market competition when they have to compete with the incumbent
electricity firms. Thus, the regulation for the creation of market competition must
assure all participants that they would receive competitive neutrality treatment,
which would help facilitate the structural change in the liberalised electricity market
by increasing the number of new market participants. Tye stated that the regulation

275
OECD, 'OECD Guiding Principles For regulatory Quality and Performance' (OECD 2005)
<http://www.oecd.org/fr/reformereg/34976533.pdf>.
276
EU Union of the Electricity Industry -Working Group Ensuring Investments, 'Ensuring
Investments in a Liberalised Electricity Sector' (Union of the Electricity Industry–EURELECTRIC,
2004) <http://www.erranet.org/index.php?name=OE-
eLibrary&file=download&id=2994&keret=N&showheader=N>.
277
Ibid. and see Paul Bulteel, 'Can The Electricity Sector Attract Adequate Investment?" A European
Perspective' (Paper presented at the 19th World Energy Congress, Sydney, 2004)<
http://www.worldenergy.org/documents/congresspapers/bulteelp0904.pdf>.
 225

must be an incentive for the creation of market competition via the attraction of new
investment under competitive neutrality interconnection facilities.278
The fourth consideration is the cost of the regulation for market
competition. The regulation for competition in the electricity sector may lead to high
costs of monitoring and supervising liberalisation progress for competition
creation.279 The regulatory obligation to unbundle and open access to essential
facilities requires a high cost of monitoring for the incumbent firms.280 In adopting
the regulation, it must be considered whether the benefit of regulation for
competition outweighs the cost of the intervention.281 It is arguable that the
regulation for competition requires costly financial and human resources for
monitoring and supervising the electricity sector.282 However, it is also arguable that
the cost of regulation is far less than the cost of inefficiency from an uncompetitive
electricity market, leading to substantial economic loss to consumers.283 This is
because, when there is no regulation for market competition that helps monitoring
and supervising electricity towards competition, electricity firms would be able to
monopolise or create cartels that can amount to significant losses of consumers’
welfare.284 Thus, it is preferable to pay regulation costs for monitoring and
supervising electricity towards competition rather than leaving the market towards
uncompetitive conditions, which creates considerable economic losses to
consumers.285

278
William B. Tye, 'Competitive Neutrality: Regulating Interconnection Disputes in The Transition
To Competition' (Paper presented at the Regulation and Competition Conference, 2002)
<http://www.accc.gov.au/content/item.phtml?itemId=259730&nodeId=5b7da1643824ee286b2f0457
39e11f89&fn=Session+2+-+Dr+Bill+Tye.pdf>.
279
Michael Pollitt, 'Electricity Liberalisation in the European Union: A Progress Report' (EPRG
Working Paper 0929-Cambridge Working Paper in Economics 0953, 2009)
<http://www.eprg.group.cam.ac.uk/wp-content/uploads/2009/12/Binder1.pdf>.
280
Ibid.
281
Ibid.
282
See Brenda Marshall, Regulating Access To Essential Facilities in Australia: Review and Reform
of Part IIIA of Trade Practices Act (Queensland University of Technology, 2003) – Brenda
examines, in her thesis chapter 2, that the regulation for access regime can cause significant human
and financial cost. But she also argue that the regulation has greater benefit outweigh the regulation
cost.
283
Paul Twomey et al, 'A Review of the Monitoring of Market Power: The Possible Roles of
Transmission System Operators in Monitoring for Market Power Issues in Congested Transmission
Systems' (2005) 11(2) Journal of Energy Literature 3.
284
Ibid See also in Seth Blumsack, Dmitri Perekhodtsev and Lester B. Lave, 'Market Power in
Deregulated Wholesale Electricity Markets: Issues in Measurement and the Cost of Mitigation'
(2002) 15(9) The Electricity Journal 11.
285
Marshal above n 282.
 226

From the above exploration on regulation for market competition under: (1)
regulation for unbundling electricity sectors, (2) regulation for attracting new
investment under competitive neutrality, (3) regulation for access to essential
utilities. These are important ideas for the possible reform of Thailand’s electricity
sector in order to create competition. The reform is further discussed in Chapter 6.
However, it is also important to explore another aspect of regulation—the regulation
of market competition—which refrains from an interventionist role. This is explored
in the next section.

5.3.3 Regulation of competition

The regulation, when having reached the goal of establishing market
competition in the electricity markets, has to be flexible and be able to on retreat
from its role as the regulatory intervention for building competition and to change its
role to ‘regulation of market competition.’286 The phrase of ‘regulation of market
competition’ is derived from the research of Jordana and Lavuier who proposes that:
Regulation-of-competition and regulation-for-competition differ in the degree
of intervention by state authorities and in the capacities of the state to
monitor and enforce competition. While both require the establishment and
the strengthening of governance capacities, regulation-for-competition
requires far more intrusive capacities. This is best indicated by the contrast
between economy-wide responsibilities of national competition authorities in
the case of regulation-of-competition, and sector-specific responsibilities of
regulatory authorities in the case of regulation-for-competition.287
What can be derived from the above ideas of Jordana and Levi-Faur is that
the regulation has to decrease its roles as the interventionist to be a regulation of
market competition, which plays a role as a market referee for the competitive
field.288 Thus when focusing on the electricity, the regulation for creating market

286
David Levi-Faur, 'The Governance of Competition: The Interplay of Technology, Economics, and
Politics in European Union Electricity and Telecom Regimes' (1999) 19(2) Journal of Public Policy
175 ; Jordana and Levi-Faur , above n 168.
287
Ibid.
288
Ibid.
 227

competition by the regulatory intervention and control must be transformed to light-

hand approach regulation, which focus on only prevent the anti-competitive
conduct.289
However, lighted-handed regulation should be employed when there is the
mature market competition.290 This is because the ‘regulation for market’
competition for electricity market can still be the very significant regulatory
approach when the electricity firms still have significant market powers.291 Thus, the
regulation of market or the light-handed regulation can be considered as the
appropriate regulatory mechanism only when the competition in electricity market is
established. It is because the lighted handed regulation provides benefit when the
intervention hand of regulation tends to create market inefficiency hindering market
competition system.292
In this part of the thesis chapter, the international experience on light-handed
regulation of electricity will be explored in order to provide some ideas for possible
reform on Thai electricity regulation.

289
Burkard Enerlein, 'Understanding Economic Regulation of Infrastructures and Utilities in Europe:
the case of Electricity in Comparative Perspective' (Paper presented at the ECSA Sixth Biennial
International Conference, Pittsburgh, 1999) <http://aei.pitt.edu/2260/01/002636_1.pdf> , David Levi-
Faur, 'The competition state as a neomercantilist state: Understanding the restructuring of national
and global telecommunications' (1998) 27(6) Journal of Socio-Economics 665, 665-685.
290
See experience of New Zealand electricity reform from-Fatih Cemil Ozbugday, Light- VS. Heavy
haned Regulation on the Natural Monopolies: The case of New Zealand Electricity Distribution
industry (Master Degree Thesis, Tilburg University, 2008)
<http://www.tilburguniversity.edu/research/institutes-and-research-
groups/tilec/energy/pdf/20080827_Ozbugday.pdf>;Geoff Bertram and Dan Twaddle, 'Price-Cost
Margins and Profit Rates in New Zealand Electricity Distribution Networks Since 1994: the Cost of
Light Handed Regulation' (2005) 27(3) Journal of Regulatory Economics 281.
291
See the study on that the heavy hand intervention has to be assure when market does not work
well under light- handed regulation- Jacqueline L. Weaver, 'Can Energy Markets be Trusted? The
Effect of the Rise and Fall of Enron on Energy Markets'(2004) 4 Houston Business and Tax Law
Journal 3; See Damien Geradin and J. Gregory Sidak, 'European and American Approaches to
Antitrust Remedies and the Institutional Design of Regulation in Telecommunications' in Sumit K.
Majumdar, Ingo Vogelsang and Martin E. Cave (eds), Handbook of Telecommunications Economics
Vol II Technology Evolution and The Internet (SSRN, 2003).
292
Simon Cowan, 'Alternative approaches to regulation: an economic analysis of light-handed
regulation' (Paper presented at the Australian Competition and Consumer Commission Regulatory
Conference, Surfers’ Paradise, 2007)
<http://www.accc.gov.au/content/item.phtml?itemId=793237&nodeId=add211fe3af71923a44b22948
d006e81&fn=Cowan+-+Paper.pdf>.
 228

5.3.3.1 Regulation of market competition: light-handed regulation

on market level playing
The light handed regulation is a regulation which consider on the efficient
markets which requires the regulation to be only the referee of the market
competition.293 This is based on the opinion on competition and regulation of
Stephen Littlechild that ‘Regulation was nonetheless seen as a last resort,
appropriate only where the other and better method of competition was unlikely to
be applicable’.294
By this, the regulation, when market competition is effective, should have its
role only as the light handed referee of the markets and provide the room for market
competitors to compete in the markets.295 The regulation only ensures that all
markets rivals are competing in the efficient and efficient markets and it will provide
the room for market competition to stimulate the change.296 This can be seen from
the light-handed regulation approach from the international experience.
In UK, although the regulation has significant role for controlling market
competition and efficiency, it is seen that the regulation on electricity sector are
working on transforming itself to the regulation of market competition or the light-
handed approach regulation.297 This is according to Professor Littlehild’s ideas
before adopting the privatisation and deregulation on UK utility sector.298 Professor
Littlechild, in his report submission to UK government proposed, that the regulation
is a temporary mechanism holding the fort until the market competition arrives. 299
The regulation is for a protection against monopoly but it is not for replacing the

293
David Newbery, 'The Relationship Between Regulation and Competition Policy for Network
Industries' (Working paper EPRG 0611- Electricity Policy Research Group, Cambridge University,
2005) <http://www.eprg.group.cam.ac.uk/wp-content/uploads/2008/11/eprg0611.pdf>.
294
Stephen Littlechild, 'Beyond Regulation' (CWPE 0616 and EPRG 0516, 2006)
<http://www.dspace.cam.ac.uk/bitstream/1810/131664/1/eprg0516.pdf>.
295
Fereidoon P. Sioshansi, 'Electricity market reform: What has the experience taught us thus far?'
(2006) 14(1) Utilities Policy 63.
296
Ibid.
297
OFGEM, 'Consultation on Energy Supply Probe - Initial Findings Report' (OFGEM, 2008)
<http://www.ofgem.gov.uk/Markets/RetMkts/ensuppro/Documents1/Energy%20Supply%20Probe%2
0-%20Initial%20Findings%20Report.pdf>.
298
Stephen C. Littlechild, 'Regulation of British Telecommunications' profitability report to the
Secretary of State' (1986)
<http://openlibrary.org/books/OL21842424M/Regulation_of_British_Telecommunications%27_profi
tability>, para 4.11.
299
Ibid.
 229

competitive market process.300 By this, the regulation of utility has to be flexible for
retreating from an intervention role when market competition has take place.301
Moreover, for the UK electricity regulation it is seen that the sectoral
regulator, OFGEM is moved toward the concurrency regime which reduces
OFGEM’s role on regulatory intervention and allows OFGEM to use lighted-hand
regulation to under ex-post regulatory approach as a market referee for electricity
market competition.302 In the OFGEM 2008 report on ‘Energy Supply Probe - Initial
Findings’, OFGEM stated that OFGEM would refrain from price control
intervention and would act as light handed regulator because it recognised that the
use of regulation to intervene market may lead to the distortion of competition in
electricity sector.303 It is seen that the OFGEM has recognised that its role of
regulatory control by the price intervention has to be change toward the lighted-
handed regulation which provide room for energy companies to compete in markets
under ex post regulatory approach of the competition law enforcement.304
In the US, the sectoral regulation is also under the light-handed approach
where FERC tends to favour the process of market competition rather than the
regulatory intervention.305 FERC in its light handed approach to natural gas sector
issued the order No. 561 on Market –Based Ratemaking for Oil Pipeline 1993 which
established that ‘light handed regulation’ would apply where there was a lack of
substantial market power in the relevant markets.306 In the natural gas sector, FERC
also, after finding that the unbundled gas commodity market is competitive,
authorized market-based rates for sales by interstate pipelines and provided blanket

300
Stephen Littlechild, 'Regulation. Over-regulation and Deregulation' (Paper presented at the CRI
occasional lecture: Occasional Lecture 22, Royal Society, 2008), 13
<http://www.ofgem.gov.uk/Networks/rpix20/Factsheets/Documents1/4.pdf>.
301
Ibid.
302
UK Department of Trade and Industry and HM Treasury, 'Concurrent Competition Powers in
Sectoral Regulation' (UK Department of Trade and Industry and HM Treasury Doc No. URN
06/1244, 2006) <http://www.bis.gov.uk/files/file29454.pdf>.
303
OFGEM above n 297, 20.
304
Ibid.
305
See Jon Wellinghoff, 'Variable Energy Resources Final Rule and Notice of Proposed Rulemaking
on Ancillary Services and Storage Technologies' (Statement of FERC’s Chairman , Docket Nos.
RM11-24-000, AD10-13-000 and RM10-11-000, 12 June 2012
<http://www.ferc.gov/media/statements-speeches/wellinghoff/2012/06-21-12-wellinghoff-E-2.asp>.
306
M.A. de Figueiredo et al, 'Regulating Carbon Dioxide Capture and Storage' (Center of The
Department of Economics, Laboratory for Energy and the Environment, and Sloan School of
Managament, 2007).
 230

marketing certificates for all gas sellers.307 This signifies the light-handed approach
of regulation under FERC.
Moreover, in the electricity sector, FERC also adopted the light-handed
regulation by the issuance of order No. 697 on Market-Based Rates For Wholesale
Sales Of Electric Energy.308 The order contributed to the light-handed role of FERC
on electricity by that FERC will only be the regulator who supervises the electricity
market by considering the market rates of electricity prices derived from market
competition. FERC by the order No. 697 pursues the light-handed regulation on
focusing on only (1) screening market power of electricity sellers whether they have
horizontal and vertical market power, (2) making rules to prevent market abuse, and
(3) reviewing the transaction reports submitted by the market based sellers.309 The
order 697 provides that FERC will have the role as the market referee on reviewing
the market rates under competitive markets and preventing abuses of market power
from market sellers by encouraging competition from new market entries.310 FERC
would have its role on electricity market as the regulator of market competition,
which focuses mainly on the market abuse in the electricity sector.
In India, the Electricity Act 2003 has set a framework for sectoral regulation
to employ the light-handed approach for regulating the electricity sector. The Act is
a significant move towards creating a market-based regulation in the Indian
electricity sector and consolidates the rules to liberalise generation, transmission and
distribution.311 The Act requires the regulation, which generally takes measures
conductive to development of electricity industry by promoting competition and
protecting interests of consumers.312 By the Act, the Indian Energy Commission as

307
US Federal Energy Regulatory Commission 131 FERC 61,019 Order on Petition For Clarification
or Alternatively, Rulemaking Docket No.RM10-3-000 , 5 para 1.
308
US Federal Energy Regulatory Commission, 119 FERC 61,295, Market-Based Rates For
Wholesale Sales Of Electric Energy, Capacity And Ancillary Services By Public Utilities, Docket
No. RM04-7-000; Order No. 697< http://www.ferc.gov/whats-new/comm-meet/2009/071609/E-
1.pdf>.
309
James H. McGrew, FERC: Federal Energy Regulatory Commission (ABA, 2009).
310
See Winston & Strawn LLP, 'FERC Codifies Rules for Market-Based Power Sales' (2007)
<http://www.winston.com/siteFiles/publications/Market-Based_Power_Sales_Rules.pdf >. It is
opined that the order 697 give good balance for FERC to reflect its twin objectives to protect
consumers while at the same time encouraging investment so long as the electricity sellers adhere to
their regulatory obligations.
311
Thakur ,et al, above n 197.
312
Ibid. and see Aparna Viswanathan, 'Light-Handed Regulatory Approach Electrifies Indian Power
Sector ' (2004) International Energy Law and Taxation Review 198.
 231

the sole regulator for electricity and gas emphasizes that it needs to move away from
an interventionist approach to a new regime of lighter regulation, which focus on the
competitive system of market.313 This is also confirmed by the statement of
Yoginder Alagh, the former Indian Minister of Former Minister of Power and
Science Technology who provides that, after the making structural changes for
Indian electricity sectors, there is need for light-handed approach under market-
based mechanism to enhance energy efficiency.314 It is thus seen that India also
plans to use light-handed regulation by market-based regulation to govern its
electricity market.
In China, although it just initiated its liberalisation process in the electricity
sector, it also plans to move to light-handed regulation by market-based regulatory
regime.315 The Chinese State Electricity Regulatory Commission (SERC) states that
it will regulate the electricity operation and market by ensuring that there is a level
playing field on transmission, distribution and non-competitive generation
businesses.316 Thus, it is seen that even China considers the regulatory framework of
light-handed regulation for stimulating level playing in its liberalised competitive
electricity markets.

5.3.3.2 Analysis of countries experience on regulation of competition

The above countries’ experiences of the regulation of market competition
provides that there must be a reshaping of regulation when there is an establishment
of market competition. The regulation for competition under an interventionist
approach would have to be reshaped towards regulation of market competition,
which provides a light-handed approach, giving an opportunity for competition to

313
Clean Development Mechanism UNFCCC, 'CERC Announces Draft Regulation for Terms and
Conditions for Electricity Tariff' (UNFCCC, 2004)
<http://cdm.unfccc.int/Projects/DB/BVQI1189417216.52/ReviewInitialComments/R4R2M896ODW
H82ZV9TFJRASGJK4PWF >.
314
Yoginder Alagh, 'Transmission and Distribution of Electricity in India Regulation, Investment and
Efficiency ' (Paper presented at the OECD Development Centre Development Finance Network
(DeFiNe) Annual Assembly, Paris, 2010 ), 17 <http://www.oecd.org/dataoecd/34/55/46235012.pdf,
http://www.oecd.org/dataoecd/34/55/46235012.pdf>.
315
The Chinese State Electricity Regulatory Commission (SERC), Major Responsibilities: (2010)
<http://www.serc.gov.cn/english/index.htm#>.
316
Ibid.
 232

work rather than intervening in the market. However, the international experience
above on the regulation of market competition can provide some considerations on
the development of regulation.
The first consideration is that the regulation is the mechanism to enrich
competition, which creates sector efficiency rather than the substitute for
competition. The above examples of the UK, the US, Sweden, India and China
explain the important approach of ‘regulation of competition’, which attempts to
stimulate sector efficiency by the competitive system via light-handed regulation.
The ‘regulation of competition’ is the transformed regulation which focusing on a
market force to generate the development and efficiency in the electricity sector
rather than making a regulatory intervention to create market efficiency. Thus, it is
important for countries making liberalisation and regulatory reform to plan their
electricity regulatory regime so that it can be changed to lesser intervention role
using alight-handed approach.
The second consideration is that there must be mature competition in the
electricity sector before moving to light-handed approach under regulation of
competition. The lighted handed regulation can create competitive efficiency in
electricity industry only when the industry has maintained sustained market
competition and there is no significant market power of the incumbent firms. The
move from heavy-handed approach regulation for competition to light-handed
approach without considering the maturity of market competition and the issue of
market power of incumbents would lead to market failure and loss on consumer’s
welfares as can be seen from experience from New Zealand electricity liberalisation
case.317 The case displayed that regulation of competition would not be able to deal
with an uncompetitive structure and lack of market competition in New Zealand’s
electricity sector. The regulation of competition without mature competition then
amounted to market manipulation and market failure in the electricity sector.318
Thus, the ‘regulation of competition’ is important but when to utilise it there must be
an assessment of the maturity of competition without any firms’ significant market

317
Ozbugday, above n 289.
318
Ibid.
 233

power in the sector.319 The alternative option is that there should be flexible
regulatory approaches for and of competition to the particular mature stage of
market competition. For example, the regulation for competition is used for
obligating open access in the bottleneck stage and regulation of competition is used
for competitive markets.320
The third consideration is that the regulation of competition is a coordinative
form of regulation with competition law.
The regulation of market competition would be only reference rules in the
market and would be used only where the firms in the sector act anti-competitively
to deter competitive conduct in the market. As discussed in Chapter 4 of the thesis
the cooperation and coordination between competition law and sectoral regulation is
of significant to govern and create market competition in electricity sector, the
regulation of market competition under the cooperative aspect with competition law
focusing on the ex post approach, which prohibits anti-competitive conduct in the
electricity rather than directing what the firms have to do in the sector.321 Moreover,
in order to avoid the deterrence effect of regulation on competition there should be
an establishment of the regulatory impact assessment which helps evaluate whether
the regulatory obligation would deter the competition system in electricity sector or
not. The regulation of market competition under regulatory assessment thus has to
coordinate with competition law to ensure that there are not any negative regulatory
effects, which lead to an anti-competitive environment and difficulty in promoting
the competition in electricity sector.322

319
See example in David M. Newbery, 'Regulation and competition policy: longer-term boundaries'
(2004) 12(2) Utilities Policy 93.
320
Mats A. Bergman, 'Competition in services or infrastructure-based competition?' (Swedish
Competition Authority, 2004) <www.ictregulationtoolkit.org/en/Document.2003.pdf>.
321
See Thesis chapter 4 part 4.4.
322
Australian Productivity Commission, 'Regulatory Impact Analysis: Benchmarking' (Australian
Productivity Commission, 2012) <http://www.pc.gov.au/projects/study/ria-benchmarking/issues>.
 234

5.4 Conclusion
The thesis chapter explores the international experience in developing
regulation which promotes market competition in the electricity sector. In the first
part of the chapter, it displays underlining ideas of regulation in relation to
infrastructures utilities by presenting definition, objectives and important theories of
regulation. It touches on the definition of regulation in utility sectors and on the
public interest and capture theories of regulation. The theories of regulation then
contributed to advent of the regulatory reform in electricity sector. Under the public
interest theory, the regulation is to protect the public at large from the abuse of
market power by firms. Under the capture theory, the regulation is for the protection
of firms’ interest resulting to a loss to the public at large. By understanding both
views of regulation under the public and capture theories, the chapter shows that
there is the period of deregulation and reregulation in order to create the market
competition. It is because the competition in the liberalised utilities sector especially
in the electricity sector cannot be created without any assistance from an appropriate
regulatory framework. This means the deregulation by the influences from capture
theory has to cooperate with reregulation influenced from public interest theory in
order to build the market competition. In the other words, it requires the new form of
market regulation in order to create efficiency and market competition in the
electricity liberalisation.
The forms of regulation are then discussed in the second part of the chapter,
which aims to explore an appropriate regulation that can contribute to a creation of
market competition in the electricity sector. The forms of regulation the chapter
explores are the appropriate regulatory institution, regulation for competition and
regulation of competition. In relation to the regulatory institution, the paper explores
experience from various countries and found that there is a need for the sectoral
regulator to be established. The sectoral regulator plays a role as the main regulatory
institution, which facilitates a reform in electricity toward competition. The
regulatory institutions in the electricity sector can also include the competition
agency which helps check anti-competitive conduct in the electricity market and
assists the sectoral regulator in formulating competition in electricity sector.
 235

In relation to the regulation for competition, the chapter shows the

requirement for regulation to deal with an uncompetitive market structure and to
build market competition by the regulation through (i) the unbundling of electricity
sector, regulation of competitive neutrality, which stimulates the new investment
from private participants, and (ii) the regulation obligating the incumbent firms to
open access to their essential facilitates network. By employing the regulation for
competition, it can help facilitate the reform of the electricity sector towards
competitive enhancement.
However, the chapter also considers that the ‘regulation for market
competition’ has to change its role to ‘regulation of market competition’. The
regulation has to refrain from the role of intervention when the market competition
in electricity sector is mature. It is because the regulation intervention when there is
mature competition tends to create market inefficiencies. The regulation of
competition, in this sense thus focuses on the enforcement of rules prohibiting anti-
competitive behaviours. Thus, there would have to be coordination and cooperation
between regulation and competition law as explored in the previous chapter 4 of the
thesis.323
By exploring the international experience in relation to regulation that helps
promote market competition in electricity sector, it is possible to gain some ideas
for the problems in the current Thai electricity regulatory framework. The
experience would provide possible regulatory reforms in order to build competition
in Thai electricity sector. The possible reform in the regulatory framework will be
discussed in the next chapter of the thesis.

323
See Thesis chapter 4 part 4.4.
 236

Part III: Thailand and the way forward on

competition law and sectoral regulation on electricity
sector

Chapter 6: Thailand and the way forward on

competition law and sectoral regulation

Aim of this chapter: This chapter aims to adopt the international experience,
reviewed in Chapters 4 and 5, to resolve the problems of Thai competition law and
sectoral regulation, which were presented in Chapters 2 and 3. This chapter will
provide the way forward for the development and reform of Thai competition law
and sectoral regulation in the electricity sector. Thus, the chapter intends to answer
the last thesis question: How can Thailand apply the international experience to
develop its competition law and sectoral regulation in the electricity sector?

6.1 Introduction
Part I of the thesis dealt with the problems of Thai competition law and
sectoral regulation that have contributed the uncompetitive structure in Thailand’s
electricity sector. Part II explored the international experience of competition law
and sectoral regulation and that experience can assist Thailand to deal with its
problems in competition law and sectoral regulation in the electricity sector.
In Part III, the thesis will apply the international experience to address the
problems of Thai competition law and sectoral regulation to promote and protect
market competition in the Thai electricity sector. This will provide a significant
paradigm for Thailand to build effective competition law and sectoral regulation to
help create and protect market competition in the electricity sector.
This chapter focuses on applying international experience to formulate
proposals for the reform of Thai competition law and sectoral regulation. The
 237

proposals will be in the form of short- and long-term plans. The short-term plan
focuses on (1) Energy Regulatory Commission) ERC action on market competition,
(2) building public recognition for competition law, and (3) advocacy work between
competition law and sectoral regulation. The long-term plan focuses on (1) the
establishment of the National Competition Agency or Council, (2) reform of Thai
Energy Act 2007, (3) reform of Thai Competition Act 1999, and (4) promotion of
formal inter-institutional cooperation between the Competition Commission and the
Energy Commission. It is recognised that the proposals for the above plans, in
particular the long term plans will be dependant to some extent on a stable political
environment. However, while the Thai political environment and institutions are
relevant considerations, these uncertain and broad considerations are beyond the
scope of this thesis (as explained at chapter 1 section 1.6). This thesis focuses on the
reform of the legal and regulatory framework of Thailand’s electricity sector with
respect to competition law and sectoral regulation. While recognising the importance
of political factors, the proposals do not and are not intended to analyse the concerns
of the ongoing uncertainty in the political economy of Thailand.

6.2 Short-term plans for Thai competition law and

sectoral regulation in the electricity sector
The short-term plan is to initiate a step plan that can be implemented and
finished during a 1-3 year period and to provide a foundation for the long term plans
which will involve public debate and a significant time period to be accomplished.
Thus, in the short term plan, the thesis proposes that within 1-3 years there should
be (1) proactive action from the ERC’s regarding the use of conditional license to
tackle the abuse of market power, (2) promotion of public awareness over the
competition law and competition in Thai energy sector, and (3) advocacy among
Competition Commission, ERC, and government authorities.
 238

6.2.1 ERC action on market competition

According to the international experience reviewed in chapter 5 of the thesis,
the sectoral regulator has to play an important and proactive action in building
market competition in the electricity sector. The sectoral regulators have to be
competent in dealing with anti-competitive conduct and on constructing liberalised
market competition in the electricity sector.1 This can be derived from the
experience in the US, the UK, Australia, Japan and Korea where their electricity
regulators are the main institution for implementing a plan of liberalisation toward
market competition.2
In the short-term plan, it is thus recommended that Thai Energy Regulatory
Commission (ERC) must implement a reform plan by employing the available
regulatory mechanism for creating the competition in Thai electricity market. The
ERC, although under various political restraints and in difficult position, should
employ available regulatory remedies to promote and protect market competition.
ERC may adopt a conditional licensing framework to address concerns with
abuse of market power in the energy sector. Although, there is the ambiguity as to
whether a conditional licensing framework would be able to tackle the SOEs
incumbents, it is the better choice for ERC to start utilizing its power for promoting
the development of market competition in Thai electricity sector. To begin with,
ERC could use its power from the section of 51(10) of Thai Energy Act 2007.
Section 51(10) gives significant power to ERC in conditioning market operators in
the electricity sector not to engage in conduct that is abusive use of monopoly
power.3 An example of the conditional licensing framework that ERC may follow to
safeguard market competition is the UK-OFGEM’s Market Abuse Licence
Condition (MALC), which classifies certain types of behaviour as prima facie
market abusive, meriting investigation and possible penalty.4 Although, OFGEM
was ordered to withdraw the MALC to UK electricity operators,5 the MALC is an

1
See thesis chapter 5 section 5.3- 5.3.1.6.
2
See thesis chapter 5 section 5.3 -5.3.1.6.
3
Energy Act 2007 section 51 (10).
4
Newbery David M, 'Regulating electricity to ensure efficient competition' (Paper presented at the
CEPR/ESRC Workshop on The Political Economy of Regulation, London, 2001)
<http://www.cepr.eu/meets/wkcn/6/697/papers/newbery.pdf>.
5
Abel M. Mateus, 'Competition and Development: Towards an Institutional Foundation for
Competition Enforcement' (2010) 33(2) World Competition: Law and Economics Review 275.
 239

important example to show how the ERC can use its available regulatory discretion
for dealing with potential abuse of market power by the incumbents in Thai
electricity sector. This is because according to the OFGEM, the MALC will prohibit
any behaviour which amounted to an abuse of significant market power.6 Under, the
MALC, there are three main specific criteria required to be fulfilled in order to prove
a breach of this condition. The criteria are the possession of substantial market
power, the exploitation of market power, and the exploitation of the market lead to
economic harm to consumers and/or competition.7
By adopting the MALC as a license condition for Thai electricity operators,
the ERC would have additional power to regulate the market operators in relation to
a prohibition on abuses of market power. This would assist the ERC to discipline
Thai SOEs, having monopoly power not to become involved in any anti-competitive
conduct causing harm to other market participants as well as to the consumers. The
ERC, by imposing the MALC, would be able to require SOEs and other market
operators to provide relevant information to enable ERC to monitor anti-competitive
conduct. When there is a case of anti-competitive conduct the ERC would then able
to issue a penalty to the operators which have abused their market power.8 The use
of MALC also specifies the market information that must be made available to ERC
to monitor market abuse conduct.9 With this information the ERC would be able to
address anti-competitive conduct in the electricity sector.10
In addition the ERC should consider utilizing the license condition to tackle
potentially anti-competitive circumstances regarding the ownership of a market
operator in the electricity market. The ERC should proactively create the conditions
electricity licenses dealing with the following:
(a) ‘Prohibiting or limiting ownership of entities at different functional levels
(generation, transmission, distribution and retail); and

6
Garry E. Vollans, 'Restructuring the Regulatory Framework in Developing Countries' (2004) 12(2)
Energy Studies Review 171.
7
Ibid, 41.
8
David M. Newbery, 'Problems of liberalising the electricity industry' (2002) 46(4-5) European
Economic Review 919.
9
UK Office of Fair Trading, 'Concurrency ' (2010) <http://www.oft.gov.uk/about-the-oft/legal-
powers/legal/competition-act-1998/Concurrency/>.
10
Ibid.
 240

(b) Limiting market concentration in competitive, or potentially competitive,

functions to some maximum share of market (e.g., say 20%)
(c) Requirements for the licensee to report the transfer of a controlling block
(or perhaps concentrated ownership greater than X %) of the licensees.
(d) Copies of any share registration documents filed with the state agency
regulating the sale or exchange of stocks;
(e) Requiring the approval of the regulator in cases when one licensee wants
to purchase the shares of another or when a share transfer of greater than x% is
proposed;
(f) License termination and re-issuance upon change of business ownership;
(g) Rules to enable the regulator to discover both direct and in-direct
ownership of the licensee’11
By resorting to license conditions dealing with t abuses of significant market
power and the ownership of market operators, the ERC would quickly help create
and protect market competition in the Thai electricity sector. This then pave the way
for the longer-term on reform on Energy Act 2007. The long term on reform on the
Energy Act is discussed later in this chapter.

6.2.2 Build public recognition on competition law and

competition on electricity sector
As discussed in the chapter 2 of the thesis competition law is not recognized
amongst the public as the legal mechanism for tackling anti-competitive conduct,
and that lack of public awareness means that the short term plan has to involve
building public awareness of competition law and need for competition in the
regulated sector, especially the electricity sector which is the main focus of the
thesis. Thus, the short term plan for building the public awareness is important to
create the public-wide recognition for the need to improve Thai competition law.
The recognition will facilitate the people’s needs in strengthening the competition

11
See Energy Regulators Regional Association, 'Regulatory Actions To Limit or Correct Abuses of
Market Power' (Paper presented at the Regioanl Energy Regulatory Conference For Central/Eastern
Europe &EURASIA, 1999) <http://www.erranet.org/index.php?name=OE-
eLibrary&file=download&id=3546>.
 241

law framework for dealing with anti-competitive conduct, especially in the

electricity sector. By this, the Competition Commission in short term plan has to
stimulate the rapid public wide understanding of consumers’ rights under the Thai
Competition Act and of the real benefits of market competition.12 This is because
public awareness on competition law is essential to create effective enforcement of
the Thai Competition Act.13
It is important for the Competition Commission to work on organising
conferences, seminars and workshops to facilitate the public understanding of the
role of competition in a market economy and to present how the competition law can
enhance the market competition and deliver economic benefits to Thai consumers.14
In addition, the Competition Commission should create public recognition by using
the media as a way to encourage the wider public to appreciate the significance of
competition law.15 By using the mass media, it will assist in generating public
knowledge of the competition law. This will create significant public momentum in
support of the enforcing competition law and strengthening the Competition
Commission’s public recognition.
When focusing on the electricity sector, the Competition Commission should
draw to the public’s attention the current uncompetitive structure of the electricity
market under the Thai SOEs, and should emphasize the need to reform competition
law and policy in the electricity sector. This then can help facilitate the
understanding of the benefit of competition law as well as an increase in the public
understanding about the issues of uncompetitive structure in the Thai electricity
sector.
In addition, the important step of building public recognition is fundamental
to creating the larger political will in Thai consumers regarding the issues of

12
Elina Cruz and Sebastian Zarate, 'Building Trust in Antitrust: The Chilean Case' in Eleanor M. Fox
and D. D. Sokol (eds), Competition Law and Policy in Latin America (Hart Publishing, 2009).
13
Advocacy Working Group, 'Advocacy and Competition policy ' (ICN, Report from ICN’s
Conference Naples, 2002)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc358.pdf> .
14
This is the propose plan from Indian competition commission As seen in Competition Commission
of India, 'Public Awareness On Competition Law & Policy' (Competition Commission of India,
2003)
<http://www.cci.gov.in/images/media/Advocacy/Awareness/pacl.pdf?phpMyAdmin=NMPFRahGK
Yeum5F74Ppstn7Rf00>.
15
InfoDEV and Intenratioal Telecommunication Union, 'ICT Regulation Tool Kit-Legal and
Institutional framework' (2010) <http://www.ictregulationtoolkit.org/en/Section.1691.html>.
 242

uncompetitive electricity sector and the issues of anti competitive in the other
economic sectors. In the work of Pradeep S Metha, the political interest and
acceptance are the significant elements to generating the support for the effective
work of competition policy in emerging economy.16 Once there is the start of public
wide recognition regarding competition policy or public wide political acceptance of
benefit of competition law and policy, the politics may shift to the effective support
of the use of competition law and policy to tackle the uncompetitive structure and
any anti-competitive behaviours.17 Moreover, once the public recognizes the benefit
of competition and competition law, they will have awareness of liberalisation
policy in a competitive market.18 It would then help build public recognition on a
benefit of liberalisation and competition policy in Thai electricity sector.
When there is a public recognition of the importance of competition law and
policy and on anti-competitive structure in the electricity sector, it would be a
significant step towards developing competition law and policy as well promoting
market competition in Thai electricity sector. Public recognition would generate
interest in pro-market policies, and build public pressure to adopt the market
competition policy in the uncompetitive Thai electricity sector.19
The public recognition in this short term plan provides a significant stepping
stone for the next stage in the long term plan reforming Thai competition law and
sectoral regulation on electricity sector. The long term plan will be discussed later in
this chapter.

16
Prathep Mehta, Manish Agarwal and Singh, 'Politics Trumps Economics– Lessons and experiences
on competition and regulatory regimes from developing countries' (Paper presented at the
Intergovernmental Group of Experts on Competition Law and Policy, Geneva, 2007)
<http://www.unctad.org/sections/wcmu/docs/c2clp_ige8p11Cuts_en.pdf>; Pradeep S. Mehta and
Simon J Evenett, Politics Triumphs Economics? Political Economy and the Implementation of
Competition Law and Regulation in Developing Countries (Volume I) (Academic Foundation in
Association with Consumer Unity and Trust Society (CUTS International), Jaipur, 2007).
17
Ibid.
18
Rijit Sengupta and Cornelius Dube, 'Competition Policy Enforcement Experience From Developing
Countries and Implication for Investment ' (Paper presented at the OECD Global Forum on
International Investment VII: Best Practices in Promoting Investment for Development, Paris,
France, 2008) <http://www.oecd.org/dataoecd/42/55/40303419.pdf>.
19
Michal S. Gal, 'The Ecology of Antitrust: Preconditions for Competition Law Enforcement in
Developing Countries' in Competition, Competitiveness and Development :Lessons from Developing
Countries (UNCTAD, 2004).
 243

6.2.3 Advocacy among Competition Commission, ERC, and

other authorities
The other important short term plan to solve the problems with ineffective
competition law and sectoral regulation on Thai electricity sectors is to promote
advocacy activities among competition law and sectoral regulation and other
government agencies involved with regulations affecting competition in the
electricity sector. Although there is no formal and legal requirement for both Thai
Competition Commission and ERC to cooperate on creating market competition in
the Thai electricity sector, there is no prohibition for both institutions to advocate for
each other. Thus, it is recommended that the Competition Commission and ERC
should use this point to establish inter-institutional advocacy in order to build and
protect market competition in the electricity sector. By this, the Competition
Commission can increase public awareness and can help facilitate the economy wide
reform with the objective of promoting and protecting market competition. This, in
turn, helps solve the problems of ineffective competition law in Thailand because
the competition law would then play a more important role in the electricity sector
for the benefit consumers.
Advocacy would also help enhance the consistency and complementary
nature of the work between both institutions.20 When the Competition Commission
and ERC have consistency of work towards building market competition in the
uncompetitive Thai electricity market, it can be the first step for ERC in building
market competition in the Thai electricity sector.21 ERC would play an important
role in creating structural reform and in dealing with anti-competitive conduct by
SOEs in electricity sector. Consistency and complementary works between
Competition Commission and ERC would also help inform the SOEs about the
possible changes toward market competition in the electricity sector. This can be the
significant trigger point for the SOEs to transform themselves from market
20
Dennis W. Carlton and Randal C. Picker, 'Antitrust and Regulation' (US National Bureau Of
Economic Research, Working Paper 12902, 2007) <http://www.nber.org/papers/w12902.pdf>, p 51
21
See the possible recommendation of competition law advocacy to sectoral regulation in-ICN,
'Competition Advocacy in Regulated Sectors: Examples of Success' (ICN, Report from International
Competition Network 2004 Annual Conference, 2004)
<http://www.reseauinternationaldelaconcurrence.org/media/library/conference_3rd_seoul_2004/capa
citybuild_sg4_seoul.pdf >and in Mari Pangestu et al, 'The Evolution of Competition Policy in
Indonesia' (2002) 21(2) Review of Industrial Organization 205.
 244

controllers to be only market participants under the level playing field of market
competition.22
Further, the advocacy can involve consulting other agencies which are
involved with competition law and sectoral regulation in the electricity sector. As
examined in chapters 4 and 5 of the thesis dealing with international experience of
competition law and regulation in the electricity sector, the Competition
Commission and sectoral regulator should play an advocate role in communicating
and coordinating with the other government agencies in reforming or in analysing
regulations that cause difficulty for the creation of market wide competition, and
especially in the electricity sector.23
Various government agencies may neglect to consider market competition
and adopt decisions and regulation having an anti-competitive impact to the
market.24 This is because government agencies normally have their own missions
and they normally overlook whether their adopted decision and regulation can lead
to an anti-competitive effect in the market.25 Thus, in relation to Thailand, the thesis
suggests that the Thai Competition Commission and the ERC would have to
advocate various government agencies to adopt the notion of competition as a
market driven policy. The advocacy among the Competition Commission, ERC, and
other government agencies would be a significant mechanism to facilitate a better
understanding of reforms promoting economy-wide market competition as well as in
the electricity sector.
Thus, in this short term, the Thai Competition Commission and ERC should
consult with, for example, the Thai Cabinet, State Enterprise Policy Office (SEPO),
the National Economic and Social Development Board, Thailand Board of
Investment, and Bank of Thailand. Through advocacy and consultation, the
Competition Commission and ERC will be able to communicate the importance of
competition law and policy and highlight to other agencies the drawbacks of

22
It is noted that the advocacy is the important way on influence the sectoral regulation to shape the
market toward competitive conditions- see OECD Secretariat, 'Institutional Challenges in Promoting
Competition' (Paper presented at the Second Annual Meeting of the Latin American Competition
Forum, 2004) <http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=408639> p 7 for example
23
See these chapter 4 section 4.3.3 and chapter 5 section 5.3.1.
24
OECD, 'State Owned Enterprises and the Principle of Competitive Neutrality' (OECD Document
No. DAF/COMP(2009)37, 2009) <http://www.oecd.org/dataoecd/43/52/46734249.pdf>.
25
Ibid.
 245

uncompetitive circumstances in the electricity sectors. Advocacy and consultation

then create a consistency on economic development plan, promoting economy wide
competition and specifically in the electricity sector. This also facilitates a
significant step towards the long term reform of the Thai competition law and
sectoral regulation.

6.3 Long-term plans

The long-term plan for reforming Thai competition law and sectoral
regulation for electricity sector include (1) The establishment of the main national
competition institution that can facilitate the development on economy-wide market
competition as well as in the electricity sector; (2) The reform of the Thai
Competition Act 1999 and enforcement framework; (3) The reform of energy
regulation in order to create and protect market competition in Thai electricity
sector; (4) The institutional coordination between competition law and sectoral
regulation to help enhance the complementary roles of each side.
It is noted that the long-term proposals may be difficult to implement under
the current political uncertainty in Thailand. However, this does not detract from the
usefulness and viability of the proposals which are necessary for the development of
Thailand’s electricity sector and economy. These reform proposals can be
implemented when the political conditions improve and become more stable.

6.3.1 Establishment of National Competition Council

In the long term proposal, there is a necessary aspect to establish institution
which is able set up a plan for reform on competition law and regulation in
electricity sector. The necessary aspect is that Thailand has to firstly establish a
regulatory institution which can well play a role in developing a solid plan for the
reform of competition law and sectoral regulation in electricity sector. An important
role of the institution would be to operate as a research and advisory agency which
 246

can stimulate change towards market competition and to set a plan to reform
competition law and sector regulation on Thai electricity sector.
Thus, the thesis proposes the establishment of a peak agency- which can be
called the Thai National Competition Council that can review and plan a reform
framework for Thai competition law and sectoral regulation that does not support a
creation of market competition, especially in the Thai electricity sector. The Thai
National Competition Council would be an agency which directs the reform
platform for both competition law and sectoral regulation and helps facilitate the
cooperative work between competition law and sectoral regulation. An example is
provided in the UK and Australia where not only do they have a competition
authority and sectoral regulator, but also they have the National Competition
Council as the mainstream agency, facilitating the work for a reform on all
economic sectors toward market competition.26
In UK, the UK Competition Commission (CC) is established as an
independent public agency which works on in-depth inquiries into mergers, markets
and the regulation of the major regulated industries, ensuring healthy competition
between companies in the UK for the benefit of companies, customers and the
economy.27 All of the CC’s works are undertaken following a reference made by the
other authorities, most often the Office of Fair Trading (OFT) (which refers merger
and market inquiries), or one of the sector regulators (which can refer markets
within their sectoral jurisdictions or make regulatory references in relation to price
controls and other licence modifications) or as a result of an appeal from a decision
of one of the sector regulators.28 The CC thus plays important role in undertaking
competition inquiries which facilitate the effectiveness of competition law and
sectoral regulation.29
In the Australia, the National Competition Council (NCC) is established as a
research and advisory body for creating reform toward economy wide competition.30

26
See the UK Competition Commission website at <http://www.competition-commission.org.uk/>;
See Australia National Competition Council at < http://www.ncc.gov.au/>.
27
UK Competition Commission, 'About us' (2010) <http://www.competition-
commission.org.uk/about_us/index.htm>.
28
Ibid.
29
Ibid.
30
National Competition Council, About us, (2012)<
http://www.ncc.gov.au/index.php/about/about_us>.
 247

The main function of the Council is to recommend the competition policy reforms
and the regulation of third party access to infrastructure services.31 The NCC has an
important role to make recommendations to relevant ministers regarding to access
regimes in utility infrastructure sector.32 The NCC also plays a major role in
overseeing and implementing the National Competition Policy which is the main
Australia’s economic policy, focusing on market competition as a key stimulus to
Australian’s productivity improvement.33
In relation to Thai competition law and sectoral regulation, there should be
an establishment of a peak agency that helps facilitate the development of
competition in Thai utility sectors, including electricity sector. The National
competition agency would be the main institution that encourages changes in Thai
competition law and sectoral regulation in the electricity sector. This is similar to
Ireland’s proposal on the necessity to build functional competition policy for India
that there should be national policy council main facilitator of reform on competition
law and sectoral regulation.34 This also can be seen from the work of Pradeep and
Manish that a national competition policy council should be established, having the
important duty of providing guiding principles in framing government policies to
promote competition in the market.35
The peak agency as the proposed Thai National Competition Council would
be an important agency providing guidance on the reform of competition law and
regulation in the Thai utilities sector in order to create the economy-wide
competition and the competition in specific infrastructure sectors, including
electricity sector.

31
National Competition Council, 'Access to monopoly infrastructure' (2012)
<http://www.ncc.gov.au/index.php/redirect/access_to_monopoly_infrastructure_in_australia/>.
32
National Competition Council, About us, (2012)<
http://www.ncc.gov.au/index.php/about/about_us>.
33
Council of Australian Governments (COAG), 'Council of Australian Governments' Communiqué 19
August 1994' (2010) < http://archive.coag.gov.au/coag_meeting_outcomes/1994-08-19/index.cfm>;
John Kain, Indra Kuruppu, and Rowena Billing, Australia's National Competition Policy: Its
Evolution and Operation, (Parliament of Australia 2003).
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publi
cations_Archive/archive/ncpebrief>.
34
Derek Ireland, 'Towards a Longer-term Agenda for Competition Policy and Law in India'
(Discussion Paper, CUTS Centre for Competition, Investment & Economic Regulation, 2009), 7
<http://www.cuts-ccier.org/pdf/Towards_a_Longer-term_Agenda_for_CPL_in_India.pdf>.
35
Pradeep S Mehta and Manish Agarwal, 'Time for a Functional Competition Policy and Law in India
Mainstreaming competition principles into policy and legal framework is pro-development' (CUTS
International, 2006) 38 <http://www.cuts-international.org/pdf/compol.pdf>.
 248

Moreover, the establishment of the Thai National Competition Council is

also important as the council would be a conflict resolution institution for the
Competition Commission, sectoral regulator and firms in the utility infrastructure
sector. The council would help resolve the inconsistencies in policies and works
between Competition Commission and the sector regulator in the electricity sector.
Where there are the issues of conflict between the Competition Commission and the
sectoral regulator regarding the approach to build and protect the competition in the
electricity sector, the council could resolve the conflict and facilitate consistency
between the Competition Commission and sectoral regulator. The council would
also have a role to mediate the conflict among Competition Commission, sectoral
regulator, and the firms in infrastructure sectors where there is a concern with an
order or decisions from Competition Commission and sectoral regulator that could
hinder market competition.36 The council would play a role in helping encourage
consistency between the Competition Commission and sectoral regulation as well as
reconciling possible conflicts in orders and regulations which affect market
competition and firms in the electricity sector.
It is accepted that it is not an easy task to establish the Thailand’ National
Competition Council. However, without the establishment of the National
Competition Council, there would not be the first step needed to urge the
Competition Commission and sectoral regulator to move the electricity sector
toward market competition.
The thesis thus proposes that a Thai National Competition Council be
established by upgrading an existing institution and giving that institution the role as
the National Competition Council. For example, Thailand may upgrade the Thai
National Economic and Social Advisory Council (NESAC), to have the additional
role of National Competition Council which would facilitate the reform on
competition law and sectoral regulation in the electricity sector. The NESAC is an
independent institution giving advice to the cabinet relating to Thai social and

36
See example- the roles of UK competition commission on the reviews of undertakings or regulator
orders in UK Competition Commission above n 27; see also from the role of Australian National
Competition Council in Fabrizio Gilardi, Jacint Jordana and and David Levi-Faur, 'Regulation in The
Age of Globalisation: The Diffusion of Regulatory Agencies across Europe and Latin America' (IBEI
WORKING PAPERS 2006/1, 2006)
<http://www.recercat.net/bitstream/2072/4271/1/WP_IBEI_1.pdf>.
 249

economic problems and the NESAC has a significant role as the strategic institution
that plans the critical socio-economic plan for development of Thailand.37 The
upgrade of NESAC to become the National Competition Council thus would help
integrate competition policy in the Thai National Economic Development Plans
which are 5 yearly and strategically set by the NESAC. In addition, the advantage of
upgrading NESAC to have a role as the National Competition Council is that the
NESAC is the independent institution for economic advice and policy setting
established under the Constitution of the Kingdom of Thailand 2007.38 Under this
constitutional requirement the NESAC is the independent organisation which has a
state budget and support staff in the Office of the National Economic and Social
Council which means that the agency has autonomy in its personnel
administration.39 By upgrading the NESAC to have the role of the National
Competition Council, it can be independent and have sufficient work resources to
support the work as the National Competition Council.
Alternatively, Thailand may consider upgrading the State Enterprise Policy
Office (SEPO) which currently supervises and controls all Thai SOEs to be a
National Competition Council. The SEPO which is under the Ministry of Finance
has specialized department to govern state-owned enterprises’ (SOEs) financial and
accounting plan.40 Moreover, the SEPO is also charged with responsibility for
improving the economic efficiency of SOEs by setting up best practices in relation
to an effective corporate governance framework and performance evaluation
system.41 By upgrading the SEPO to become the National Competition Council, it
would help take the advantage of SEPO’s specialized knowledge for setting up
reform plan for Thai competition law and sectoral regulation in order to create
market competition in Thai electricity sector. The SEPO with its specialized policy
knowledge relating to SOEs would be able to provide a plan for dealing with the
uncompetitive structure of Thai electricity sector as part of the reform of
37
See further information about the National Economic and Social Advisory Council in NESAC, The
National Economic and Social Advisory Council : Background (2010)
<http://www.nesac.go.th/english/nesac_info/nesac_background.html> See also article 258 of
Constitution of Kingdom of Thailand BE 2550 (2007).
38
Constitution of the Kingdom of Thailand 2007- Chapter IX part 2(3).
39
Ibid.
40
R. Rejikumar, 'Indian Electricity Act 2003: Agenda for Review' (2004) 39(44) Economic and
Political Weekly 4778.
41
Ibid.
 250

competition law and sectoral regulation. However, in upgrading the SEPO, there
must be consideration to creating an independent institution which has autonomy in
setting up plan for reform of competition law and sectoral regulation. The upgrade
then has to be done by removing the SEPO from the control of the Ministry of
finance and the cabinet.
Nevertheless, whether upgrading the existing institutions as proposed above
or establishing a new council, the thesis proposes that the established the National
Competition Council should be independent from government and the council must
have sufficient human and financial resources for effective work of the council.

6.3.2 Reform on Thai competition law

Apart from the proposal to establish a Thai National Competition Council
presented above, the thesis proposes that there should be reforms to the Thai
Competition Act with regard to (1) creating provisions which help promote and
protect competition in the Thai economy and specifically in electricity sector and (2)
build effective enforcement institution.

6.3.2.1 Reform on provisions of the Competition Act

The Competition Act 1999 must be reformed in order to help create market
competition and to prevent the anti-competitive conduct in the Thai economy and in
the specific electricity sector. The proposed reform include; (1) a clear objectives
clause in the Competition Act; (2) removal of the exemption for SOEs; and (3)
inclusion of provision prohibiting anti-competitive conduct in electricity

6.3.2.1.1 Clear objective of the Competition Act

The Thai Competition Act 1999 should be amended to include clear
objectives clause to promote market competition in the Thai economy. The Thai
Competition Act 1999 does not have any section setting out the clear objectives of
the Act.42 The thesis thus urges that the Thai Competition Act is amended to include
a clear objectives clause in the Act. The objectives clause would elucidate the
42
See Thesis chapter 2 section 2.3.1.1.
 251

purpose for the enforcement of the Act and help create a common understanding
among related parties involving the role of competition law; the Competition
Commission, court, public prosecutor, various government agencies businesses, and
consumers. It is also noted that there are jurisdictions that incorporate an objectives
section in their competition legislation. Example includes Korea,43 Japan,44
Indonesia45and Mexico.46
The inclusion of an objective clause is seen as essential to the effective
enforcement of competition law given that the Thai legal system is a civil law
system where the courts have to rely on an interpretation of the text of the
legislation. The inclusion of an objective clause would help to provide a guide to the
legislative purpose of the statute. This would assist the bodies and officials
responsible for the enforcement of competition law.
Thus, the thesis proposes that clear objectives should be included in the Thai
Competition Act. The particular objectives can be referenced to the fundamental
ideas of competition law discussed in the chapters 4 of the thesis.47 Proposed
objective section of the Thai Competition Act could be drafted as follows;
‘The purpose of this Act is to
To control or eliminate restrictive agreements or arrangements among
enterprises, or mergers and acquisitions or abuse of dominant positions of market
power, which limit access to markets or otherwise unduly restrain competition in
order to; 1) Achieve greater economic efficiency and increase economic welfare or
the welfare of society; 2) Promote efficient resource allocation by means of
workable or effective competition; 3) Protect consumers under free market
enterprise and a free market environment; 4) Improve the competitiveness of
enterprises to lower the monopolization level in the economy’.48

43
See Korean Monopoly Regulation and Fair Trade Act 1980, Article 1.
44
Japan Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (Act No. 54)
1947 Article 1.
45
Law of Republic of Indonesia No.5 1999 concerning Prohibition of Monopolistic Practices and
Unfair Business. Competition Article 3.
46
Mexico Federal Law of Economic Competition Article 2.
47
See chapter 4 section 4.2.
48
Derived from; 1) discussion about the objectives of the competition law in thesis chapter 4 section
4.2; 2) Tripta Thakur et al, 'Impact assessment of the Electricity Act 2003 on the Indian power sector'
(2005) 33(9) Energy Policy 1187; 3) Elizabeth Hooper and Catherine Waddams, Innovation and
Competition in Generation and Retail Power Markets (PhD Thesis, University of East Anglia, 2010)
< http://www.uea.ac.uk/ccp/Policy_briefing_10-18 >.
 252

By incorporating such an objective section in the Thai Competition Act, it

will increase the clarity of the competition legislation. The Competition
Commission, businesses, courts and consumers then can refer to the stipulated
objectives of the Act when there is unclear enforcement or remedies of the
Competition Act.

6.3.2.1.2 Remove of exemption for SOEs- Big bang or Phasing out of privilege
The thesis proposes that there must be an amendment to the Thai
Competition Act by removing the exemption clause for Thai SOEs. Section 4 of Thai
Competition Act must be amended in order to remove the competition law
exemption for Thai SOEs, especially in the electricity sector.49 As examined in
Chapter 4 of the thesis, various countries do not provide a competition law
exemption in relation to their SOEs. The SOEs are then prohibited from engaging in
any anti-competitive conduct which infringes competition law.50 This then helps
prevent potential anti-competitive conduct of SOEs in the utilities infrastructures.
The utilities markets in water, telecommunication, gas, and electricity are under the
similar competition law application. The SOEs would not be able to take advantage
of the exemption to engage in anti-competitive conduct deterring market
competition or competitors.51
Thai electricity SOEs that do not have exemption from competition law
application would not be able to monopolistically control the market and would have
to open the market for the new competitors.52 The remove of the exemption clause
would thus help broaden the Thai competition law application to the electricity

49
See OECD, The OECD's Competition Assessment Toolkit: Volume 1 - Competition Assessment
Principles (OECD, 2011), 56.
50
See thesis chapter 4 section 4.3.1.
51
See thesis chapter 4 section 4.3.1.
52
See example of discussion on the competition law on utilities under SOEs from Frauke G Braun et
al, 'Holding a Candle to Innovation in Concentrating Solar Power Technologies:A Study Drawing
on Patent Data' (CCP Working Paper 10-16, 2010) <http://www.uea.ac.uk/ccp/Working_paper_10-
16>; Gordon Y. Chan, 'Administrative Monopoly and the Anti-Monopoly Law: An Examination Of
the Debate in China' (2009) 18(59) Journal of Contemporary China, 263 ; Francesco Maria Salerno,
'The Competition Law-ization of Enforcement: The Way Forward for Making the Energy Market
Work?' (EUI working paper No. RSCAS, European University Institute, July 2008)
<http://cadmus.eui.eu/dspace/handle/1814/8108>.
 253

sector and reduce rent seeking behaviour of the SOEs in electricity sector.53 The
competition law would be used to deal with anticompetitive behaviours of the
SOEs.54
It is recognized that removing the competition exemption is very difficult
politically. However, where there is an increasing public recognition regarding the
anti-competitive structure and behaviour of SOEs in the electricity according to the
competition of short term plan proposed by the thesis. Public recognition on the
issues can lead to public pressure to remove the exemption clause in order to deal
with the abuse of market power of SOEs in the Thai electricity sector.55
There are two possible ways for removing the exemption by a ‘big bang’ and
‘phasing out the exemption privilege’.56 The big bang is a sudden remove of the
competition law exemption and let the electricity SOEs face the immediate
competition law application in case that the SOEs conduct is anti-competitive.57 The
big bang amendment on section 4 of Thai Competition Act, for example, can be by
the removal of section 4(2) which states that the ‘State enterprises under the law on
budgetary procedure are exempted to from the competition law application’. The
removal of the section would then swiftly require the SOEs to comply with the
competition law. This helps rapidly expand the application of the Competition Act to
the uncompetitive Thai electricity sector under control of the SOEs.
Another way to remove the exemption clause is by providing period of time
for the SOEs to adjust their conduct to comply with the Competition Act. The
example is that there may be clause which states that the removal of the exemption
would take effect one or two years after the amendment of the Thai Competition Act.
This would provide a period of time for the electricity SOEs to investigate their

53
See example from Swaminathan S Aiyar, 'Expert Group appointed by the Ministry of Commerce,
Government of India and Fingleton John, ''Political economy insights from competition policy in
Ireland in Pradeep S Mehta and Chakravarthy S, 'Dimensions of Competition Policy and Law in
Emerging Economies' (Discussion Paper CUTS Centre for Competition, Investment & Economic
Regulation
2010) <http://www.cuts-ccier.org/pdf/Dimensions_of_Competition_Policy_and_Law.pdf>.
54
Ibid.
55
Mehta, Agarwal and Singh above n 16.
56
See the example of the “big bang” and “phasing out” of legal framework from Torsten Schäfer,
'The Legal Framework for the Enlargement of The EURO Area' (EU Commission occasional papers
No. KC-AH-05-023-EN-C, 2006)
<http://ec.europa.eu/economy_finance/publications/publication7552_en.pdf>.
57
Ibid.
 254

conduct and adjust those conducts which might be subject to competition law
infringement. Providing a period of time for the SOEs to adjust their conduct can
also help the other businesses sectors deals with SOEs’ commercial operation to
prepare for the expansion of competition law application to SOEs.58

6.3.2.1.3 Inclusion of provision prohibiting anti-competitive conduct in

electricity
As examined in the chapter 4 of the thesis, there are important substantive
rules in competition law that can help prevent firms’ anti-competitive conduct in
electricity sectors. The thesis thus proposes that in order to make the enforcement of
competition law effective, especially in the electricity sector, the Thai Competition
Act should be reformed by an inclusion of specific rules against anti-competitive
conduct in the electricity sector. The rules which should be included in the Thai
Competition Act should deal with (1) a refusal to deal or open access to essential
facilities, (2) a prohibition against margin squeeze, (3) share ownership, mergers and
acquisitions, and (4) public guidelines regarding competition law.

Refusal to deal
The section 25 of Thai Competition Act purports to prohibit abuses of firm’s
monopoly power and should be amended by inclusion of words that specifically
prohibit a refusal to deal or open access to essential facilities. The amendment is
very important to establish a remedy for businesses, faced with anti-competitive
strategy of monopoly firms that control the essential network required for operation
of businesses.59 The provision will be the available for the Competition Commission

58
See the example of the period for businesses activities to percept the change on application of
competition law from Singapore Competition Act 2004 and Malaysia Competition Bill 2010. The
Singapore Competition Act 2004 applied in phases, with the prohibitions against anti-competitive
agreements and conduct which abuses a dominant position coming into force on 1 January 2006, and
the remaining provisions concerned with mergers and acquisitions taking effect at least 12 months
thereafter. The Malaysia Competition Bill 2010 also gives period of time to all sectors to adjust their
conduct according to the due enforcement of the Bill in January 2012.
59
See the discussion on refusal to deal or access to essential facilities from chapter IV of the thesis at
page 144. See also from Eryk Dziadykiewicz, 'Refusal to Grant Third-Party Access by an Electricity
Transmission System Operator -- Overview of Competition Law Issues' (2007) 25(2) Journal of
Energy & Natural Resources Law 114; Aleksander Kotlowski, 'Third-party Access Rights in the
Energy Sector: A Competition Law Perspective' (2007) 16(3) Utilities Law Review 101 ; Robert L.
Steiner, 'Vertical competition, horizontal competition, and market power' (2008) 53(2)
 255

to take action against the Thai SOEs which own or occupy essential facilities and
refuse to open the facilities to other market operators in utilities infrastructure sector.
The thesis proposes that following wording be included in section 25 of Thai
Competition Act is:
‘Unreasonably refuse to grant access to an essential infrastructure facility
which is required to produce, supply, and sell the goods and services of the other
business 60
By inclusion of these words, the Competition Act would provide a remedy
for businesses which rely on the essential facilities of the incumbent SOEs in the
Thai infrastructure sector. The key reason for incorporate the provision relating to a
refusal to deal in the Thai Competition Act is also on the fact that the court,
Competition Commission and businesses would have specific remedies relating to
the essential facilities of businesses. This would then provide effective remedies in
Thai competition law where there has not been any successful case involving a
refusal to deal both in general and in electricity sector. Under the proposed
amendment the SOEs in the electricity sector would have to allow access to their
essential grid, transmission and distribution lines to other market competitors. The
amendment thus would promote market competition as well as contribute to the
development of market competition in Thai electricity sector.

(Summer2008) Antitrust Bulletin 251; Spencer W. Waller and William Tasch, 'Harmonizing Essential
Facilities and Refusals to Deal' (2009) 76(3) Antitrust Law Journal 741.
60
Derived from ICN-the Unilateral Conduct Working Group, 'Report on the Analysis of Refusal to
Deal with a Rival Under Unilateral Conduct Laws' (Paper presented at the 9th Annual Conference of
the ICN, Istanbul, Turkey, 2010)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc616.pdf> , See South African
experience from Competition Commission and Competition Tribunal of South Africa, 'Respond to
International Competition Network Unilateral Conduct Working Group Questionnaire' (ICN, 2009)
<http://www.internationalcompetitionnetwork.org/uploads/questionnaires/uc
refusals/southafrica.pdf>, Korea experience from Korea Fair Trade Commission, 'Respond to
International Competition Network Unilateral Conduct Working Group Questionnaire' (ICN, 2009)
<http://www.internationalcompetitionnetwork.org/uploads/questionnaires/uc refusals/korea.pdf>,
Japan experience from Japan Fair Trade Commission, 'Respond to International Competition
Network Unilateral Conduct Working Group Questionnaire' (ICN, 2009)
<http://www.internationalcompetitionnetwork.org/uploads/questionnaires/uc refusals/japan.pdf>,
German experience from Bundeskartellamt, 'Respond to International Competition Network
Unilateral Conduct Working Group Questionnaire' (ICN, 2009)
<http://www.internationalcompetitionnetwork.org/uploads/questionnaires/uc refusals/germany.pdf>.
 256

Margin squeeze
The thesis also proposes that the reform on Thai Competition Act should
include a provision prohibiting ‘Margin Squeeze’ conduct.61 Margin squeeze
conduct which normally appears in the infrastructure sectors can represent anti-
competitive conduct deters a market competitor and undermines market
competition.62 Where the SOEs in the electricity sector engage in possible price
squeeze behaviours to lesson or to drive out market competitors, the prohibition on
margin squeeze would be a significant remedy to which other market participants
can resort. Thus a provision prohibiting margin squeeze conduct should be included
in section 25 of Thai Competition Act. The amending provision could be as follows;
‘Involve in abusive margin squeeze if the difference between the retail
prices charged by a dominant undertaking and the wholesale prices it charges its
competitors for comparable services is negative, or insufficient to cover the
product-specific costs to the dominant operator of providing its own retail services
on the downstream market’63

By the including a provision prohibiting Margin squeeze conduct, the

Competition Commission and businesses would have a remedy to deal with the
incumbent SOEs in utilities sector, especially in the electricity sector. The provision
would help deal with the anti-competitive margin squeeze which often arises in
newly liberalised industries where incumbent SOEs have a regulatory obligation to
provide certain essential inputs to downstream competitors.64 Although in some
cases prohibitions against margin squeezes are included in sector-specific
regulation65, the thesis, following its review of competition law enforcement in the

61
See the discussion of the Margin Squeeze in Chapter 4 section 4.3.2.4.
62
See example from Jan Bouckaert and Frank Verboven, 'Price Squeezes in a Regulatory
Environment' (2004) 26(3) Journal of Regulatory Economics 321.
63
Derived from EU Commission Decision of 21 May 2003, COMP/C-1/37.451, 37.578, 37.579 —
Deutsche Telekom AG, 2003 O.J. (L 263) 9, at para. 107. Also see researches relate to margin
squeeze and competition law enforcement that help contribute to the proposed words in European
Commission, 'Margin Squeeze' (OECD- Working Party No. 2 on Competition and Regulation
Documents No.DAF/COMP/WP2/WD(2009)32, 2009)
<http://ec.europa.eu/competition/international/multilateral/marginsqueeze.pdf> ; Andrew
G.Humphrey, 'Antitrust Jurisdiction and Remedies in an Electric Utility Price Squeeze' (1985) 52(4)
The University of Chicago Law Review 1090.
64
OECD, 'Margin Squeeze' (OECD Document No.DAF/COMP(2009)36, 2009)
12<http://www.oecd.org/dataoecd/30/17/46048803.pdf>.
65
Ibid.
 257

electricity sector in the chapter 4, proposes that the Thai Competition Act should
include the provision in order to deal with this potentially anti-competitive
behaviour in Thai utility sectors. The provision would open opportunities for
competition law enforcement to correct the anti-competitive behaviour in Thai
utility sectors which are dominated by SOEs. In addition, the inclusion of such
provision would also help establish coordination and co-operation between the
competition authority and the sectoral regulator in working together on analysing
and investigating complicated cases of margin squeeze conducted by the incumbents
Thai SOEs.66
Share Ownership, merger requirement, acquisition
In chapter 2, the thesis discusses the sections of the Thai Competition Act
that prohibit mergers and acquisitions which anti-competitive.67 In chapter 4 the
thesis discussed how critical the merger and acquisition section is to competition law
enforcement in the utility sector, especially electricity where the incumbents tend to
have dominant control over the market.68 However, in Thai electricity market, the
SOEs already hold and control shares of other important market participants (IPP).69
The thesis thus proposes that section 26 of Thai Competition Act should be amended
by inclusion of words that can provide a remedy for dealing with the potential anti-
competitive structure under the cross share ownership of Thai SOEs and other
market participants. This means if the Thai competition law can be applied to the
SOEs in electricity sector, the prohibition on mergers and acquisitions and on firms’
cross share ownership of the SOEs on other market participants would help build
market competition in utility infrastructure sector. The Thai Competition Act section
26 then should be amended to include the prohibition by the words of;
‘Business operators are prohibited from holding majority shares at several
firms engaged in the same business sector in the same relevant market, or

66
Ibid. and see Antonio Estache and Liam Wren-Lewis, 'Toward a Theory of Regulation for
Developing Countries: Following Jean-Jacques Laffont’s Lead' (2009) 47(3) Journal of Economic
Literature 729 ; Damien Geradin and J. G. Sidak, 'European and American Approaches to Antitrust
Remedies and the Institutional Design of Regulation in Telecommunications' in Sumit K. Majumdar,
Ingo Vogelsang and Martin E. Cave (eds), Hndbook of Telecommunication Economics (2003) vol 2
Technology Evolution and Internet, 517.
67
See thesis chapter 2 section 2.2.3.
68
See thesis chapter 4 section 4.3.2.6.
69
See thesis chapter 3 section 3.2.
 258

establish several firms engaged in the same business activities in the same relevant
market, if the said ownership causes unfair competition’70
The inclusion of the provision would be a general competition law rule that
helps protect market competition from anti-competitive conduct arising from cross
share ownership. The provision would provide a remedy for dealing with the Thai
electricity sector where SOEs are incumbents, collusively controlling electricity
sector by cross-share ownership with their private operators.71

Need for public guidelines regarding competition law

It is also noted that there must be publications and guidelines which helps
clarify the sections and provisions of the Competition Act relating to prohibited
conduct in electricity sector. The publications or guidelines would generate better
understanding on the conduct which might be subject to the infringement of Thai
Competition Act.72 The competition commission thus has to make sure that it
clarifies the Competition Act by adoption of notification and guidelines, in order to
avoid a problems arising from to unclear section and provision. This would then
help improve effective enforcement of competition law on specific electricity sector.

6.3.2.2 Reform on institution of Competition Act enforcement

Another important long term plan for shaping competition in Thai electricity
market involves reforming the on institutions enforcing the Thai Competition Act.
As described in chapter 2 of the thesis about the institutional problems of Thailand’s

70
Derived from Law of the Republic Of Indonesia No.5 Of 1999-Article 27 and from Korean Chapter
3 article 7 on Restriction on Combination of Enterprises, Monopoly Regulation and Fair Trade Act
amended by Law No.7315, Dec. 31, 2004.
71
See the discussion about the cross ownership and the concern on market competition from
Geoff Bertram and Dan Twaddle, 'Price-Cost Margins and Profit Rates in New Zealand Electricity
Distribution Networks Since 1994: the Cost of Light Handed Regulation' (2005) 27 (3) Journal of
Regulatory Economics 281; Jacqueline L. Weaver, 'Can Energy Markets be Trusted? The Effect of
the Rise and Fall of Enron on Energy Markets' (2004) 4 Houston Business and Tax Law Journal 3.
72
See example from UK Office of Fair trading on guideline on application of competition act to the
utilities sectors of telecommunication- OFT, 'The application of the Competition Act in the
telecommunications sector' (OFT, 1998) <http://www.oft.gov.uk/OFTwork/publications/publication-
categories/guidance/competition_act/oft417> and energy – OFT and Ofgem, 'Application in the
energy sector : Understanding competition law' (Office of Fair Trading and Office of Gas and
Electricity Markets Authority, 2007)
<http://www.oft.gov.uk/shared_oft/business_leaflets/ca98_guidelines/oft428.pdf>.
 259

competition law, the thesis propose that it should be an institutional reform which
helps develop effective enforcement of Thai Competition Act, particularly on the
electricity sector. The thesis proposes; (1) the establishment of an independent and
effective competition commission and (2) strengthening the private enforcement of
the Thai Competition Act.

6.3.2.2.1 Institution of competition commission

An important factor determining the effectiveness of competition law
enforcement is the effective work of competition law commission. As discussed in
chapter 2, that there is still variety of problems that render the Thai Competition
Commission ineffective. It is therefore necessary to reform the Competition
Commission in order to develop the Commission towards becoming an independent
institution which is able to effectively enforce the competition law so as to protect
market competition, especially in the electricity sector. The thesis proposes that
there should be reform as to; (1) establish an independent competition commission,
with full time commissioner, and (2) provide sufficient finance and human resources
for Competition Act enforcement.

Independence for Thai Competition Commission

The Thai Competition Act should be reformed by amending sections 6-17 of
the Competition Act, relating to establishing the competition commission with
government and business personal under the Ministry of Commerce. The Thai
Competition Commission and the support office should not be under the influence of
the Ministry of Commerce. Instead, the Competition Commission and the support
office should have their own autonomous authority to enforce Competition Act and
investigate any anti-competitive conduct.73 This is the case with the Indonesian,
Korean and Japan competition legislations that require the independence of the
competition commission.
In establishing the Indonesian Competition Commission, the law No. 5 of
Indonesia states that:

73
See the example from US FTC which has its owned independent litigating authority from US FTC,
A Brief Overview of The Federal Trade Commission's Investigative and Law Enforcement Authority
(2008) US FTC <http://www.ftc.gov/ogc/brfovrvw.shtm#N_1_>.
 260

‘(1) To oversee the implementation of this law, a Business Competition Supervisory

Commission is formed, hereinafter referred to as Commission.
(2) The Commission is an independent institution, free from government or other
parties influence or power.
(3) The Commission is accountable to the President’.74
In establishing Korean Fair Trade Commission, the Korean Monopoly
Regulation and Fair Trade Act states that:
1) The Fair Trade Commission shall be established under the jurisdiction of the
Prime Minister for the purpose of independently promoting the objectives of this Act.
2) The Fair Trade Commission shall carry out its function as one of the central
administrative organizations pursuant to Article 2 (Establishment and Structures of the
Central Administrative Organization) of the Government Organization Act.75
In the establishing the Japan Fair Trade Commission, the Japanese Act on
Prohibition of Private Monopolization and Maintenance of Fair Trade states that:
‘(1) The Fair Trade Commission shall, pursuant to the provisions of paragraph (3)
of Article 49 of the Act for Establishment of the Cabinet Office (Act No. 89 of 1999), be
established. Its duties shall be to achieve the purposes set forth in Article 1.
(2) The Fair Trade Commission shall be administratively attached to the office of
the Prime Minister........
The chairman and commissioners of the Fair Trade Commission shall perform their
76
authority independently’.
Having regard to the independence of competition commissions in
Indonesia, Korea, and Japan, the thesis proposes that the sections of Thai
Competition Act relating to the establishment of Thai competition commission
should be amended, for instance, to:
‘There shall be establishment of the Thai competition commission which is
the independent institution free from government or other parties influence or
power.

74
Derived from Law of Republic of Indonesia No.5 1999 concerning Prohibition of Monopolistic
Practices and Unfair Business. Competition Article 30.
75
Korean Monopoly Regulation and Fair Trade Act 1980, Article 35.
76
Japan Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (Act No. 54)
1947 Article 27-28
 261

The Thai competition commission is an independent institution, comprising

of one Chairman and 10 other commissioners graciously appointed by the Prime
minister under the approval from parliament.’
By the inclusion of proposed provision in the Thai Competition Act, the
Competition Commission would be established as an independent institution that has
autonomy to effectively enforce the Thai Competition Act. Through the
independence the commission would be able to achieve its objectives and dealing
with anti-competitive conduct by from public and private enterprise in Thai
economy.77

Competent full time commissioners

The thesis also urges that the independent Thai competition commission
should be a full time commission and with Commissioners and Staff appointed with
backgrounds and experience relating to law, social and economic policies. With the
backgrounds and experiences, the Commission would have knowledge and
competency to effectively enforce the Thai Competition Act. The Thai Competition
Act thus should be amended to stipulate a requirement that:
‘The selection of competition commission is based on the background and
experience on law, social and economic policies in order to help create effective
enforcement of the Act’
Moreover, apart from consideration of the background and experience of
Commission, it is recommended that the Thai Competition Act should be amended
to establish a full-time commission with an appropriate remuneration system that
can retain Commission staff and enhance the effective work of the Commission. The
example is from The US Federal Trade Act that provides that the Federal Trade
Commission is a full time commission that have remuneration based on a judge

77
Stefan Voigt, 'The Economic Effects of Competition Policy: Cross-Country Evidence Using Four
New Indicators' (International Center for Economic Research, Working Paper No. 20/2006, 2006)
<http://ssrn.com/paper=925794>; Paolo Buccirossi et al, 'Deterrence in Competition Law'
(Governance and Efficiency of Economic System, Discussion Paper No. 285, 2009)
<http://www.sfbtr15.de/dipa/285.pdf>.
 262

salaries and the commission can also appoint their secretary which has remuneration
based on the public attorney salaries.78
If the Thai Competition Commission is an independent full-time authority
and has sufficient remuneration based on the judges salaries system, it is expected
that the Commission would perform the effective enforcement of competition law.
This then would help solve current problem, examined in chapter 2 of the thesis,
regarding the ineffective enforcement of Thai competition law as a result of a lack of
full-time commission and the very low remuneration, similar to voluntarily work.79
Thus, the amendment on the Thai Competition Act should include provision which
stipulates a requirement for the state to provide sufficient budgets for remuneration
for the independent competition commission in performing autonomous work on
enforcing competition law against anti-competitive conduct.80

Sufficient finance and human resources for Competition Act enforcement

The Thai Competition Commission itself would not be able to perform the
effective enforcement in case where it does not have support office that has
sufficient finance and capable personal. As provided in Chapter 2 of the thesis that
Ministry of Commerce is able to control budget and human resources in the support
office of the Competition Commission.81 That control then leads to less annual
finance for the support offices and makes it less attractive to the skilled personals to
take part in the offices. The thesis thus purposes that Thai Competition Act should be
amended to set up the support office that can effectively assist to the Competition
Commission. Although the Thai Competition Act sections 18-24 are carefully set to
establish the Office of the Trade Competition Commission, there are no sections on
an appropriate level of finances and personal. Thus, the amendment of the Act has to
include provisions which help maintain sufficient finances in order to attract and
retain skilled personals for the office in order to help achieve effective enforcement

78
US Sherman Act- 15 USC § 42 - Employees; expenses
<http://www.law.cornell.edu/uscode/15/usc_sec_15_00000042----000-.html>.
79
See thesis chapter 2 section 2.3.2.
80
Tomas Serebrisky, 'What Do We Know about Competition Agencies in Emerging and Transition
Countries? Evidence on Workload, Personnel, Priority Sectors, and Training Needs' (World Bank
Policy Research Working Paper 3221, February 2004, 2004) <http://ssrn.com/paper=610263>.
81
See thesis chapter 2 section 2.3.2.
 263

by Competition Commission. Section 18 of the Thai Competition Act should be

amended as;
‘Section 18 Under the Competition commission, there shall be the
independent Office of the Trade Competition Commission which has sufficient
finance from state. The office shall have a secretary general which is appointed by
the competition commission and personals of the Office of the Trade Competition
Commission will be designed by the competition commission in order to enhance
effective enforcement of the Act.’
By the proposed amendment, The Office of the Trade Competition
Commission will have sufficient finances and personals to perform the enforcement
of the Competition Act. The sufficient finance and personal help the Competition
Commission deal with the complex case and investigation relating to complex anti-
competitive conduct in the Thai economy.82
However, the above amendment proposing to an establish an independent
Thai Competition Commission is just a preliminary proposal as there is a need for
further research and study that is beyond the extent of this thesis. It thus may require
future research on the development of the sections relating to the Thai Competition
Commission in the legal, economic, and political context of Thailand. The only
important point the thesis trying to make on the proposed amendment is that there is
a need to reform the Act and such reform must be targeted to establish an
independent and competent Competition Commission and its support office in order
to create effective competition law enforcement in Thai economy and electricity
sector.

Private enforcement
Apart from the proposal to amend the sections of Thai Competition Act
relating to the establishment of an independent and competent competition
commission, the thesis proposes that there is need to promote private enforcement of
Thai competition law. The private enforcement can help facilitate the use of the

82
See support ideas on establishing the independency and resource sufficiency for competition law in
John Clark, 'Competition Advocacy: Challenges for Developing Countries' (2005) 6(4) OECD
Journal of Competition Law & Policy 69; See also in OECD, Policy Framework for Investment:
User's Toolkit - Implementation of Competition Law and Policy (2011) OECD
<http://www.oecd.org/document/17/0,3343,en_39048427_39049374_41887057_1_1_1_1,00.html>.
 264

Competition Act and help complement the works of the Competition Commission.
The importance of private enforcement can be seen in chapter 4 of the thesis which
discusses private enforcement as a mechanism to improve the use of competition
law application in the electricity sector. The thesis points out that it is essential to
amend the Thai Competition Act in order to promote private enforcement so that it
has an increasing role on competition law enforcement.83
Private actions in relation to the Thai Competition Act have not been
employed as an effective mechanism for the competition law enforcement in
Thailand. As indicated in chapter 2, the section 40 allows affected parties or
consumer organisation to initiate court action for claiming compensation on behalf
of consumers. The main section which gives the right to private action is based on
section 40 of the Act which states that:
‘The person suffering injury as a consequence of the violation of section 25,
section 26, section 27, section 28 or section 29 may initiation an action for claiming
compensation from the violator.
In initiating an action for claiming compensation under paragraph one, the
Consumer Protection Commission or an association under the law on consumer
protection has the power to initiate an action for claiming compensation on behalf
of consumers or members of the association, as the case may be.’
However, under section 40, it is unclear whether the private action has a
right to sue the businesses engaging in anti-competitive conduct. It is thus unclear
whether there must be the decision from the competition commission before the
private claim take legal action requesting the compensation from the violator. If
there must be decision from the Competition Commission about the violation of the
Act before the private can take action for their damages, then private action under
the Act is thus limited to only a private claim for damages rather than the private
action for suing the violator in court. Therefore, the thesis proposes that section 40
of the Thai Competition Act be amended to enable the greater and clearer role for the
private enforcement of Thai Competition Act. The amendment may involve the
inclusion of a sub section to section 40 which states the clear right of damaged

83
See thesis chapter 4 section 4.3.3.4.
 265

parties to sue the violator of the Act and to claim for the damages. The following
could be used to amend section 40 of the Act;
‘The person injured in his business or property by a consequence of the
violation of section 25, section 26, section 27, section 28 or section 29 is entitled to
sue the violator for his damage injunctive relief, and reasonable lawyers’ fees’84
By amending section 40, it will facilitate a clearer role for private
enforcement for Thai Competition Act and businesses that have suffered from anti-
competitive conduct would be able to challenge the anti-competitive conduct by
their own court action. In relation to the electricity sector, an important example of
private enforcement of competition law is seen from the NT Power Generation PTY
Ltd v. Power and Water Authority& ANOR.85 In that case NT power took action up
to High court of Australia with a claim that Power and Water Authority had misused
its market power in refusing to allow NT power to enter the electricity supply
market. The High court of Australia held that the PWTA’ s refusal was the exercise
of its substantial degree of market power by refusing to open access to electricity
transmission and distribution lines and infrastructure.86 The case thus validates the
importance of private enforcement in electricity sector.
Where the private parties can use the remedy under the Thai Competition Act
to curb the anti-competitive conduct of the SOEs in Thai infrastructure sector,
especially the electricity sector, it is expected that there will be a significant
development of competition law enforcement as well as a significant development of
market competition in Thai electricity sector.
It is imperative also that the private parties are able to work cooperatively
with the Competition Commissions when there are cases of anti-competitive conduct
in relation to SOEs’ anti-competitive conduct.87 The private sector which
understands the business context and has exclusive information regarding business
84
Derived primarily from the US Sherman act 1890 section 7and The US Clayton Antitrust Act
(1914) section 15- see also from William F. Adkinson, Karen L. Grimm and Christopher N. Bryan,
'Enforcement of Section 2 of Sherman Act: Theory and Practice' (FTC- Working paper: November 3,
2008, 2008) <http://www.ftc.gov/os/sectiontwohearings/docs/section2overview.pdf>; R. Preston
McAfee, Hugo M. Mialon and Sue H. Mialon, 'Private v. public antitrust enforcement: A strategic
analysis' (2008) 92(10-11) Journal of Public Economics 1863.
85
NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48.
86
Ibid. at 150, 205.
87
Spencer Weber Waller, 'Towards a Constructive Public-Private Partnership to Enforce Competition
Law' (2006) 29(3) World Competition 367; Wouter P. Wils, 'The Relationship between Public
Antitrust Enforcement and Private Actions for Damages' (2009) 32(1) World Competition 3.
 266

operations can be a great source of information for the Competition Commission in

dealing with anti-competitive conduct. Private enforcement can also help check and
facilitate the investigation of possible infringements of the Competition Act. This
contributes to the rise of public awareness of compliance with the Competition Act
among private firms as well as empowering the private firms to check anti-
competitive behaviours from both private and SOEs.88 In the electricity sector,
private enforcement thus may provide greater and deeper investigation of abuses of
market power due to the fact that the private sector participates in the electricity
market. Therefore, promoting private parties to take a greater role of competition
law enforcement would significant assist the development of competition law
enforcement in the Thai electricity sector.

6.3.3 Reform of Thai Energy sectoral regulation

From the above discussion on the long term plan to reform Thai competition
law, it is important to also consider proposals for reforming sectoral regulation in
order to build competition in the Thai electricity sector. The thesis proposes that
reform should include (1) enhancing the ERC’s roles, (2) the inclusion of provisions
requiring structural change in the electricity sector, (3) reforming the Energy Act to
establish competitive neutrality in the electricity sector, and (4) inclusion of a
provision on access to essential facility.
6.3.3.1 Enhancement of the role of the Energy commission
The thesis proposes that The Energy Act should be amended in order to
enhance the role of the ERC and to increase the capacity of ERC to regulate the
SOEs and other market participants. The amendment should give the ERC clear
power to regulate the electricity tariff and electricity market.89 This then requires
the provision in the Energy Act which gives clear discretion to ERC. The provision

88
Susanne K. Schmidt, 'Commission activism: subsuming telecommunications and electricity under
European competition law' (1998) 5(1) (1998/03/01) Journal of European Public Policy 169.
89
Brian Levy and and Pablo T. Spiller, 'The Institutional Foundations of Regulatory Commitment: A
Comparative Analysis of Telecommunication Regulation' (1994) 10(2) Journal of Law Economics
and Organisation 201.
 267

should suggest a greater role regarding tariff setting and the licensing of the market
participants. Although the ERC has discretion to license electricity firms, the ERC
should have a greater role in regulating tariffs rather than acting as a consultative
institution having a duty to cooperate with EPPO and Ministry of Energy in setting
electricity tariffs. Nevertheless, it has to be noted that the increasing role and
discretion of the ERC must be concurrent with the obligations to ERC to maintain
accountability, transparency and efficiency of ERC’ regulatory institution.90 The
regulatory obligation on which ERC might be required to follow may be based on
the OECD’s Competition Assessment Toolkit which give important guidance on
developing regulations and regulatory tasks in order to achieve efficient market
competition.91 In the toolkit, the regulators, to adopt any regulation or policy to
intervene market, have to pay attention to a Comprehensive Competition
Assessment (CCA) and Regulatory Impact Analysis (RIA).92 The CCA and RIA are
the tools to which ERC can use to analyse whether its regulatory action may
contribute to the enhancement of market competition or to regulatory burden,
creating difficulties to build competition in the electricity sector.93 By setting up the
CCA and RIA in the amendment of Energy Act, the ERC then would be able to
perform its regulatory role using a strategic approach to promoting market
competition.
In addition, the thesis also proposes that there must be an increase of the
ERC’ s capacity because the ERC would have greater work on regulating tariff and
on reforming electricity sector toward competition. The government thus has to
provide sufficient capacity in terms of both budget and staff to the ERC. By having a
sufficient budget, the ERC thus will be able to develop its regulatory capability with
human resources and on technical skills in order to regulate the electricity market
towards efficient market competition.94

90
Ashley C. Brown et al, Handbook for Evaluating Infrastructure Regulatory Systems (The
International Bank for Reconstruction and Development / The World Bank, 2006); John Cubbin and
Jon Stern, 'Role of UK competition agencies in the regulation and deregulation of utility service
industries' (2004) 12(2) Utilities Policy 53; Newbery David M, 'Regulation and competition policy:
longer-term boundaries' (2004) 12(2) Utilities Policy 93.
91
OECD above n 49.
92
Ibid, 35-40.
93
Ibid.
94
Banks John P, 'Addressing Human Resource and Organizational Challenges in Emerging Market
Utility Regulators: 10 Steps for the New Regulator' (2005) 18(10) The Electricity Journal 70; John
 268

6.3.3.2 Inclusion of section requiring structural change to decrease

market power of SOEs and for building market competition
The Thai Energy Act 2007 should be amended by including explicit
structural reform in order to deal with the significant market power of the SOEs
incumbent.95 The Act has to direct the structural reform for unbundling competitive
parts of the sector and for access to essential facilities.96 Through the legal
requirement for structural change in relation to unbundling in Thai electricity
market, there would be a reduction in the market power of Thai SOEs as well as
providing the opportunity for new investment to enter and compete with the SOEs in
each unbundled parts of the electricity sectors.97
The amendment should include a provision which stipulates the separation of
generation, distribution, transmission and retail of Thai electricity sector. The
provision requiring the unbundling of electricity sector would directly reduce SOEs’
market power as well as facilitate the creation of market competition in each part of
unbundled electricity sectors.98 After unbundling, it is accepted that the market
power of SOEs over generation, transmission, and distribution will persist but the
unbundling would be an important step towards addressing the issue of market
power in Thai electricity sector. By the unbundling, the monopolistic power of SOE
in Thailand’s electricity generation would be reduced and it is expected that there
would be an increase of competition in electricity generation.99 It also means that

Stern, 'Electricity and telecommunications regulatory institutions in small and developing countries'
(2000) 9(3) Utilities Policy 131.
95
Michael Pollitt, 'The arguments for and against ownership unbundling of energy transmission
networks' (2008) 36(2) Energy Policy 704; Paul L. Joskow and Jean Tirole, 'Transmission Rights and
Market Power on Electric Power Networks' (2000) 31(3) The RAND Journal of Economics 450; Paul
Joskow, 'Transmission Policy in the United States' (Cambridge Working Papers in Economics,
Faculty of Economics, University of Cambridge, 2004)
<http://ideas.repec.org/p/cam/camdae/0454.html>.
96
Frank Wolak, 'Lessons from the California Electricity Crisis,' (University of California Energy
Institute CSEM WP-110, 2003).
97
See thesis chapter 5 section 5.3.2.1.
98
Ed Willett, 'Respective roles of the AER and ACCC' (Paper presented at the 2005 Energy
Investment Forum, Sydney, 2005)
<http://www.accc.gov.au/content/item.phtml?itemId=676784&nodeId=e433d43ca5b083f5cd398c1de
6e8c84c&fn=20050407%20Energy%20Investment%20Forum.pdf>.
99
Russell Pittman and Vanessa Yanhua Zhang, 'Electricity Restructuring in China: How Competitive
will Markets Be?' (2010) 55(2) Singapore Economic Review 377.
 269

after the unbundling, there is a possibility to develop new transmission and

distribution capacity in order to reduce the market power of SOEs.100
As discussed in Chapter 5, many countries, when implementing their
liberalisation reforms in the electricity sector resort to a ‘regulation for unbinding in
electricity sector.’101 When considering the Thai electricity sector where EGAT is
the monopoly SOE in generation and transmission, the Energy Act amendment
should include a section obligating the unbundling of EGAT ownership on
generation and transmission. The following sections could be included to amend the
Energy Act 2007:
3) ‘Where the generation system operator is part of a vertically integrated
undertaking, it shall be independent at least in terms of its legal form,
organisation and decision making from other activities not relating to
transmission.’ and
4) Where the transmission system operator is part of a vertically integrated
undertaking, it shall be independent at least in terms of its legal form,
organisation and decision making from other activities not relating to
distribution.
5) Where the distribution system operator is part of a vertically integrated
undertaking, it shall be independent at least in terms of its legal form,
organisation and decision making from other activities not relating to
transmission’102
Apart from the unbundling obligation, it is also important to include a
provision in Thai Energy Act which obligates both SOEs and private firms in the
Thai electricity sector not to affect market competition and control sections of the
electricity sector. It thus needs to include a provision, prohibiting firms’ cross-
control over generation, transmission and distribution of electricity sector. The
provision would obligate the Thai SOEs in electricity, especially EGAT not to
monopolistically operate and control over both generation and transmission. The
following sections may be included in the Thai Energy Act;

100
Ibid.
101
See thesis chapter 5 section 5.3.2.1.
102
Derived and adjusted from EU Electricity directive 2003/54/EC article 10 and EU Electricity
directive 2003/54/EC article 15.
 270

The operators in Thai electricity must not;

6) directly or indirectly to exercise control over an undertaking performing
any of the functions of generation or supply, and directly or indirectly to
exercise control or exercise any right over a transmission system operator
or over a transmission system; nor
7) directly or indirectly to exercise control over a transmission system
operator or over a transmission system, and directly or indirectly to
exercise control or exercise any right over an undertaking performing any
of the functions of generation or supply103
The inclusion of a provision to obligate an unbundling the electricity sector
and to prohibit the cross-market control between the generation and transmission
would contribute to important structural reform and the reduction in the SOEs’
market power over the Thai electricity sector. That would then help promote market
competition and prevent the potential monopoly control after the structural change
of electricity sector.

6.3.3.3 Reform on Energy Act to establish competitive neutrality in

electricity sector
The thesis proposes that the Energy Act 2007 should be amended in order to
establish competitive neutrality in the electricity sector.104 As discussed in Chapter 3
of the thesis section 8(5) of the Energy Act requires the government to support SOEs
as the main operator of electricity supply, and thus the ERC is under an obligation to
support the SOEs’ operation in the electricity sector. Section 8(5) then contributes to
unfair market conditions where the Act provides the support to only SOEs. This then
constitutes a competitive disadvantage to the private investments in the electricity
sector. The private participants are treated as the second-tier players in the electricity
sector where the SOEs are preferable according to section 8(5) of the Energy Act.
This approach is different from the international experience reviewed in chapter 5

103
Based on the recent EU directive 2009/72EC article 9.
104
OECD, above n 24.
 271

where countries aim to promote competitive neutrality in order to create market

competition in the electricity sector.105
Thus, the thesis recommends that there should be an amendment to the
Energy Act to remove sections 8(5) requiring the electricity sector to be under SOEs.
The removal of the section would promote competitive neutrality between public
and private operators and erase the regulatory advantage of SOEs in having
exclusive right to control the energy sector.106 By removing the section, the current
distortion in market competition in Thai electricity market will be solved as it would
mean that the Thai energy SOEs would not to enjoy any net competitive advantage
simply as a result of their public sector ownership.107
Further, the thesis proposes not only the removal of section 8(5), of the
Energy Act but there should be an inclusion of a competitive neutrality section
which helps preserve competitive neutrality in the electricity sector. The following
provision could be included in the Energy Act:
‘To promote competitive neutrality of market competition in energy sector
and to remove net competitive advantage under state ownership status operating
commercial activities in energy sector’108
The section is recommended to be placed as the objectives clause of the
Energy Act which will generate the fundamental framework for the Energy
Commission to regulate the electricity market through a competitive neutrality
approach.109 Thus, by removing section 8(5) and by including a section stipulating
the objective of the Act to maintain competitive neutrality, it would help remove the

105
See thesis chapter 5 section 5.3.2.2.
106
OECD, above n 24.
107
Rajesh Kumar, 'Ensuring competitive neutrality of networks' (2009) <http://www.cuts-
ccier.org/ArticlesDec09-Ensuring_competitive_neutrality_of_networks.htm>; Pradeep S. Mehta,
'Competition Policy Rationale and Scope in Modern Developing Economies' (Paper presented at the
2010 ANZSOG Annual Conference, 2010) <http://www.anzsog.edu.au/content.asp?pageId=173>;
PradeepS. Mehta, Competition and Regulation in India (CUTS, 2007); Allan Fels, 'Lessons from
International Experience' (Paper presented at the Competition Policy: The Road Ahead for Egypt,
Conrad International Cairo, Nile Ballroom, 2001)
<http://webcache.googleusercontent.com/search?q=cache:FUBKa9B67FUJ:www.accc.gov.au/conten
t/item.phtml%3FitemId%3D255597%26nodeId%3D8e01759974f43b0f57bc495479198d85%26fn%3
DCompetition%2520Policy%2520speech.doc+energy,+developing+countries,+%22competitive+neut
rality%22&cd=5&hl=en&ct=clnk&gl=au&client=firefox-a>.
108
Derived from the Australian Competition Principles Agreement (see clause 3).
109
See thesis chapter 5 section 5.3.2.2.
 272

competitive disadvantage between SOEs and private participants and would help
promote a market competition in the Thai electricity sector.

6.3.3.4 Inclusion of section on access to essential facility

The Energy Act should be amended to include a section stipulating the
establishment of fair access to essential facilities in electricity sector. As noted in
chapter 5 of the thesis various jurisdictions establish regulation for access to
essential facilities with the purpose of developing market competition in their
electricity sector,110 the thesis thus proposes to amend the Energy Act by including
section obligating the firms occupying the essential facilities to open the facilities to
the other market competitors.
The essential facilities section then will give fair access to all market
competitors in the Thai electricity sector.111 The section will enable new market
entrants to have access to important infrastructure such as gas pipelines and
electricity grids.112 The section will then obligate the Thai SOEs incumbents in
electricity sector to open access to their essential or bottleneck facilities to other
competitors and to give the access at a reasonable price.113
The following section could be included in the amendment of the Energy
Act;
‘A company in electricity sector which has a dominant control over essential
facility in energy sector must not refuse access to that facility and must allow other
undertaking to use the facility at a reasonable price
The facility is essential facility when
- the facility is of national significance having regard to the size of the facility,
its importance to constitutional trade or commerce or its importance to the
national economy;

110
See thesis chapter 5 section 5.3.2.3.
111
See the concept of essential facilities in International Energy Agency ( IEA), Competition in
Electricity Market (IEA,2001).
112
ADB, 'Competition Law Toolkit : Competition, Privatization, and Regulation- The Essential
Facilities Doctrine and Interconnection Problems ' (2010)
<http://www.adb.org/Documents/Others/OGC-Toolkits/Competition-Law/complaw070700.asp >.
113
OECD, 'The Essential Facilities Concept' (OECD Report No OCDE/GD(96)113, 1996)
<http://www.oecd.org/dataoecd/34/20/1920021.pdf>.
 273

- it would not be economically feasible to duplicate the facility;

- and access to the facility is necessary in order to permit effective competition
in an electricity sector’114
By inclusion of the section, it would provide the other market participants
with access to the electricity facilities owned by the Thai incumbent SOEs. The
section would also lead to the encouragement of new market participants when they
are able to have access to the essential facilities which are normally controlled by
SOEs. The participants in electricity sector are then able to compete in the electricity
sector under the section obligating SOEs to open access to their essential faculties.
Moreover, the inclusion will be an available remedy for firms operating in
Thai electricity when they are faced with a refusal to open access from the
monopoly SOEs. The section then will be an additional remedy for the firm in the
electricity sector.115 The firms which are faced with a monopoly SOE’s ‘refusal to
open the essential facility would be able to employ the remedies both in competition
law and Energy Act to compel the SOEs to open access to essential electricity
facilities.

6.3.4 Establishment of inter-institutional collaboration

In Chapters 2 and 3, the thesis submits that there is a lack of coordination
between Thai competition law and sectoral regulation. In Chapters 4 and 5, the
thesis reviewed international experience and found that various jurisdiction have
established a significant cooperative framework between their competition law and
sectoral regulation.116 The collaborative framework then facilitates the creation and
protection of market competition in electricity sectors. Thus, in this part, the thesis

114
See thesis chapter 5 section 5.3.2.3; Australian Department of Treasury, 'The importance of
competition policy for Australia: Australian Government National Competition Policy Annual report
2004-05' (Australian Department of Treasury, 2005)
<http://www.treasury.gov.au/documents/1056/PDF/Ch4_Access_to_essential_infrastructure.pdf>;
Opinion of Advocate General Jacobs, delivered on 28 May 1998, Case C-7/97 Oscar Bronner GmbH
& Co.KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG and Others, para. 34.
115
Timothy J. Brennan, 'Essential facilities and Trinko: should antitrust and regulation be combined?
(The Enduring Lessons of the Breakup of AT&amp;T: A Twenty-Five Year Retrospective)' (2008)
61(1) Federal Communications Law Journal 133; Peter Willis and Paul Hughes, 'Structural Remedies
in Article 82 Energy Cases' (2008) 4(2) Competition Law Review 147.
116
See thesis chapter 4 section 4.4 and See thesis chapter 5 section 5.3.1.
 274

recommends that beyond the informal collaboration which is proposed in the short
term plan above, there must be formal collaboration between competition law and
sectoral regulation. The thesis suggests that inter-institutional collaboration must be
established between the Competition Commission and sectoral regulator.
The establishment of inter-institutional framework would generate the
complementary roles for both competition law and energy regulation to help move
the electricity sector towards competitive market.117 There are various optional
forms for establishing inter-institutional collaboration that Thailand can follow. The
main forms are combination, concurrency and competition law-based approach.

6.3.4.1 Combination form

The model involves formal inter-institutional work between competition law
and sectoral regulation by combining the Competition Commission and sectoral
regulator in the same institution. The best example is from Australia, which employs
the institutional combination between the Australian Competition and Consumer
Commission (ACCC) and the Australian Energy Regulator (AER) to supervise
energy market and prevent anti-competitive conduct in the Australian energy
sector.118 Although the AER is a separate statutory authority from the ACCC, the
AER is a constituent part of the ACCC.119 The significant benefits that can be drawn
from this approach are:
- The AER through its close links to the ACCC is able to take an approach
consistent with competition law;120
- Achieve national consistency in regulating electricity and gas transmission
and distribution toward market competition;121 and

117
See OECD, 'Competition Advocacy: Challenges for Developing Countries' (2004)
<http://www.oecd.org/dataoecd/52/42/32033710.pdf>p 7;see also in ADB, 'Competition Law Toolkit
: Competition, Privatization, and Regulation- Ex Ante Regulation and Competition' (2010)
<http://www.adb.org/Documents/Others/OGC-Toolkits/Competition-Law/complaw070400.asp>.
118
Ed Willett, 'The benefits of a single Australian Energy Regulator' (Paper presented at the National
Power Conference, Melbourne, 2004)
<http://www.accc.gov.au/content/item.phtml?itemId=572896&nodeId=a8d0aa647a6bf9e4a4bd0ff2aa
7d26e4&fn=20040816+National+Power.pdf>.
119
See Part IIIAA of the Trade Practices Act 1974 and see AER, About the AER (2011)
<http://www.aer.gov.au/content/index.phtml/itemId/659161>
120
Willet, above n 118.
 275

- This allows both to draw on the same substantial body of specialist skills and
knowledge while avoiding costly, and potentially time-consuming,
duplication.122
Thus, it can be seen that the combination can help facilitate the
harmonisation of work between the competition commission and the energy sectoral
regulator for shaping and preventing market competition.123 This will contribute to
the development of market competition in the electricity market.

6.3.4.2 Concurrency form

The model is based on the UK model for cooperation between the OFT and
other sectoral regulators, including the OFGEM.124 Under the concurrency model,
competition law is enforced in the UK primarily by the OFT, but the sectoral
regulators have ‘concurrent powers’ to apply and enforce competition law.125 The
important aspect of the concurrency power is that it extends competition
enforcement powers to sectoral regulators who have expertise and experience on
their respective industries knowledge.126 The model also contributes to the benefits
of work consistency between the OFT and other sectoral regulators in their approach
to anti-competitive conduct in the regulated sectors.127 Under the concurrency
model, the OFT and sectoral regulators cooperate to exercise the competition law in
the regulated sector. Both institutions can discuss matters of common interest (and
potentially best practice) and share information (where appropriate and where
legally permitted), and coordinate the provision of advice and information on the
application of UK Competition Act.128

121
Ibid.
122
Willet, above n 98.
123
ACCC and AER, 'ACCC–AER information policy: the collection, use and disclosure of
information' (ACCC-AER, 2008) <http://www.accc.gov.au/content/index.phtml?itemId=846791>
124
OFT and Ofgem above n 72.
125
UK Office of Fair Trading, above n 9.
126
Helen Weeds, 'Concurrency between OFT and regulators' (2004) 12(2) Utilities Policy 65.
127
Ibid.
128
OFT, Concurrency (2011) OFT <http://www.oft.gov.uk/about-the-oft/legal-
powers/legal/competition-act-1998/Concurrency/#named1>.
 276

6.3.4.3 Competition law-based approach

This model is from the EU and uses competition law to encourage the pace
of competitive market integration in the EU energy sector.129 The model primarily
gives favour to the competition law enforcement to circumvent the market barrier in
EU energy markets. The model can generate significant market liberalisation toward
130
single and competitive market in EU energy sectors. The EU Commission, by
relying on competition law enforcement, has reduced the market barrier and
dominant market power of firms in the gas and electricity sectors.131 The EU
Commission issued directives, adherence with EU competition rules to unbundling
and restructuring EU gas and electricity sector.132 The directives are considered an
EU Competition Commission mechanism to drive structural reform and promote
market competition.133 In addition, the EU Competition Commission, as a central
competition authority is able to enforce competition law in order to promote and
protect competition in the EU gas and electricity sectors.134 Although, by the model,
there is tension between managing the balance between enforcing competition law
and employing sectoral regulation to create competition in the EU energy market,
the EU Competition Commission is successful in employing competition law
enforcement to build further reform toward competitive development in the EU gas
and electricity market.135

6.3.4.4 Thailand and concurrency model

The above are important models for establishing interwork between
competition law and sectoral regulation. The inter-institutional work will contribute
to the complementary roles between competition commission and energy

129
Salerno, above n 52.
130
Michael Albers, 'Energy Liberalization and EC Competition Law' (2001) 25(4) Fordham
International law journal.
131
Ibid.
132
Ibid.
133
Malgorzata Sadowska, 'Energy Liberalization in Antitrust strait Jacket: A Plant too Far?' (EUI
working paper RSCAS 2011/34, 2011)
<http://cadmus.eui.eu/bitstream/handle/1814/18358/RSCAS_2011_34.pdf?sequence=1>.
134
Salerno, above n 52.
135
EU Commmision, 'Energy:Overview on Liberalisation of the electricity and gas markets' (2010)
<http://ec.europa.eu/competition/sectors/energy/overview_en.html>.
 277

regulators.136 While the sectoral regulator is focused on an ex ante approach to

create the market competition and efficiency in the electricity sector, the competition
commission can adopt the ex post approach to protect the competition in the
sector.137 The better point is that the establishing the inter-institutional work would
create consistency in adopting ex ante and ex post intervention approaches of the
competition commission and sectoral regulators.
Having to decide the models presented above, in which Thailand may
follow, the thesis recommends that the concurrency would be the possible initial
model for Thailand. This is because:
- The difficulty to combine both institutions under the combination model:
While the Thai Energy Commission and Competition Commission have their
own autonomy to direct and perform their work, both institutions would not
be persuaded to combine their institutions. In addition, while the Competition
Commission is not effective, the combination models would provide
opportunities for the Energy Commission to dominate inter-institutional
works under the combination approach. This would result in a similar
situation where the Competition Commission would not be able to effectively
enforce competition law in all sectors. Currently, the Energy Commission has
a greater role in regulating and supervising the energy sector. The
combination of both institutions is difficulty and would not lead to the
development of competition law enforcement.

- The difficulty to use the competition law-based approach under ineffective

Thai competition law: Considering the ineffective enforcement of Thai
competition law, the competition law-based approach is difficult to create
effective competition in electricity sector. The Thai Competition Commission
which still has intuitional problems may not be able to promote a competition
reform in Thailand’s electricity sector. The use of competition law based

136
ICN 'Antitrust Enforcement in Regulated Sectors Working Group' (Paper presented at the The
Third ICN Annual Conference, Soul 2004)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc379.pdf>.
137
Damien Geradin, Remedies in Network Industries: EC Competition Law Vs. Sector-Specific
Regulation (Intersentia, 2004); David M. Newbery, 'Regulation and competition policy: longer-term
boundaries' (2004) 12(2) Utilities Policy 93.
 278

approach is thus not appropriate to build market competition in electricity

sector where the Competition Commission has to deal with its institutional
problems.

- Concurrency gives the greater benefit: Compared to the two models above,
the concurrency model can help develop both the Competition Commission
and Energy Commission. The model maintains autonomy of each institution
but creates the greater collaborative work when there is anti-competitive
conduct and uncompetitive conditions in electricity sector. This gives the
opportunity to Competition Commission to be involved in the electricity
sector while collaborating with Energy Commission in dealing with
uncompetitive condition in electricity sector. In the concurrency model, the
Energy Commission would have an available expost remedy to deal with the
anti-competitive conduct of SOEs in the electricity sector. This helps to
generate awareness on competition law remedies and adds an available
remedy to the energy commission in dealing with the monopoly firms in the
electricity sector. The Competition Commission would be able to assist as
well as taking action on the SOEs in energy sector. The models then add an ex
post remedy for the Energy Commission and to give the greater role of
Competition Commission to the electricity sector.
Thus, the concurrency model by giving room to both institution and
promoting collaborative work in employing remedies under Competition Act to deal
with anti-competitive conduct of monopoly firms in electricity sector would provide
greater benefit to Thailand by promoting and protecting market competition in the
electricity sector. However, it has to be noted that, in adopting the concurrency
model, there must be a set plan to ensure proper coordination between the
competition authority and energy regulator.138 The coordination would translate to
the consistency of work between the two institutions and also pave the way to
develop the light-handed approach, where the regulatory intervention under the

138
Maher M. Dabbah, 'The Relationship between Competition Authorities and Sectoral Regulators'
(2011) 70(01) Cambridge Law Journal 113.
 279

energy regulator transform its focus toward a light-handed approach by basing it on

the remedy in the competition law enforcement.139

6.4 Conclusion
In this chapter, the thesis attempts to adopt international experience for the
reform of Thai competition law and sectoral regulation in the electricity sector. The
reforms include various proposals in relation to competition law and the sectoral
regulation in the short-term and long-term. The short-term plans include (1) the
proactive action of the ERC to use current available remedies to tackle abuses of
market power and access to essential facilities, (2) raise public awareness of
competition law and competition in Thai energy sectors, (3) the development on
advocacy among Competition Commission, ERC, and authorities. The long-term
plans require (1) the establishment of a peak national competition agency, which
facilitates the development of economy-wide market competition as well as in the
electricity sector, (2) reform of Thai Competition Act which removes an exemption
for SOEs and adds provisions to promote effective enforcement, (3) reforming
energy regulation to help develop regulatory intuitions and remove the
uncompetitive market structure in the electricity sector, and (4) promote
coordination between competition law and sectoral regulation, which helps to
improve the complementary roles of each side.
The short- and long-term plans to reform the competition law and sectoral
regulation are the possible mechanisms to introduce and maintain market
competition in the Thai electricity sector. However, it is noted that the adoption of
the proposal plans will not be an easy task. It needs to consider political, economic
and social constraints in Thailand. Political and various interest groups may not
easily accept the reform for fear that they will be affected by the reform. This leads
to practical difficulties in the implementation of the proposed proposals.
Nevertheless, the chapter attempts to put forward proposals drawn from
international experience that highlight the best possible ways to resolve the
139
See thesis chapter 5 section 5.3.3.
 280

problems of Thai competition law and sectoral regulation in order to create market
competition in the electricity sector. The chapter recommends the way to resolve the
problems, but leaves the next step of building and adopting the proposals for future
research. It is important to note that, while the proposals may not be easily accepted
given various political, economic and social constraints, it does not mean that it is
impossible to adopt the proposals where the proposals would yield more efficient
market competition to Thailand’s economy.
 281

Chapter 7: Thesis Conclusion

After a long research journey of four years, the thesis has reached its
conclusion. The thesis has reviewed the relevant literature in the first chapter and
came to a view that there is lack of research regarding the problems and a lack of a
reform plan for Thai competition law and sectoral regulation in the electricity sector.
This current gap in the existing research had then become the starting point for this
thesis and now provides a strategic proposal for the development of Thai
competition law and sectoral regulation on electricity sector.
This conclusion chapter summarises and reviews the thesis. The chapter is
divided into four parts. The first part provides a summary of the thesis chapters. The
second part demonstrates the contribution of the thesis research. The third part
presents the gain from the thesis research. The last part suggests possible future
research on competition law and sectoral regulation.

7.1 Summary of thesis chapters

The thesis, throughout its six chapters, has attempted to study the current
problems of the competition law and electricity-specific regulation1 and considers
international experience regarding competition law and sectoral regulation as a
possible solution for those problems2 The thesis then analyses the international
experience and provides proposals for reform on the competition law and the
sectoral regulation in the Thai electricity sector3. This is illustrated in Figure 7.1.

1
See Thesis’s Part I: Chapters 2–3
2
See Thesis’s Part II: Chapters 4–5
3
See Thesis’s Part III: Chapter 6
 282

Figure7.1: The Flow of Thesis Research

Identifying current Research on

Reform proposal for
problems and issuses international
Thai competition law
on Thai competition experience on
and sectoral
law and sectoral competition law and
regulation on
regulation on sectoral regulation
electricity sector
electricity sector on electricity sector

As shown above, the thesis has been presented in three parts: (1) problems in
Thai competition law and sectoral regulation in the electricity sector (2) international
experience in competition law and sectoral regulation in the electricity sector, and
(3) reform proposals in relation to Thai competition law and sectoral regulation to
build competition in the electricity sector. Summaries of the three main parts of the
thesis are presented below.

7.1.1 Problems regarding Thailand’s competition law and

sectoral regulation
In Chapters 2 and 3, the thesis identifies and examines the current issues and
problems relating to Thailand’s competition law and sectoral regulation. The thesis
identifies the problems in competition law that has contributed to ineffective
enforcement. These factors are identified below.

Competition law legislation

The Competition Act 1999 has various issues that contribute to its ineffective
enforcement. The Act lacks a clear objective and, that in turn creates ambiguity. The
Act tends to have gaps, which provides significant opportunities for anti-
 283

competitive conduct escaping from the ambit of competition law enforcement. The
Act also contains exemption clauses for SOEs, which contributes to critical
problems of enforcement where the SOEs are large-scale market players in the Thai
economy. In relation to the electricity sector, the specific focus of the thesis is the
exemption clause thus creates crucial problems in competition law enforcement in
relation to SOEs, which are able to enjoy the exemption clause and monopolistically
control the electricity sector.

Competition law institutions

The thesis outlined the crucial problems that contribute to the ineffective use
of competition law in Thailand. The main problem is an institutional problem. The
Competition Commission, which is the main enforcement institution, is subjected to
both business and political influences. The Competition Commission lacks the
independence to enforce competition law to protect and promote competition in the
various economic sectors, especially the electricity sector. The institutional
problems are also derived from the shortage of both financial and human resources.
The Competition Commission operates on a voluntary basis without appropriate
remuneration. In addition, the support office of the Competition Commission faces
budget constraints in performing effective enforcement. This leads to a shortage of
experts in economics and law, where professionals consider that salary and income
for working with the Office of the Competition Commission are much lower rates of
pay than corporate offers.
Moreover, the significant problems contributing to the ineffective
enforcement of competition law are due to a lack of communication and
coordination with sectoral regulation. The current situation in Thailand’s utility
sector is that the large markets’ monopolies in the utility sectors in Thailand are
SOEs under sectoral regulators. The Competition Commission has not been
involved in any regulatory settings or intervention in the utility sectors. The
Competition Commission has not played a role in communicating with the Energy
Commission in relation to the uncompetitive aspects of the electricity market and
potentially anti-competitive conduct of incumbents SOEs in the electricity sector.
Thus, the Competition Commission’s coordination with the Energy Commission has
 284

not been established. Further, private enforcement, which can be a supplementary

enforcement mechanism, is also weak when considering that competition law and
policy have not been recognised by the public. There is a lack of university courses
and public education regarding competition law and economic effects of
uncompetitive markets. The Thai public rarely considers that the monopoly
problems are significant obstacles for economic development as well as to the
consumers’ economic welfare.
Chapter 3 presented a historical overview of regulation in Thailand’s
electricity sector until the period of liberalisation, which create uncompetitive
conditions and under the control of monopoly SOEs. The thesis also outlines two
main problems regarding sectoral regulation, which contribute to uncompetitive
market and SOEs’ market power controlling the electricity sector. The two problems
relate to the regulatory rules under Energy Act 2007 and the Energy Commission.

The regulatory rules under Energy Act 2007

Although there is a provision concerning market competition, the sectoral
regulation itself provides a privilege to SOEs, which are placed in a monopoly
position in the sector. The rules in the Energy Act 2007, which is the main
regulation, still require the Energy Commission to support the operation of SOEs in
servicing the electricity supply of consumers. The rules create large disadvantages to
other market participants and maintain the monopoly position of the electricity
sector. The Energy Act also lacks a provision that obligates structural unbundling,
which is an essential provision to promote structural change towards competition in
the electricity sector. In addition, the regulatory framework in relation to the
electricity sector also lacks a provision to access essential facilities. This creates a
disadvantaged position for private market participants, where they must rely only on
the permission of SOEs, which control the transmission and distribution lines for
servicing Thai consumers.
 285

The Energy Commission

The Energy Commission has a lack of regulatory capacity. The absence of
adequate officers who are able to supervise and conduct surveillance on complicated
electricity market functions would contribute to a problem of regulatory lag on the
Energy Commission.4 The Energy Commission, in regulating the electricity sector,
mostly relies on private sector consultancies, with insufficient internal input into the
adequacy of electricity market development. The Energy Commission also has no
authoritative role to set the electricity tariffs. Tariff setting is based on the
determination of the Ministry of Energy and Energy Power Policy offices. The
Energy Commission then plays the role of a consultative institution rather than an
independent regulator, which should have the power to control and set electricity
tariffs. Moreover, the important obstacle for the Energy Commission under the
Energy Act provision is that the Energy Commission has to support SOEs in the
electricity sector. The Energy Commission is then faced with the difficulty where it
seeks to liberalise the electricity sector when it has to consider the obligation to
support SOEs’ operation.

7.1.2 International experience

From the research on problems with Thailand’s competition law and sectoral
regulation of the electricity sector in the first part of the thesis, the second part5 of
the thesis then explores the international experience with competition law and
sectoral regulation, which can be a possible reform framework for Thailand. The
thesis reviews the fundamental ideas of competition law in the utility sectors,
including the electricity sector. It finds that the clear objective and function of
competition law is important for effective enforcement, especially in the electricity
sector, where the sectors are prone to uncompetitive conditions under possible
market abuse of incumbent firms. The thesis also discusses the important aspects of
competition law on electricity sector, which are discussed below.

4
See ideas regarding regulatory lag in electricity sector from- Mark Newton Lowry, Matthew Makos
and Gentry Johnson 'Innovative Regulation: A Survey of Remedies For Regulatory Lag' (Edison
Electric Institute 2011) < http://pacificeconomicsgroup.com/mnl/EEI Regulatory Innovation Survey
Final.pdf>.
5
Thesis chapters 4–5.
 286

- Application of competition law to the utility sectors, especially the

electricity sector
The application of competition law to utilities was historically believed to be
unnecessary as the utility sectors have characteristics of natural monopolies.
However, new economic knowledge argues against this.6 Utility sectors around the
world have then been liberalised and reformed towards market competition. Thus,
the application of competition law is necessary for the creation and protection of
market competition in the liberalised utility sectors. The thesis examines that many
jurisdictions have applied competition law to prevent incumbents’ anti-competitive
behaviour in the utility markets. This draws attention to the current problems of
Thailand’s competition law, when the law provides exemptions to the SOEs in the
utility sectors.

- Substantive rules of competition law for the electricity sector

The substantive rules are also discussed, which are important remedies for
dealing with anti-competitive conduct and an uncompetitive electricity structure. By
reviewing the international experience with competition law, the thesis finds that the
important remedy to be incorporated into the competition law is the provision for
prohibiting various anti-competitive conducts such as the misuse of market power,
refusal to deal, predatory pricing, margin squeeze cartelisation and firms’ mergers
and acquisitions.

- Competition law enforcement institution

The Competition Commission, which plays a vital role in enforcing
competition law, would have to be established in a prudent way to assist the
effective enforcement of the substantives rules in the competition legislation. The
thesis reviews the international experience and finds that, to achieve effective
enforcement, the Competition Commission has to be established as an independent
agency with sufficient human and financial resources to analyse and take action in

6
Peter Z. Grossman and Daniel H. Cole., The end of a natural monopoly : deregulation and
competition in the electric power industry (2003); Robert W. Crandall, 'Letting Go? The Federal
Communications Commission in the Era of Deregulation' (2008) 17 (4) Review of Network
Economics 3.
 287

complicated competition law cases. The Commission must also have an advocacy
role in all economic sectors and, when considering the electricity sector, the
Commission must play an important advocacy role to governments and sectoral
regulators in adopting policy or regulations that promotes and protects competition
in the electricity sector. The advocacy may also relate to institutional cooperation
between the Competition Commission and sectoral regulators in creating and
policing market competition in the electricity sector. Moreover, the thesis presents
that not only does the competition agency have a role to protect market competition,
but private enforcement is also an important mechanism for enforcing competition
law because the international experience suggests that private enforcement is an
important supplementary mechanism to public enforcement. Where there is a case of
anti-competitive conduct, private enforcement, which has clear ideas about the
electricity sector, would be able to use the competition law remedy against anti-
competitive condition.
Further, the thesis studies sectoral regulation in order to create and protect
market competition. It considers the background regarding regulation by focusing on
the public interest and capture theories, which amount to the establishment of
regulation and the period of deregulation. The thesis also finds that market
competition will not occur by simply withdrawing regulation, but that regulation has
to play a role in stimulating and shaping workable market competition. The thesis
then focuses on the important aspect of sectoral regulation, which is necessary to the
development of market competition. The main aspects of the international
experiences of sectoral regulation are discussed below.

- Regulatory institution
The thesis’ exploration of the international experience regarding regulatory
institution displays important considerations in establishing sectoral electricity
regulator. The sectoral regulator must be independent and competent in performing
the structural change needed for the liberalisation of the electricity market towards
market competition. The sectoral regulator plays a significant role in supervising
electricity and it cannot be neglected when countries attempt to implement the
liberalisation of their electricity sector. The thesis also finds that the sectoral
 288

regulator needs to be a flexible institution that can evolve with change in market
circumstances, and the regulator has to coordinate with other institutions, especially
the competition authority, to deal with anti-competitive conduct and uncompetitive
market structures in the electricity sector.

- Regulation for competition

The thesis finds that regulation must be set in order to create market
competition by obligating a structural change towards market competition. In the
review of international experience, the thesis finds that regulation must direct
restructuring by unbundling the electricity sector. It must then provide incentives to
attract new investments and market participants in order to develop competition. It is
also important that the regulation maintains efficient access to the electricity sector
because it could help to create a market level playing under competitive conditions.

- Regulation on market competition

According to the international experience reviewed in the thesis, when the
goal of establishing market competition in the electricity market is reached,
regulation must transform its approach from an interventionist approach to
regulating market competition, which plays a role as a market referee for a level
playing field in the competitive liberalised electricity sector. The regulation for
market competition employs a light-handed approach without directly interfering
with the efficiency of market competition. Sectoral regulation must then be set to
transform its role to light-handed regulation and to cooperate with competition law
when market competition in the electricity sector is established.

7.1.3 Proposal for Thailand

After identifying the problems and exploring the international experience as
a possible framework for Thailand’s competition law and sectoral regulation, the
third part of the thesis applies the international experience so as to explore possible
solutions for the problems in Thailand’s competition law and sectoral regulation in
order to build market competition in the electricity sector. The thesis suggests
 289

proposals for the reform of the competition law and electricity regulation in short-
and long-term. The short-term plans are discussed below.

- Energy Commission’s action

The Energy Commission must take action to create and protect market
competition in the electricity sector. The Commission may employ its current power
to attach conditions to licenses to address concerns regarding abuses of market
power and create a competitive electricity sector.

- Building public recognition for competition law

The thesis proposes that the Competition Commission should take the
opportunity to educate and publicise the remedies in competition law and highlight
the issues in relation to the uncompetitive structure of the electricity sector, with an
attempt to promote public recognition of competition law and the importance of
market competition. Once the public recognises the importance of competition law
and policy, and the anti-competitive structure in the electricity sector, it will
generate a significant public push toward Thailand developing competition law and
policy.

- Advocacy work between competition law, sectoral regulation and

other government agencies
It is important that the Competition Commission’s and Energy
Commission’s works in a consistent manner to create and protect market
competition. The thesis proposes that the Competition Commission should
communicate with the sectoral regulator and other agencies to draw attention to
promoting and protecting market competition. The thesis also recommends that the
Competition and Energy Commissions would have to advise various government
agencies to assimilate the notion of competition as a market-driven policy,
especially for the policy relating to the electricity sector.
In the long term, the thesis proposes substantial reforms to competition law
and sectoral regulation, as discussed below.
 290

- Establishment of a National Competition Council

The thesis proposes that, in order to reform competition law and the sectoral
regulation of the electricity sector, the National Competition Council should be
established as the peak agency to help facilitate legal and regulatory reforms for the
creation of market competition. The council will review and set development plans
for the reform of Thai competition law and sectoral regulation to promote the
creation of competition in the electricity sector.

- Reform of the Thai Competition Act 1999

The thesis proposes that to solve the problems with ineffective competition
law, it is necessary to reform competition legislation to strengthen the applicable
competition rules for enforcement in electricity and other utility sectors. The reforms
could establish clear objectives in the competition legislation; the inclusion of
provisions that provide remedies for anti-competitive conduct; the strengthening of
enforcement institutions by developing capacity, and the independency of the Thai
Competition Commission.

- Reform of the Thai Energy Act 2007

From the review of the international experience, the thesis proposes reforms
to the Energy Act 2007. The reforms aim to amend the Energy Act as the main
sectoral regulation to be a regulation that encourages the transformation of the
electricity sector towards market competition. The proposed amendments to the Act
are to enhance the role of the Energy Commission; unbundle and restructure the
electricity market; create competitive neutrality in the electricity sector, and provide
fair access to essential electricity facilities.

- Establishment of formal inter-institutional works between the

Competition Commission and the Energy Commission
It is important to build cooperative framework between competition law and
sectoral regulation. The thesis reviews international experience and proposes that the
concurrency model, which enables the Competition Commission and sectoral
regulators to enforce competition law, would provide benefits to the creation of
 291

market competition and the prevention of anti-competitive abuses in the electricity

sector. The proposed concurrency would contribute to the complementary roles
between the Competition Commission and Energy Commission in building market
competition.
While it is noted that the long-term proposals may be difficult to implement
in view of Thailand’s political uncertainty, it has been pointed out that the Thai
political uncertainty could diminish at some time in the future. In those
circumstances the proposals would be readily available and can be usefully applied
to bring about legal and regulatory reform of Thailand’s competition law and
sectoral regulation in the electricity sector.

7.2 Contribution of the thesis

7.2.1 Knowledge in the field of competition law and sectoral

regulation
This thesis mainly contributes to fulfilling an existing gap in the research on
competition law and sectoral regulation in the electricity sector in Thailand. In
exploring competition law and sectoral regulation in the electricity sector, the thesis
contributes a clear picture of the current situation and problems in Thailand. This
part of the thesis thus provides a solid starting point for problem solving.
In researching international experience, the thesis contributes to a better
understanding of competition law enforcement in the electricity sector in various
jurisdictions and in the regulatory frameworks that stimulate the electricity sector
towards market competition. The understanding thus leads to possible ideas on how
to build effective development of competition law and sectoral regulation.
By applying the international experience to the current problems with
Thailand’s competition law and electricity regulation, the thesis research contributes
new knowledge for Thailand to develop its competition law and electricity
regulation. The thesis leads to ideas on how to resolve the current problems in the
 292

short term and long term. The plan proposed in the thesis may be the light at the end
of the tunnel for Thailand’s competition law and electricity regulation.

7.2.2 Exchange of ideas in the field of competition law and

regulation
This thesis research contributes to the exchange of ideas of professional and
academic audiences. The conference presentations and journal publication of parts
of this thesis contributed new knowledge.
The paper presentation in the conference promoted an exchange of ideas
among practitioners and academics who attended the conferences and it stimulated
further discussion of the problems on Thailand’s competition law and sectoral
regulation towards other countries and international arenas. The presentation in the
conference not only provided the information on competition law and sectoral
regulation, but it also received great feedbacks which have been incorporated into
this thesis.
As parts of this thesis research have been published in journals, it will
generate a wider exchange of research ideas in the field of competition law and
sectoral regulation. Journal readers who specialise in competition law and regulation
will be able to obtain information about problems, international experiences and
possible proposals on the development of competition law and sectoral regulation in
Thailand. The thesis thus contributes to a further exchange of research ideas for the
wider academic and practitioner readers in the field of competition law and
regulation on utility sectors.
 293

7.3 Benefits of thesis research

This thesis contributes to the knowledge in the field of competition law and
sectoral regulation; it is important to link the contributions to obtain the benefits of
the research. The benefits of thesis are stated below.

- Clarity of the problems of competition law and sectoral regulation in

Thailand’s electricity sector
The thesis research is important as it explores and displays a clearer
understanding of the problems of competition law and sectoral regulation in
Thailand. A clearer understanding provides significant views to the development of
competition law and sectoral regulation. In addition, it provides important grounds
for the solutions of various problematic aspects of competition law and sectoral
regulation. Thus, it directly benefits Thailand, which will have a clear understanding
of its problems.

- Possible development framework for Thailand’s competition law and

electricity sectoral regulation
The thesis research benefits Thailand because it provides possible
development plans for Thai competition law and sectoral regulation. The plans will
lead to the improvement of Thai competition law and regulation, which are essential
to promoting and protecting market competition in Thailand’s electricity sector. The
plans would then lay the significant step for the development of the competition law
and regulatory framework.

- Consideration of competition law and sectoral regulation in the other

utility sectors
The thesis provides benefits to Thailand when it can create recognition on
the needs to further research on competition law and sectoral regulation on other
utility sectors such as telecommunication, transportation, and oil and gas. Hence, the
thesis helps to promote further study on competition law and sectoral regulation,
which can create and maintain competitive conditions in other utility sectors.
 294

- Examples for other developing countries that are in the transition

process of building competition law and sectoral regulation in utility
sectors
The thesis research, by contributing to a better understanding of competition
law and sectoral regulation in Thailand’s electricity sector, can benefit other
developing countries in the transition process of developing competition law and
sectoral regulation. The thesis provides an important example for other developing
countries that are framing and developing competition law and sectoral regulation in
order to build efficient market competition in their utility sectors.

7.4 Future research

It is important to note that, while the thesis attempted to cover the main
issues of competition law and regulation, and to suggest possible reform proposals
for Thailand, there is a need for future research.
This thesis recommends that future research be undertaken regarding (1) the
implementation and evaluation of the thesis proposals and (2) the application of
competition law and sectoral regulation in other Thai utility sectors.

- Implementation and evaluation of the thesis proposals

While this thesis attempted to cover the main issues and propose possible
plans for the reform of the competition law and sectoral regulation, further research
could investigate the implementation of the thesis’ proposal plans under a Thai
political economy. The action to reform competition law and sectoral regulation
would be strongly affected by political–economic factors derived from the
bargaining and acceptance of various socioeconomic groups in Thailand. The
implementation under a Thai political economy may involve political circumstances,
parliamentary discussions and public participation.
This thesis suggests that the proposals might be possible platforms for the
reform of competition law and sectoral regulation in the electricity sector. Whether
the proposals will be accepted or implemented in Thailand’s current political
economy will result in interesting future research.
 295

- Competition law and sectoral regulation in other utility sectors

The thesis research on competition law and sectoral regulation in the
electricity sector is an important example of future studies of other utility sectors in
Thailand. Future research can focus on other critical utility sectors such as
telecommunications, gas and transportation. The future research would help to
improve competition law and sectoral regulation in order to promote competition in
other Thai utility sectors.
It is worth noting that, in the broad sense, the thesis provides examples of
other countries in transition of developing competition law and sectoral regulation in
the utility sectors. Therefore, future research should examine the development of
competition laws and sectoral regulation on utility sectors in other developing
countries.
 296

Bibliography

Books

ADB, Developing Best Practices for Promoting Private Sector Investment in

Infrastructure -- Power (2000)

ADB), Asian Development Bank (Developing Best Practices For Promoting Private
Sector Invesment In Infrastructure (2000)

Armstrong, Mark, Simon Cowan and John Vickers, Regulatory Reform: Economic
Analysis and British Experience (MIT Press, 1994)

Ashley C. Brown et al, Handbook for Evaluating Infrastructure Regulatory Systems

(The International Bank for Reconstruction and Development / The World Bank,
2006)

Authority, Swedish Competition, The Pros and Cons of Antitrust in Deregulated

Markets (2004)

Baldwin, Robert and Martin Cave, Understanding Regulation, Theory, Strategy and
Practice (1999)

Baldwin, Robert, Colin Scott and Christopher Hood, A Reader on Regulation

(Oxford University Press, 1998)

Baumol, William J. et al, Supreme Court Amicus Brief of Professors and Scholars in
Law and Economics in Support of the Petitioners, Pacific Bell Telephone Co. v.
Linkline Communications, Inc., No. 07-512 (Filed Sept. 4, 2008) (SSRN, 2008)

Bello, Walden, Shea Cunningham and Kheng Poh Li, A Siamese Tragedy:
Development and Disintegration in Modern Thailand (1999)

Bernstein, Marver H., Regulating business by independent commission (Princeton

University Press, 1955)

Bishop, Matthew and Colin P. Mayer, Privatization and economic performance

(Oxford University Press, 1994)

Bishop, Matthew and Colin P. Mayer, Regulatory Challenge (Oxford University

press, 1995)

Bonbright, James C, Principle of Public Utility Rates (1969)

Braithwaite, John, Regulatory Capitalism How it Works, Ideas for Making it Work
Better (2008)
 297

Brunekreeft, G, Regulation and Competition Policy in the Electricity Market:

economic analysis and German experience (Nomos, 2003)

Buccirossi, Paolo, Handbook of Antitrust Economics (The MIT Press, 2008)

Burri-Nenova, Mira, EC Electronic Communications and Competition Law

(Cameron May Publishing, 2007)

Clarke, Roger and Eleanor J. Morgan., New developments in UK and EU

competition policy (Edward Elgar, 2006)

Cook, Paul, Raul Fabella and Cassey Lee, Competitive advantage and competition
policy in developing countries (Edward Elgar, 2007)

Cotter, Thomas F., The Essential Facilities Doctrine (SSRN)

Crew, Michael A, Regulation Under Increasing Competition (1999)

Crew, Michael A. and Menahem Spiegel, Obtaining the Best from Regulation and
Competition (Springer, 2005)

Davidson, Kenneth M., Reality Ignored: How Milton Friedman and Chicago
Economics Undermined American Institutions and Endangered the Global (2011)

Doner, Richard F., The Politics of Uneven Development: Thailand's Economic

Growth in Comparative Perspective (Cambridge University Press, 2009)

Donoghue, Robert O and A Jorge Padilla, The Law and Economics of Articl 82 EC
(Hart Publishing, 2007)

EU Commision, EU Competition Law Rules Applicable to Merger Control

(Luxembourg, Office for Official Publications of the European Communities, 2009)

Evans, Lewis T and Richard B Meade, Alternating currents or counter-revolution? :

contemporary electricity reform in New Zealand (VICTORIA UNIVERSITY
PRESS, 2005)

Evans, Lewis T and Richard B Meade, Alternating Currents or Counter-Revolution?

Contemporary Electricity Reform in New Zealand (2005)

Everson, Michelle and Julia Eisner, The making of a European constitution: judges
and law beyond constitutive power (Routledge, 2007)

Fainsod, Merle and Lincoln Gordon, Government and the American economy (W.W.
Norton, 1941)

Foster, Christopher D., Privatization, public ownership, and the regulation of

natural monopoly (Blackwell, 1992)
 298

Friedman, Milton, Capitalism and freedom (University of Chicago Press 1962)

Furse, Mark and Susan Nash, The Cartel Offence (Hart Publishing, 2004)

Geddes, Richard, Competing with the Government: Anti-Competitive Behavior and

Public Enterprises (Hoover Institution Press, 2004)

Geradin, Damien, Remedies in Network Industries: EC Competition Law Vs. Sector-

Specific Regulation (Intersentia, 2004)

Geradin, D, Remedies in Network Industries: EC Competition Law Vs. Sector-

Specific Regulation (Intersentia, 2004)

Ghertman, Michel and Claude Ménard, Regulation, Deregulation and Reregulation:

Institutional Perspectives (PEFC, 2009)

Glachant, Jean-Michel and Francois Leveque, Electricity Reform in Europe:

Towards a Single Energy Market (2009)

Glachant, Jean-Michel and François Lévêque., Electricity reform in Europe :

towards a single energy market (Edward Elgar, 2009)

Griffin, James M. and Steven L. Puller, Electricity deregulation : choices and

challenges (2005)

Griffin, James M. and Steven L. Puller, Electricity Deregulation: Choices and

Challenges (University Of Chicago Press, 2005)

Grossman, Peter Z. and Daniel H. Cole., The end of a natural monopoly :

deregulation and competition in the electric power industry (2003)

Harris, Chris, Electricity markets : pricing, structures and economics (John Wiley &
Sons Inc, 2006)

Harris, Chris, Electricity Markets: Pricing, Structures and Economics (Wiley, 2006)

Heenan, Patrick and Monique Lamontagne, Southeast Asia Handbook (Fitzroy

Dearborn Publishers, 2001)

Hunt., Sally, Making competition work in electricity ( J. Wiley, 2002 )

Hutchinson, Terry, Reserching and Writing in Law (LawBook, 2 ed, 2008)

International Energy Agency (IEA), Chile Energy Policy Review (2009)

 299

International Energy Agency (IEA), China Power Sector Reforms; Where To Next?
(2006)

International Energy Policy ( IEA), Competition in Electricity Markets (IEA, 2001)

International Energy Policy( IEA), Energy Policies of IEA Countries: The Republic
of Korea 2006 Review (2006)

International Energy Agency (IEA), Energy Policies of IEA Countries: Sweden 2004
Review (International Energy Agency (IEA), 2004)

International Energy Agency (IEA), Energy Policies of IEA Countries: The Republic
of Korea 2006 Review (IEA, 2006)

International Energy Agency (IEA), Energy Policies of IEA Countries: Japan

Review (2008)

International Energy Agency (IEA), RUSSIAN ELECTRICITY REFORM Emerging

challenges and opportunities (OECD, 2005)

Jordana, Jacint and David Levi-Faur, The Politics of Regulation Institutions and
Regulatory Reforms for the Age of Governance (Edward Elgar Pub, 2005)

Joskow, Paul L and Richard Schmalensee, Market Power (MIT Press, 1983)

Kessides, Ioannis, Reforming infrastructure - privatization, regulation; and

competition (World Bank and Oxford University Press, 2004)

Khemani, R. S. and D. M. Shapiro, OECD: Glossary Of Industrial Organisation

Economics And Competition Law (OECD, 1993)

King, Stphen and Rodney Maddock, Unlockinng the Infrastructure: the reform of
Public Utilities in Australia (1996)

Laffont, Jean-Jacques, Regulation and Development (Cambridge University Press,

2005)

Lévêque, François and Howard A. Shelanski, Merger remedies in American and

European Union competition law (Edward Elgar Publishing, 2003)

Lévêque., François, Competitive electricity markets and sustainability (Edward

Elgar, 2006)

MacAvoy, Paul W. et al, Natural Gas Networks Performance after Partial

Deregulation: Five Quantitative Studies, World Scientific Series on Energy and
Resource Economics (World Scientific Publishing Co. Pte. Ltd, 2007)
 300

McCargo, Duncan, The Thaksinization of Thailand (Nordic Institute of Asian

Studies, 2005)

McGrew, James H., FERC: Federal Energy Regulatory Commission (ABA, 2009)

McNutt, Patrick A., Law, Economics And Antitrust: Towards a New Perspective
(Edward Elgar Publishing 2005)

Mehta, Pradeep S., Competition and Regulation in India (CUTS, 2007)

Monti, Giorgio, Managing the Intersection of Utilities Regulation and EC

Competition Law (SSRN, 2008)

National Competition Council, Assessment of Governments’ Progress in

Implementing the National Competition Policy and Related Reforms (2001)

Newbery, David M., Privatization, Restructuring, and Regulation of Network

Utilities (.Cambridge, MA: The MIT Press, 1999)

North, Douglass C., Institutions, Institutional Change and Economic Performance

(1991)

OECD, OECD Policy Round Table: State Owned Enterprises and the Principle of
Competitive Neutrality (2009)

OECD, Regulatory Reform in Korea: Regulatory Reform in Electricity Sector

(2000)

OECD and International Energy Agency, Competition in Energy market (OECD,

2001)

Organization, Institute of Developing Economies Japan External Trade, Yearbook of

Asian Affairs 2006 (2006)

Peerenboom, Randall, Pushing Back on Globalization: An Introduction to

Regulation in Asia, Regulation in Asia (Routledge, 2008)

Phongpaichit, Pasuk and Chris Baker., Thailand, economy and politics (Oxford
University Press, 1995)

Pongpaichit, P. and Chris. Baker, Thailand’s Boom and Bust (Silkworm Book,
1998)

Pigou, A. C., The economics of welfare (Macmillan, 1948)

Posner, Richard A., Economic analysis of law (1972)

 301

Posner, Richard A., Natural Monopoly and Its Regulation (1999)

Prosser, Tony, The Limits of Competition Law: Markets and Public Services (OUP
Oxford, 2005)

Richard, Gilbert and Kahn Edward P, International Comparisons of Electricity

Regulation (1999)

Rivera, Claudia Schatan and Eugenio, Competition Policies in Emerging

Economies:Lessons and Challenges from Central America and Mexico (IDRC,
2008)

Rothwell, GS et al, Electricity economics: regulation and deregulation (John Wiley,

2003)

Rossi, Jim, Regulatory Bargaining and Public Law (Cambridge University Press,
2005)

Rufín, Carlos, The Political Economy of Institutional Change in the Electricity

Supply Industry: Shifting Currents (Edward Elgar, 2003)

Sally, Razeen, States and firms : multinational enterprises in institutional

competition / Razeen Sally, Routledge studies in international business and the world
economy, 1 (Routledge, 1995)

Singham, Shanker, A General Theory of Trade and Competition: Trade

Liberalisation and Competitive Markets (Cameron May Ltd 2007)

Sioshansi, Fereidoon P, Competitive Electricity Markets - Design, Implementation,

Performance (2008)

Sioshansi, Fereidoon P., Competitive electricity markets : design, implementation,

performance (2008)

Sioshansi, Fereidoon Perry and Wolfgang Pfaffenberger, Electricity Market Reform:

An International Perspective (Elsevier Science, 2006)

Sioshansi, Fereidoon P. and Wolfgang Pfaffenberger., Electricity market reform : an

international perspective / edited by (Elsevier, 2006)

Sirasoontorn, Puree, Privatisation and Technical Efficiency of Thai Electricity

Generation State Owned Enterprise (SSRN, 2004)

Stoyanova, Milena, Competition Problems in Liberalized Telecommunications:

Regulatory Solutions to Promote Effective Competition (Kluwer Law International,
2008)
 302

Subiotto, Romano and Robbert Snelders, Antitrust developments in Europe 2001

(Kluwer Law International, 2001)

Thanitkul, Sakda, Explanation and Case Studies: Thai Competition Act

1999(BE2542) ( translaed from Thai language) (Wiyuchon Publication House,
2011)

The Confederation of British Industry (CBI), A fair field and no favours:

Competitive neutrality in UK public service markets (CBI, 2006)

Thompson, Grahame, The Political Economy of the New Right (Pinter Publishers,
1999)

Trubek, David M. and Alvaro Santos, The New Law and Economic Development: A
Critical Appraisal (Cambridge University Press, 2006)

Ullrich, Hanns, The Evolution of European Competition Law:Whose Regulation,

Which Competition? (Edward Elgar, 2006)

Unger, Danny, Building social capital in Thailand : fibers, finance, and

infrastructure (Cambridge University Press, 1998)

UK Department of Trade and Industry, A World Class Competition Regime (The

Stationery Office, 2001)

United Nations Economic and social commission for Asia and Pacific, The
Economic Regulation of Transport Infrastructure Facilities and Services Principles
and Issues (UN, 2001)

United States. Government Accountability, Office, Antidumping and countervailing

duties [electronic resource] : Congress and agencies should take additional steps to
reduce substantial shortfalls in duty collection : report to congressional requesters
(U.S. Govt. Accountability Office, 2008)

Vickers, John and George Yarrow, Privatization: an economic analysis (MIT Press,
1995)

Victor, David G. and Thomas C. Heller, The Political Economy of Power Sector
Reform: The experience from Five Major Developing Countries (Cambridge
University Press, 2007)

Viscusi, W. Kip, Joseph E. Harrington and John M. Vernon, Economics of

Regulation and Antitrust, 4th Edition (MIT Press, 4 ed, 2007)

Waller, Spencer W. and Brett M. Frischmann, Revitalizing Essential Facilities

(SSRN)

Whish, Richard, Competition Law (LexisNexis, 5th ed ed, 2003)

 303

Williams, Mark, Competition policy and law in China, Hong Kong and Taiwan
(Cambridge University Press, 2005)

World Bank, The World Bank' s Role in Electric Power Sector Policy for Effective
Institutional, Regulatory, and Finacial Reform (World Bank, 1993)

Wubben, Emiel F. M. and Willem Hulsink, On creating competition and strategic

restructuring : regulatory reform in public utilities / edited by Emiel Wubben and
Wim Hulsink (Edward Elgar Pub, 2003)

Xu, Yi-Chong, Electricity reform in China, India and Russia : the World Bank
template and the politics of power / by Xu Yi-chong (Edward Elgar, 2004)

Chapters in Books
Anand, Ananchal, 'Thailand' in Pradeep S Mehta (ed), Competition regimes in the
world-A Civil Society Report (CUTS, 2006)

Baron, David P., 'The economics and politics of regulation: perspectives, agenda,
and approaches' in Jeffrey S. Banks (ed), Political Economy of Institutions and
Decisions (Cambridge University Press 1995) 52

Behling, Burton, 'Competition and Monopoly in Public Utility Industries' in Harold

Demsetz (ed), Efficiency, Competition, and Policy (Blackwell, 1989) 78

Bouille, Daniel, Hilda Dubrovsky and Crescencia Maurer, 'Argentina: Market-

Driven Reform of the Electricity Sector' in Bob Livernash (ed), Power Policitcs:
Equity and Environment in Electricity Reform (2002)

Chullakesa, C., 'Rural Electrification in Thailand' in Saunier G (ed), Rural

Electrification Guidebook for Asia and the Pacific (Asian Institute of Technology
and the Commission of the European Communities, 1992) 439

Çetin, Tamer et al, 'The Political Economy of Independent Regulatory Agencies in

Turkey' in Understanding The Process of Economic Change in Turkey: An
Institution Approach (NOVA Science Publishers, 2010) 21

Crew, Michael A. and Paul R. Kleindorfer, 'Public Utility Regulation' in The

Encyclopaedia of Public Choice (2003) 787

Gal, Michal S., 'The Ecology of Antitrust: Preconditions for Competition Law
Enforcement in Developing Countries' in Competition, Competitiveness and
Development :Lessons from Developing Countries (UNCTAD, 2004)
 304

Geradin, Damien and J. Gregory Sidak, 'European and American Approaches to

Antitrust Remedies and the Institutional Design of Regulation in
Telecommunications' in Sumit K. Majumdar, Ingo Vogelsang and Martin E. Cave
(eds), Handbook of Telecommunications Economics Vol II Technology Evolution
and The Internet (SSRN, 2003)

Gerber, David J., 'Implementing Competition Law in Asia: Using European and U.S.
Experience, ' in Festschriften (ed), Wirtschafts-und Privatrecht im Spannungsfeld
von Privatautonomie, Wettbewerb und Regulierung (2004)

Goto, Mika and Masayuki Yajima, 'A New Stage of Electricity Liberalization in
Japan: Issues and Expectations' in Fereidoon P. Sioshansi and Wolfgang
Pfaffenberger (eds), Electricity Market Reform An International Perspective (2006)

Joskow, Paul L., 'Regulation of Natural Monopolies' in Mitchell Polinsky and

Steven Shavell (ed), Handbook of Law and Economics (2007)

Kay, John and John Vicker, 'Regulatory Reform: An Apprisal ' in Giandomenico
Majone (ed), Deregulation or re-regulation? : regulatory reform in Europe and the
United States (1990)

Kirchner, Christian, 'Competition policy vs. Regulation: Administration vs.

Judiciary' in Manfred Neumann and Jürgen Weigand (eds), The international
handbook of Competition (Edward Elgar Publishing, 2004)

L.Moss, Diana, ' Electricity transmission ' in Diana L. Moss (ed), Network Access,
Regulation and Antitrust (Routledge, 2005) 91

Li, David and Francis Lui, 'Why Do Governments Dump State Enterprises?Evidence
from China' in Takatoshi Ito and Anne O Krueger (eds), Governance, Regulation,
and Privatization in the Asia-Pacific Region, NBER East Asia Seminar on
Economics (2004) vol 12,

Littlechild, Stephen, 'Electricity: regulatory development around the world ' in

Competition and Regulation in Electricity Markets (2003)

Martimort, David, 'Political Stabilization by an Independent Regulator' in Political

Economy of Antitrust (Emerald Group Publishing Limited, 2007)

Nambu, Tsuruhiko, 'The Liberalization of the Japanese Electric Power Industry' in

Masatsugu Tsuji, Sanford V. Berg and Michael G. Pollitt (eds), Private Initiatives in
Infrastructure - Priorities, Incentives, and Performance (2000)

Nikomborirak, Deunden, 'Exemptions and Exceptions: Implications for Economic

Performance: The Case of Thailand' in UNCTAD (ed), Competition,
Competitiveness and Development: Lessons from Developing Countries (UNCTAD,
2004)
 305

Nikomborirak, Deunden, 'Gas in Thailand ' in Christopher Findlay (ed), The Impacts
and Benefits of Structural Reforms in Transport, Energy and Telecommunications
Sectors (APEC Policy Support Unit 2011)

Nikomborirak, Deunden, 'Thailand' in Simon J. Evenett and Douglas H. Brooks

(eds), Competition Policy and Development in Asia (Macmillan Publishers, 2005)

O'Neill, Richard and Udi Helman, 'Regulatory Reform of US. Wholesale Electricity
markets' in Marc K. Landy, Martin A. Levin and Martin Shapiro (eds), Creating
Competitive Markets: The Politics of Regulatory Reform (Brookings Institution
Press, 2007)

Pfaffenberger, Wolfgang and Fereidoon P. Sioshansi, 'A Comparison of Market

Structure and Regulation Between US and European Utility Markets' in Andreas
Bausch and Burkhard Schwenker (eds), Handbook Utility Management (Springer
Berlin Heidelberg, 2009) 629

Praetorius, Barbara et al, 'Network Regulation' in Innovation for Sustainable

Electricity Systems, Sustainability and Innovation (Physica-Verlag HD, 2009) 191

Santisirisomboon, J., B. Limmeechokchai and S. Chungpaibulpatana, 'Biomass

Energy for Electricity Generation in Thailand: Its Impacts on Power Generation
Expansion Planning and CO2 Emissions' in A. A. M. Sayigh (ed), World Renewable
Energy Congress VI (Pergamon, 2000) 1390

Selnick, P., 'Focusing Operational Research on Regualtion' in Roger G. Noll (ed),

Regulatory Policy and the Social Sciences (University of California Press, 1985)

Shearing, Clifford, 'A Constitutive Conception of Regulation' in Peter Grabosky and

John Braithwaite (eds), Business Regulation and Australia's Future (Australian
Institute of Criminology, 1998)

Shogren, Rod, 'Implementing an effective competition policy : skills and synergies'

in Erlinda M. Medalla (ed), Competition policy in East Asia (Routledge, 2005)

Sidak, Gregory, 'Remedies in Network Industries-A View from United States' in

Damien Geradin (ed), Remedies in Network Industries: EC Competition Law vs
Sector Specific Regulation (Intersentia, 2004)

Spiller, Pablo T and Martorell Luis Viena, 'How Should It Be Done? Electricity
Regulation in Argentina, Brazil, Uruguay, and Chile' in Richard J Gilbert and
Edward P Khan (eds), International Comparison of Electricity Regulation,
Cambridge (Cambridge University Press., 1996)

Ulen, Thomas S., 'The uneasy case for competition law and regulation as decisive
factors in developments: some lessons from China' in Michael Faure and Xinxhu
Zhang (eds), Competition Policy and Regulation : Recent Developments in China,
the US and Europe (Edward Elgar 2011)
 306

Vietor, Richard H.K., 'The Hubris of Regulated Competition: Airlines, 1925-88' in

Jack C. High (ed), Regulation: economic theory and history (University of Michigan
Press, 1997)

Williams, Philip L and Graeme Woodbridge, 'Antitrust Merger Policy: Lessons from
the Australian Experience' in Takatoshi Ito and Anne O Krueger (eds), Governance,
Regulation, and Privatization in the Asia-Pacific Region, NBER East Asia Seminar
on Economics (2004) vol 12,

Wils, Wouter P., 'The Reform of Competition Law Enforcement - Will it Work?' in
D. Cahill (ed), The Modernisation of EU Competition Law Enforcement in the EU –
FIDE 2004 National Reports (Cambridge University Press, 2004)

Journal Articles

A, Beckenstein and Gabel H, 'Antitrust compliance: results of a survey of legal

opinion' (1983) 51 Antitrust Law J. 459

A, King and Lenox M, 'Industry self-regulation without sanctions: the chemical

industry's responsible care program' (2000) 43 Acad. Manag. J. 698

A, Sarat and Silbey S, 'The pull of the policy audience' (1988) 10 Law Policy 97

Adekoya, Babatunde O., 'What Has Been The Role Of EC Competition Law In The
Liberalisation Of The European Electricity Sector?'

Adhikari, Ratnakar and Malathy Knight-John, 'What Type of Competition Policy

and Law Should a Developing Country Have? 1' (2004) 5(1) (March 1, 2004) South
Asia Economic Journal 1

Al, Sweetser, 'Measuring Market Power in a State with a Dominant Supplier: A

Case Study' (1998) 11(6) Electricity Journal, The 61

Albers, Michael, 'Energy Liberalization and EC Competition Law' (2001) 25(4)

Fordham International law journal

Alexander, Ian, 'Capital efficiency, its measurements and its role in regulatory
reviews of utility industries: Lessons from developed and developing countries'
(2006) 14(4) Utilities Policy 245

Al-Sunaidy, A. and R. Green, 'Electricity deregulation in OECD (Organization for

Economic Cooperation and Development) countries' 31(6-7) (2006/6//) Energy 769
 307

Ana, Paulo Henrique de Mello Sant, Gilberto De Martino Jannuzzi and Sérgio
Valdir Bajay, 'Developing competition while building up the infrastructure of the
Brazilian gas industry' (2009) 37(1) Energy Policy 308

ArdIyok, Sahin and Fuat Oguz, 'Competition law and regulation in the Turkish
telecommunications industry: Friends or foes?' (2010) 34(4) Telecommunications
Policy 233

Arizu, Beatriz, William H. Dunn Jr and Bernard Tenenbaum, 'Regulating

Transmission' (2001) January(226) World Bank Public Policy for Private Sector

Armstrong, Mark and David E.M. Sappington, 'Regulation, Competition and

Liberalization' (2006) 44(2) Journal of Economic Literature 325

Asano, Hiroshi, 'Regulatory reform of the electricity industry in Japan: What is the
next step of deregulation?' (2006) 34(16) Energy Policy 2491

Averch, Harvey and L. Johnson Leland, 'Behavior of the Firm Under Regulatory
Constraint' (1962) 52(5) The American Economic Review 1052

B, Hutter and Jones C, 'From government to governance: external influences on

business risk management' (2007) 1 Regul. Gov. 27

B, Lange, 'Compliance construction in the context of environmental regulation'

(1999) 8 Soc. Legal Study. 549

Bacon, R. W. and J. Besant-Jones, ' Global Electronic Power Reform, Privatisation

and Liberalisation of the Electric Power Industry in Developing Countries' (2001) 26
Annual. Review Energy Environment 331

Bajay, S. V., 'Integrating competition and planning: A mixed institutional model of

the Brazilian electric power sector' 31(6-7) (2006/6//) Energy 865

Baker, Jonathan B., 'The Case for Antitrust Enforcement' (2003) 17(4) The Journal
of Economic Perspectives 27

Balasooriya, Asoka F., Quamrul Alam and Ken Coghill, 'Ownership, competition
and regulation under privatization policy: the Sri Lankan experience' (2007) 73
International Review of Administrative Sciences

Banks, John P., 'Privatization of the Electricity Sector in Emerging Markets: The
Organizational Challenge for Governments' (2006) 19(9) The Electricity Journal 45

Barquin, Julian et al, 'The Acquisition of Endesa by Gas Natural: Why the Antitrust
Authorities Are Right to Be Cautious' (2006) 19(2) The Electricity Journal 62
 308

Batista de Moura Ziebarth, José Antonio and Gabriel N. Pinto, 'Essential Facility
Doctrine in Brazilian Telecommunications Sector' (2010) SSRN eLibrary

Baumol, William J. and Janusz A. Ordover, 'Use of Antitrust to Subvert

Competition' (1985) 28(2) Journal of Law and Economics 247

Bebchuk, Lucian Arye and Allen Ferrell, 'A New Approach to Takeover Law and
Regulatory Competition' (2001) 87(1) Virginia Law Review 111

Beesley, M. E. and S. C. Littlechild, 'The Regulation of Privatized Monopolies in

the United Kingdom' (1989) 20(3) The RAND Journal of Economics 454

Bello, Alejandro and Sandra Cavero, 'The Spanish retail petroleum market: New
patterns of competition since the liberalization of the industry' (2008) 36(2) Energy
Policy 612

Bergara, Mario E, Witold J Henisz and Pablo T Spiller, 'Political institutions and
electric utility investment: A cross-nation analysis' (1998) 40(2) California
Management Review

Berrie, Tom, 'The world bank's role in the electric power sector : World bank policy
paper, 1993, 84 pp' (1994) 4(1) Utilities Policy 86

Bertram, Geoff and Dan Twaddle, 'Price-Cost Margins and Profit Rates in New
Zealand Electricity Distribution Networks Since 1994: the Cost of Light Handed
Regulation' (2005) 27(3) Journal of Regulatory Economics 281

Bertrand, Marianne et al, 'Mixing family with business: A study of Thai business
groups and the families behind them' (2008) 88(3) Journal of Financial Economics
466

Bertrand, Marianne et al, 'Mixing family with business: A study of Thai business
groups and the families behind them' (2008) 88(3) Journal of Financial Economics
466

Biggar, Darryl R., 'Application of Competition Policy to the Electricity Sector'

(1998) SSRN eLibrary

Block, Michael Kent, Frederick Carl Nold and Joseph Gregory Sidak, 'The Deterrent
Effect of Antitrust Enforcement' (1981) 89(3) The Journal of Political Economy 429

Blumsack, Seth, Dmitri Perekhodtsev and Lester B. Lave, 'Market Power in

Deregulated Wholesale Electricity Markets: Issues in Measurement and the Cost of
Mitigation' (2002) 15(9) The Electricity Journal 11

Bolt, Chris, 'The role of the Office of Fair Trading and the Competition Commission
in establishing common regulatory practices' (2004) 12(2) Utilities Policy 83
 309

Borenstein, Severin and James Bushnell, 'Electricity restructuring: Deregulation or

reregulation?' (2000) 23(2) Regulation 46

Borenstein, Severin and James Bushnell, 'An Empirical Analysis of the Potential for
Market Power in California's Electricity Industry' (1999) 47(3) Journal of Industrial
Economics 285

Borenstein, Severin, James B. Bushnell and Frank A. Wolak, ' Measuring Market
Inefficiencies in California's Restructured Wholesale Electricity Market ' (2002)
92(5) American Economic Review

Bouckaert, Jan and Frank Verboven, 'Price Squeezes in a Regulatory Environment'

(2004) 26(3) Journal of Regulatory Economics 321

Bovet, Christian and Philippe Gugler, 'Connecting Regulations and Competition

Law: A Swiss Perspective on Liberalization' (2000) 63(4) Law and Contemporary
Problems 133

Bradbrook, Adrian J and Alexandra S Wawryk, 'Government Initiatives Promoting

Renewable Energy for Electricity Generation in Australia' (2005) 25(1) University of
New South Wales Law Journal 124

Braithwaite, John 'The Australian government's affirmative action legislation:

achieving social change through human resource management' (1993) 15 Law Policy
327

Brennan, Tim, ''Night of the Living Dead' or 'Back to the Future'? Electric Utility
Decoupling, Reviving Rate-of-Return Regulation, and Energy Efficiency' (2008)
SSRN eLibrary

Brennan, Timothy J., 'Essential facilities and Trinko: should antitrust and regulation
be combined? (The Enduring Lessons of the Breakup of AT&T: A Twenty-Five
Year Retrospective)' (2008) 61(1) Federal Communications Law Journal 133
Broumas, Antonios G., 'The Necessity of Sector Specific Regulation in Electronic
Communications Law' (2009) 4(3) Journal of International Commercial Law and
Technology

Brunekreeft, Gert and Sven Twelemann, 'Regulation, Competition and Investment in

the German Electricity Market: RegTP or REGTP' (2005) Energy Journal 99

Brunekreeft, G and S Twelemann, 'Regulation, competition and investment in the

German electricity market: RegTP or REGTP' (2006)

Bunaramrueang, Piyabutr, 'Normative Dynamics of Competition Laws' (2010)

UTCC Law Review

Burton, John, 'The Competitive Order or Ordered Competition?: the 'UK Model' of
Utility Regulation in Theory and Practice' (1997) 75(2) Public Administration 157
 310

Busch, John F., Peter Du Pont and Surapong Chirarattananon, 'Energy-efficient

lighting in Thai commercial buildings' (1993) 18(2) Energy 197

Busch, Per-Olof, Helge Jorgens and Kerstin Tews, 'The Global Diffusion of
Regulatory Instruments: The Making of a New International Environmental Regime'
(2005) 598(1) (March 1, 2005) The ANNALS of the American Academy of Political
and Social Science 146

Byatt, Ian, 'The role of UK competition agencies in the regulation and deregulation
of utility service industries: reflections of a former regulator' (2004) 12(2) Utilities
Policy 57

Byström, Hans, Lugkana Worasinchai and Srisuda Chongsithipol, 'Default risk,

systematic risk and Thai firms before, during and after the Asian crisis' (2005) 19(1)
Research in International Business and Finance 95

C, Garsten and Jacobsson K, 'Corporate globalization, civil society and post-political

regulation—whither democracy?' (2007) 49 Dev. Dialogue 143

C, Heimer, 'Explaining variation in the impact of law: organizations, institutions and

professions' (1996) 15 Stud. Law Polit. Soc. 29

C, Hill et al, 'An empirical examination of the causes of corporate wrongdoing in the
United States' (1992) 45 Hum. Relat. 1055

C, Mayhew, Quinlan M and Ferris R, 'The effects of subcontracting/outsourcing on

occupational health and safety: survey evidence from four Australian industries'
(1997) 25 Saf. Sci. 163

C, Nyland, Smyth R and Zhu C, 'What determines the extent to which employers
will comply with their social security obligations? Evidence from Chinese firm-level
data' (2006) 40 Soc. Policy Adm. 196

C, Parker and Nielsen VL, 'Do compliance programmes influence compliance?'

(2009) 41 Adm. Soc. 3

C, Scott, 'Analysing regulatory space: fragmented resources and institutional design'

(2001) Summer Public Law 329

C, Shearing and Wood J, 'Nodal governance, democracy, and the new “denizens.”'
(2003) 30 J. Law Soc. 400

Capannelli, Giovanni and Carlo Filippini, 'Economic Integration in East Asia and
Europe: Lessons from a Comparative Analysis' (2010) The Singapore Economic
Review (SER), 2010
 311

Cardell, Judith B, Carrie Cullen Hitt and William W Hogan, 'Market power and
strategic interaction in electricity networks' (1997) 19(1-2) Resource and Energy
Economics 109

Carraretto, Cristian, 'Power plant operation and management in a deregulated

market' 31(6-7) (2006/6//) Energy 1000

Cengiz, Firat, 'Multi-level governance in competition policy: the European

Competition Network' (2010) 35(5) European Law Review

Chaivongvilan, Srichattra, Deepak Sharma and Suwin Sandu, 'Energy challenges in

Thailand: an overview' (2008) 2(2) GMSARN International Journal

Chan, Gordon Y., 'Administrative Monopoly and the Anti-Monopoly Law: An

Examination Of the Debate in China' (2009) 18(59) Journal of Contemporary China

Chandarasupsang, Tirapot, 'An Application of HHI to Study Electricity Market

Design Issues' (2006) 6(2) International Journal of Emerging Electric Power
Systems

Chang, Youngho, 'The New Electricity Market of Singapore: Regulatory framework,

market power and competition' (2007) 35(1) Energy Policy 403

Chantara-Opakorn, Anan, 'Thailand's Competition Law and Its Implications on

International Mergers and Acqusitions Proceedings of the 2000 Symposium:
National Merger Enforcement, Transnational Mergers, and the Global Economy'
(2000) 18(3) Wisconsin International Law Journal 591

Chantler, Philip, 'The Economic Nature of Public Utilities' (1933) 4(2) The
Manchester School 109

Chen, James Ming, 'The Nature of the Public Utility: Infrastructure, the Market, and
the Law' Northwestern University Law Review, Vol. 98, p. 1617, 2004

Chen, Zhiqi, 'Buyer Power: Economic Theory and Antitrust Policy' (2007) 22
Research in Law and Economics 23

Cheng, Thomas K., 'Competition Law Enforcement in the Television Broadcasting

Sector in Hong Kong: Past Cases and Recent Controversies' (2010) World
Competition: Law and Economics Review, Vol. 33, No. 2, 2010
Cheong May, Fong, 'Competition and regulation of the electricity industry in
Malaysia' (2009) 54(1) (Spring2009) Antitrust Bulletin 67

Chirarattananon, Surapong and Supattana Nirukkanaporn, 'Deregulation of ESI and

privatization of state electric utilities in Thailand' (2006) 34(16) Energy Policy 2521
 312

Choné, Philippe, Laurent Flochel and Anne Perrot, 'Allocating and funding universal
service obligations in a competitive market' (2002) 20(9) International Journal of
Industrial Organization 1247

Choné, Philippe, Laurent Flochel and Anne Perrot, 'Universal service obligations
and competition' (2000) 12(3) Information Economics and Policy 249

Clark, John, 'Competition Advocacy: Challenges for Developing Countries' (2005)

6(4) OECD Journal of Competition Law & Policy 69

Cohen, Matthew, 'Efficiency and Competition in the Electric-Power Industry' (1979)

88(7) The Yale Law Journal 1511

COKER, JOSEPH R., 'SAVING OTTER TAIL: THE ESSENTIAL FACILITIES

DOCTRINE AND ELECTRIC POWER POST-TRINKO' (2005) 33(Fall) Florida
State University Law Review

Cook, Paul, 'Privatization and Utility Regulation in Developing Countries: the

Lessons So Far' (1999) 70(4) Annals of Public and Cooperative Economics 549

Córdova-Novion, César and Deirdre Hanlon, 'Regulatory Governance: Improving

the Institutional Basis for Sectoral Regulators' (2002) 2(3) OECD Journal on
Budgeting

Costello, Kenneth W. and Robert J. Graniere, 'The outlook for a restructured U.S.
electric power industry: lessons from deregulation' (1997) 10(4) The Electricity
Journal

Counsell, James Mellsop and Kevin, 'Assessing the Implications of Upstream Buyer
Power on Downstream Consumers' (2009) Antitrust Insights

Crandall, Robert W., 'Letting Go? The Federal Communications Commission in the
Era of Deregulation' (2008) 17 (4) Review of Network Economics

Cremer, H. et al, 'Universal Service: An economic perspective' (2001) 72(1) Annals

of Public and Cooperative Economics 5

Crocioni, Pietro and Cento Veljanovski, 'Price Squeezes, Foreclosure And

Competition Law Principles And Guideline' (2003) 4(1) Journal of Network
Industries

Cronin, Bruce, 'International Legal Consensus and the Control of Excess State
Violence ' (2005) Global Governance

Crouch, Martin, 'Investment under RPI-X: Practical experience with an incentive

compatible approach in the GB electricity distribution sector' (2006) 14(4) Utilities
Policy 240
 313

Cseres, KJ, 'What Has Competition Done for Consumers in Liberalised Markets?'
(2008) 4(2) Competition Law Review

Cubbin, John and Jon Stern, 'Role of UK competition agencies in the regulation and
deregulation of utility service industries' (2004) 12(2) Utilities Policy 53

Currie, David, 'Liberalisation and Competition in UK Energy Markets: the Spur to

Innovate' (1998) 9(2) Business Strategy Review 37

D, Dalton and Kesner I, 'On the dynamics of corporate size and illegal activity: an
empirical assessment' (1988) 7 J. Bus. Ethics 861

D, Huizinga and Elliott DS, 'Reassessing the reliability and validity of self-report
delinquency measures' (1986) 2 J. Quant. Criminol. 293

D, Lehmkuhl, 'Control modes in the age of transnational governance' (2008) 30 Law

Policy 336

D, Levi-Faur, 'The global diffusion of regulatory capitalism' (2005) 598 Ann. Am.
Acad. Polit. Soc. Sci. 12

D, McCaffrey, Smith A and Martinez-Moyano I, '“Then let's have a dialogue”:

interdependence and negotiation in a cohesive regulatory system' (2006) 17 J. Public
Adm. Res. Theory 307

D, Weil, 'If OSHA is so bad, why is compliance so good?' (1996) 27 RAND J. Econ.
618

Dabbah, Maher M., ' The Relationship Between Competition Authorities and Aector
Regulators' (2011) 70(01) The Cambridge Law Journal 113

Dagdeviren, Hulya, 'Limits To Competition and regulation in Privatized Electricity

Markets' (2009) 80(4) Annals of Public and Cooperative Economics 641

Daniels, Ronald J. and Michael J. Trebilcock, 'Private Provision of Public

Infrastructure: An Organizational Analysis of the Next Privatization Frontier' (1996)
46(3) The University of Toronto Law Journal 375

Dassler, Thoralf, 'Combining theories of regulation - Proposing a framework for

analysing regulatory systems worldwide' (2006) 14(1) Utilities Policy 31

David.M, Newbery, 'Privatisation and liberalisation of network utilities' (1997) (41)

European Economic Review

David M, Newbery, 'Regulation and competition policy: longer-term boundaries'

(2004) 12(2) Utilities Policy 93
 314

De Boe, V., 'Allocation of Slots to Airlines: What Role for Competition Law?'
(2005) 6(4) Journal of Network Industries (JoNI) 293

Decker, Chris and Tim Keyworth, 'Competition law and Commodity Markets: The
case of Wholesale Electricity' (2002) 22(4) Economic Affairs 32

Demsetz, Harold, 'Why Regulate Utilities?' (1968) 11(1) Journal of Law and
Economics 55

Deng, S. J. and S. S. Oren, 'Electricity derivatives and risk management' 31(6-7)

(2006/6//) Energy 940

Diaconu, Oana, Gheorghe Oprescu and Russell Pittman, 'Electricity reform in

Romania' (2009) 17(1) Utilities Policy 114

Diathessopoulos, Michail D., 'Energy Market Restructuring and Competition

Regulation' (2010) Piraeus Case Law Review, Forthcoming

Diathessopoulos, Michail D., 'European Competition Law & Control of Energy

Market Restructuring' (2010) SSRN eLibrary

Diathessopoulos, Michail D., 'From Energy Sector Inquiry to Recent Antitrust

Decisions in European Energy Markets: Competition Law as a Means to Implement
Sector Regulation' (2010) SSRN eLibrary

Diathessopoulos, Michail D., 'From Energy Sector Inquiry to Recent Antitrust

Decisions in European Energy Markets: Competition Law as a Means to Implement
Sector Regulation' (2010) SSRN eLibrary

DiLorenzo, Thomas J., 'The myth of natural monopoly' (1996) 9(2) The Review of
Austrian Economics 43

Djankov, Simeon, 'The Regulation of Entry: A Survey' (2009) 24(2) (August 1,

2009) The World Bank Research Observer 183

Domanico, Fabio, 'Concentration in the European electricity industry: The internal

market as solution?' (2007) 35(10) Energy Policy 5064

Domney, Mark D., Heather I.M. Wilson and Er Chen, 'Privatization; Regulation;
Monopolies; Airports; New Zealand; Australia' (2005) 18(3) International Journal
of Public Sector Management

Drauz, Gotz, Thomas Chellingsworth and Mention Hertta, 'Recent Developments in

EC Merger Control' (2009) (December 8, 2009) Journal of European Competition
Law Practice lpp004
 315

Dubash, Navroz K. and D. Narasimha Rao, 'Regulatory practice and politics:

Lessons from independent regulation in Indian electricity' (2008) 16(4) Utilities
Policy 321

Durakoğlu, Mustafa S, 'Political institutions of electricity regulation: The case of

Turkey' (2011) 39(9) Energy Policy 5578

Dutz, M. A. and M. Vagliasindi, 'Competition policy implementation in transition

economies: An empirical assessment' (2000) 44(4-6) European Economic Review
762

Dziadykiewicz, Eryk, 'Refusal to Grant Third-Party Access by an Electricity

Transmission System Operator -Overview of Competition Law Issues' (2007) 25(2)
Journal of Energy & Natural Resources Law 114

E, Meidinger, 'Competitive supragovernmental regulation: How could it be

democratic?' (2008) 8 Chicago J. Int. Law 513

Easterbrook, Frank H., 'Detrebling Antitrust Damages' (1985) 28(2) Journal of Law
and Economics 445

Eising, Rainer, 'Policy Learning in Embedded Negotiations: Explaining EU

Electricity Liberalization' (2002) 56(1) International Organization 85

Elkins, Zachary and Beth Simmons, 'On Waves, Clusters, and Diffusion: A
Conceptual Framework' (2005) 598(1) (March 1, 2005) The ANNALS of the
American Academy of Political and Social Science 33

Estache, Antonio and Lourdes Trujillo, 'Corruption and infrastructure services: An

overview' (2009) 17(2) Utilities Policy

Estache, Antonio and Liam Wren-Lewis, 'Toward a Theory of Regulation for

Developing Countries: Following Jean-Jacques Laffont’s Lead' (2009) 47(3)
Journal of Economic Literature

Etzioni, Amitai, 'Does regulation reduce electricity rates? A research note ' (1986)
19(4) Policy Sciences

Evenett, Simon J., 'Competition Advocacy: Time For A Rethink?' (2006) 26(3)
(Spring2006) Northwestern Journal of International Law & Business 495

Evenett, Simon J. and Krista Lucenti, 'Trade Reforms, Market Power, and Pass-
Through in Selected East Asian Nations' (2005)

F, Haines, 'Innocent deaths and regulatory failure: a case study of change in the
absence of punishment' (1999) 27 Int. J. Sociol. Law 23
 316

F, Haines and Reichman N, 'The problem that is global warming: introduction to

special issue' (2008) 30 Law Policy 385

Faundez, Julio, 'Rule of Law or Washington Consensus: The Evolution of the World
Bank s Approach to Legal and Judicial Reform' (2009) Warwick School of Law
Legal Studies Research Paper Series

Fels, Allan, 'The Political Economy of Regulation' (1982) 5(1) University of New
South Wales Law Journal

Ferguson, Ross, William Wilkinson and Robert Hill, 'Electricity use and economic
development' (2000) 28(13) Energy Policy 923

Ferren, John E., 'Ohio Edison v. Public Utility Commission of Ohio: Affirming the
Charitable and Municipal Exception to the Policy Against Anti-Competitive
Behavior ' (1997-1998) 31(2) Akron Law Review

Fershtman, Chaim, 'The Interdependence between Ownership Status and Market

Structure: The Case of Privatization' (1990) 57(227) Economica 319

Flatters, Frank, 'Protection Rackets and Thai Development' (1996) 11(4) TDRI
Quarterly Review

Florio, Massimo and Fabienne Fecher, 'The future of public enterprises: contribution
to a new discourse' (2011) 82(4) Annals of Public and Cooperative Economics 361

Foer, Albert A., 'Institutional Contexts of Market Power in the Electricity Industry'
(1999) 12(4) The Electricity Journal 13

Fox, Eleanor, 'Global Markets, National Law, and the Regulation of Business: A
View from the Top,' (2001) 75 St. John's Law Review 383

Fox, Eleanor M., 'An Anti-Monopoly Law for China – Scaling the Walls of
Government Restraints' (2008) 75(1) Antitrust Law Journal

Fox, Eleanor M., 'The WTO’s First Antitrust Case – Mexican Telecom: A Sleeping
Victory for Trade and Competition' (2006) 9(2) (June 2006) Journal of International
Economic Law 271

Fremeth, Adam R. and Guy L. F. Holburn, 'Information Asymmetries and

Regulatory Decision Costs: An Analysis of U.S. Electric Utility Rate Changes
1980–2000' (2012) 28(1) (April 1, 2012) Journal of Law, Economics, and
Organization 127

Frese, Michael J., 'Fines and Damages Under EU Competition Law Implications of
the Accumulation of Liability' (2011) 34(3) World Competition Law and Economics
Review
 317

Frischmann, Brett and Spencer Weber Waller, 'REVITALIZING ESSENTIAL

FACILITIES ' (2008) 75(1) Antitrust Law Journal

Furse, Mark M., 'Excessive Prices, Unfair Prices and Economic Value: The Law of
Excessive Pricing Under Article 82 EC and the Chapter II Prohibition' (2008) 4(1)
European Competition Journal

G, Weaver and Trevino LK, 'Compliance and values oriented ethics programs:
influences on employees' attitudes and behavior' (1999) 9 Bus. Ethics Q. 315

Gal, Michal S., 'When the Going Gets Tight: Institutional Solutions When Antitrust
Enforcement Resources are Scarce ' (2010) 41 Loyola University Chicago Law
Journal

Gal, Michal S. and Inbal Faibish, 'Six Principles for Limiting Government-
Facilitated Restraints on Competition' (2007) 44 Common Market Law Review

Geradin, Damien, 'Development of Standards for Regulatory Systems in

Infrastructure: Emerging Principles of Utility Regulation' (2002) SSRN eLibrary

Geradin, Damien, 'Regulatory Issues Raised by Network Convergence: The Case of

Multi-Utilities' (2001) 2(1) Journal of Network Industries

Geradin, Damien and J. Gregory Sidak, 'European and American Approaches to

Antitrust Remedies and the Institutional Design of Regulation in
Telecommunications' (2003) SSRN eLibrary

Gerber, David J., 'Competition Law' (2002) 50 The American Journal of

Comparative Law 263

Geroski, P. A., 'Appealing to the UK competition commission' (2004) 12(2) Utilities

Policy 77

Gilardi, Fabrizio, 'The Institutional Foundations of Regulatory Capitalism: The

Diffusion of Independent Regulatory Agencies in Western Europe' (2005) 598
Annals of the American Academy of Political and Social Science 84

Gilardi, Fabrizio, 'The Institutional Foundations of Regulatory Capitalism: The

Diffusion of Independent Regulatory Agencies in Western Europe' (2005) 598(1)
(March 1, 2005) The ANNALS of the American Academy of Political and Social
Science 84

Glachant, Jean Michel and Dominique Finon, 'A Competitive Fringe in the Shadow
of a State Owned Incumbent: The Case of France' (2005) Energy Journal 181

Glazer, Craig A. and M. Bryan Little, 'The Roles of Antitrust Law and Regulatory
Oversight in the Restructured Electricity Industry' (1999) 12(4) The Electricity
Journal 21
 318

Gray, Horace M, ' The Passing of the Public Utility Concept' (1940) 16(1) Journal
of Land & Public Utility Economics

Greacen, Chuenchom Sangarasri and Chris Greacen, 'Thailand's electricity reforms:

privatization of benefits and socialization of costs and risks' (2004) 77(3) Pacific
Affairs 517(25)

Green, Jonathan, 'The application of competition policies and the development of

regulation in the UK--an overview' (2004) 12(2) Utilities Policy 97

Green, Richard J. and David M. Newbery, 'Competition in the British Electricity

Spot Market' (1992) 100(5) The Journal of Political Economy 929

Grigoriadis , Theocharis N., 'State Responsibility and Antitrust in the Energy

Charter Treaty: Socialization vs. Liberalization in Bilateral Investment Relations'
(2008) 44(1/2) Texas International Law Journal 20

Gupta, Nandini, 'Partial Privatization and Firm Performance' (2005) 60(2) The
Journal of Finance 987

H, Genn, 'Business responses to the regulation of health and safety in England'

(1993) 15 Law Policy 219

H, Gunz and Gunz S, 'The lawyer's response to organizational professional conflict:

an empirical study of the ethical decision making of in-house counsel' (2002) 39 Am.
Bus. Law J. 241

H. Stephen Harris, Jr. and Rodney j Ganske, 'THE MONOPOLIZATION AND IP

ABUSE PROVISIONS OF CHINA'S ANTIMONOPOLY LAw: CONCERNS AND
A PROPOSAL ' (2008) 75(1) Antitrust Law Journal

Haar, Laura N. and Trefor Jones, 'Misreading liberalisation and privatisation: The
case of the US energy utilities in Europe' (2008) 36(7) Energy Policy 2610

Haas, R. and H. Auer, 'The prerequisites for effective competition in restructured

wholesale electricity markets' 31(6-7) (2006/6//) Energy 857

Haber, Hanan, 'Regulating-for-Welfare: A Comparative Study of “Regulatory

Welfare Regimes” in the Israeli, British, and Swedish Electricity Sectors' (2010)33
(1) Law & Policy

Hale, G. E. and Rosemary D. Hale, 'Competition or Control VI: Application of

Antitrust Laws to Regulated Industries' (1962) 111(1) University of Pennsylvania
Law Review 46

Hantke-Domas, Michael, 'The Public Interest Theory of Regulation: Non-Existence

or Misinterpretation?' (2003) 15(2) European Journal of Law and Economics 165
 319

Harker, Michael, 'UK Utility Regulation: Licences, Commitment and Judicial

Review' SSRN eLibrary

Harrington, Joseph E., Jr., 'Cartel Pricing Dynamics in the Presence of an Antitrust
Authority' (2004) 35(4) The RAND Journal of Economics 651

Harrington, Joseph E., 'Some implications of antitrust laws for cartel pricing' (2003)
79(3) Economics Letters 377

Hasanbeigi, Ali, Christoph Menke and Apichit Therdyothin, 'The use of

conservation supply curves in energy policy and economic analysis: The case study
of Thai cement industry' (2010) 38(1) Energy Policy 392

Hasting, Justine S. and Richard J. Gilbert, ' Market Power, Vertical Integration and
The Wholesale Price of Gasoline' (2005) 53(4) The Journal of Industrial Economics
469

Hausman, William J. and John L. Neufeld, 'The Market for Capital and the Origins
of State Regulation of Electric Utilities in the United States' (2002) 62(4) The
Journal of Economic History 1050

Hayashi, Paul M., James Yeoung-Jia Goo and Wm Clif Chamberlain, 'Vertical
Economies: The Case of U. S. Electric Utility Industry, 1983-87' (1997) 63(3)
Southern Economic Journal 710

Heimler, Alberto, 'Is a margin squeeze an antitrust or a regulatory violation?'

Journal of Competition Law and Economics

Helman, Udi, 'Market power monitoring and mitigation in the US wholesale power
markets' 31(6-7) (2006/6//) Energy 877

Henisz, Witold J., Bennet A. Zelner and Mauro F. Guillén, 'The Worldwide
Diffusion of Market-Oriented Infrastructure Reform, 1977-1999' (2005) 70(6)
American Sociological Review 871

Hilke, John, 'Economics, Competition, and Costs in the Resructuring of U.S.

Electricity Markets' (2008) 32(3) Review of Industrial Organization 289

Hinton, Paul J. and J. Douglas Zona, 'Regulating Access: Using Economic

Principles to Ensure Fair and Efficient Competition' (1999) 12(7) The Electricity
Journal 107

Hira, ANil, David Huxtable and Alexander Leger, 'Deregulation and Participation:
An International Survey of Participation in Electricity Regulation' (2005) 18(1)
Governance 53
 320

Horowitz, Ira, 'A law enforcement perspective of electricity deregulation' 31(6-7)

(2006/6//) Energy 905

Hou, Liyang, 'Refusal to Deal within EU Competition Law' (2010) SSRN eLibrary

Huang, Yong, 'Pursuing the Second Best: the History, Monmentum, and Remaining
Issues of China's Anti-Monopoly Law' (2008) 75(1) Antitrust Law Journal

Huang, Yong et al, 'China's Anti-Monopoly Law and the Chinese Petroleum
Industry' (2010) 31 Energy Law Journal

Hughes, Owen E., 'PRO-COMPETITIVE REGULATION AS A ROLE OF

GOVERNMENT' (1995) 54(3) Australian Journal of Public Administration 364

Humphrey, Andrew G., 'Antitrust Jurisdiction and Remedies in an Electric Utility

Price Squeeze' (1985) 52(4) The University of Chicago Law Review 1090

Hung-po, Chao, 'Global electricity transformation: The critical need for integrated
market design and risk management research' 31(6-7) (2006/6//) Energy 923

Hung-po, Chao, 'Global electricity transformation: The critical need for integrated
market design and risk management research' (2006) 31(6-7) (2006/6//) Energy 923

Inotai, András G. and Stephen Ryan, 'Improving the effectiveness of competition

agencies around the world – a summary of recent developments in the context of the
International Competition Network' (2009) 2 Competition Policy Newsletter

Iosifidis, Petros, 'The Application of EC Competition Policy to the Media Industry'

(2005) 7(3) International Journal on Media Management 103

J, Black, 'Decentring regulation: understanding the role of regulation and self

regulation in a “post-regulatory” world' (2001) 54 Curr. Legal Probl. 103

J, Black, 'Enrolling actors in regulatory processes: examples from UK financial

services regulation' (2003) Spring Public Law 62

J, Black, 'Forms and paradoxes of principles-based regulation' (2008) 3 Cap.

Markets Law J. 425

J, Braithwaite, 'The new regulatory state and the transformation of criminology'

(2000) 40 Br. J. Criminol. 222

J, Casey and Scholz J, 'Beyond deterrence: behavioral decision theory and tax
compliance' (1991) 25 Law Soc. Rev. 821

J, Mendeloff and Gray W, 'Inside the black box: How do OSHA inspections lead to
reductions in workplace industries?' (2005) 27 Law Policy 219
 321

J, Rees, 'Development of communitarian regulation in the chemical industry' (1997)

19 Law Policy 477

J, Ruggie, 'The theory and practice of learning networks: corporate social

responsibility and the Global Compact' (2002) 5 J. Corp. Citizensh. 27

J, Solomon, 'Law and governance in the twenty-first century regulatory state' (2008)
86 Tex. Law Rev. 819

J, Scholz and Lubell M, 'Trust and taxpaying: testing the heuristic approach to
collective action' (1998) 42 Am. J. Polit. Sci. 398

J, Short and Toffel M, 'Coerced confessions: self-policing in the shadow of the

regulator' (2007) 24 J. Law Econ. Organ. 45

Jamasb, Tooraj, 'Between the state and market: Electricity sector reform in
developing countries' (2006) 14(1) Utilities Policy 14

Jamasb, Tooraj and Michael Pollitt, 'Electricity Market Reform in the European
Union: Review of Progress toward Liberalization & Integration' (2005) Energy
Journal 11

Jamasb, Tooraj and Michael Pollitt, 'Incentive regulation of electricity distribution

networks: Lessons of experience from Britain' (2007) 35(12) Energy Policy 6163

Jansen, Karel, 'Thailand: The Making of a Miracle?' (2001) 32(2) Development &
Change

Jarrell, Gregg A., 'The Demand for State Regulation of the Electric Utility Industry'
(1978) 21(2) Journal of Law and Economics 269

Jarvis, Darryl S. L., 'Institutional processes and regulatory risk: A case study of the
Thai energy sector' (2010) 4(2) Regulation & Governance 175

John P, Banks, 'Addressing Human Resource and Organizational Challenges in

Emerging Market Utility Regulators: 10 Steps for the New Regulator' (2005) 18(10)
The Electricity Journal 70

John Vickers, 'Regulation, competition, and the structure of prices' (1997) 13(1)
(March 1, 1997) Oxford Review of Economic Policy 15

Jonathan D. Rigg, 'The Chinese Agricultural Middleman in Thailand: Efficient or

Exploitative?' (1986) 7(1) Singapore Journal of Tropical Geography 68

Jones, Alan, 'Social Responsibility and the Utilities' (2001) 34(3/4) Journal of
Business Ethics 219
 322

Jordana, Jacint, 'Book Review: Globalizing Regulatory Capitalism' (2005) 598(1)

(March 1, 2005) The ANNALS of the American Academy of Political and Social
Science 184

Jordana, Jacint and David Levi-Faur, 'The Diffusion of Regulatory Capitalism in

Latin America: Sectoral and National Channels in the Making of a New Order'
(2005) 598 Annals of the American Academy of Political and Social Science 102

Joskow, Paul L., 'California's Electricity Crisis' (2001) 17(3) Oxford Review of
Economic Policy

Joskow, Paul L, 'Incentive Regulation and Its Application to Electricity Networks'

(2008) 7(4) Review of Network Economics

Joskow, Paul L., 'Restructuring, Competition and Regulatory Reform in the U.S.
Electricity Sector' (1997) 11(3) The Journal of Economic Perspectives 119

Joskow, Paul L., 'The Role of Transaction Cost Economics in Antitrust and Public
Utility Regulatory Policies' (1991) 7 Journal of Law, Economics, & Organization 53

Joskow, Paul L., 'Utility -Subsidized Energy -Efficiency Programs' (1995) 20

Annual Review of Energy and the Environment

Joskow, Paul L and Edward Kahn, 'A Quantitative Analysis of Pricing Behavior In
California’s Wholesale Electricity Market During Summer 2000' (2002) 23(4)
Energy Journal 1

Joskow, Paul L. and Roger G. Noll, 'The Bell Doctrine: Applications in

Telecommunications, Electricity, and Other Network Industries' (1999) 51(5)
Stanford Law Review 1249

Joskow, Paul L. and Jean Tirole, 'Transmission Rights and Market Power on Electric
Power Networks' (2000) 31(3) The RAND Journal of Economics 450

Junginger, M. et al, 'Fuel supply strategies for large-scale bio-energy projects in

developing countries. Electricity generation from agricultural and forest residues in
Northeastern Thailand' (2001) 21(4) Biomass and Bioenergy 259

K, Bussmann and Werle M, 'Addressing crime in business: first results from a global
survey of economic crime' (2006) 46 Br. J. Criminol. 1128

K, Harrison, 'Is cooperation the answer? Canadian environmental enforcement in

comparative context' (1995) 14 J. Policy Anal. Manag. 221

K, Hawkins and Hutter B, 'The response of business to social regulation in England

and Wales: an enforcement perspective' (1993) 15 Law Policy 199
 323

K, Krawiec, 'Cosmetic compliance and the failure of negotiated governance' (2003)

81 Wash. Univ. Law Q. 487

K, Krawiec, 'The return of the rogue' (2008) 50 Ariz. Law Rev. 878

K, Kuperan and Sutinen J, 'Blue water crime: deterrence, legitimacy, and

compliance in fisheries' (1998) 32 Law Soc. Rev. 309

K, Murphy, 'Regulating more effectively: the relationship between procedural

justice, legitimacy, and tax non-compliance' (2005) 32 J. Law Soc. 562

K, McGraw and Scholz J, 'Appeals to civic virtue versus attention to self-interest:

effects on tax compliance' (1991) 25 Law Soc. Rev. 471

Kahn, Alfred E., 'Electric Deregulation: Defining and Ensuring Fair Competition'
(1998) 11(3) Electricity Journal, The 39

Kato, Mika, 'TRANSITORINESS OF MARKET POWER AND ANTITRUST

ACTIVITY' (2009) (November 15, 2009) Journal of Competition Law and
Economics nhp019

Kee, Hiau Looi and Bernard Hoekman, 'Imports, entry and competition law as
market disciplines' (2007) 51(4) European Economic Review 831

Keeler, Theodore E., 'Review: Phillips' Promoting Competition in Regulated

Markets' (1976) 7(1) The Bell Journal of Economics 348

Kerf, Michel and Damien Geradin, 'Controlling Market Power in

Telecommunications: Antitrust vs. Sector-Specific Regulation An Assessment of the
United States, New Zealand and Australian Experiences' (1999) 14(3) Berkeley
Technology Law Journal

Kodwani, Devendra G., 'Economic Regulation of Utility Industries' (2000) 35(30)

Economic and Political Weekly 2657

Komninos, Assimakis P, 'Public and Private Antitrust Enforcement in Europe:

Complement? Overlap?' (2006) 3(1) Competition Law Review

Kotlowski, Aleksander, 'Third-party Access Rights in the Energy Sector: A

Competition Law Perspective' (2007) 16(3) Utilities Law Review

Kovacic, William E., 'Institutional Foundations for Economic Legal Reform in

Transition Economies: The Case of Competition Policy and Antitrust Enforcement'
(2001) 77 Chicago-Kent Law Review

Kumbhakar, SC and L Hjalmarsson, 'Relative performance of public and private

ownership under yardstick competition: electricity retail distribution' (1998) 42(1)
European Economic Review 97
 324

Künneke, Rolf and Theo Fens, 'Ownership unbundling in electricity distribution:

The case of The Netherlands' (2007) 35(3) Energy Policy 1920

Kunneke, Rolf W, 'Economies of Convergence: Towards a Redefinition of the

Energy Business' (2001) 2(1) Journal of Network Industries

Kuzovkin, A., 'The energy crisis and energy reform in Russia: Competition instead
of reliability' (2006) 17(2) Studies on Russian Economic Development 169

Kwoka, John E., 'Price squeezes in electric power: The new battle of Concord'
(1992) 5(5) The Electricity Journal 30

L, Bennear, 'What do we really know? The effects of reporting thresholds on

inferences using environmental right-to-know data' (2008) 2 Regul. Gov. 293

L, Bennear and Coglianese C, 'Measuring progress: program evaluation of

environmental policies' (2005) 47 Environment 22

L, Edelman et al, 'Legal ambiguity and the politics of compliance: affirmative action
officers' dilemma' (1991) 13 Law Policy 73

L, Snider, 'The regulatory dance: understanding reform processes in corporate crime'

(1991) 19 Int. J. Sociol. Law 209

Laffont, Jean-Jacques, 'The New Economics of Regulation Ten Years After' (1994)
62(3) Econometrica 507

Laffont, Jean-Jacques and Jean Tirole, 'The Politics of Government Decision

Making: Regulatory Institutions' (1990) 6(1) Journal of Law, Economics, &
Organization 1

Laffont, Jean-Jacques and Jean Tirole, 'The Politics of Government Decision-

Making: A Theory of Regulatory Capture' (1991) 106(4) The Quarterly Journal of
Economics 1089

Laffont, Jean-Jacques and Jean Tirole, 'Privatization and Incentives' (1991) 7

Journal of Law, Economics, & Organization 84

Lande, Robert H., 'Creating Competition Policy for Transition Economies' (1997)
SSRN eLibrary

Lang, John Temple, 'Defining Legitimate Competition: Companies' Duties to Supply

Competitors and Access to Essential Facilities' (1994) 18 Fordham International
Law Journal, 437

Larsen, Anders et al, 'Independent regulatory authorities in European electricity

markets' (2006) 34(17) Energy Policy 2858
 325

Lazare, Peter, 'Does Regulation Tilt Toward Utilities?' (1999) 12(9) The Electricity
Journal 73

Lazer, David, 'Regulatory Capitalism as a Networked Order: The International

System as an Informational Network' (2005) 598(1) (March 1, 2005) The ANNALS
of the American Academy of Political and Social Science 52

Lederer, P. and J. P. Bouttes, 'Electricity monopoly v competition?' (1991) 1(3)

Utilities Policy 212

Leeprechanon, Nopporn, 'The Measuremento f Market Power in an Electricity

Market Including Phvsical and Political Constraints' (2003) 8(1) Thammasat
International Journal of Science and Technology 72

Leidy, Michael P., 'Macroeconomic Conditions and Pressures for Protection under
Antidumping and Countervailing Duty Laws: Empirical Evidence from the United
States' (1997) 44(1) Staff Papers - International Monetary Fund 132

Lesser, Jonathan A., 'Gresham’s Law of Green Energy High-cost subsidized

renewable resources destroy jobs and hurt consumers.' (2010) 33(4) Regulation

Levenstein, Margaret C. and Valerie Y. Suslow, 'What Determines Cartel Success?'

(2006) 44(1) Journal of Economic Literature 43

Lévêque, François, 'Antitrust Enforcement in the Electricity and Gas Industries:

Problems and Solutions for the EU' (2006) 19(5) The Electricity Journal 27

Levi-Faur, David, 'The competition state as a neomercantilist state: Understanding

the restructuring of national and global telecommunications' (1998) 27(6) Journal of
Socio-Economics 665

Levi-Faur, David, 'The Global Diffusion of Regulatory Capitalism' (2005) 598(1)

(March 1, 2005) The ANNALS of the American Academy of Political and Social
Science 12

Levi-Faur, David, 'The Governance of Competition: The Interplay of Technology,

Economics, and Politics in European Union Electricity and Telecom Regimes'
(1999) 19(2) Journal of Public Policy 175

Levi-Faur, David, 'The politics of liberalisation: Privatisation and regulation-for-

competition in Europe's and Latin America's telecoms and electricity industries'
(2003) 42(5) European Journal of Political Research 705

Levi-Faur, David, 'The politics of liberalisation: Privatisation and regulation-for-

competition in Europe's and Latin America's telecoms and electricity industries'
(2003) 42(5) European Journal of Political Research 705
 326

Levi-Faur, David, 'Regulatory Capitalism: The Dynamics of Change beyond

Telecoms and Electricity' (2006) 19(3) Governance 497

Levi-Faur, David and Jacint Jordana, 'Globalizing Regulatory Capitalism' (2005)

598(1) (March 1, 2005) The ANNALS of the American Academy of Political and
Social Science 6

Levi-Faur, David and Jacint Jordana, 'Regulatory Capitalism: Policy Irritants and
Convergent Divergence' (2005) 598(1) (March 1, 2005) The ANNALS of the
American Academy of Political and Social Science 191

Levi-Faur, David and Jacint Jordana, 'The Rise of Regulatory Capitalism: The
Global Diffusion of a New Order' (2005) 598(1) (March 1, 2005) The ANNALS of
the American Academy of Political and Social Science 200

Levine, Paul L., John Stern and Francesc Trillas Jané, 'Utility price regulation and
time inconsistency: comparisons with monetary policy' (2005) 57(3) Oxford
Economic Papers

Levy, Brian and Pablo T. Spiller, 'The Institutional Foundations of Regulatory

Commitment: A Comparative Analysis of Telecommunications Regulation' (1994)
10(2) Journal of Law, Economics, and Organization 201

Li, Y. and P. C. Flynn, 'Electricity deregulation, spot price patterns and demand-side
management' 31(6-7) (2006/6//) Energy 908

Limpasuwan, T. et al, 'A proposal for annual power fee in Thailand based on
electricity tracing methodology' (2003) 64(3) Electric Power Systems Research 219

Liu, Lawrence S., 'Fostering Competition Law and Policy: A Facade of Taiwan's
Political Economy' (2002) 1 Washington University Global Studies Law Review

Lock, Reinier H. J. H., 'Anti-trust and regulatory issues in a competitive electric

industry' (1991) 1(3) Utilities Policy 220

Loeb, Martin and Wesley A. Magat, 'A Decentralized Method for Utility Regulation'
(1979) 22(2) Journal of Law and Economics 399

Long, William F., Richard Schramm and Robert Tollison, 'The Economic
Determinants of Antitrust Activity' (1973) 16(2) Journal of Law and Economics 351

M, Baucus and Near J, 'Can illegal corporate behaviour be predicted? An event

history analysis' (1991) 34 Acad. Manag. J. 9

M, Dorf and Sabel C, 'A constitution of democratic experimentalism' (1998) 98

Columbia Law Rev. 267
 327

M, Dorf and Sabel C, 'A constitution of democratic experimentalism' (1998) 98

Columbia Law Rev. 267

M, Edwards, 'Law and the parameters of acceptable deviance' (2006) 97 Crim. Law
Criminol. 49

M, McKendall, Sanchez C and Sicilian P, 'Corporate governance and corporate

illegality: the effects of board structure on environmental sanctions' (1999) 7 Int. J.
Organ. Anal. 201

M, Schneiberg and Bartley T, 'Organizations, regulation, and economic behavior:

regulatory dynamics' (2008) 4 Annu. Rev. Law Soc. Sci. 31

M, Schneiberg and Bartley T, 'Organizations, regulation, and economic behavior:

regulatory dynamics' (2008) 4 Annu. Rev. Law Soc. Sci. 31

Ma, Tay-Cheng, 'The Effect of Competition Law Enforcement on Economic

Growth' (2011) Journal of Competition Law and Economics

Maher, Imelda, 'Competition Law in the International Domain: Networks as a New

Form of Governance' (2002) 29(1) Journal of Law and Society 111

Majone, Giandomenico, 'The rise of the regulatory state in Europe' (1994) 17(3)
(1994/07/01) West European politics 77

Majone, Giandomenico, 'Two Logics of Delegation' (2001) 2(1) (February 1, 2001)

European Union Politics 103

Mankiw, N. Gregory and Phillip L. Swagel, 'Antidumping: The Third Rail of Trade
Policy' (2005) 84(4) Foreign Affairs 107

Mansur, Erin T., 'Upstream Competition and Vertical Integration in Electricity

Markets' (2007) 50(1) The Journal of Law and Economics 125

Marcos, Francisco, 'Diminishing Enforcement: Negative Effects for Deterrence of

Mistaken Settlements and Misguided Competition Promotion and Advocacy' (2009)
SSRN eLibrary

Marks, Phillipa and Brian Williamson, 'Profitability tests in competition law and ex
ante regulation' (2004) 12(2) Utilities Policy 71

Marks, Phillipa and Brian Williamson, 'Profitability tests in competition law and ex
ante regulation' (2004) 12(2) Utilities Policy 71

Marks, Phillipa and Brian Williamson, 'Profitability tests in competition law and ex
ante regulation' (2004) 12(2) Utilities Policy 71
 328

Marquis, Milton A., 'DOJ, FTC and FERC Electric Power Merger Enforcement: Are
There Too Many Cooks in the Merger Review Kitchen?' (2002) 33 Loyola
University Chicago Law Journal

Marshall, Brenda and Rachael Mulheron, 'Access to 'Essential Facilities' under Part
IIIA of the Trade Practices Act: Implementing the Legislative Regime' (1998) 10(1)
Bond Law Review

Marshall, Brenda and Rachael Mulheron, 'Access to essential facilities under section
36 of the Commerce Act 1986: lessons from Australian competition law' (2003)
Canterbury Law Review

Massoud Amin, S. and Clark W. Gellings, 'The North American power delivery
system: Balancing market restructuring and environmental economics with
infrastructure security' 31(6-7) (2006/6//) Energy 967

Mateus, Abel M., 'Competition and Development: Towards an Institutional

Foundation for Competition Enforcement' (2010) 33(2) World Competition: Law
and Economics Review

Matsuo, Naoki, 'CDM in Kyoto Negotiations: How CDM has Worked as a Bridge
between Developed and Developing Worlds?' (2003) 8(3) Mitigation and
Adaptation Strategies for Global Change

McAfee, Preston, Hugo Mialon and Sue Mialon, 'Private v. public antitrust
enforcement: A strategic analysis' (2008) 92(10-11) Journal of Public Economics
1863

McAfee, Randolph P., Hugo M. Mialon and Michael A. Williams, 'What is a Barrier
to Entry?' (2003) SSRN eLibrary

McDonald, Forrest, 'Samuel Insull and the Movement for State Utility Regulatory
Commissions' (1958) 32(3) The Business History Review

McEWIN, Ian, 'Competition Law In A Small Open Economy' (2003) 15 University

of NSW Law Journal

McGee, Robert W., 'The Ethics of Using Government to Subvert Competition: The
Case of the Antidumping Laws' SSRN eLibrary

McMahon, Kathryn, 'Developing Countries and International Competition Law and

Policy' (2009) SSRN eLibrary

Meeks, James E., 'Concentration in the Electric Power Industry: The Impact of
Antitrust Policy' (1972) 72(1) Columbia Law Review 64

Meran, Georg and Reimund Schwarze, 'Pitfalls in Restructuring the Electricity

Industry' (2004) 5(1) German Economic Review 81
 329

Meseguer, Covadonga, 'Policy Learning, Policy Diffusion, and the Making of a New
Order' (2005) 598(1) The ANNALS of the American Academy of Political and Social
Science 67

Michaels, Robert J., 'Vertical Integration and the Restructuring of the U.S.
Electricity Industry' (2004) (572) Policy Analysis

Miller, Geoffrey P., 'Comments on Priest, "The Origins of Utility Regulation and the
'Theories of Regulation' Debate"' (1993) 36(1) Journal of Law and Economics 325

Miller, John T. Jr., 'Competition and the Public Interest in the Interstate Gas and
Electric Industries' (1970) 55 55 Iowa L. Rev

Millward, Robert, 'Public Enterprise in Modern Western World: An Historical

Analysis' (2011) 82(4) Annals of Public and Cooperative Economics 375

Monti, Giorgio, 'Managing the Intersection of Utilities Regulation and EC

Competition Law' (2008) 4(2) The Competition Law Review 123

Moore, Charles Guy, 'Has electricity regulation resulted in higher prices? An

econometric evaluation utilizing calibrated regulatory input variables' (1975) 7(2)
Economic Inquiry

Moore, Jon and William Melody, 'Converging Infrastructures: Telecommunication

Synergies in the US Rural Electricity Sector ' (2001) 2(1) Journal of Network
Industries

Moritz, Terry F., 'Antitrust Issues and the Restructuring of the Power Industry'
(1999) 12(9) The Electricity Journal 11

Morris, Derek, 'The Enterprise Act: Aspect of The New Regime' (2002) 22(4)
Economic Affairs 15

Morton, Fiona, 'The Problems of Price Controls' (2001) 24(1) Regulation

Moss, Diana, 'Antitrust Versus Regulatory Merger Review: The Case of Electricity '
(2008) 32(3-4) Review of Industrial Organization

Murillo, Maria Victoria and Cecilia Martínez-Gallardo, 'Political Competition and

Policy Adoption: Market Reforms in Latin American Public Utilities' (2007) 51(1)
American Journal of Political Science 120

Muris, Timothy J., 'Principles for a Successful Competition Agency' (2005) 72(1)
The University of Chicago Law Review 165

Nakawiro, Thanawat and Subhes C. Bhattacharyya, 'High gas dependence for power
generation in Thailand: The vulnerability analysis' (2007) 35(6) Energy Policy 3335
 330

Nakawiro, Thanawat, Subhes C. Bhattacharyya and Bundit Limmeechokchai,

'Electricity capacity expansion in Thailand: An analysis of gas dependence and fuel
import reliance' (2008) 33(5) Energy 712

Nakawiro, Thanawat, Subhes C. Bhattacharyya and Bundit Limmeechokchai,

'Expanding electricity capacity in Thailand to meet the twin challenges of supply
security and environmental protection' (2008) 36(6) Energy Policy 2265

Nemoto, Jiro and Mika Goto, 'Technological externalities and economies of vertical
integration in the electric utility industry' (2004) 22(1) International Journal of
Industrial Organization 67

Neven, Damien and Hans Zenger, 'Ex Post Evaluation of Enforcement: A Principal-
Agent Perspective ' (2008) De Economist

Newbery, David M., 'Problems of liberalising the electricity industry' (2002) 46(4-5)
European Economic Review 919

Nicholson, Michael, 'An Antitrust Law Index For Emprical Analysis of International
Competition Policy' (2008) 4(4) Journal of Competition Law and Economics

Nikomborirak, Deunden, 'Contract Design: Providing Incentives for Private Sector

Participation in Infrastructure Development: The Case of Thailand' (2005) TDRI
Quarterly Review 3

Nikomborirak, Deunden, 'A Government’s Role in Regulation in the 21st- Century

Economy' (1997) 12(1) TDRI Quarterly Review 24

Nikomborirak, Deunden, 'The Political Economy Of Competition Law: The Case Of

Thailand' (2006) 26(3) (Spring2006) Northwestern Journal of International Law &
Business 597

Nikomborirak, Deunden, 'Transport Liberalization and Competition Concerns in

ASEAN' (2005) December TDRI Quarterly Review

Nikomborirak, Deunden, 'Transport Liberalization and Competition Concerns in

ASEAN' (2005) TDRI Quarterly Review

Nitsche, Rainer and Lars Wiethaus, 'Competition Law in Regulated Industries: On

the Case and Scope for Intervention' (2012) (January 10, 2012) Journal of
European Competition Law & Practice

Noll, Roger, 'The Economics and Politics of Regulation' (1971) 57(6) Virginia Law
Review 1016

North, Douglass C., 'Economic Performance Through Time' (1994) 84(3) The
American Economic Review 359
 331

O, Lobel, 'The renew deal: the fall of regulation and the rise of governance in
contemporary legal thought' (2004) 89 Minn. Law Rev. 342

Odudu, Okeoghene, 'The Wider Concerns of Competition Law' (2010) 30(3)

(September 21, 2010) Oxford Journal of Legal Studies 599

OECD, 'Competition Issues in the Electricity Sector' (2005) 6(4) OECD Journal of
Competition Law & Policy 81

Olson, Mary K., 'Agency Rulemaking, Political Influences, Regulation, and Industry
Compliance' (1999) 15(3) Journal of Law, Economics, & Organization 573

Overbeeke, Frank Van, 'Changing Identity of an Energy Distribution Company'

(2001) 2(1) Journal of Network Industries

Owen, Bruce M., Su Sun and Wentong Zheng, 'China's Competition Policy
Reforms: The Anti-Monopoly Law and Beyond' (2008) 75(1) Antitrust Law Journal

Owen, Bruce M., Su Sun and Wentong Zheng, 'Antitrust in China: The Problem of
Incentive Compatibility' (2005) 1(1) (March 1, 2005) Journal of Competition Law
and Economics 123

P, Edwards, 'Choices that increase compliance' (1991) 10 Policy Stud. Rev. 6

P, May, 'Compliance motivations: perspectives of farmers, homebuilders, and

marine facilities' (2005) 27 Law Policy 317

P, May and Wood R, 'At the regulatory front lines: inspectors' enforcement styles
and regulatory compliance' (2003) 13 J. Public Adm. Res. Theory 117

P, May and Winter S, 'Reconsidering styles of regulatory enforcement: patterns in

Danish agro-environmental inspection' (2000) 22 Law Policy 143

Painuly, J. P. et al, 'Promoting energy efficiency financing and ESCOs in developing

countries: mechanisms and barriers' (2003) 11(6) Journal of Cleaner Production 659

Panda, Aurobinda and Atul Patel, 'Competition Law and Competition Issues
Affecting the Energy Sector in India' (2011) 3(2) Journal of Infrastructure
Development

Paniagua, Linda et al, 'Comparison of waist circumference, body mass index,

percent body fat and other measure of adiposity in identifying cardiovascular disease
risks among Thai adults' (2008) 2(3) Obesity Research & Clinical Practice 215

Paopongsakorn, Nipon, 'The New Competition Law in Thailand: Lessons for

Institution Building ' (2002) 21 (2) Review of Industrial Organization 185
 332

Parker, Christine and Vibeke Nielsen, 'The Challenge of Empirical Research on

Business Compliance in Regulatory Capitalism' (2009) 5(1) Annual Review of Law
and Social Science 45

Parker, David and Cohn Kirkpatrick, 'Regulating prices and profits in utility
industries in low-income economies: Rate of return, price cap or sliding-scale
regulation?' (2005) 18(3) International Journal of Public Sector Management 241

Parker, Danny S., 'Measured air-conditioning and thermal performance of a Thai

residential building' (1995) 20(9) Energy 907

Pate, R. Hewitt, 'What I heard in the great hall of the people Realistic Expectations
of Chinese Antitrust' (2008) 75(1) Antitrust Law Journal

Paul, George and Kallaya Laohaganniyom, 'Thai Competition Law' (2004) The Asia
Pacific Antitrust Review

Peltzman, Sam, 'Constituent Interest and Congressional Voting' (1984) 27(1)

Journal of Law and Economics 181

Peltzman, Sam, 'Pricing in Public and Private Enterprises: Electric Utilities in the
United States' (1971) 14(1) Journal of Law and Economics 109

Peltzman, Sam, 'Toward a More General Theory of Regulation' (1976) 19(2)

Journal of Law and Economics 211

Petty, Rachel Warnick, 'A Light in The Darkness: The Case For Judicial Antitrust
Enforcement in The Electric Wholesale Industry' (2009) 5(1) Texas Journal of Oil,
Gas and Energy Law.

Philipson, Tomas J. and Richard A. Posner, 'Antitrust and the Not-For-Profit Sector'
(2001) 52(1) Journal of Law & Economics 1

Pipatmanomai, Suneerat, Sommas Kaewluan and Tharapong Vitidsant, 'Economic

assessment of biogas-to-electricity generation system with H2S removal by
activated carbon in small pig farm' (2009) 86(5) Applied Energy 669

Pipattanasomporn, M. et al, 'Electricity prices in a competitive market: a preliminary

analysis of the deregulated Thai electricity industry' (2000) 9(4) Utilities Policy 171

Pittman, Russell and Vanessa Yanhua Zhang, 'Electrcity Resructuring in China:

How Competitive will Generation Market Be ?' (2010) 55(2) Singapore Economic
Review 377

Pollitt, Michael, 'The arguments for and against ownership unbundling of energy
transmission networks' (2008) 36(2) Energy Policy 704
 333

Pornprasertsuk-Damrongsri, Suchaya and Supanee Thanakun, 'Carotid artery

calcification detected on panoramic radiographs in a group of Thai population'
(2006) 101(1) Oral Surgery, Oral Medicine, Oral Pathology, Oral Radiology, and
Endodontology 110

Posner, Richard A., 'Effects of Deregulation on Competition: The Experience of the

United States' (2000) 23(II) Fordham International law journal

Posner, Richard A, 'Theories of Economic Regulation' (1974) 5(2) The Bell Journal
of Economics and Management Science 335

Post, Diahanna L., 'Standards and Regulatory Capitalism: The Diffusion of Food
Safety Standards in Developing Countries' (2005) 598(1) (March 1, 2005) The
ANNALS of the American Academy of Political and Social Science 168

Pressey, Andrew D. and John K. Ashton, 'The antitrust implications of electronic

business-to-business marketplaces' (2009) 38(4) Industrial Marketing Management
468

Priest, George L., 'The Origins of Utility Regulation and the "Theories of
Regulation" Debate' (1993) 36(1) Journal of Law and Economics 289

Prosser, Tony, 'Regulation and Social Solidarity' (2006) 33(3) Journal of Law and
Society 364

R, Burby and Paterson R, 'Improving compliance with state environmental

regulations' (1993) 12 J. Policy Anal. Manag. 753

R, Ericson and Doyle A, 'The institutionalization of deceptive sales in life insurance:

five sources of moral risk' (2006) 46 Br. J. Criminol. 993

R, Fairman and Yapp C, 'Enforced self-regulation, prescription, and conceptions of

compliance within small businesses: the impact of enforcement' (2005) 27 Law
Policy 491

R, Patterson and Cornwall C, 'Light-handed regulation of electricity networks in

New Zealand: the failure of the New Zealand model' (2000) 1 Journal of Network
Industries 89

R, Shamir, 'Corporate social responsibility: towards a new market-embedded

morality?' (2008) 9 Theor. Inq. Law 371

Radaelli, Claudio M, 'The Puzzle of Regulatory competition' (2004) 24(1) Journal of

Public Policy

Rassenti, Stephen J., L. Smith Vernon and Bart J. Wilson, 'Controlling Market
Power and Price Spikes in Electricity Networks: Demand-Side Bidding' (2003)
 334

100(5) Proceedings of the National Academy of Sciences of the United States of

America 2998

Reitzes, James D., Robert L. Earle and Philip Q Hanser, 'Deregulation and
Monitoring of Electric Power Markets' (2000) 13(8) The Electricity Journal 11

Rejikumar, R., 'Indian Electricity Act 2003: Agenda for Review' (2004) 39(44)
Economic and Political Weekly 4778

Rhoades, Stephen A., 'Market share as a source of market power: Implications and
some evidence' (1985) 37(4) Journal of Economics and Business 343

Riordan, Michael H., 'Anticompetitive Vertical Integration by a Dominant Firm'

(1998) 88(5) The American Economic Review 1232

Roland, Gérard, 'On the Speed and Sequencing of Privatisation and Restructuring'
(1994) 104(426) The Economic Journal 1158

Ros, Agustin J., 'Does Ownership or Competition Matter? The Effects of

Telecommunications Reform on Network Expansion and Efficiency' (1999) 15(1)
Journal of Regulatory Economics 65

Ross, Thomas W., 'Viewpoint: Canadian Competition Policy: Progress and

Prospects' (2004) 37(2) The Canadian Journal of Economics / Revue canadienne
d'Economique 243

S, Ashby and Diacon S, 'Motives for occupational risk management in large UK

companies' (1996) 22 Saf. Sci. 229
S, Bernstein and Cashore B, 'Can non-state global governance be legitimate? An
analytical framework' (2007) 1 Regul. Gov. 347

S, Gilad, 'Accountability or expectations management? The role of the ombudsman

in financial regulation' (2008) 30 Law Policy 227

S, Key, 'Organizational ethical culture: real or imagined?' (1999) 20 J. Bus. Ethics

217

S, Simpson, 'Cycles of illegality: antitrust violations in corporate America' (1987) 65

Soc. Forces 943

S, Silbey, Huising R and Coslovsky SV, 'The sociological citizen: recognizing

relational interdependence in law and organizations' (2009) 59 Annee Sociol. 201

S, Winter and May PJ, 'Information, interests, and environmental regulation' (2002)
4 J. Comp. Policy Anal.: Res. Pract. 115

S, Winter and May PJ, 'Motivation for compliance with environmental regulations'
(2001) 20 J. Policy Anal. Manag. 675
 335

Santisirisomboon, Jerasorn, Bundit Limmeechokchai and Supachart

Chungpaibulpatana, 'Impacts of biomass power generation and CO2 taxation on
electricity generation expansion planning and environmental emissions' (2001)
29(12) Energy Policy 975

Saplacan, Roxana, 'Competition in electricity distribution' (2008) 16(4) Utilities

Policy 231

Sappington, David E. M. and J. Gregory Sidak, 'Competition law for state-owned

enterprises' (2003) 71(2) Antitrust Law Journal 479

Sappington, David E. M. and Joseph E. Stiglitz, 'Privatization, Information and

Incentives' (1987) 6(4) Journal of Policy Analysis and Management 567

Sawangphol, Narumitr and Chanathip Pharino, 'Status and outlook for Thailand's
low carbon electricity development' (2011) 15(1) Renewable and Sustainable
Energy Reviews 564

Schmalensee, Richard and Bennett W. Golub, 'Estimating Effective Concentration in

Deregulated Wholesale Electricity Markets' (1984) 15(1) The RAND Journal of
Economics 12

Schmidt, Susanne K., 'Commission activism: subsuming telecommunications and

electricity under European competition law' (1998) 5(1) (1998/03/01) Journal of
European Public Policy 169

Scholz, Ulrich and Stephan Purps, 'The Application of EU Competition Law in the
Energy Sector' (2012) Journal of European Competition Law & Practice

Schuler, Douglas A., 'Corporate Political Strategy and Foreign Competition: The
Case of the Steel Industry' (1996) 39(3) The Academy of Management Journal 720

Seim, Line Tøndel and Tina Søreide, 'Bureaucratic complexity and impacts of
corruption in utilities' (2009) In Press, Corrected Proof Utilities Policy

Shepherd, Anne and Leonard Ortolano, 'Organizational change and environmental

impact assessment at the electricity generating authority of Thailand: 1972-1988'
(1997) 17(5) Environmental Impact Assessment Review 329

Shrestha, Ram M. et al, 'Institutional reforms and electricity access: lessons from
Bangladesh and Thailand' (2004) 8(4) Energy for Sustainable Development 41

Sidak, Gregory, 'Remedies and the Institutional Design of Regulation in Network

Industries' (2003) 2003(3) Michigan State DCL Law Review
 336

Sidak, J. Gregory, 'ABOLISHING THE PRICE SQUEEZE AS A THEORY OF

ANTITRUST LIABILITY' (2008) 4(2) (June 1, 2008) Journal of Competition Law
and Economics 279

Singh, Rahul, 'The Teeter-Totter of Regulation and Competition: Why Indian

Competition Authority must trump Sectoral Regulators' (2009) 8(1) Washington
University Global Studies Law Review

Singleton, Ross C., 'Competition policy for developing countries: A long-run' (1997)
15(2) Contemporary Economic Policy 1

Sioshansi, Fereidoon P., 'Electricity market reform: What has the experience taught
us thus far?' (2006) 14(1) Utilities Policy

Sirasoontorn, Puree, 'Regulatory Regime and Finance: Electricity Distribution in

Thailand' (2005) SSRN eLibrary

Sirasoontorn, Puree, 'Regulatory regime and finance: Electricity distribution in

Thailand' (2005) 23(4) Thammasat Economic Journal

Sirasoontorn, Puree and John Quiggin, 'The Political Economy of Privatization in

the Thai Electricity Industry' (2007) 12(3) Journal of the Asia Pacific Economy 403

Sivalingam, G., 'COMPETITION POLICY AND LAW IN ASEAN' (2006) 51(2)

The Singapore Economic Review

Smith, Vincent, 'Competition concurrency between the OFT and sector regulators'
(2004) 12(2) Utilities Policy 61

Sokol, D. Daniel, 'Competition Policy and Comparative Corporate Governance of

State Owned Enterprises' (2009) 2009(6) Brigham Young University Law Review
100

Sokol, D. Daniel., 'Designing Antitrust Agencies for More Effective Outcomes:

What Antitrust Can Learn from Restaurant Guides' (2010) 41 Loyola University
Chicago Law Journal

Sokol, D. Daniel, 'The Future of International Antitrust and Improving Antitrust

Agency Capacity' (2009) 103 North Western Univeristy Law Review

Sookkumnerd, Chanoknun, Nobutaka Ito and Koji Kito, 'Feasibility of husk-fuelled

steam engines as prime mover of grid-connected generators under the Thai very
small renewable energy power producer (VSPP) program' (2007) 15(3) Journal of
Cleaner Production 266

Spence, David B., 'Can Law Manage Competitive Energy Markets' (2008) 93
Cornell Law Review 765
 337

Spengler, Joseph J., 'Vertical Integration and Antitrust Policy' (1950) 58(4) Journal
of Political Economy 347

Spiller, Pablo T., 'Institutions and Regulatory Commitment in Utilities' (1993) 2(3)
Industrial and Corporate Change 387

Spiwak, Lawrence J., 'Is the Price Squeeze Doctrine Still Viable in Fully-Regulated
Energy Markets?' (1993) 14(75) Energy Law Journal

Steiner, Robert L., 'Vertical competition, horizontal competition, and market power'
(2008) 53(2) (Summer2008) Antitrust Bulletin 251

Stern, Jon, 'Capital efficiency and infrastructure regulation: Editorial introduction'

(2006) 14(4) Utilities Policy 219

Stern, J., 'Electricity and telecommunications regulatory institutions in small and

developing countries' (2000) 9(3) Utilities Policy 131

Stern, Jon, 'Regulation and Contracts for Utility Services: Substitutes or

Complements?' (2003) SSRN eLibrary

Stern, Jon, 'Styles Of Regulation: The Choice of Approach to Utility Regulation in

Central and Eastern Europe' (1999) SSRN eLibrary

Stern, Jon, 'What Makes an Independent Regulator Independent?' (1997) 8(2)

Business Strategy Review 67

Stigler, George J., 'The Theory of Economic Regulation' (1971) 2(1) The Bell
Journal of Economics and Management Science 3

Stigler, George J. and Claire Friedland, 'What Can Regulators Regulate? The Case
of Electricity' (1962) 5 Journal of Law and Economics 1

Streel, Alexandre de, 'The Relationship between Competition Law and Sector
Specific Regulation: The case of electronic communications' (2008) XLVII(10)
Reflets et perspectives de la vie économique
Subhes C, Bhattacharyya, 'The Electricity Act 2003: will it transform the Indian
power sector?' (2005) 13(3) Utilities Policy 260

Sudsawasd, Sasatra, 'An empirical assessment of the relationship between

competition policy and investment' (2010) 21(5) Journal of Asian Economics 466

Sweetser, Al, 'Measuring a dominant firm's market power in a restructured

electricity market, a case study of Colorado' (1999) 7(4) Utilities Policy 243

Sykes, AO, 'Regulatory competition or regulatory harmonization? A silly question?'

(2000) 3(2) (June 1, 2000) Journal of International Economic Law 257
 338

Takahashi, Minoru, 'The current status of electric power industry deregulation in

Japan and the influence of the California crisis' (2002) 14(3) Japan and the World
Economy 341

Takigawa, Toshiaki, 'Competition Policy Toeard Dominant Companies: Vertical

Divestiture or Acess Rules?' (2002) 1 Washington University Global Studies Law
Review 301

Tamaschke, R., G. Docwra and R. Stillman, 'Measuring market power in electricity

generation: A long-term perspective using a programming model' (2005) 27(2)
Energy Economics 317

Tanetsakunvatana, V. and V. I. Kuprianov, 'Experimental study on effects of

operating conditions and fuel quality on thermal efficiency and emission
performance of a 300-MW boiler unit firing Thai lignite' (2007) 88(2) Fuel
Processing Technology 199

Tangkitvanich, Somkiat and Taratorn Ratananarumitsorn, 'Competition and

Regulatory Reform in the Thai Telecommunication Markets' (2002) 17(4) TDRI
Quarterly Review

Tarrant, Andy, 'Internationalisation and Economic Institutions. Comparing European

Experiences – By Mark Thatcher' (2008) 14(5) European Law Journal 686

Tenenbaum, Bernard, 'The Real World of Power Sector Regulation' (1995)

June(Note No. 50) World Bank Public Policy for Private Sector

Tenenbaum, Bernard, Reinier Lock and Jim Barker, 'Electricity privatization

structural, competitive and regulatory options' (1992) 20(12) Energy Policy 1134

Tesauro, Giuseppe, 'Market Power in Electricity Markets: Regulation, Deregulation

and Competition - Lessons from the Italian Experience and Other European and U.S.
Case Studies European Union Law - Essay' (2002) 25 Fordham International law
journal

Thakur, Tripta et al, 'Impact assessment of the Electricity Act 2003 on the Indian
power sector' (2005) 33(9) Energy Policy 1187

Thanitkul, Sakda, 'Competition Law in Thailand: A Preliminary Analysis' (2001)

Washington University Global Study Law review 171

Thanitkul, Sakda, 'SMEs and Competition Law: A Case Study on Suppliers of

Goods to Large Retail Stores' (2005) 15(48) Journal of International Cooperation
Studies

Thatcher, Mark, 'Delegation to independent regulatory agencies: pressures, functions

and contextual mediation. West European politics' (2002) 25(1) West European
politics 22
 339

Thatcher, Mark, 'Regulating the Regulators: The Regulatory Regime for the British
Privatised Utilities' (1998) 51(2) (April 1, 1998) Parliam Aff 209

Thatcher, Mark, 'Regulation after delegation: independent regulatory agencies in

Europe' (Journal of European Public Policy) Journal of European Public Policy

Thatcher, Mark, 'Regulation after delegation: independent regulatory agencies in

Europe' (2002) 9(6) Journal of European Public Policy 954

Therdyothin, A., S. C. Bhattacharya and M. Tabucanon, 'Evaluation of alternatives

to increase the electrical generation capacity of Thai sugar mills' (1992) 17(3)
Energy 247

Thierer, Adam D., 'UNNATURAL MONOPOLY: CRITICAL MOMENTS IN THE

DEVELOPMENT OF THE BELL SYSTEM MONOPOLY' (1996) 14(2) Cato
Journal

Thomas, S. D., 'Electricity industry reforms in smaller European countries and the
Nordic experience' 31(6-7) (2006/6//) Energy 788

Tishler, A. and C. K. Woo, 'Likely failure of electricity deregulation: Explanation

with application to Israel' 31(6-7) (2006/6//) Energy 845

Tollison, Robert D. and Richard E. Wagner, 'The Logic of Natural Monopoly

Regulation' (1991) 17(4) Eastern Economic Journal 483

Trachtman, J. P., 'Regulatory competition and regulatory jurisdiction' (2000) 3(2)

(June 1, 2000) J Int Economic Law 331

Trebilcock, Michael and Edward Iacobucci, 'Designing Competition Law

Institutions' (2002) 25 World Competition 361

Trebilcock, Michael J. and Edward M. Iacobucci, 'Designing competition law

institutions: values, structure and mandate' (2010) 41 Loyola University Chicago
Law Journal 1455

Trubek, David M., 'The Political Economy of the Rule of Law: The Challenge of the
New Developmental State' (2009) 1(1) Hague Journal on the Rule of Law

Tull, Malcolm and James Reveley, 'Privatisation of Ports-An Evaluation of

Malaysian Experience' (2002) 21(4) Economic Papers: A journal of applied
economics and policy 63

Twomey, Paul et al, 'A Review of the Monitoring of Market Power: The Possible
Roles of Transmission System Operators in Monitoring for Market Power Issues in
Congested Transmission Systems' (2005) 11(2) Journal of Energy Literature
 340

V, Braithwaite, 'The Australian government's affirmative action legislation:

achieving social change through human resource management' (1993) 15 Law Policy
327

V, Braithwaite et al, 'Regulatory styles, motivational postures and nursing home

compliance' (1994) 16 Law Policy 363

V, Braithwaite et al, 'Regulatory styles, motivational postures and nursing home

compliance' (1994) 16 Law Policy 363

V, Braithwaite, Murphy K and Reinhart M, 'Taxation threat, motivational postures

and responsive regulation' (2007) 29 Law Policy 137

V, Braithwaite, Murphy K and Reinhart M, 'Taxation threat, motivational postures

and responsive regulation' (2007) 29 Law Policy 137

Van Damme, Eric, 'Liberalizing the Dutch Electricity Market: 1998-2004' (2005)
Energy Journal 155

Vanberg, Viktor and Wolfgang Kerber, 'Institutional competition among

jurisdictions: An evolutionary approach' (1994) 5(2) Constitutional Political
Economy 193

Vannini, Stefano, 'Competition and Regulation in Network Industries: Not an Easy

Balance to Strike. Comments on Koski and Kretschmer' (2004) Journal of Industry,
Competition and Trade

Viswanathan, Aparna, 'Light-Handed Regulatory Approach Electrifies Indian Power

Sector ' (2004) International Energy Law and Taxation Review

VL, Nielsen, 'Are regulators responsive?' (2006) 28 Law Policy 395

VL, Nielsen and Parker C, 'To what extent do third parties influence business
compliance?' (2008) 35 J. Law Soc. 309

Vogelsang, Ingo, 'Incentive Regulation and Competition in Public Utility Markets:

A 20-Year Perspective' (2002) 22(1) Journal of Regulatory Economics 5

Vollans, Garry E., 'Restructuring the Regulatory Framework in Developing

Countries' (2004) 12(2) Energy Studies Review

W, Gray and Scholz J, 'Does regulatory enforcement work? A panel analysis of

OSHA enforcement' (1993) 97 Law Soc. 177

Waller, Spencer W., 'National Laws and International Markets: Strategies of

Cooperation and Harmonization in the Enforcement of Competition Law' (1996)
18(3) Cardozo Law Review
 341

Waller, Spencer Weber, 'Towards a Constructive Public-Private Partnership to

Enforce Competition Law' (2006) 29(6) Law and Economics Review

Waller, Spencer W. and William Tasch, 'Harmonizing Essential Facilities and

Refusals to Deal' (2009) 76(3) Antitrust Law Journal

Waller, Spencer W. and Jennifer Woods, 'Antitrust Transitions' (2009) 32(2) World
Competition: Law and Economics Review

Wang, Wei, 'Structural Remedies in EU Antitrust and Merger Control' (2010) World
Competition, Vol. 34, No. 4, pp. 571-596, 2011

Wang, Xiaoye, 'Highlights of Chian's New Anti-Monopoly Law' (2008) 75(1)

Antitrust Law Journal

Warner, Mildred E., 'Competition or Cooperation in Urban Service Delivery?'

(2011) 82(4) Annals of Public and Cooperative Economics 421

Wattana, Supannika, Deepak Sharma and Ronnakorn Vaiyavuth, 'Electricity

Industry Reforms in Thailand: A Historical Review' (2008) 2 GMSARN
International Journal

Way, Christopher R., 'Political Insecurity and the Diffusion of Financial Market
Regulation' (2005) 598(1) (March 1, 2005) The ANNALS of the American Academy
of Political and Social Science 125

Weaver, Jacqueline L., 'Can Energy Markets be Trusted? The Effect of the Rise and
Fall of Enron on Energy Markets' (2004) 4 Houston Business and Tax Law Journal

Weeds, Helen, 'Concurrency between OFT and regulators' (2004) 12(2) Utilities
Policy 65

Weigt, Hannes, Anne Neumann and Christian von Hirschhausen, 'Divestitures in the
Electricity Sector: Conceptual Issues and Lessons from International Experiences'
(2009) 22(3) The Electricity Journal 57

Weisman, Dennis L., 'A " Principled " Approach to the Design of
telecommunication (2010) 6(4) Journal of Competition Law and Economics

Weiss, Philipp, Thierry Lefèvre and Dominik Möst, 'Modelling the impacts of CDM
incentives for the Thai electricity sector' (2008) 36(3) Energy Policy 1134

White, Matthew W., Paul L. Joskow and Jerry Hausman, 'Power Struggles:
Explaining Deregulatory Reforms in Electricity Markets' (1996) Brookings Papers
on Economic Activity. Microeconomics 201
 342

Willems, Bert and Emmanuel De Corte, 'Market power mitigation by regulating

contract portfolio risk' (2008) 36(10) Energy Policy 3787

William, Mark, 'The Competition Law in Thailand: Seed of Success or Fated to

Fail?' (2004) 27(3) World Competition 459

Williams, Iestyn, 'The role of general competition policy standards in utility settings'
(2004) 12(2) Utilities Policy 87

Williams, James H. and Navroz K. Dubash, 'Asian Electricity Reform in Historical

Perspective' (2004) 77(3) Pacific Affairs 411

Williams, J. H. and R. Ghanadan, 'Electricity reform in developing and transition

countries: A reappraisal' (2006) 31(6-7) Energy 815

Willis, Peter and Paul Hughes, 'Structural Remedies in Article 82 Energy Cases'
(2008) 4(2) Competition Law Review

Wils, Wouter P., 'Discretion and Prioritisation in Public Antitrust Enforcement, in

Particular EU Antitrust Enforcement' (2011) 34(3) World Competition

Winskel, Mark, 'When Systems Are Overthrown: The 'Dash for Gas' in the British
Electricity Supply Industry' (2002) 32(4) Social Studies of Science 563

Winston, Clifford, 'U.S. Industry Adjustment to Economic Deregulation' (1998)

12(3) The Journal of Economic Perspectives 89

Wisuttisak, Pornchai, 'Australian Free Trade Agreement /Antidumping Clauses: Fair

trade or Anticompetitive Provision' (2010) 5(1) Global Trade and Customs Journal

Wisuttisak, Pornchai, 'Liberalization of the Thai energy sector: a consideration of

competition law and sectoral regulation' (2012) 5(1) (March 1, 2012) The Journal of
World Energy Law & Business 60

Wisuttisak, Pornchai, 'Regulation and competition issues in Thai electricity sector'

(2012) 44(0) Energy Policy 185

Wisuttisak, Pornchai, 'Thailand and Australia Free Trade Agreement (TAFTA): The
advantage pace of foreign investment of both countries' (2009) 12(2) Thailand Law
Journal

Wolak, Frank A., 'An Empirical Analysis of the Impact of Hedge Contracts on
Bidding Behavior in a Competitive Electricity Market' (2000) 14(2) International
Economic Journal 1

Wolak, Frank A., 'Supreme Court Agrees: FERC Must Regulate Wholesale Markets'
(2008) 21(7) The Electricity Journal 8
 343

Wolf, Christian, 'Does ownership matter? The performance and efficiency of State
Oil vs. Private Oil (1987-2006)' In Press, Corrected Proof Energy Policy

Wolfram, Catherine D, 'Measuring Duopoly Power in the British Electricity Spot

Market' (1999) 89(4) American Economic Review 805

Wolfram, Catherine D., 'Strategic Bidding in a Multiunit Auction: An Empirical

Analysis of Bids to Supply Electricity in England and Wales' (1998) 29(4) The
RAND Journal of Economics 703

Woo, C. K. et al, 'Costs of electricity deregulation' 31(6-7) (2006) Energy 747

Woodhous, Erik J., 'The Obsolescing Bargain Redux: Foreign Investment in the
Electric Power Sector in Developing Countries' (2006) (38) New York University
Journal of International Law and Politics

Woodhous, Erik J., 'A Political Economy of International Infrastructure Contracting:

Lessons from the IPP Experience' (2005) (38) New York University Journal of
International Law and Politics

Wu, F. F., F. L. Zheng and F. S. Wen, 'Transmission investment and expansion

planning in a restructured electricity market' 31(6-7) (2006/6//) Energy 954

Wu, Kang et al, 'Emerging Asia-Pacific LNG markets must sort pricing, supply
uncertainties' (2008) 108(8) Oil & Gas Journal

Wu, Zhenguo, 'Perspectives on The Chinese Antimonopoly Law' (2008) 75(1)

Antitrust Law Journal

Xavier, Patrick, 'Fostering competition in Thailand's telecommunications sector'

(2008) 10(1) info 79

Y, Feldman and Lobel O, 'Behavioral versus institutional antecedents of

decentralized enforcement in organizations: an experimental approach' (2008) 2
Regul. Gov. 165

Yarrow, George, 'Editorial: Competition Policy: Its Purpose and Scope' (2002) 22(4)
Economic Affairs 2

Yeh, Emily T. and Joanna I. Lewis, 'State Power and the Logic of Reform in China's
Electricity Sector' (2004) 77(3) Pacific Affairs 437

Yi, Sang-Seung and Youngjin Jung, 'A New Kid on the Block: Korean Competition
Law, Policy, and Economics' Competition Policy International, Vol. 3, No. 2,
Autumn 2007

Yi-chong, Xu, 'Models, Templates and Currents: The World Bank and Electricity
Reform' (2005) 12(4) Review of International Political Economy 647
 344

Yoo, Christopher S., 'What Can Antitrust Contribute to the Network Neutrality
Debate?' (2007) 1 International Journal of Communication 493

Zandt, David van, 'Competition Law And Policy In Flux: The Developing Country
Experience' (2006) 26(3) (Spring2006) Northwestern Journal of International Law
& Business 493

Zhang, Vanessa Yanhua and Yongjun Chen, 'Vertical relationships in China's

electricity industry: The quest for competition?' In Press, Corrected Proof Utilities
Policy

Zhang, Yinfang, David Parker and Colin Kirkpatrick, 'Competition, regulation and
privatisation of electricity generation in developing countries: does the sequencing
of the reforms matter?' (2005) 45(2-3) The Quarterly Review of Economics and
Finance 358

Zhang, Yin-Fang, David Paker and Colin Kirkpatrick, 'Electricity sector reform in
developing countries: an econometric assessment of the effects of privatization,
competition and regulation' (2008) 33(2) Journal of Regulatory Economics

Zheng, Wentong, 'Transplanting Antitrust in China: Economic Transition, Market

Structure, and State Control' (2011) 32(2) University of Pennsylvania Journal of
International Law

Zhu, Xufeng and Chao Zhang, 'Reducing information asymmetry in the power
industry: Mandatory and voluntary information disclosure regulations of sulfur
dioxide emission' (2012) 45(0) Energy Policy 704

Electronic Articles

ACCC, 'Court orders Qantas to pay $20 million for price fixing' (2008)
<http://www.accc.gov.au/content/index.phtml/itemId/853210>

ACCC, 'Electricity' (2010)

<http://www.accc.gov.au/content/index.phtml/itemId/3877>

ACCC, 'Predatory pricing (s46(1) and s46(1AAA))' (2009)

<http://www.accc.gov.au/content/index.phtml/itemId/816375 >

ACCC, 'Predatory pricing (s46(1) and s46(1AAA))' (2009)

<http://www.accc.gov.au/content/index.phtml/itemId/816375 >

ACCC, 'Predatory pricing (s46(1) and s46(1AAA))' (2009)

<http://www.accc.gov.au/content/index.phtml/itemId/816375 >
 345

ACCC, 'Predatory pricing (s46(1) and s46(1AAA))' (2009)

<http://www.accc.gov.au/content/index.phtml/itemId/816375 >

Ardiyok, Sahin, 'California Energy Crisis and Critics of Turkish Electricity

Deregulation Process' (2008) <http://ssrn.com/paper=1305208>

Brusick, Philippe, 'SOCIO-ECONOMIC CONSTRAINTS AFFECTING

COMPETITION AND REGULATORY REFORMS IN DEVLOPING
COUNTRIES' (2007) <http://www.prbrusick.org/library.php?lang=1>

Bunaramrueang, Piyabutr, 'Normative Dynamics of Competition Laws'

<http://works.bepress.com/cgi/viewcontent.cgi?article=1006&context=piyabutr_bun
aramrueang>

Cambell, Emma, 'Concurrent powers in sectoral regulations' (2006)

<http://www.ofgem.gov.uk/About%20us/enforcement/Investigations/ClosedInvest/
Documents1/54.pdf>

Carlton, Dennis W., 'Does Antitrust Need to be Modernized?' (2007) EAG

Discussion Papers 07 03 <http://ssrn.com/paper=956930>

Carlton, Dennis W., 'Mergers in Regulated Industries: Electricity' (2007) EAG

Discussion Papers EAG 07-16 <http://ssrn.com/paper=1075710>

Chauve, Philippe et al, 'The E.ON electricity cases: an antitrust decision with
structural remedies' (2009)
<http://ec.europa.eu/competition/publications/cpn/2009_1_13.pdf >

Chongpeerapien, Tienchai, 'The Deregulation of Oil Prices in Thailand' (2003)

TDRI Quarterly Newsletter <http://www.tdri.or.th/library/quarterly/text/d88_2.pdf>

Christiansen, Arndt, 'Regulation and EU Merger Control in the Liberalised

Electricity Sector' (2005) SSRN eLibrary <http://ssrn.com/paper=870551>

Cotter, Thomas F, 'The Essential Facilities Doctrine' (2008) Minnesota Legal

Studies Research Paper No. 08-18
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1125368>

Diathessopoulos, Michail D., 'European Competition Law & Control of Energy

Market Restructuring' (2010) SSRN eLibrary <http://ssrn.com/paper=1629134>

Dong-Wook, Lee, 'Intermediary Report On Comparative Analysis Of Electricity

Reform In OECD Pacific Countries' (2004)
<http://www.iea.org/papers/2004/ele_reform.pdf>

Economides, Nicholas, 'Competition Policy in Network Industries: An Introduction'

(2004) Working Paper #04-23 <http://ssrn.com/paper=386626>
 346

EDIAS, 'How to support competition law and policy No 3' <www.enterprise-

impact.org.uk/word-files/HowtoPromoteCompetitionLawPolicy.doc>

Electric Power System Council of Japan, 'For Smooth Utilization of Electric Power
System' (2010) <http://www.escj.or.jp/english/message/index.html>

Electric Power System Council of Japan, 'Outline of Electric Power System Council
of Japan' (2010) <http://www.escj.or.jp/english/outline/index.html>

EU competition commission, 'Antitrust: Commission fines Telefónica over €151

million for over five years of unfair prices in the Spanish broadband market ' (2007)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1011&format=HT
ML&aged=0&language=EN&guiLanguage=en>

EU Competition Commission, 'Antitrust: Commission fines E.ON and GDF Suez

€553 million each for market-sharing in French and German gas markets' (2009)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1099&format=HT
ML&aged=0&language=EN&guiLanguage=en >

EU Competition Commission, 'Cartel: Overview' (2008)

<http://ec.europa.eu/competition/cartels/overview/index_en.html>

EU Competition Commission, 'Commission fines Deutsche Telekom for charging

anti-competitive tariffs for access to its local networks ' (2008)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/03/717&format=HTM
L&aged=1&language=EN&guiLanguage=en >

EU Competition Commission, 'Competition: Commission welcomes Court judgment

wholly upholding margin squeeze decision against Deutsche Telecom ' (2008)
<http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/232&format=
HTML&aged=0&language=EN&guiLanguage=en >

EU Competition Commission, 'Energy: Overview on Liberalisation of the electricity

and gas markets' (2010)
<http://ec.europa.eu/competition/sectors/energy/overview_en.html>

Faundez, Julio, 'Rule of Law or Washington Consensus: The Evolution of the World
Bank s Approach to Legal and Judicial Reform' (2009) Warwick School of Law
Legal Studies Research Paper Series <http://ssrn.com/paper=1510186>

Federation of Electric Power Companies of Japan, 'History of Japan's Electric Power

Industry' (2010)
<http://www.fepc.or.jp/english/energy_electricity/history/index.html>

Federal of Energy Regulatory Commission, 'Electric Competition' (2010)

<http://www.ferc.gov/industries/electric/indus-act/competition.asp>
 347

Fotiadis, John and Chaiwat Keratisuthisathorn, 'Exclusivity under the Trade

competiton law' (2008) Coporate Counseller
<http://www.tillekeandgibbins.com/Publications/corporate_counsellor/2008/exclusi
vity_trade_competition.pdf>

Gilbert, Richard J and David M Newberry, 'Electricity Merger Policy in the Shadow
of Regulation' (2006) <http://www.escholarship.org/uc/item/7bh5f7rn>

Gu, Michael Zhengping, 'NDRC’s Antitrust Enforcement Decisions' (2011)

<https://www.competitionpolicyinternational.com/ndrc-s-antitrust-enforcement-
decisions/>

Hewison, Kevin, 'Thailand’s Capitalism: The Impact of the Economic Crisis' (1999)
<http://www.une.edu.au/asiacenter/Hewison.pdf>

Ibarra-Yunez, Alejandro, 'Electricity Reform in Mexico:Challenges for an Integrated

North American Market' (2008)
<http://www.portalfornorthamerica.org/sites/files/Mexican_Energy_Reform_Ibarra-
CaseStudy.pdf>

Kain, John, Indra Kuruppu and Rowena Billing, 'Australia's National Competition
Policy: Its Evolution and Operation' (2003)
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamenta
ry_Library/Publications_Archive/archive/ncpebrief>

Kerf, Michel, Isabel Neto and Damien Geradin, 'Antitrust vs. Sector-specific
Regulation in Telecom: What Works Best?' (2005) <
http://ssrn.com/abstract=886292>

Koch, Oliver et al, 'The RWE gas foreclosure case: Another energy network
divestiture to address foreclosure concerns' (2009)
<http://ec.europa.eu/competition/publications/cpn/2009_2_7.pdf>

Korean Electricity Commission, 'Establishment of KOREC' (2010)

<http://www.leadernews.co.kr/korec_home/eng/sub01_1.htm>

Korean Electricity Commission, 'Objective and Current Status' (2010)

<http://korec.go.kr/korec_home/eng_new/index.htm >

Korean Electricity Commission, 'The Plan for Restructuring Electricity power

industry in Korea' (2010)
<http://www.leadernews.co.kr/korec_home/eng/sub02_2.htm>

Korean Electricity Commission, 'What We Have Done So Far?' (2010)

<http://www.leadernews.co.kr/korec_home/eng/sub02_3.htm>
 348

KPPU, 'Price Fixing on Fuel Surcharge by Indonesian Aviation Companies' (2009)

<http://eng.kppu.go.id/price-fixing-on-fuel-surcharge-by-indonesian-aviation-
companies/>

Kumar, Rajesh, 'Ensuring competitive neutrality of networks' (2009)

<http://www.cuts-ccier.org/ArticlesDec09-
Ensuring_competitive_neutrality_of_networks.htm>

Kumar, Rajesh, 'Ensuring competitive neutrality of networks' (2009)

<http://www.cuts-ccier.org/ArticlesDec09-
Ensuring_competitive_neutrality_of_networks.htm>

Lawrence, Georgina, 'Who regulates regulators?' (2002) Occasional Paper 16

<http://www.bath.ac.uk/cri/publications/occasional_papers.html>

Leveque, Francois, 'Antitrust Enforcement in the Electricity and Gas Industries:

Problems and Solutions for the EU' (2006) <http://ssrn.com/paper=927887>

LLP, Winston & Strawn, 'FERC Codifies Rules for Market-Based Power Sales'
(2007) <http://www.winston.com/siteFiles/publications/Market-
Based_Power_Sales_Rules.pdf >

Mehta, Pradeep S, 'Hit fertiliser cartels with alliances' (2011)

<http://economictimes.indiatimes.com/view-point/hit-fertiliser-cartels-with-
alliances/articleshow/7803720.cms>

New Zealand Electricity Commission, 'Background to regulation' (2010)

<http://www.electricitycommission.govt.nz/aboutcommission/regtogovt>

Nikomborirak, Deunden, 'Policy on price control under the economic recession (

translate from Thai Language: Nayobai Kyubkum Raka Sinka Paitai Yuk KaoYak
Makpang)' (2008) <www.regulatorywatch.org>

Nikomborirak, Deunden, 'Private Sector Participation in Infrastructure: the case of

Thailand' (2004) ADB Institute Discussion Paper No. 19
<http://www.adbi.org/discussion-paper/2004/12/09/846.case.thailand/>

OECD, 'Competition Advocacy: Challenges for Developing Countries' (2004)

<http://www.oecd.org/dataoecd/52/42/32033710.pdf>

Office of Thai Competition Commission, 'MOU between Thai Competition

Commission and Universities ( in Thai Language)' (2010)
<http://www.dit.go.th/otcc/contentmain.asp?typeid=6&catid=106 >

OFGEM, 'Enforcing competition law ' (2007)

<http://www.ofgem.gov.uk/About%20us/enforcement/Powers/CompLaw/Pages/Enf
orceCompLaw.aspx>
 349

OFGEM, 'Retail Markets' (2007)

<http://www.ofgem.gov.uk/Markets/RetMkts/Pages/RetMrkts.aspx >

OFGEM, 'Wholesale Markets ' (2007)

<http://www.ofgem.gov.uk/Markets/WhlMkts/Pages/WhMrkts.aspx>

OFGEM, 'Working to promote competition and efficiency ' (2007)

<http://www.ofgem.gov.uk/Markets/WhlMkts/CompandEff/Pages/CompandEff.asp
x>

OFT, 'OFT response to DTI and HMT on concurrency competition powers in

sectoral regulation'
<http://www.oft.gov.uk/shared_oft/reports/oft_response_to_consultations/oft900a.p
df>

Ordover, Janusz, Russell Pittman and Paul Clyde, 'Competition Policy for Natural
Monopolies in a Developing Market Economy' (2001)
<http://econpapers.repec.org/paper/wpawuwpio/0111004.htm>

Painter, Martin, 'Thaksinocracy Or Managerialization? Reforming The Thai

Bureaucracy' (2005) Working Paper Series No. 76
<http://www.cityu.edu.hk/searc/WP76_05_Martin.pdf>

Rann, Ann, 'Background Paper 21 1997-98 Electricity Industry Restructuring-A

Chronology ' (1998) <http://www.aph.gov.au/library/pubs/bp/1997-
98/98bp21.htm>

Rudnick, Hugh, 'Briefing on Chilean electricity law' (2008)

<http://web.ing.puc.cl/~power/southamerica/ChileanLaw.htm and
http://web.ing.puc.cl/~power/>

Salerno, Francesco Maria, 'The Competition Law-ization of Enforcement: The Way

Forward for Making the Energy Market Work?' (2008) EUI RSCAS 2008/07
<http://cadmus.eui.eu/dspace/handle/1814/8108>

Sally, Razeen, 'Big government and protectionism threaten world trade regime'
(2011) <http://www.eastasiaforum.org/2011/03/07/big-government-and-
protectionism-threaten-world-trade-regime/>

Sally, Razeen, 'Thailand’s New FTAs and Its Trade Policies Post-Asian Crisis: An
Assessment
' (2005)
<www.lse.ac.uk/collections/internationalTradePolicyUnit/Razeen_articles/Thailand
Paper2005.doc>

Samuel, Graeme, 'Media sector 'ripe for change': ACCC' (2005)

<http://www.accc.gov.au/content/index.phtml/itemId/706197/fromItemId/620299>
 350

Singapore, Competition Commission of, 'Electrical firms fined for bid-rigging'

(2010)
<http://app.casebank.ccs.gov.sg/cms/user_documents/casebank/pdf/Electrical%20fir
ms%20fined%20for%20bid-rigging%20%28ST%205%20June%2010%29.pdf>

Singapore, Competition Commission of, 'Mergers That Substantially Lessen

Competition' (2010)
<http://app.ccs.gov.sg/MergersThatSubstantiallyLessenCompetition.aspx>

Singapore Competition Commission, 'Commission Members' (2010)

<http://app.ccs.gov.sg/AboutUs_Commission_Members.aspx>

Singapore Competition Commission of, 'Abuse Of Dominance' (2010)

<http://app.ccs.gov.sg/AbuseofDominance.aspx>

Trade Competition Commission, 'Complaints received' (2010)

<http://www.dit.go.th/otcc/contentdet_en.asp?TypeID=12&catid=105&id=105>

Treasury, The Australian Commonwealth, 'Developments in Electricity' (2000)

<http://www.treasury.gov.au/documents/195/PDF/round4.pdf>

UK Office of Fair Trading, 'Concurrency ' (2010) <http://www.oft.gov.uk/about-

the-oft/legal-powers/legal/competition-act-1998/Concurrency/>

Vries, F D, 'Economic Legal and Political Dimensions of Competition' (1981)

<http://ideas.repec.org/p/cla/uclawp/209.html>

Conference papers
ACCC, 'Competitive Neutrality Regulating Interconnection Disputes in The
Transition to Competition' (Paper presented at the Regulation and Competition
Conference, Sydney, Manly Beach, 2002)
<http://www.accc.gov.au/content/item.phtml?itemId=259730&nodeId=5b7da16438
24ee286b2f045739e11f89&fn=Session+2+-+Dr+Bill+Tye.pdf>

Adiwiyoto, Bambang, 'The Republic of Indonesia's Competition Law &

Commission for the Supervision of Business Competition: Promoting Competition,
Protecting Consumers' (Paper presented at the The 6th International Workshop on
Competition Policy, Soul, Korea, 2001) <www.ftc.go.kr/data/english/20010809-
6.doc>

Alagh, Yoginder, 'Transmission and Distribution of Electricity in India Regulation,

Investment and Efficiency ' (Paper presented at the OECD Development Centre
Development Finance Network (DeFiNe) Annual Assembly, Paris, 2010 )
<http://www.oecd.org/dataoecd/34/55/46235012.pdf

Asher, Allan, 'Energy Market – Will Consumers Gain?' (Paper presented at the The
Australian Financial Review Queensland Power & Gas Summit, Queensland 1998)
 351

<http://www.accc.gov.au/content/item.phtml?itemId=96898&nodeId=b5fe2526525f
f89f38d5fa438db0ec30&fn=Energy%20Market%20-
%20Will%20Consumers%20Gain.doc>

Beaton-Well, Caron and David K Round, 'Cartel Criminalisation and the

Competition Authority: Public Value, Authorising Environment, Operational
Capability' (Paper presented at the Annual Socio-Legal Studies Association
Conference 2011, 2011) <http://www.sussex.ac.uk/law/newsandevents/slsa-
conference/programme>

Bergman, Lars, 'Addressing Market Power and Industry Restructuring ' (Paper
presented at the Implementing the Internal Market of Electricity: Proposals and
Time-Tables, Brussels, 2005)
<http://www.sessa.eu.com/documents/final/SESSA_report_wp4.pdf>

Bollard, Alan and David Ainsworth, 'Can The Commerce Commision Prevent Anti-
Competitive Conduct In The Electricity Markets? ' (Paper presented at the IIR
Conference Competition and the Domestic Electricity Consumer, Wellington 1999)
<http://www.comcom.govt.nz/assets/The-Commission/Speeches/Alan-Bollard-and-
David-Ainsworth-Speech-at-IIR-Conference-18-November-1997.pdf>

Breceda-Lapeyre, Miguel G., 'Private investment in Mexico’s electricity sector'

(Paper presented at the the Commission for Environmental Cooperation,
Environment, Economy and Trade Program, Mexico, 2002)
<http://www.cec.org/Storage/50/4252_mbinvest_en.pdf>

Buigue, Pierre-André, 'Competition Policy versus Sector-specific Regulation in

Network Industries- The EU Experience' (Paper presented at the UNCTAD's
Seventh Session of the Intergovernmental Group of Experts on Competition Law
and Policy, Geneva, 2006)
<http://www.unctad.org/sections/wcmu/docs/c2clp_ige7p14_en.pdf>

Bulteel, Paul, 'Can The Electricity Sector Attract Adequate Investment?" A

European Perspective' (Paper presented at the 19th World Energy Congress, Sydney,
2004) <http://www.worldenergy.org/documents/congresspapers/bulteelp0904.pdf>

Bunarumrueang, Piyaburt, 'Thailand its shortcut towards general competition in

Telecommunication Industry' (Paper presented at the ALIN International Acadamic
Conference, Faculty of Law, Chulalongkorn University, 2007)
<http://works.bepress.com/cgi/viewcontent.cgi?article=1005&context=piyabutr_bun
aramrueang>

Bundeskartellamt( German office of fair competition), 'Competition Policy,

Industrial Policy and National Champions' (Paper presented at the Global Forum on
Competition, 2009)
 352

Caceres, Fernando, 'Competition Authorities and Sector Regulatory Agencies:

Possible Conflicts and Complementarities- Peru' (Paper presented at the APEC-
IDRC Conference on Competition Policy Issues in Services Sectors
Lima, Peru, 2008)
<http://aimp.apec.org/Documents/2008/GOS/CONF1/08_gos_conf1_004.pdf>

Carstensen, Laura, 'Keynote speech' (Paper presented at the the Association of

Corporate Counsel Europe Seminar, 2011) <http://www.competition-
commission.org.uk/our_role/speeches/pdf/LC_Speech_ACCE.pdf>

Ceriani, Lidia, Raffaele Doronzo and Massimo Floro, 'Privatization, Unbundling,

and libearalization of Network Industries: A Discussion of Dominant Policy
Paradigm in The EU' (Paper presented at the EPSU/ETUI-REHS/SALTSA
Conference “An alternative to the market. The social, political and economic role of
public services in Europe” Bruxelles, 19-20 November 2007 2007)
<http://www.economia.unimi.it/uploads/wp/Deas2009_09wp.pdf>

Cernat, Lucian, 'The role of competition in the promotion of competitiveness and

development: Experiences from a sample of developing and least developed
countries' (Paper presented at the the 3rd International CRC Conference Pro-poor
Regulation and Competition: Issues, Policies and Practices, Cape Town, South
Africa, 2004) <http://www.competition-
regulation.org.uk/conferences/southafrica04/Cernat.pdf>
Chemtob, Stuart M., 'The Role of Competition Agencies in Regulated Sectors'
(Paper presented at the 5th International Symposium on Competition Policy and
Law, Beijing, China 2007) <http://www.usdoj.gov/atr/public/speeches/225219.htm>

Christensen, Jorgen Gronnegaard, 'Public interest regulation reconsidered From

capture to credible commitment' (Paper presented at the ECPR Regulatory
Governance Standing Group, University College, Dublin, 2010)
<http://regulation.upf.edu/dublin-10-papers/1J1.pdf>

Cowan, Simon, 'Alternative approaches to regulation: an economic analysis of light-

handed regulation' (Paper presented at the Australian Competition and Consumer
Commission Regulatory Conference, Surfers’ Paradise, 2007)
<http://www.accc.gov.au/content/item.phtml?itemId=793237&nodeId=add211fe3af
71923a44b22948d006e81&fn=Cowan+-+Paper.pdf>

Crampton, Paul, 'Competition as an Organising Principle for All Economic and

Regulatory Policymaking' (Paper presented at the First Annual OECD/IDB Latin
American Competition Forum, 2003)

David M, Newbery, 'Regulating electricity to ensure efficient competition' (Paper

presented at the CEPR/ESRC Workshop on The Political Economy of Regulation,
London, 2001) <http://www.cepr.eu/meets/wkcn/6/697/papers/newbery.pdf>

Dekeyser, Kris, 'The interaction between regulation and competition law in network
industries(with particular emphasis on energy and telecom markets)' (Paper
 353

presented at the Which competition policy for regulated industries? Governance and
sector-specific perspecti, Istunbul, 2008)
<http://www.imedipa.com/files/downloads/The%20interaction%20between%20regu
lation%20and%20competition%20law%20in%20network%20industries%20(with%
20particular%20emphasis%20on%20energy%20and%20telecom%20markets).pdf>

Dimasi, Joe, 'The Australian Experience' (Paper presented at the East Asia & Pacific
Infrastructure Regulatory Forum Competition Policy and Regulation Workshop,
Jakarta, 2007)
<http://www.eapirf.org/files/AGM2007/No5_CompetitionPolicy_Australia_Dimasi.
pdf>

Drexl, Josef, and Schroeder, Dirk, 'A Report on The Fourth Annual Conference of
International Networks' (Paper presented at the Fourth Annual Conference of
International Networks , Bonn Germany, 2005)
<internationalcompetitionnetwork.org/.../conferencerptbonn101005.pdf>

EAPIRF, 'Competition Policy and Regulation– An Analysis Framework' (Paper

presented at the Annual General Meeting and Workshop on Competition Policy and
Regulation, Jakarta, 2007)
<http://www.eapirf.org/files/AGM2007/No3_AGM_CompetitionPolcyAnalysis.pdf
>

Enerlein, Burkard, 'Understanding Economic Regulation of Infrastructures and

Utilities in Europe: the case of Electricity in Comparative Perspective' (Paper
presented at the ECSA Sixth Biennial International Conference, Pittsburgh, 1999)
<http://aei.pitt.edu/2260/01/002636_1.pdf>

EPPO, 'The Electricity Supply Industry Reform, ' (Paper presented at the Seminar of
the electricity supply industry reform, Sofitel Central Plaza, Bangkok, 2002)

EPPO, 'Summary of the Conference Proceeding on the Thai electricity Development

Plan' (Paper presented at the Thai Electricity Development Plan 2007-2020,
Bangkok, 2007) <http://www.eppo.go.th/power/pdp2007/index.html>

Energy Regulators Regional Association, 'Regulatory Actions To Limit or Correct

Abuses of Market Power' (Paper presented at the Regioanl Energy Regulatory
Conference For Central/Eastern Europe &EURASIA, 1999)
<http://www.erranet.org/index.php?name=OE-eLibrary&file=download&id=3546>

European Regulators Group (ERG), ('ERG Report on Transition from sector-specific

regulation to competition law' (Paper presented at Lucerne, 2009)
<http://www.irg.eu/streaming/ERG%20(09)%2040%20ERG%20Report%20on%20t
he%20transition%20to%20competition%20law_final.pdf?contentId=546381&field=
ATTACHED_FILE>

Fels, Allan, 'Lessons from International Experience' (Paper presented at the

Competition Policy: The Road Ahead for Egypt, Conrad International Cairo, Nile
 354

Ballroom, 2001)
<http://webcache.googleusercontent.com/search?q=cache:FUBKa9B67FUJ:www.ac
cc.gov.au/content/item.phtml%3FitemId%3D255597%26nodeId%3D8e01759974f4
3b0f57bc495479198d85%26fn%3DCompetition%2520Policy%2520speech.doc+en
ergy,+developing+countries,+%22competitive+neutrality%22&cd=5&hl=en&ct=cln
k&gl=au&client=firefox-a>

Fels, Allan, 'Regulating for Efficient and Competitive Utilities' (Paper presented at
the the ACCC Regulation Conference, Sydney, 2002)
<http://www.accc.gov.au/content/item.phtml?itemId=179231&nodeId=c4e6d2ee92d
46d602165dd082bc09b23&fn=Fels_Reg_Conf_25Jul%5B1%5D.pdf>

Freeman, Peter, 'Competition Advocacy in Time of Recession the UK Competition

Approach' (Paper presented at the International Competition Forum, Warsaw, 2009)

Freeman, Peter, 'The effectiveness of competition authorities: prioritization, market

inquiries and impact' (Paper presented at the Third Annual Competition
Commission, Competition Tribunal and Mandela Institute Conference on
Competition Law, Economics and Policy South Africa, 2009)
<http://www.competition-commission.org.uk/our_role/speeches/index.htm>

FTC, 'Creating Constructive Relationships Between Competition Policy and

Sectoral Regulators: Submission of the United States' (Paper presented at the Latin
American Competition Forum Fourth Annual Meeting, San Salvador, 2006)
<http://www.bid.org.uy/europe/files/news_and_events/2006/LACF2006/LACF2006.
pdf>

Gans, Joshua S, Frances Hanks and Philip L Williams, 'The Treatment of Natural
Monopolies under the Australian Trade Practices Act: Four Recent Decisions '
(Paper presented at the the Trade Practices Workshop of the Business Law Section
of the Law Council of Australia Melbourne, 2000)
<http://www.mbs.edu/home/jgans/papers/natmonop.pdf>

Greacen, Chris, 'Power Sector in Thailand: from Problematic Planning and

Governance to Feed-in Tariffs' (Paper presented at the Helvetas seminar Power
Sector Governance in the Mekong Region: Challenges and Opportunities in
Thailand and implications for Laos, Vientienne, Laos, 2011)
<http://www.riselaos.org/rise/fileadmin/publications/Power_Sector_in_Thailand_En
glish.pdf>

Greacen, Chom, ' Power sector issues through case study of Thailand' (Paper
presented at the MEENet workshop, Thailand, 2010)
<http://www.meenet.org/images/power/81296461202_file.pdf>

Gul, Park Jae, 'The relationship between regulators and competition authorities in
Korea' (Paper presented at the The 3rd APEC Training Program on Competition
Policy Kuala Lampur, Malaysia, 2004)
<http://www.jftc.go.jp/eacpf/05_04_03.html>
 355

Hall, David, 'Electricity restructuring, privatisation and liberalisation: some

international experiences' (Paper presented at the Energy conference in Romania,
1999) <www.psiru.org/reports/2004-04-E-indon.doc>

Hasmin, Prattana, 'Competition Institution Thai's Experience' (Paper presented at the

The APEC Training Course on Competition Policy Makati city, Philippine, 2005)
<<http://www.jftc.go.jp/eacpf/05/APECTrainingCourseAugust2005/Group2/Hasami
n_comp.pdf> >

Heimler, Alberto, 'Competition and Regulation in Public Utilities' (Paper presented

at the The 12th Advisory Group on Privatisation: Session on Competition,
Regulation and Capital Markets Helsinki, 1998)
<http://www.oecd.org/document/61/0,3343,en_2649_34847_2057789_1_1_1_1,00.
html>

Hope, Einar, 'Competition policy and sector-specific economic media regulation:

and never the twain shall meet?' (Paper presented at the IDEI-ZEI Conference on
"Regulation of Media Markets, Toulouse, France, 2004)
<http://idei.fr/display.php?a=3060>

Hur, Joseph Seon, 'How the KFTC prosecuted the graphite electrode international
cartel' (Paper presented at the Intergovernmental Group of Experts on Competition
Law and Policy UNCTAD’s 7th Session,, Geneva, 2006)
<http://www.unctad.org/sections/wcmu/docs/c2clp_ige7p9_en.pdf>

ICN, 'Antitrust Enforcement in Regulated Sectors Working Group' (Paper presented

at the Third ICN Annual Conference, Soul 2004)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc379.pdf>

ICN, 'Antitrust Enforcement in Regulated Sectors Working Group: Subgroup 3:

interrelations between antitrust and regulatory authorities' (Paper presented at the
Third ICN Annual Conference, Soul 2004)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc379.pdf>

ICN, 'Antitrust Enforcing in Regulated Sectors Working Group' (Paper presented at

the International Competition Network 2004 Annual Conference, Soul, Korea,
2004)
<http://www.internationalcompetitionnetwork.org/media/library/conference_3rd_se
oul_2004/aers_intro_seoul.pdf>

ICN, 'Competition Advocacy in Regulated Sectors: Examples of Success' (Paper

presented at the International Competition Network 2004 Annual Conference, Soul,
Korea, 2004)
<http://www.internationalcompetitionnetwork.org/media/library/conference_3rd_se
oul_2004/capacitybuild_sg4_seoul.pdf>
 356

ICN, 'Competition Advocacy Review: Case Studies on Regulated Sectors' (Paper

presented at the Competition Policy Implementation Working Group Sub Group 3,
<http://www.internationalcompetitionnetwork.org/uploads/library/doc511.pdf>

ICN-the Unilateral Conduct Working Group, 'Report on the Analysis of Refusal to

Deal with a Rival Under Unilateral Conduct Laws' (Paper presented at the 9th
Annual Conference of the ICN, Istanbul, Turkey, 2010)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc616.pdf>

Jenny, Frederic, 'Competition law and competition policy: lessons from developing
and transition economies' (Paper presented at the National Investment Reform
Agenda Workshop-Lebanon, Beirut, Lebanon, 2007)
<http://www.oecd.org/dataoecd/23/40/38472009.pdf>

Joh, Hak-kuk, 'Privatization of Natural Monopolies & Competition Issues: Korea’s

Experience' (Paper presented at the International Conference on Competition Policy,
2003)
<http://eng.ftc.go.kr/search/search.jsp;jsessionid=1x71uJ2Z3x8VxEiMjvw9vRpZfU
6G90NUhQBe94tb4QTs1SniNwDKEOcvcw539f6P>

Jung, Yonghun et al, 'Electricity Sector Deregulation in The Asia Pacific Region '
(Paper presented at the 23 rd IAEE International Conference Sydney, 2000)
<http://www.aaee.unsw.edu.au/1stcall/IAEE_forms.pdf

Kalampakorn, Chantida, 'Unfair Trade Practices Under Thai Trade Competition Act'
(Paper presented at the The 3rd APEC Training Program on Competition Policy,
Indonesia, 2004)
<http://www.jftc.go.jp/eacpf/05/APECTrainingProgramDecember2004/Kalampakor
n_Thai.pdf>

Keofanapandon, Penpun, 'Structureal Reform in Thailand' (Paper presented at the

APEC High Level Conference on Structural Reform, Japan Tokyo, 2004)
<http://www.mofa.go.jp/policy/economy/apec/conference/present0409/thailand.pdf>

Kohpaiboon, Archanun, Paritat Chantasakda and Alongkorn Tanasritunyakul,

'Competition Policy in Thailand ' (Paper presented at the Competition Policy in
Southeast Asia: A Stock Take of Recent Development, Manila, Philipine, 2010)
<http://www.econ.tu.ac.th/doc/content/647/Discussion_Paper_No.20.pdf>

Kovacic, William E. and DeCourcey Eversley, 'An Assessment of Institutional

Machinery: Methods Used in Competition Agencies and What Worked for Them'
(Paper presented at the International Competition Network Competition Policy
Implementation Working Group, 2007)
<http://www.internationalcompetitionnetwork.org/uploads/library/doc368.pdf>

Lanti, Ahmad, 'Review of Infrastructure Sector Regulation in Indonesia' (Paper

presented at the East Asia and Pacific Infrastructure Regulatory Forum, Jakarta,
2007) <http://www.eapirf.org/files/AGM2007/No4_EAPIRF-Lanti.pdf>
 357

Littlechild, Stephen, 'Regulation, Over-regulation and Deregulation' (Paper

presented at the A CRI occasional lecture held at the Royal Society on 24th
November 2008, The University of Bath, UK, 2008)
<http://www.ofgem.gov.uk/Networks/rpix20/Factsheets/Documents1/4.pdf>

Littlechild, Stephen, 'Regulation. Over-regulation and Deregulation' (Paper

presented at the CRI occasional lecture: Occasional Lecture 22, Royal Society,
2008) <http://www.ofgem.gov.uk/Networks/rpix20/Factsheets/Documents1/4.pdf>

Littlechild, Stephen, 'Vertical separation in utility industries: UK policy and

experience' (Paper presented at the ACCC Conference on Regulation, Industry
Structure and Market Power, Gold Coast, Australia,
<http://www.accc.gov.au/content/item.phtml?itemId=259750&nodeId=c8fe767cb29
7603acfccf860fa3b336f&fn=Stephen%20Littlechild%20%28slides%29%20-
%20Vertical%20separation%20in%20utility%20industries:%20UK%20policy%20
&%20experience.pdf>

Martin, John, 'Role of ACCC in Promoting Competition in Aviation Industry' (Paper

presented at the Regional Aviation Association of Australia Convention,
Maroochydore, 2002)
<http://www.accc.gov.au/content/item.phtml?itemId=95920&nodeId=32bbdd5af8e6
7582487b967a3a9895bc&fn=Martin_241002%5b1%5d.pdf>

McLeod, Rory, 'Competition Regulation and Infrastructure Design in Small

Economies' (Paper presented at the APEC-IDRC Conference on Competition Policy
Issues in Services Sectors, Lima, Peru, 2008)
<http://aimp.apec.org/Documents/2008/GOS/CONF1/08_gos_conf1_008.pdf>

Mehta, Pradeep S., 'Competition Policy Rationale and Scope in Modern Developing
Economies' (Paper presented at the Australian and New Zealand School of
Government Annual Conference 2010 on Delivering Policy Reform: Making it
happen, making it stick, Melbourne, 2010)
<http://www.anzsog.edu.au/userfiles/files/News%20and%20events/Conference/Con
ference%202010/Pradeep-Competition-Policy-ANZSOG-110810.pdf>

Mexico, The Federal Competition Commission of, 'Improving Relationships

between Competition Policy and Sectoral regulation Mexico Contribution' (Paper
presented at the Latin American Competition Forum Fourth Annual Meeting, San
Salvador, 2006)
<http://www.bid.org.uy/europe/files/news_and_events/2006/LACF2006/LACF2006.
pdf>

Monti, Mario, ‘Applying EU Competition Law to the newly liberalised energy

markets' (Paper presented at the World Forum on Energy Regulation, Rome, 2003)
<http://ec.europa.eu/competition/speeches/index_theme_26.html>
 358

Nation, United, 'How to Utilize FDI to Improve Infrastructure – Electricity Lessons

from Chile and New Zealand' (Paper presented at the United Nations Conference on
Trade and Development- Best Practices in Invesment For Development Case Studies
in FDI, 2009) <http://www.unctad.org/en/docs/diaepcb20091_en.pdf>

Newbery, David, 'Mitigating market power in electricity networks' (Paper presented

at the SSPA Italian Advanced School of Public Administration International
conference on Towards a European Market of Electricity: what have we learned
from recent lessons? Spot market design, derivatives and regulation, Rome, 2002)
<http://www.econ.cam.ac.uk/faculty/newbery/files/rome.pdf>

Nikomborirak, Deunden, 'The Thai Competition Regime: An Uphill Battle' (Paper

presented at the JFTC Seventh Competition Policy Research Centre International
Symposium, Tokyo Japan, 2010)
<http://www.jftc.go.jp/cprc/sympo/2009sympo/100219sympo2.pdf>

Nikomborirak, Deunden, 'Unfair Trade Practice: Conceptualization, Significance

and Regional Perspective' (Paper presented at the CUTS Conference on “Gathering
Evidence on Unfair Trade Practice in ASEAN: Challenges and Impacts, Hanoi,
Vietnam, <http://www.cuts-
hrc.org/index.php?option=com_content&view=category&layout=blog&id=82&Item
id=218&lang=en>

Nikomborirak, Deunden and Wanwiphang Manachotphong, 'Electricity Reform in

Practice:The Case of Thailand, Malaysia, Indonesia and the Philippines' (Paper
presented at the Intergovernmental Group of Experts on Competition Law and
Policy, Geneva, 2007)
<http://www.unctad.org/sections/wcmu/docs/c2clp_ige8p25asia_en.pdf>

Nuntavorakarn, Suphakit, 'Governance and Power Development Planning in

Thailand' (Paper presented at the Intenational Anti- Corupption Conference 2010
Bangkok, Thailand, 2010) <electricitygovernance.wri.org/files/egi/IACC14-
Thailand.ppt >

OECD, 'Competition Law and Policy in Thailand' (Paper presented at the OECD
'Global Forum of Competition law, 2001)
<www.oecd.org/dataoecd/40/45/2491524.doc>

OECD, 'The Relationship between Competition Authorities and Sectoral Regulator '
(Paper presented at the Global Forum on Competition Paris, 2005)
<http://www.oecd.org/dataoecd/58/7/34375749.pdf>

Office, Thai National Energy Policy, 'Thailand Report on APEC Energy Working
Group Implementation Facilitation Assistance Team to Thailand A Follow-up
Workshop' (Paper presented at the Energy Working Group Implementation
Facilitation Assistance Team- A Follow-up Workshop, Karon Villa & Karon Royal
Wing, Phuket, Thailand 17-18 August 2000, 2000)
<www.eppo.go.th/inter/apec/IFAT/IFAT-Summary-Report-Final.rtf>
 359

Ongkittikul, Sumet, 'The analysis of Thai government expenditure: the case study on
the transportation sector' (Paper presented at the The 2009 Year-End Conference on
Economic Reforms for Social Justice, Centara Grand and Bangkok Convention
Centre, 2009)

Oprescu, Gheorghe, Daniela Eleodor and Maria Alexandru, 'Benefit of Introducing

and Applying Competition Policy in Emerging Economise: Case study-Romania'
(Paper presented at the United Nations Conference on Trade and Development: The
effects of anti-competitive business practices on developing countries and their
development prospects, 2008)
<http://www.unctad.org/en/docs/ditcclp20082_en.pdf>

Öz, Gamze Aşçıoğlu, 'The Role of Competition Authorities and Sectoral Regulators:
Regional Experiences' (Paper presented at the UNCTAD's Seventh Session of the
Intergovernmental Group of Experts on Competition Law and Policy, Geneva, 2006)
<http://www.unctad.org/sections/wcmu/docs/c2clp_ige7p17_en.pdf>

P, Capros, 'Independence of Energy Regulators: New Challenges ' (Paper presented

at the World Forum on Energy Regulation 2003) <http://www.rae.gr/old/K2/ER-
independence.pdf>

Panitchpakdi, Supachai, 'The role of competition policy in promoting economic

development' (Paper presented at the Sixth United Nations Conference to Review
All Aspects of the Set of Multilaterally Agreed Equitable Principles and Rules for
the Control of Restrictive Business Practices, Geneva, 2010)
<http://www.unctad.org/sections/wcmu/docs/tdrbpconf7_s3_UNCTAD.pdf>

Paopongsakorn, Nipon, 'The Role of Competition Policy in the Promotion of

Economic Growth in Thailand' (Paper presented at the The Role of Competition
Policy in the Promotion of Economic Growth,” Competition Policy Research
Center, Fair Trade Commission, Tokyo, March 7, 2008 2008)
<http://www.jftc.go.jp/cprc/DP/CPDP-30-E.pdf>

Paopongsakorn, Nipon and Deunden Nikomborirak, 'Review of regulatory reform in

Thailand' (Paper presented at the Fourth Workshop of the APEC-OECD Co-
operative Initiative on Regulatory Reform, Vancouver, Canada, 2004)
<http://www.apeccp.org.tw/doc/APEC-OECD/2003-10/007.pdf>

Pérez, Víctor Paredes, 'Competition Policy in Infrastructure Services: The Mexican

Experience' (Paper presented at the APEC-IDRC Conference on Competition Policy
Issues in Services Sectors
Lima, Peru, 2008)
<http://aimp.apec.org/Documents/2008/GOS/CONF1/08_gos_conf1_003.pdf>

Petrov, V., C. W. Richter and G. B. Sheble, 'Predatory gaming strategies for electric
power markets' (Paper presented at the Electric Utility Deregulation and
 360

Restructuring and Power Technologies, 2000. Proceedings. DRPT 2000.

International Conference on, 2000)

Philippe, Brusick, 'Summary Presenation on group 2' (Paper presented at the JFTC
co-organizes the 5th APEC Training Program on Competition Policy with the
KPPU, 2004)
<http://www.jftc.go.jp/eacpf/05/APECTrainingProgramDecember2004/Brusick_Sup
port.pdf>

Poapongsakorn, Nipon, 'Institutional Arrangements for the Competition Authority in

Thailand' (Paper presented at the The Fith Workshop Of The APEC-OECD Co-
operative Initiative On Regulatory Reform, Paris,
<http://www.oecd.org/dataoecd/28/44/32689476.pdf>

Preston, John, 'Competition Policy Reform, Growth and Poverty Reduction' (Paper
presented at the Asia Regional Consultative Conference on the Business
Environment, Bangkok, 2006)
<http://www.businessenvironment.org/dyn/be/docs/119/Session1.3Paper1.3.2Presto
n.pdf>>

Qaqaya, Hassan, 'The Experience in Electricity and Natural Gas Market Reforms '
(Paper presented at the The 4th Annual Asian Competition Law Conference 2008,
HongKong, 2008) <http://www.asiancompetitionforum.org/asianfile.html>

Rachagan, Sothi, 'Competition Policy and Law in the Consumer and Development
Interest' (Paper presented at the TRADE AND DEVELOPMENT BOARD
Intergovernmental Group of Experts on Competition Law and Policy, 2003)
<http://www.cid.harvard.edu/cidtrade/Papers/sothi.pdf>

Rebstock, Paula, 'New Zealand Experience in Utility Regulation' (Paper presented at

the ACCC conference 2004, Sea World Nara Resort, Gold Coast, 2004)
<http://www.accc.gov.au/content/item.phtml?itemId=506371&nodeId=a43efe73d2b
95a13c6ab9940c38997c7&fn=Session%203:New%20Zealand%20Experience%20-
%20Paula%20Rebstock%20paper.pdf >

Rious, Vincent et al, 'The role of transmission investment in the coordination

between generation and transmission in the liberalized power systems' (Paper
presented at the 32nd IAEE International Conference, San Francisco, 2009)
<http://hal-supelec.archives-ouvertes.fr/docs/00/42/30/36/PDF/4-
_Rious_Glachant_Perez_Dessante_IAEE_coord_P_T_PJM_NGC.pdf>

Ronayne, Mark, 'Canadian Competition Law Roles, Responsibilities and Relations

in Emerging Electricity Markets' (Paper presented at the Canadian Bar Association
Annual Fall Conference on Competition Law, Ottawa, 2001)
<http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01168.html>
 361

Ross, Cathryn, 'The UK competition regime: an example of inter-institutional

working' (Paper presented at 2004)
<www.krrit.gov.pl/bip/Portals/0/konferencje/dm_sem_040202Ross.ppt>

Ruangrong, Pallapa, 'Developments in Thailand’s Electricity Sector Singapore

Electricity Roundtable' (Paper presented at the Singapore Electricity Roundtable,
Singapore, 2010)
<http://www.emcsg.com/f884,53880/Developments_in_Thailand_s_electricity_sect
or.pdf

Ryder, Gráinne, 'Thailand's flawed electricity privatization' (Paper presented at the

JACSES International Seminar "Road to Sustainable Energy Path in Japan and Asia
– Challenges and Opportunities for the Future, Japan Center for a Sustainable
Environment and Society, Tokyo, Japan, 1999)
<http://www.probeinternational.org/index.php?q=probe-
international/sources/thailands-flawed-electricity-privatization>

Saba, Paolo, 'Privatizing Network Industries: The Competition Policy Perspective'

(Paper presented at the The 12th Advisory Group on Privatisation: Session on
Competition, Regulation and Capital Markets Helsinki, 1998)
<http://www.oecd.org/document/61/0,3343,en_2649_34847_2057789_1_1_1_1,00.
html>

Sairung Tongplon and Saowalak Cheevasittiyanon, 'Capacity Building

Recommendations for Consumer Organizations in Competition Law
and Policy' (Paper presented at the The Conference on the Building Constituency for
Competition Policy and Competition Law organized by Thailand Development
Research Institute Funded by the World Bank., 2002)

Samuel, Graeme, 'Competition Policy and Economic Reform: The Way Forward'
(Paper presented at the Economic and Social Outlook Conference, Melbourne, 2002)
<http://www.ncc.gov.au/articles/files/cisp02-001.pdf>

Santawanpas, Santichai, 'Competition Law & Enforcement Agency Experiences

from Thailand' (Paper presented at the Training Workshop on Setting up an
Effective Competition Agency
JFTC Japan, 2008)

Secretariat, OECD, 'Institutional Challenges in Promoting Competition' (Paper

presented at the Second Annual Meeting of the Latin American Competition
Forum, 2004) <http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=408639>

secretariat, UNCTAD, 'Objectives of competition law and policy: Towards a

coherent strategy for promoting competition and development' (Paper presented at
the UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT,
<http://www.ifc.org/ifcext/fias.nsf/AttachmentsByTitle/Conferences_CompetitionPo
licyTanz_Hassan+Qaqaya.prn.pdf/$FILE/Conferences_CompetitionPolicyTanz_Has
san+Qaqaya.prn.pdf>
 362

Sengupta, Rijit and Cornelius Dube, 'Competition Policy Enforcement Experience

From Developing Countries and Implication for Investment ' (Paper presented at the
OECD GLOBAL FORUM ON INTERNATIONAL INVESTMENT VII: Best
Practices in Promoting Investment for Development, Paris, France, 2008)
<http://www.oecd.org/dataoecd/42/55/40303419.pdf>

Soares, Isabel and Paula Sarmento, 'Telecommunications, electricity and natural gas
sector unbundling: How far should it go? ' (Paper presented at the COMPETITION
AND REGULATION IN NETWORK INDUSTRIES CENTRE FOR EUROPEAN
POLICY STUDIES, BRUSSELS, BELGIUM 2009)
<http://www.jcrni.org/ocs/index.php/crni/2009/paper/viewFile/35/5>

Takasila, Suriyasai and Rajitkanok Chitmanchaitham, 'Monopolies and Politics'

(Paper presented at the Paper presented at the Conference on Building Constituency
for Competition Policy and Competition Law, Bangkok, 2002)

Thanitcul, Sakda, 'Interrelation between Competition Policy and

Development/Industrial Policy:Four Big Challenges for Thailand' (Paper presented
at the The 3rd East Asia Conference on Competition Law and Policy, Bangkok
Thailand, 2006) <http://www.jftc.go.jp/eacpf/06_03.html>

Thanitkul, Sakda, 'SMEs and Competition Law: A Case Study on Suppliers of

Goods to Large Retail Stores' (Paper presented at the International Expert Seminar
on “Mapping Policy Experience for SMEs”, organized by Thai APEC Study Center,
Sheraton Grande Laguna Hotel Thailand, 2005)

Thomas, Steve, 'Electricity Liberalization Experiences in the World' (Paper

presented at the 2007 Taiwan Power Labor Union International Symposium -
Electricity Liberalization International Experiences, Taiwan, 2007)
<http://www.psiru.org/publicationsindex.asp>

Treviño, Luis, 'Vertical integration as response to market changes ' (Paper presented
at the COMPETITION AND REGULATION IN NETWORK INDUSTRIES
CENTRE FOR EUROPEAN POLICY STUDIES, BRUSSELS, BELGIUM 2009)
<http://www.jcrni.org/ocs/index.php/crni/2009/paper/viewFile/40/10>

Tye, William B., 'Competitive Neutrality: Regulating Interconnection Disputes in

The Transition To Competition' (Paper presented at the Regulation and Competition
Conference, 2002)
<http://www.accc.gov.au/content/item.phtml?itemId=259730&nodeId=5b7da16438
24ee286b2f045739e11f89&fn=Session+2+-+Dr+Bill+Tye.pdf>

UN, 'Capacity-building on competition law and policy for development:consolidate

report' (Paper presented at the UN confererence on trade and development, 2008)
<http://www.unctad.org/en/docs/ditcclp20077_en.pdf>
 363

UNCTAD, 'Application Of Competition Law: Exemptions and Exceptions ' (Paper

presented at the UNITED NATIONS CONFERENCE ON TRADE AND
DEVELOPMENT, 2002) <http://www.unctad.org/en/docs/ditcclpmisc25_en.pdf>

UNCTAD, 'Model Law on Competition (2010) – Chapter VII' (Paper presented at

the Sixth United Nations Conference to Review All Aspects of the Set of
Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive
Business Practices, 2010) <http://www.unctad.org/en/docs/tdrbpconf7L7_en.pdf>

UNCTAD, 'Public Monopolies, Concessions and Competition Law and Policies '
(Paper presented at the Intergovernmental Group of Experts on Competition Law
and Policy Geneva, 2009) <http://www.unctad.org/en/docs/ciclp2009partI_en.pdf>

Valderrama, Armando Cáceres, 'Regulatory Reform in the Electricity Sector: The

Experience of the APEC Economies' (Paper presented at the Third Workshop and
High level Conference of the APEC-OECD Co-operative Initiative on Regulatory
Reform, Korea, 2002) <http://www.oecd.org/dataoecd/48/12/2485300.pdf>

Weed, Helen, 'Concurrency between OFT and Regulators' (Paper presented at the
the LBS Regulation Initiative Conference on The Role of UK Competition Agencies
in the Regulation and Deregulation of Utility Service Industries, London, 2003)
<privatewww.essex.ac.uk/~hfweeds/Concurrency_final.pdf>

Willett, Ed, 'The AER and its ‘fit’ with the ACCC model' (Paper presented at the
Trade Practices Law Council Workshop, Canberra, 2006)
<http://www.accc.gov.au/content/index.phtml/itemId/754819>

Willett, Ed, 'The benefits of a single Australian Energy Regulator' (Paper presented
at the National Power Conference, Melbourne, 2004)
<http://www.accc.gov.au/content/item.phtml?itemId=572896&nodeId=a8d0aa647a6
bf9e4a4bd0ff2aa7d26e4&fn=20040816+National+Power.pdf>

Willett, Ed, 'Competition Reform – transforming the industry' (Paper presented at

the Utilicon 2001, Melbourne, 2001) <http://www.ncc.gov.au/articles/files/CISp01-
002.pdf>

Willett, Ed, 'Respective roles of the AER and ACCC' (Paper presented at the 2005
Energy Investment Forum, Sydney, 2005)
<http://www.accc.gov.au/content/item.phtml?itemId=676784&nodeId=e433d43ca5
b083f5cd398c1de6e8c84c&fn=20050407%20Energy%20Investment%20Forum.pdf
>

Willett, Ed, 'Stocktaking recent competition policy developments in SE' (Paper

presented at the Asia Public Conference: Australia’s competition law in practice,
Philippines, 2010)
<http://www.accc.gov.au/content/item.phtml?itemId=911030&nodeId=f70fc98b949
7387aaa8cea1f6d1470b2&fn=Australia%27s%20competition%20law%20in%20pra
ctice>
 364

Wilson, Joseph, 'Competition Policy And Poverty Alleviation: The Case of Pakistan'
(Paper presented at the United Nations Conference on Trade and Development: The
effects of anti-competitive business practices on developing countries and their
development prospects, 2008)
<http://www.unctad.org/en/docs/ditcclp20082_en.pdf>

Wisuttisak, Pornchai, 'The ASEAN competition policy guidelines and its

compatibility with ASEAN member countries competition law' (Paper presented at
the 3rd Biennial Conference of Asian Society of International Law (AsianSIL),
Beijing, 2011)

Wisuttisak, Pornchai, 'Competition law and sectoral regulation on Thai energy

sector: A review and the forward development plan' (Paper presented at the
Reviewing the Global Experience with Economic Regulation: A Forward Looking
Perspective, New Delhi, 2011 ( forth comming))

Wisuttisak, Pornchai, 'Competition law and sectoral regulation on Thai energy

sector: A review and the forward development plan' (Paper presented at the
Reviewing of the Global Experience with Economic Regulation, New Delhi, 2011)

Wisuttisak, Pornchai, 'The competition law and sectoral regulation on Thai energy
sector: A review and the forward development plan' (Paper presented at the
Reviewing the Global Experience with Economic Regulation A Forward Looking
Perspective, New Delhi, India, 2011) <http://www.cuts-
ccier.org/pdf/Call_for_Papers-
CONF_Reviewing_Global_Experience_Economic_Regulation.pdf>

Wisuttisak, Pornchai, 'Ineffective Competition law: A Case from Thailand' (Paper

presented at the Asian Competition Forum Annual Conference: Establishing Sound
Competition Cultures in Asia, Hong Kong, 2011)

Wisuttisak, Pornchai, 'The Regulatory Framework of Thai Electricity Sector' (Paper

presented at the 3rd Annual Competition and Regulation in Network Industries
Conference, Brussels, Belgium, 2010)

Wisuttisak, Pornchai, 'Regulatory Framework of Thai Electricity' (Paper presented at

the Third Annual Conference on Competition and Regulation in Network Industries,
Brussels, Belgium, 2010) <http://www.jcrni.org/extranet/public/cpr132.pdf>

Wisuttisak, Pornchai, 'The Regulatory Framework of the Thai Electricity Sector'

(Paper presented at the 3rd Annual CRNI Conference, Brussels, Belgium, 2010)
<http://crni.epfl.ch/crni2010_program.pdf>

Wisuttisak, Pornchai, 'The rise of PPPs and big government in ASEAN utility
infrastructure market: the consideration on the ASEAN market governance under
competition law and policy' (Paper presented at the New Approaches to Building
Markets in Asia, Lee Kuan Yew School of Public Policy, Singapore, 2011)
 365

Yodmeungchareon, Siripol, 'The Urgency of Thai Competition law' (Paper presented

at the ASEAN Conference on Fair Competition Law and Policy, Indonesia, 2003)
<http://www.jftc.go.jp/eacpf/04/thailand_p.pdf>

Yodmuangchareon, Siripol, 'Toward Effective Implementation of Competition

Policies in East Asia : Thai’s Perspective' (Paper presented at the 2nd East Asia
Conference on Competition Law and Policy, Bogor, Indonesia, 2005)
<http://www.jftc.go.jp/eacpf/06/6_02_13_01.pdf>

Reports

ACCC, 'Australia: Developments in Competition Policy' (2008)

ACCC, 'Merger Guideline' (ACCC 2008)

<http://www.accc.gov.au/content/item.phtml?itemId=809866&nodeId=7cfe08f3df2f
e6090df7b6239c47d063&fn=Merger%20guidelines%202008.pdf >

ACCC and AER, 'ACCC–AER information policy: the collection, use and
disclosure of information' (ACCC-AER, 2008)
<http://www.accc.gov.au/content/index.phtml?itemId=846791>

ADB, 'Promoting PPP in Bangkok Mass Rapid Transit and Other Infrastructure'
(ADB- TA 4676 THA, 2007)
<http://www.adb.org/Documents/Reports/Consultant/39095-THA/39095-THA-
TACR-02.pdf>

ADB, 'Promoting PPP in Bangkok Mass Rapid Transit and Other Infrastructure'
(ADB- TA 4676 THA, 2007)
<http://www.adb.org/Documents/Reports/Consultant/39095-THA/39095-THA-
TACR-02.pdf>

Adkinson, William F., Karen L. Grimm and Christopher N. Bryan, 'Enforcement of

Section 2 of Sherman Act: Theory and Practice' (FTC- Working paper: November 3,
2008, 2008) <http://www.ftc.gov/os/sectiontwohearings/docs/section2overview.pdf>

AEMC, 'Review of the Effectiveness of Competition in Electricity and Gas Retail

Markets in South Australia' (Second Final Report, AMEC, 2008)
<http://www.aemc.gov.au/Media/docs/Second%20Final%20Report-a427d665-c559-
459b-9775-b091afa3c6bb-0.PDF>

Analysis, Office of Economic Electricity and Natural Gas, 'Horizontal Market Power
in Restructured Electricity Markets' (U.S. Department of Energy, 20585, 2000)
<http://www.pi.energy.gov/documents/HMPReport.pdf>
 366

Analysis, US Energy Information Administration Independent Statistic and, 'Mexico

Electricity' (US Energy Informaion Administration Independent Statistic and
Analysis, 2010) <http://www.eia.doe.gov/cabs/Mexico/Electricity.html>

Analysis, US Energy Information Administration Independent Statistic and, 'Mexico

Electricity: Country Analysis' (US Energy Information Administration Independent
Statistic and Analysis, 2010) <http://www.eia.doe.gov/emeu/cabs/Mexico/pdf.pdf>

Anand, Ananchal, 'Competition regimes in the world-A Civil Society Report:

Thailand ' (CUTS, 2006)
<http://competitionregimes.com/pdf/Book/Asia_Pacific/33-Thailand.pdf>

APEC, 'KPPU Organisational Structure' (APEC, 2006)

<http://www.apeccp.org.tw/doc/Indonesia/Organization/inaorg01.htm>

APEC, 'Thailand: Development in Competition policy' (APEC, 2008)

<www.apec.org/apec/member_economies/economy_reports.MedialibDownload.v1.
html?url=/etc/medialib/apec_media_library/downloads/committees/ec/pubs/2008.Pa
r.0019.File.v1.1>

APERC, 'APEC Energy Demand and Supply Outlook 2006 Volume II: Eonomy
Review and Outlook Results by Economy' (Asia Pacific Energy Research Centre,
2006) <http://www.ieej.or.jp/aperc/outlook2006.html>

APERC, 'APEC Energy Overview 2009 ' (Asia Pacific Energy Research Centre,
2010) <http://www.ieej.or.jp/aperc/2009pdf/Overview2009.pdf>

APERC, 'Electricity Sectoral Regulation in the APEC Region' (Asia Pacific Energy
Research Centre, 2000) <http://www.ieej.or.jp/aperc/final/deregulation.pdf>

APERC, 'Natural Gas Market Reform in the APEC Region' (Asia Pacific Energy
Research Centre, 2003) <http://www.ieej.or.jp/aperc/pdf/project2002/gas-
market.pdf>

Australian Energy Regulator (AER), 'Guideline for the resolution of distribution and
transmission pipeline access disputes under the National Gas Law and National Gas
Rules' (Australian Energy Regulator (AER), 2008)
<http://www.aer.gov.au/content/item.phtml?itemId=723535&nodeId=037f39c7e3f6
3a52bd45057ec41aa817&fn=Access dispute guideline.pdf>

Australian Productivity Commission, 'Regulatory Impact Analysis: Benchmarking'

(Australian Productivity Commission, 2012)
<http://www.pc.gov.au/projects/study/ria-benchmarking/issues>

Australian Energy Regulator (AER), 'Regulatory investment test for transmission'

(Australian Energy Regulator- Issues Paper, 2009)
<http://www.aer.gov.au/content/item.phtml?itemId=730923&nodeId=acbf696534fd
 367

ab70aa8133a570480b73&fn=RIT-
T%20issues%20paper%20%2828%20September%202009%29.pdf>

Baker, Donald I., 'Network Effects and Essential Facilitites' (The University of
Oxford Centre for Competition Law and Policy, 2006)
<http://denning.law.ox.ac.uk/competition/portal.php>

Bakovic, Tonci, Bernard Tenenbaum and Fiona Wolf, 'Regulation by contract: a

new way to privatize electricity distribution' (World Bank Working Paper No. 14,
2003)
<http://www.regulationbodyofknowledge.org/externalDocument/bakovicRegulation/
>

Bansang, Jitima, 'The deep study on Electricty forcast policy - Thai Title "Jor
Nayoby Judha Faifa Songcram ChuanChea"- เจาะนโยบายจัดหาไฟฟ้ าชาติ สงครามชวนเชืRอ?' (Thai
Universities For Healthy Public Policy (THHP), 2011)
<http://www.tuhpp.net/files/189.pdf>

Bergman, Mats A., 'Competition in services or infrastructure-based competition?'

(Swedish Competition Authority, 2004)
<http://webappl.sh.se/C1256D28002FEC76/0/6F18B2C664F3AA5CC12574D5004
8AE1C/$file/Service%20competition%20or%20infrastructural-
based%20competition%20080102%20revised%20version.doc

www.ictregulationtoolkit.org/en/Document.2003.pdf

>

Besant-Jones, John and Bernard Tenenbaum, 'The California Power Crisis: Lessons
for Developing Countries' (World Bank Energy & Mining Sector Board Discussion
Paper No.1 2001) <http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2004/03/25/0000
90341_20040325143555/Rendered/PDF/280840California0Power0crisis0EMS0no.
01.pdf>

Bickenbach, Frank, Lars Kumkar and Rüdiger Soltwedel, 'The New Institutional
Economics of Antitrust and Regulation' (Kiel Working Paper No. 961, 1999)
<http://ssrn.com/paper=315742>

Bickenbach, Frank, Lars Kumkar and Rüdiger Soltwedel, 'The New Institutional
Economics of Antitrust and Regulation' (Kiel Working Paper No. 961, 1999)
<http://ssrn.com/paper=315742>

Bjork, Isabel et al, 'Encouraging Renewable Energy Development :A Handbook for

International Energy Regulators' (USAID and NARUC, 2012)
<http://www.iern.net/portal/page/portal/IERN_HOME/TRAINING_CONF_RESEA
RCH/Regulatory_Research_Exchange/2011/NARUC - RES Handbook - FINAL
FULL VERSION 03 04 11.pdf>
 368

Bolle, Friedel and Yves Breitmoser, 'On the Allocative Efficiency of Ownership
Unbundling' (Europa-Universität Viadrina Frankfurt (Oder)-Discussion paper
No.255, 2006)
<http://econstor.eu/bitstream/10419/23824/1/255_Bolle_Breitmoser.pdf>

Borenstein, Severin, James Bushnell and Christopher R. Knittel1, 'Market Power in

Electricity Markets: Beyond Concentration Measures' (Working papers series of the
Program on Workable Energy Regulation (POWER), Univeristy of California,
Berkeley, 1999) <http://www.ucei.berkeley.edu/PDF/pwp059r.pdf>

Bouille, Daniel, Hilda Dubrovsky and Crescencia Maurer, 'Reform of the Electric
Power Sector In Developing Countries: Case Study of Argentina' (Institute of
Energy Economics Bariloche Foundation and World Resources Institute, 2001)
<http://pdf.wri.org/power_politics/argentina.pdf>

Braun, Frauke G et al, 'Holding a Candle to Innovation in Concentrating Solar

Power Technologies:A Study Drawing on Patent Data' (CCP Working Paper 10-16,
2010) <http://www.uea.ac.uk/ccp/Working_paper_10-16>

Brennan, Timothy J., Karen Palmer and Salvador Martinez, 'Implementing

Electricity Restructuring: Policies, Potholes, and Prospects' (Resources for the
Future, Discussion Paper 01–62, 2001) <http://www.rff.org/documents/RFF-DP-01-
62.pdf>

Bruce, Robert R. et al, 'Dispute resolution in Telecommunication Sector: Current

Practices and Future Directions' (International Tlecommunication Union, 2004)
<http://www.itu.int/ITU-D/treg/publications/ITU_WB_Dispute_Res-E.pdf>

Bundeskartellamt, 'Bundeskartellamt prohibits E.ON/Gelsenberg (Ruhrgas) merger'

(Bundeskartellamt 2002)
<http://www.bundeskartellamt.de/wEnglisch/News/Archiv/ArchivNews2002/2002_
01_21.php>

Bundeskartellamt, 'Respond to International Competition Network Unilateral

Conduct Working Group Questionnaire' (ICN, 2009)
<http://www.internationalcompetitionnetwork.org/uploads/questionnaires/uc
refusals/germany.pdf>

Bunkanwanicha, Pramuan and Yupana Wiwattanakantang, 'Big Business Owners

and Politics: Investigating the Economic Incentives for Holding Public Office'
(Center for Economic Institutions Working Paper Series, No. 2006-10, 2006)

Bushnell, James, & Wolak, Frank A 'Regulation and the Leverage of Local Market
Power in the California Electricity Market' (UC Berkeley: Competition Policy
Center, 2000) <http://escholarship.org/uc/item/3tq002qk>
 369

Bushnell., James B and Celeste Saravia, 'An Empirical Assessment of the

Competitiveness of the New England Electricity Market. ' (University ofCalifornia
Energy Institute, Berkeley, California. Working Paper No. 101., 2002)

Cahill, Damien and Sharon Beder, 'Regulating the power shift: the state, capital and
electricity privatisation in Australia' (Faculty of Arts, University of Woolongong,
2005) <http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1039&context=artspapers>

Capobianco, Antonio, 'Competition Law and Foreign-Government Controlled

Investors' (Investment Division, Directorate for Financial and Enterprise Affairs
OECD, 2009) <http://www.oecd.org/dataoecd/30/42/41976200.pdf>

Carlton, Dennis W. and Randal C. Picker, 'Antitrust and Regulation' (US National
Bureau Of Economic Research, Working Paper 12902, 2007)
<http://www.nber.org/papers/w12902.pdf>

Carreón-Rodriguez, Victor G., Armando Jiménez San Vicente and Juan Rosellón,
'The Mexican Electricity Sector: Economic, Legal and Political Issues' (Freeman
Spogli Institue for Intenational Studies at Standford University - Working Paper # 5,
2003) <http://iis-db.stanford.edu/pubs/20311/WP5,_10_May_2004.pdf>

Chilean Competition Commission, 'Issues Relates to Competition Law' (APEC

Competition Policy & Law Database, 2009)
<http://www.apeccp.org.tw/doc/Chile/Admin/admin02.html >

Choynowski, Peter, 'Restructuring and Regulatory Reform in the Power Sector:

Review of Experience and Issues' (ADB- ERD Working Paper No. 52, 2004)
<http://www.adb.org/Documents/ERD/Working_Papers/wp052.pdf>

Commerce, Energy Policy Group New Zealand Ministry of, 'Light-Handed

Regulation of New Zealand's Electricity and Gas Industries' (Energy Policy Group,
Ministry of Commerce, 2006)
<http://www.med.govt.nz/templates/MultipageDocumentTOC____20245.aspx>

Competition Commission and Competition Tribunal of South Africa, 'Respond to

International Competition Network Unilateral Conduct Working Group
Questionnaire' (ICN, 2009)
<http://www.internationalcompetitionnetwork.org/uploads/questionnaires/uc
refusals/southafrica.pdf>

Civil Aviation Authority (CAA), 'DTI/HMT Report on Concurrent competition

power in sectoral regulation' (2006)
<http://www.caa.co.uk/docs/5/ergdocs/cwpresponse.pdf>

Danish Competition Authority, 'Eslam : The Council Meeting 20 June 2007' (Danish
Competition Authority 4/0120-0204-0038/ISA/MOL 2007)
<http://www.konkurrencestyrelsen.dk/en/competition/decisions/decisions-2008-and-
 370

earlier/national-decisions-2007/konkurrenceraadets-moede-den-20-juni-2007/elsam/
>

Decker, Chris, ' Ex ante vs. ex post approaches to the regulation of market power'
(Regulatory Policy institute, 2000) <http://www.rpieurope.org/index.htm>

Demirgüç-Kunt, Asli and Harry Huizinga, 'Do We Need Big Banks? Evidence on
Performance, Strategy and Market Discipline' (World Bank, Policy Research
Working Paper 5576, 2011) <http://www-
wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/2011/02/28/0001
58349_20110228093403/Rendered/PDF/WPS5576.pdf>

Development, Department for International, 'Competition Policy, Law and

Developing Countries' (Department for International Development, 2001)
<http://webarchive.nationalarchives.gov.uk/+/http://www.dfid.gov.uk/pubs/files/itdc
ompetitionbrief.pdf>

Development, New Zealand Ministry of Economic and, 'Government Policy

Statement on Electricity Governance ' (2009)
<http://www.med.govt.nz/templates/MultipageDocumentTOC____40723.aspx>

DG Competition, 'DG Competition discussion paper on the application of Article 82

of the Treaty to exclusionary abuses' (EUROPEAN COMMISSION, 2005)
<http://ec.europa.eu/competition/antitrust/art82/discpaper2005.pdf>

DG competition commission, 'Report on Energy sector inquiry ' (EU commission ,

SEC(2006) 1724,
<http://ec.europa.eu/competition/sectors/energy/inquiry/full_report_part1.pdf>

Dixit, Prayas Shantanu, Pune Navroz Dubash and Smita Nakhooda, 'Electricity
Governance in Thailand Benchmarking Best Practice and Promoting Accountability
in the Electricity Sector' (Confederation of Consumer Organizations, Health Systems
Research Institute, King Prajadhipok’s Institute, Thailand Environment Institute,
Palang Thai,, 2006) <http://www.palangthai.org/docs/electricitygovernance.pdf>

Dixit, Shantanu et al, 'The Electricity Governance Toolkit: Benchmarking Best

Practice and Promoting Accountability in the Electricity Sector ' (World Resources
Institute 2007) <http://electricitygovernance.wri.org/publications/electricity-
governance-toolkit>

Dobson, Paul W and Michael Waterson, 'Vertical Restraints and Competition Policy'
(UK Office of Fair Trading, Research Paper 12, 1996)
<http://www.cdoyle.com/teaching/Lecture%205/oft177.pdf >

Dube, Cornelius, 'Competition Authorities and Sectoral Regulators: What is the Best
Operational Framework?' (2008) <http://www.cuts-
international.org/pdf/Viewpointpaper-CompAuthoritiesSecRegulators.pdf>
 371

Eberhard, Anton, 'Infrastructure Regulation in Developing Countries An Exploration

of Hybridand Transitional Models' (Working Paper No. 4, Public Private
Infrastructure Advisory Facility, 2007)
<http://www.ppiaf.org/documents/working_papers/AFURhybridmodels4.pdf >

Economics, London, 'Thailand Regulatory Framework for the Energy Sector'

(National Energy Policy Office, 1998) <http://www.eppo.go.th/doc/idp-06-PP-
RegStudySum.html>

EGAT, 'Annual report 2008' (Electricity generation Authority of Thailand, 2009)

<http://www.egat.co.th/en/>

EGCO, 'Corporate Presentation Quarterly Financial Results Ended 31 March 2009'

(EGCO, 2009)
<http://www.egco.co.th/_admin/uploadfiles/ir_presentations/pre_thumb_en_40.pdf>

Energía, Comisión Reguladora de, 'Mexico Electricity and Hydrocarbons Regulator'

(2010) <http://www.cre.gob.mx/documento/ingles.pdf>

EPPO, 'Annual report BE 2551( 2008)' (EPPO, Thailand, 2008)

<http://www.eppo.go.th/doc/annual-2551.pdf>

EPPO, 'Electricity demand forecast and power development plan in Thailand( In

Thai language)' (EPPO, 2007) <http://www.eppo.go.th/power/poo2/egat-pdp2-
ppt.pdf>

EPPO, 'Energy Policy and Planning Office' (Energy Policy and Planning Office,
Ministry of Energy, 2006) <http://www.eppo.go.th/admin/index.html,
http://www.eppo.go.th/admin/book2006/eng.pdf>

EPPO, 'Power Development Plan 2007-Strategic Seminar on Thai Power

Development Plan ( in Thai language)' (2007)
<http://www.eppo.go.th/power/pdp2007/index.html>

ERIG, 'Energy Reform The way forward for Australia' (Energy Reform
Implementation Group, Australia Department of Industry, Tourism & Resources,
2007)
<http://www.ret.gov.au/energy/Documents/erig/ERIG_main_report2007041318123
1.pdf>

ESMAP, 'Thailand : Why Liberalization May Stall in a Mature Power Market: A

Review of the Technical and Political Economy Factors that Constrained the
Electricity Sector Reform in Thailand 1998-2002' (Joint UNDP/World Bank Energy
Sector Management Assistance Programme (ESMAP), 2003)
<http://www.esmap.org/filez/pubs/ThailandLiberalizationPowerMarket.pdf>

Estache, Antonio and Martin Rodriguez-Pardina, 'Light and Lightning at the End of
the Public Tunnel: Reform of the Electricity Sector in the Southern Cone' (The
 372

Economic Development Institute of the World Bank - EDI Regulatory Reform

Discussion Paper., 1998)
<http://info.worldbank.org/etools/docs/library/64577/2074light.pdf>

EU Union, 'The Court of First Instance upholds the fine imposed on Deutsche
Telekom for its local network access charges between 1998 and 2002 ' (EU Union,
2008)
<http://europa.eu/rapid/pressReleasesAction.do?reference=CJE/08/26&format=HT
ML&aged=1&language=EN&guiLanguage=en>

EU commission, 'Mergers: Commission rejects Endesa’s complaint; declares

proposed Gas Natural takeover of Endesa falls outside Commission’s competence'
(European Commission, IP/05/1425 2005)

European Commission, 'Margin Squeeze' (OECD- Working Party No. 2 on

Competition and Regulation Documents No.DAF/COMP/WP2/WD(2009)32, 2009)
<http://ec.europa.eu/competition/international/multilateral/marginsqueeze.pdf>

EU commission, 'Antitrust: Commission opens German gas market to competition

by accepting commitments from RWE to divest transmission network' (EU 2008)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/410&format=HTM
L&aged=0&language=EN&guiLanguage=en>

EU Competition commission, 'Antitrust Overview' (EU competition commission,

<http://ec.europa.eu/competition/antitrust/overview_en.html >

EU commission Competition - DG, 'Report on Energy Sector Inquiry' (2007)

<http://ec.europa.eu/competition/sectors/energy/inquiry/full_report_part1.pdf>

Evenett, Simon J., 'Links Between Development and Competition in Developing

Countries' (United Kingdom’s Department for International Development, 2003)
<www.alexandria.unisg.ch/EXPORT/DL/22249.pdf>

Figueiredo, M.A. de et al, 'Regulating Carbon Dioxide Capture and Storage' (Center
of The Department of Economics, Laboratory for Energy and the Environment, and
Sloan School of Management, 2007)

FTC, 'Round Table on The Application of Antitrust Law To State-owned Enterprises

Discussion on Corporate Governance and The Principle of Competitive Neutrality
For State-Owned Enterprises contribution from United States' (OECD Document
No. DAF/COMP/WP3/WD(2009)40, 2009)
<http://www.ftc.gov/bc/international/docs/antitrustlawroundtable.pdf>

Geradin, Damien, 'Competition Law and Regional Economic Integration An

Analysis of the Southern Mediterranean Countries' (Worldbank Working Paper
No.35, 2004) <http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2004/07/26/0000
90341_20040726103134/Rendered/PDF/297020PAPER0Competition0law.pdf>
 373

Ghoneim, Ahmed Farouk, 'COMPETITION LAW AND COMPETITION POLICY:

WHAT DOES EGYPT REALLY NEED?' (2002)
<http://econpapers.repec.org/paper/ergwpaper/0239.htm>

Gilardi, Fabrizio, Jacint Jordana and and David Levi-Faur, 'Regulation in The Age
of Globalisation: The Diffusion of Regulatory Agencies across Europe and Latin
America' (IBEI Working Papers No. 2006/1, 2006)
<http://www.recercat.net/bitstream/2072/4271/1/WP_IBEI_1.pdf>

Government, Singapore, 'The Relationship Between Competition Authorities and

Sectoral Regulators: Contribution from Singapore: Contribution from Singapore'
(OECD, Document No. DAF/COMP/GF/WD(2005)24, 2005)
<http://www.oecd.org/dataoecd/50/36/34286487.pdf>

Government, US, 'Working Party No. 2 on Competition and Regulation: Margin

Squeeze' (OECD, Discussion under item III of the agenda at its forthcoming meeting
on 19 October 2009, DAF/COMP/WP2/WD(2009)31,
<http://www.ftc.gov/bc/international/docs/marginsqueezeus.pdf>

Group, Energy Reform Implementation, 'Energy Reform The way forward for
Australia A report to the Council of Australian Governments' (Department of
Industry, Tourism & Resources, Energy Reform Implementation Group, 2007)
<http://www.ret.gov.au/energy/Documents/erig/ERIG_exec_summary20070413112
814.pdf>

Guasch, J. Luis and Pablo Spiller, 'Managing the regulatory process : design,
concepts, issues, and the Latin America and Caribbean story' (World bank
Document No. 19633, 1999) <http://www-
wds.worldbank.org/external/default/main?pagePK=64193027&piPK=64187937&th
eSitePK=523679&menuPK=64187510&searchMenuPK=64187283&siteName=WD
S&entityID=000094946_99092312334341>

Guasch, Luis, 'Granting and Renegotiating Infrastructure Concessions Doing it

Right' (WBI Development Studies, World Bank, 2004)
<http://info.worldbank.org/etools/docs/library/240056/Granting%20and%20renegoti
ating%20infrastructure%20concessions%20%20doing%20it%20right.pdf>

Hall, David, Stephen Thomas and Violeta Corral, 'Global experience with electricity
liberalisation' (Public Services International Research Unit (PSIRU) 2009)

Heatley, David and Bronwyn Howell, 'Structural Separation and Prospects for
Welfare-Enhancing Price Discrimination in a New 'Natural Monopoly' Network:
comparing fibre broadband proposals in Australia and New Zealand' (New Zealand
Institute for the Study of Competition and Regulation (ISCR), 2010)
<http://www.iscr.org.nz/f580,16593/16593_Efficiency-
raising_price_discrimination_with_postscript_.pdf>
 374

Hellwig, Martin F., 'Competition Policy and Sector-Specific Regulation for Network
Industries' (MPI Collective Goods Preprint, No. 2008/29 , Maxplanck Institute For
research on Collective Goods 2008) <http://ssrn.com/paper=1275285>

ICN, 'Competition Advocacy in Regulated Sectors: Examples of Success' (ICN,

Report from International Competition Network 2004 Annual Conference, 2004)
<http://www.reseauinternationaldelaconcurrence.org/media/library/conference_3rd_
seoul_2004/capacitybuild_sg4_seoul.pdf >

Institute, American Antitrust, 'US Federal Energy Regulatory Commission

Comments of The American Antitrust Institute Regarding Filing Requirements For
Public Utility Mergers' (American Antitrust Institute, DOCKET NO. RM98-4-000
1998) <http://www.antitrustinstitute.org/Archives/3.ashx>

International Energy Agency, 'Regulatory Institutions in Liberalised Electricity

Markets' (OECD/IEA, 2001)

Itoda, Shogo, 'Yesterday, Today and Tomorrow : Competition Policy of Japan'

(Japan Fair Trade Commission 2007) <http://www.jftc.go.jp/e-
page/policyupdates/speeches/00-0222.html>

Jacobs, Scott, 'Governance of Asian Utilities: New Regulators Struggle in Difficult

Environments' (ADB, 2004)
<http://www.regulatoryreform.com/pdfs/governancebrief.pdf >

Jamasb, Tooraj, 'Reform and Regulation of the Electricity Sectors in Developing

Countries' (CMI Working Paper Series, University of Cambridge, 2007)
<http://www.econ.cam.ac.uk/electricity/publications/wp/ep08.pdf>

Jamasb, Tooraj et al, 'Electricity Sector Reform in Developing Countries:A Survey

of Empirical Evidence on Determinants and Performance' (World Bank, World
Bank Policy Research Working Paper 3549, March 2005, 2005) <http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2005/03/30/0000
12009_20050330110431/Rendered/PDF/wps3549.pdf>

Jamasb, Tooraj and Michael Pollitt, 'Incentive Regulation of Electricity Distribution

Networks: Lessons of Experience from Britain' (Swiss State Secretariat for
Economic Development (SECO) and the UK Economic and Social Research
Council (ESRC), 2007)
<http://www.dspace.cam.ac.uk/bitstream/1810/194689/1/0709%26EPRG0701.pdf>

Janssen, Maarten, Paul Pichler and Simon Weidenholzer, 'Sequential Search with
Incompletely Informed Consumers: Theory and Evidence from Retail Gasoline
Markets' (Department of Economic, University of Vienna, Working Paper No: 0914
2009) <http://homepage.univie.ac.at/Papers.Econ/RePEc/vie/viennp/vie0914.pdf>
 375

Japan Fair Trade Commission, 'Respond to International Competition Network

Unilateral Conduct Working Group Questionnaire' (ICN, 2009)
<http://www.internationalcompetitionnetwork.org/uploads/questionnaires/uc
refusals/japan.pdf>

Japan, Fair Trade Commission of, 'Operations and Roles of Local Office' (JFTC
2005) <http://www.jftc.go.jp/eacpf/05/jicatext2/0902Ope.pdf>

Jarvis, Darryl S.L., 'Institutional change: a case study of the Thai electricity sector'
(Lee Kuan Yew School of Public Policy National University of Singapore, Program
on Risk and Regulation, 2010) <http://www.risk-and-regulation.com/wp-
content/uploads/2010/07/Case-study-of-the-Thai-electricity-sector.pdf
>

Jarvis, Darryl S.L., 'Risk, Regulation & Governance: Institutional Processes and
Political Risk in the Thai Energy Sector' (Lee Kuan Yew School of Public Policy
National University of Singapore, Working Paper No.: SPP09-15, 2009)
<http://www.spp.nus.edu.sg/docs/rr/RR1%20Institutional%20Processes%20and%20
Political%20Risk%20in%20the%20Thai%20Energy%20Sector.pdf>

Joskow, Paul, 'The Difficult Transition to Competitive Electricity Markets in the

U.S' (Cambridge Working Papers in Economics-CMI Working Paper 28, 2003)
<http://www.econ.cam.ac.uk/electricity/publications/wp/ep28.pdf>

Joskow, Paul, 'Transmission Policy in the United States' (Cambridge Working

Papers in Economics, Faculty of Economics, University of Cambridge, 2004)
<http://ideas.repec.org/p/cam/camdae/0454.html>

Joskow, Paul L., 'Electricity Sector Restructuring And Competition: Lessons

Learned' (Center for Energy and Environmental Policy Research,
<http://tisiphone.mit.edu/RePEc/mee/wpaper/2003-014.pdf>

Justice, U.S. Department of, 'Antitrust Enforcement and the Consumer' (U.S.
Department of Justice, 2008)
<http://www.justice.gov/atr/public/div_stats/211491.pdf >

Justice, U.S. Department of, 'Competition in The Airline Industry Testimony of Jel
I. Klein before the Committee on Commerce, Science and Transportation United
States Senate' (US Department of Justice, 1999)
<http://www.ftc.gov/speeches/other/confbd4.shtm>

Kerf, Michel, Isabel Neto and Damien Géradin, 'How Antitrust and Sector
Regulation Affect Telecom Competition' (World Bank, 2005)
<http://rru.worldbank.org/Documents/PublicPolicyJournal/296kerf.pdf>

Kessides, Ioannis . and Li Tang, 'Sunk Costs, Market Contestability, and the Size
Distribution of Firms' (World Bank Policy Research Working Paper No. 5540,
2011) <http://ssrn.com/paper=1747443>
 376

Kim, Junki and Kyuhyun Kim, 'The Electricity Industry Reform in Korea: Lessons
for Further Liberalization' (Regulatory Governance Standing Group,

Korea Fair Trade Commission, 'Respond to International Competition Network

Unilateral Conduct Working Group Questionnaire' (ICN, 2009)
<http://www.internationalcompetitionnetwork.org/uploads/questionnaires/uc
refusals/korea.pdf>

Kovacic, William E., 'The Federal Trade Commission at 100: Into Our 2nd Century
The Continuing Pursuit of Better Practices' (US Government Federal Trade
Commission, 2009) <http://www.ftc.gov/ftc/workshops/ftc100/docs/ftc100rpt.pdf>

Kühn, Kai-Uwe and Matilde P. Machado, 'Market Power and Vertical Integration in
the Spanish Electricity Market' (CEPR, 2004)
<http://www.ugr.es/~xxjei/JEI(44).pdf>

Lalor, R. Peter and Hernán García, 'Reshaping Power Markets-Lessons from Chile
and Argentina' (World Bank, , Note No. 85, 1996)
<http://rru.worldbank.org/documents/publicpolicyjournal/085garcia.pdf>

Law Council of Australia, 'Law Council of Australia - response to Energy Reform

Implementation Group Issues Paper dated July 2006' (Law Coucil of Australia,
2006)

Lee, Cassey, 'Model Competition Laws: The World Bank-OECD and UNCTAD
Approaches Compared' (Centre on Regulation and Competition (CRC) Working
papers - 96/2005, 2005) <http://ageconsearch.umn.edu/handle/30694>

Leung, Chi Seng and Peter Meisen, 'How electricity consumption affects social and
economic development by comparing low, medium and high human development
countries' (Global Energy Network Institute 2005)
<http://www.geni.org/globalenergy/issues/global/qualityoflife/HDI-vs-Electricity-
Consumption-2005-07-18.pdf>

Leung, Chi Seng and Peter Meisen, 'How electricity consumption affects social and
economic development by comparing low, medium and high human development
countries' (Global Energy Network Institute 2005)
<http://www.geni.org/globalenergy/issues/global/qualityoflife/HDI-vs-Electricity-
Consumption-2005-07-18.pdf>

Leung, Chi Seng and Peter Meisen, 'How electricity consumption affects social and
economic development by comparing low, medium and high human development
countries' (Global Energy Network Institute 2005)
<http://www.geni.org/globalenergy/issues/global/qualityoflife/HDI-vs-Electricity-
Consumption-2005-07-18.pdf>
 377

Littilechild, Stephen, 'Beyond Regulation' (Cambridge Working Paper ; Electricity

Policy Research Group 2006)
<http://www.electricitypolicy.org.uk/pubs/wp/eprg0516.pdf>

Littlechild, Stephen, 'Beyond Regulation' (CWPE 0616 and EPRG 0516, 2006)
<http://www.dspace.cam.ac.uk/bitstream/1810/131664/1/eprg0516.pdf>

Littlechild, Stephen C., 'Regulation of British Telecommunications' profitability

report to the Secretary of State' (1986)
<http://openlibrary.org/books/OL21842424M/Regulation_of_British_Telecommuni
cations%27_profitability>

Littlechild, Stephen C. and Carlos J. Skerk, 'Regulation of Transmission Expansion

in Argentina:Part I – State Ownership, Reform and the Fourth Line' (Cambridge
Working Papers in Economic CWPE 0464, 2004)
<http://www.econ.cam.ac.uk/electricity/publications/wp/ep61.pdf>

Lockyer, Bill, 'A Law Enforcement Perspective on The California Energy Crisis
Recommendations for Imporving Enforcement and Protecting Consumers in
Deregulated Energy Markets' (Attorney General's White Paper, State of California
Attorney General, 2004) <http://www.ag.ca.gov/publications/energywhitepaper.pdf>

Lockyer, Bill, 'White paper on A Law Enforcement Perspective on the California

Energy Crisis: Recommendations for Improving Enforcement and Protecting
Consumers in Deregulated Energy Markets' (Attorney General, California
Department of justice, 2004)
<http://ag.ca.gov/antitrust/publications/energywhitepaper.pdf#xml=http://search.doj.
ca.gov:8004/AGSearch/isysquery/6a01eb42-e00b-43f2-b4ef-
30427934e8ac/2/hilite/>

Lyon, Thomas P. and Nathan Wilson, 'Capture or Contract?: the Early Years of
Electrivcity Utility Regulation' (Working Paper-JEL Codes: K2, L5, L9, N4, N7,
2010)
<http://webuser.bus.umich.edu/tplyon/PDF/Working%20Papers/Lyon%20Wilson%
20Electric%20History%20for%20JLEO.pdf>

Malisuwan, Settapong et al, 'A Preliminary Research Model of Thai Mobile Market
Structure' (Rangsit University, Thailand - Internet and Information Technology in
Modern Organizations: Challenges & Answers 641, 2005)

Manganelli, Antonio, Antonio Nicita and Maria Alessandra Rossi, 'The Institutional
Design of European Competition Policy ' (Robert Schuman centre for Advanced
Studies EUI Working Paper RSCAS 2010/79, 2010)
<http://cadmus.eui.eu/bitstream/handle/1814/14676/RSCAS_2010_79.pdf>

Meade, Richard, 'Vertical Integration vs Vertical Separation in an Imperfectly

Competitive Industry, such as Electricity, with Retail, Wholesale and Forward
Markets' (New Zealand Institute for the Study of Competition and Regulation
 378

(ISCR),
<http://www.iscr.org.nz/f600,17093/17093_Meade_VI_vs_VS_Paper_ex_Memoire
_050710.pdf>

Medalla, Erlinda M., 'Interface Between Competition Policy and Infrastructure

Regulation in the Philippines' (East Asian Bureau of Economic Research in its series
Development Economics Working Papers with number 2005.23, 2005)

Meeks, James E., 'ANTITRUST CONCERNS IN THE MODERN PUBLIC

UTILITY ENVIRONMENT' (THE NATIONAL REGULATORY RESEARCH
INSTITUTE The Ohio State University, 1996) <http://nrri.org/pubs/multiutility/96-
12-multi-antitrust_concerns.pdf>

Mehta, Pradeep S and Manish Agarwal, 'Time for a Functional Competition Policy
and Law in India Mainstreaming competition principles into policy and legal
framework is pro-development' (CUTS International, 2006) <http://www.cuts-
international.org/pdf/compol.pdf>

Meitet, Sophie, 'L'émergence de pouvoir de marché dans les marchés électriques: Le

cas des Etats-Unis", Problèmes Economiques, La documentation Française,
n°2.852, 2004 (Market power in electric market: The case of the United States). '
(Center of Geopolitics of Energy and Raw Materials,University of Paris, Dauphine,
2004)
<http://www.dauphine.fr/cgemp/Publications/Presentations/MeritetMarketPower.pdf
>

Milliou, Chrysovalantou and Apostolis Pavlou, 'Upstream Horizontal Mergers and

Efficiency Gains' (CESifo Working Paper No.2748 , CESifo Group Munich 2009)
<http://ideas.repec.org/p/ces/ceswps/_2748.html>

Ministerial Council on Energy Standing Committee of Officials, 'Consultation

Regulation Impact Statement Separation of generation and transmission '
(Ministerial Council on Energy (MCE), 2011)
<http://ris.finance.gov.au/files/2011/08/03-Separation-of-Generation-and-
Transmission-RIS.pdf>

Molinari, Institut Economique, 'The shaky foundations of antitrust policy Monopoly

price theory' (Institut Economique Molinari- Economic Note November 2004, 2004)
<http://www.institutmolinari.org/IMG/pdf/note200411.pdf>

Moss, Diana, 'Electricity and Market Power: Current Issues for Restructuring
Markets (A Survey)' (American Antitrust Institute Working Paper No. 05-01 2005)
<http://ssrn.com/paper=1103663>

National Association of Regulatory Utility Commissioners, 'The Role of Consumer

Organizations in Electricity Sector Policies and Issues Results of NARUC’s Global
Survey
 379

' (2006 NARUC/USAID Consumer Report, 2006)

<http://www.naruc.org/Publications/NARUC-06CONSUMER-REPORT.pdf>

National Energy Policy Office, 'Privatisation and Liberalisation of the Energy Sector
in Thailand' (National Energy Policy Office, (NEPO), 1999)
<http://www.eppo.go.th/doc/idp-07-Priv29Mar99.html>

NEPO, 'Electricity Tariff Restructuring' (EPPO, 2001)

<http://www.eppo.go.th/power/pwc-tariff-E.html>

Nestor, Stilpon and Ladan Mahboobi, 'Privatisation of Public Utilities:The OECD

Experience ' (OECD, 1999) <http://www.oecd.org/dataoecd/48/24/1929700.pdf>

Newbery, David, 'The Relationship Between Regulation and Competition Policy for
Network Industries' (Working paper EPRG 0611- Electricity Policy Research
Group, Cambridge University, 2005) <http://www.eprg.group.cam.ac.uk/wp-
content/uploads/2008/11/eprg0611.pdf>

Nikomborirak, Deunden, 'Project: Building Constituency in Competition Policy

THAILAND' (World Bank 2002)
<http://siteresources.worldbank.org/INTTHAILAND/Resources/333200-
1163047690503/3140686-
1163047766322/2006thailand_competition_law_and_policy.pdf>

Nuñez-Luna, Alejandra and Erik J. Woodhouse, 'The IPP Investment Experience in

Argentina' (Center for Environmental Science and Policy, Program on Energy and
Sustainable Development at Stanford University- Working Paper #44, 2005)
<http://iis-db.stanford.edu/pubs/20954/Argentina.pdf>

OECD, 'Application of Competition Policy to the Electricity Sector' (OECD, 1998)

<http://ssrn.com/paper=141070>

OECD, 'Colombia - Peer Review of Competition Law and Policy' (OECD, 2009)
<http://www.oecd.org/dataoecd/32/49/44110853.pdf>

OECD, 'Competition and Barriers to Entry' (OECD Policy Brief, Jan 2007, 2007)
<http://www.oecd.org/dataoecd/9/59/37921908.pdf>

OECD Competition Committee, 'Annual Report On Competition Policy

Development in New Zealand: September 2003-August 2004 ' (OECD, 2005)
<http://www.oecd.org/dataoecd/36/52/34720907.pdf>

OECD, 'The Essential Facilities Concept' (OECD Report No OCDE/GD(96)113,

1996) <http://www.oecd.org/dataoecd/34/20/1920021.pdf>

OECD, 'Global Forum on Competition Policy, Industrial Policy and national

Champion- Contribution from Korea' (OECD, 2009)
<http://www.oecd.org/dataoecd/16/13/42000615.pdf>
 380

OECD, 'Japan - Regulatory Reform in Electricity' (OECD, 1998)

OECD, 'Korea - Regulatory Reform in Electricity' (OECD, 2000)

<http://www.oecd.org/dataoecd/2/56/2497412.pdf>

OECD, 'Margin Squeeze' (OECD Document No.DAF/COMP(2009)36, 2009)

<http://www.oecd.org/dataoecd/30/17/46048803.pdf>

OECD, 'OECD Reviews of Regulatory Reform: Korea Progress in Implementing

Regulatory Reform ' (OECD, 2007)
<http://www.oecd.org/dataoecd/16/4/41399033.pdf>

OECD, 'Policy Brief: Competition Law and Policy in Argentina' (OECD document
No. 37409587, 2006)

OECD, 'Policy Roudtables: Refusals to Deal' (OECD, DAF/COMP(2007)46, 2007)

OECD, 'Regulating Market Activities by the Public Secto' (The OECD Competition
Committee, Document No. DAF/COMP(2004)36, 2004)
<http://www.oecd.org/dataoecd/61/5/34305974.pdf>

OECD, 'Regulatory Reform in Mexico: The Role of Competition Policy in

Regulatory Reform' (OECD, 1999)
<http://www.oecd.org/dataoecd/44/58/2507136.pdf>

OECD, 'Report On The Nature and Impact of Hard Core Cartels under National
Competition Laws' (OECD, report No. DAFFE/COMP(2002)7, 2002)
<http://www.oecd.org/dataoecd/16/20/2081831.pdf>

OECD, 'Roundtable on Bringing Competition Into Regulated Sectors: Contribution

from Thailand' (OECD, 2005) <http://www.oecd.org/dataoecd/40/33/34408388.pdf>
OECD, 'Roundtables On Competition Issues in Electricity Sector: United States of
America' (OECD, Working Party No. 2 on Competition and Regulation, Document
No. DAFFE/COMP/WP2/WD(2002)30, 2002)
<http://www.ftc.gov/bc/international/docs/compcomm/2002--
Rdtable%20on%20Competition%20Issues%20in%20the%20Electricity%20Sector.p
df>

OECD, 'State Owned Enterprises and the Principle of Competitive Neutrality'

(OECD Document No. DAF/COMP(2009)37, 2009)
<http://www.oecd.org/dataoecd/43/52/46734249.pdf>

Office, National Energy Policy, 'Privatisation Master Plan Energy Sector Report
Redraft' (National Energy Policy Office, Thailand, 1998)
 381

Office, US General Accounting, 'Electricity Markets: FERC’s Role in Protecting

Consumers' (US General Accounting Office, GAO-03-726R FERC Consumer
Protection, 2003) <http://www.gao.gov/new.items/d03726r.pdf>

Office of Thai Trade Competition Commission, 'About The Office of Tha Trade
Competition Commission' (2010) <http://www.dit.go.th/otcc/upload/Combined.pdf>

OFGEM, 'Consultation on Energy Supply Probe - Initial Findings Report' (OFGEM,

2008)
<http://www.ofgem.gov.uk/Markets/RetMkts/ensuppro/Documents1/Energy%20Su
pply%20Probe%20-%20Initial%20Findings%20Report.pdf>

OFGEM, 'Office of Gas and Electricity Markets resource Accounts 2008-09'

(OFGEM Ordered by the House of Commons to be printed 29 April 2009, 2009)

OFT, 'The application of the Competition Act in the telecommunications sector'

(OFT, 1998) <http://www.oft.gov.uk/OFTwork/publications/publication-
categories/guidance/competition_act/oft417>

OFT, 'Assessment of market power: Understanding competition law' (UK Office of

Fair Trading, document No 415, 2004)

OFT, 'Mergers Jurisdictional and procedural guidance' (UK, Office of Fair Tradeing,
2009)

OFT, 'OFT: Partnership Working' (OFT 2009)

OFT and Ofgem, 'Application in the energy sector : Understanding competition law'
(Office of Fair Trading and Office of Gas and Electricity Markets Authority, 2007)
<http://www.oft.gov.uk/shared_oft/business_leaflets/ca98_guidelines/oft428.pdf>

Owen, Bruce M., 'Competition Policy in Latin America' (Standford University,

Stanford Law and Economics Olin Working Paper No. 268 2003)
<http://ssrn.com/paper=456441>

Parker, David, 'Reforming Competition Law in the UK: The Competition Act 1998 '
(Occasional Paper 14 Center for study on regulated industries, University of Bath,
2000) <http://www.bath.ac.uk/cri/pubpdf/Occasional_Papers/14_Parker.pdf>

PEA, 'Annual report 2009 ' (Provincial Electricity Authority, 2010)

<http://www.pea.co.th/annualreport/2009/AnnualReportEngPEA.2009.pdf>

Peerenboom, Randall, 'Regulating Enterprise: The Regulatory Impact on Doing

Business' (Legal Study Working Paper Series No. 2008/14, La Trobe University
School of Law, 2008) <http://ssrn.com/paper=1283204>
 382

Peerenboom, Randall, 'Resistance, Revision and Retrenchment in the Transition to a

Competitive Market Economy in China' (La Trobe Law School Legal Studies
Research Paper No. 2008/8 2008) <http://ssrn.com/paper=1265114>

Peltzman, Sam, Michael E. Levine and Roger G. Noll, 'The Economic Theory of
Regulation after a Decade of Deregulation' (10578641, 1989)
<http://www.jstor.org/stable/2534719>

Perkins, Frances, Chris Nadarajah and Luke McInerney, 'Economic Roundup

Summer 2007:Australia’s infrastructure policy and the COAG National Reform
Agenda ' (Australian Department of Treasury, 2007)
<http://www.treasury.gov.au/documents/1221/HTML/docshell.asp?URL=02_NRA.
asp
http://www.treasury.gov.au/documents/1221/PDF/02_NRA.pdf>

Pitofsky, Robert, 'The Essential Facilities Doctrine under United States Antitrust
Law' (US Federal Trade Commission, Competition and Intellectual Property Law
and Policy in the Knowledge-Based Economy: Notice of Public Hearings and
Opportunity for Comment, 2001)
<http://www.ftc.gov/os/comments/intelpropertycomments/pitofskyrobert.pdf>

Pitofsky, Robert, 'THE ESSENTIAL FACILITIES DOCTRINE UNDER UNITED

STATES ANTITRUST LAW ' (US Federal Trade Commission, Competition and
Intellectual Property Law and Policy in the Knowledge-Based Economy: Notice of
Public Hearings and Opportunity for Comment,

Pittman, Russell and Vanessa Yanhua Zhang, 'Electricity Restructuring in

China:The Elusive Quest for Competition' (Economic Analysis Group (EAG) of the
Antitrust Division Discussion Paper EAG 08-5 April 2008, 2008)
<http://www.justice.gov/atr/public/eag/232668.pdf>

Pollitt, Michael, 'The arguments for and against ownership unbundling of energy
transmission networks' (ESRC Electricity Policy Research Group, University of
Cambridge, 2007) <http://www.eprg.group.cam.ac.uk/wp-
content/uploads/2008/11/eprg0714.pdf>

Pollitt, Michael, 'Electricity Reform in Chile Lessons for Developing Countries'

(Centre for Energy and Environment research , MIT- Document No. 04-016
September 2004
2004) <http://tisiphone.mit.edu/RePEc/mee/wpaper/2004-016.pdf>

Polsiri, Piruna and Yupana Wiwattanakantang, 'Business Groups in Thailand:

Before and after the East Asian Financial Crisis' (Center for Economic Institutions
Working Paper Series CEI Working Paper Series, No. 2004-13
2004) <http://cei.ier.hit-
u.ac.jp/working/2004/2004%20Working%20Papers/wp2004-13.pdf>
 383

Pombejra, Hatasakdi Na and Sudhisakdi Manibhandu, 'Thailand: Towards new PPP

legislation (Financed by the Technical Assistance Funding Program)' (ADB-
Technical Assistance Consultant’s Report, 2007)
<http://www.adb.org/Documents/Reports/Consultant/40138-THA/40138-01-THA-
TACR.pdf>

Priest, George L., 'Rethinking Antitrust Law in an Age of Network Industries' (Yale
Law & Economics Research Paper No. 352, Yale University, 2007)
<http://ssrn.com/paper=1031166>

PTT, 'Annual General Meeting of Shareholders' (PTT, 2008)

<http://www.pttplc.com/Files/Business/attach/ShareHolder/ShareholdersMeeting.pd
f>

PTT, 'Gas Unit' (PTT, 2010) <http://www.pttplc.com/en/ap_oil3-1.aspx>

PTT, 'Gas Unit – Gas transmission pipeline' (PTT, 2010)

<http://www.pttplc.com/th/ap_oil3-3.aspx>

PTT, 'PTT's Natural Gas Transmission System' (PTT,

<http://www.pttplc.com/Files/Document/Pdf/Gas/Gas_en4.pdf>

Qaqaya, Hassan and George Lipimile, 'United Nations Conference on Trade and
Development: The effects of anti-competitive business practices on developing
countries and their development prospects' (UNCTAD, 2008)
<http://www.unctad.org/en/docs/ditcclp20082_en.pdf>

RATCH, 'Ratchaburi Electricity Generating Holding Public Company Limited

(RATCH) annual report 2008' (RATCH 2009)
<http://www.ratch.co.th/ratch.cms/download/pdf/11._2008_Power_Industry_and_C
ompetition.pdf >

Regulator, Australian Energy, 'AER Stategic Plan and Working Program 2009 –11'
(AER, 2009)
<http://www.accc.gov.au/content/item.phtml?itemId=882100&nodeId=97e6ed47a9
206ce5b162c338642ab5f9&fn=AER%20Strategic%20plan%20and%20work%20pr
ogram%202009%E2%80%9311.pdf>

Regulator, Australian Energy, 'State of Energy Market' (Australian Energy

Regulator, 2008)
<http://www.accc.gov.au/content/item.phtml?itemId=850040&nodeId=1e8ee202c5b
becf8f245b15687ac03a2&fn=State%20of%20the%20energy%20market%202008.p
df>

Rennie, Matthew and Fiona Lindsay, 'Competitive neutrality and state-owned

enterprises in Australia: Review of practices and their relevance for other countries ,'
(OECD Corporate Governance Working Papers No.4, 2011)
<www.oecd.org/daf/corporateaffairs/wp>
 384

Roseveare, Deborah, Martin Jorgensen and Lennart Goranson, 'Product Market

Competition and Economic Performance in Sweden' (OECD-OECD Economics
Department Working Papers, 2004) <http://www.oecd-
ilibrary.org/economics/product-market-competition-and-economic-performance-in-
sweden_735381855384>

Ryder, Grainne, 'Thailand's flawed electricity privatization' (Probe International

Power Sector Reform Series Paper #4, part 1 February 20/1999, 1999)
<http://www.eprf.ca/pi/index.cfm?DSP=content&ContentID=6951#section5>

Sadka, Joyce and Jose L. Negrin, 'Full vs. Light-Handed Regulation of a Network
Industry' (Centro de Investigacion Economica, ITAM in its series Working Papers
with number 0403., 2004)
<http://ideas.repec.org/p/cie/wpaper/0403.html#download>

Sadowska, Malgorzata, 'Energy Liberalization in Antitrust strait Jacket: A Plant too

Far?' (EUI working paper RSCAS 2011/34, 2011)
<http://cadmus.eui.eu/bitstream/handle/1814/18358/RSCAS_2011_34.pdf?sequence
=1>

Sau, Lino, 'Gradualism and the Evolution of the Financial Structure in China' (U. of
Torino Department of Economics Research Paper No. 3/2009-GE 2009)
<http://ssrn.com/paper=1367097>

Schmalensee, Richard, 'Sunk Costs and Antitrust Barriers to Entry' (MIT Sloan
Working Paper No. 4457-04 2004) <http://ssrn.com/paper=486944>

Siddiqui, Afzal S., Chris Marnay and Mark Khavkin, 'Excessive Price Volatility in
the California AncillaryServices Markets: Causes, Effects, and Solutions'
(Consomtrium For Electric Reliability Technology Soloutions, 2000)
<http://certs.lbl.gov/pdf/46083.pdf>

Singapore, Competition Commission of, 'CCS Explanatory Note on the Competition

(Block Exemption for Liner Shipping Agreements) Order' (Competition Commision
of Singapore, 2006)
<http://app.ccs.gov.sg/cms/user_documents/main/pdf/ExplanatorynoteonBEO_17Jul
y2006_FINAL.pdf>

Singapore, Competition Commission of, 'CCS Fines 16 Coach Operators and

Association $1.69 Million For Price-Fixing' (Competition Commision of Singapore,
2009)
<http://app.casebank.ccs.gov.sg/CCS_Fines_16_Coach_Operators_and_Association
_$1.69_Million_For_Price-Fixing.aspx>

Singapore, Competition Commission of, ' CCS Guideline On Market Definition'

(Competition Commission of Singapore, 2007)
 385

<http://app.ccs.gov.sg/cms/user_documents/main/pdf/MktDefinition_Jul07FINAL.p
df>

Singapore, Competition Commission of, 'CCS Guideline ON The Section 47

Prohibition' (Competition Commission of Singapore, 2007)
<http://app.ccs.gov.sg/cms/user_documents/main/pdf/s47_Jul07FINAL.pdf>

Singapore, Competition Commission of, 'CCS Guideline On Lenient Treatment For

Undertaking Coming Forward With Information On Cartel Activity Case 2009'
(Competition Commission of Singapore, 2009)
<http://app.ccs.gov.sg/cms/user_documents/main/pdf/GuidelineLenienceProgramme
220109final.pdf>

Singapore, Competition Commission of, ' CCS Guideline On The Section 34

Prohibition ' (Competition Commission of Singapore, 2007)
<http://app.ccs.gov.sg/cms/user_documents/main/pdf/S34_Jul07FINAL.pdf>

Singapore, Competition Commission of, 'CCS Guideline On The Substantive

Assessment Of Mergers' (Competition Commission of Singapore, 2007)
<http://app.ccs.gov.sg/cms/user_documents/main/pdf/substantiveassessmerger_Jul0
7FINAL.pdf>

Singapore, Competition Commission of, 'CCS Issues Proposed Infringement

Decision Against Sistic' (Competition Commission of Singapore, 2009)
<http://app.casebank.ccs.gov.sg/PID_Against_SISTIC.aspx>

Singh, Ajit and Rahul Dhumale, 'Competition Policy, Development and Developing
Countries' (Trade- Realate Agenda, Developing Countries and Equity working
papers, South Centre, 1999) <http://www.gina.gov.gy/epalink/TRADE-
RELATED%20AGENDA%207.pdf>

Sirasoontorn, Puree, 'Fiscal Assessment of Partial Privatization: Case of Electricity

State Owned Enterprise in Thailand Mimeo’ (Faculty of Economics, Thammasat
University, Thailand, 2005 ) <http://www.energy-based.nrct.go.th/Article/Ts-
3%20fiscal%20assessment%20of%20partial%20privatisation%20case%20of%20ele
ctricity%20state%20owned%20enterprise%20in%20thailand.pdf>

Sirasoontorn, Puree, 'Tariff Regulation in Electricity Supply Industry in Thailand'

(Discussion Paper No. 0007, Faculty of Economics, Thammsat Univerisity, 2008)
<http://www.econ.tu.ac.th/doc%2Fcontent%2F334%2FDiscussion_Paper_No.7.pdf
>

Soares, Isabel and Paula Sarmento, 'Does Unbundling Really Matter? The
Telecommunications and Electricity Cases' (FEP working papers No380 July 2010,
CEF.UP , Faculdade de Economia, Universidade do Porto, 2010)
<http://www.fep.up.pt/investigacao/workingpapers/10.07.05_wp380.pdf>
 386

Stern, Jon and John S. Cubbin, 'Regulatory Effectiveness: The Impact of Regulation
and Regulatory Governance Arrangements on Electricity Industry Outcomes' (World
Bank Policy Research Working Paper No. 3536 2005)
<http://ssrn.com/paper=695386>

Sukkumnoed, Decharut et al, 'Governing the Power Sector: An Assessment of

Electricity Governance in Thailand' (World Resources Institute, National Institute of
Public Finance and Policy and Prayas Energy Group, 2006)
<http://electricitygovernance.wri.org/files/egi/egi_thailand_report_0.pdf>

Supanit, Sutee, 'Thailand Report' (Japan Fair Trade Commission, 2002)

<http://www.jftc.go.jp/eacpf/02/thailand_r.pdf>

Taggart, Robert A., 'Effects of Regulation on Utility Financing: Theory and

Evidence' (Working Paper No. 866, National Bureau of Economic Research, 1982)
<http://info.library.unsw.edu.au/cgi-
bin/local/access/access.cgi?url=http://www.nber.org/papers/w0866>
Tangkitwanit, Somkiet, 'Report on Thai Media Market Structure ' (TDRI and TRF,
2002) <http://www.tdri.or.th/reports/unpublished/media/number2.pdf>

Tangwanish, Somkiet, 'Is it real: the rate of Thai telecommunication? (translated

title) ' (Thai Research Fund( TRF), 2008)
<http://www.regulatorywatch.org/web/images/pdf/regulatorywatch1-arpu.pdf>

The Asia Foundation, '2010 National Survey of the Thai Electorate: Exploring
National Consensus and Color Polarization' (2011)
<http://asiafoundation.org/resources/pdfs/ThailandNationalSurvey2010.pdf>

Treasury, Australian Department of, 'The importance of competition policy for

Australia: Australian Government National Competition Policy Annual report 2004-
05' (Australian Department of Treasury, 2005)
<http://www.treasury.gov.au/documents/1056/PDF/Ch4_Access_to_essential_infras
tructure.pdf>

Treasury, UK Department of Trade and Industry and HM, 'Concurrent Competition

Powers in Sectoral Regulation ' (UK Department of Trade and Industry and HM
Treasury Doc No. URN 06/1244, 2006) <http://www.bis.gov.uk/files/file29454.pdf>

UK Department for Business, Innovation and Skills (BIS), 'A Competition Regime
For Growth: A Consultation on Options For Reform' (BIS, 2011)
<http://www.bis.gov.uk/assets/biscore/consumer-issues/docs/c/11-657-competition-
regime-for-growth-consultation.pdf>

UK Government News Distribution Service (NDS), 'Competition reforms to

strengthen UK’s world class regime' (Department for Business, Innovation and
Skills(BIS), 2012)
<http://nds.coi.gov.uk/content/Detail.aspx?ReleaseID=423713&NewsAreaID=2>
 387

UNCTAD, 'Recent important competition cases involving more than one country'
(UNCTAD- Report from Intergovernmental Group of Experts on Competition Law
and Policy Ninth session Geneva 15–18 July, 2008, 2008)
<http://www.unctad.org/en/docs/tdbc2clpd71_en.pdf>

UNCTAD, 'Review of Recent Experiences in the Formulation and Implementation

of Competition Law and Policy in Selected Developing Countries: Thailand, Lao,
Kenya, Zambia, Zimbabwe' (UNCTAD, 2005)
<http://www.unctad.org/en/docs/ditcclp20052_en.pdf>

UNCTAD, 'Three Decades of UNCTAD Work on Competition and Consumer

Protection Policy: Reflections by member States' (UNCTAD, 2010)
<http://www.unctad.org/en/docs/tdrbpconf7d10_en.pdf>

UNCTAD, 'VOLUNTARY PEER REVIEW ON COMPETITION POLICY:

INDONESIA' (UNCTAD, 2009)
<http://www.unctad.org/en/docs/ditcclp20091_en.pdf>

UNCTAD secretariat, 'Universal Access to Services' (UNCTAD-Trade

Development Board Commission on International Trade in Goods and Services,and
Commodities: Expert Meeting on Universal Access to Services, 2006)
<http://www.unctad.org/en/Docs/c1em30d2_en.pdf>

UNFCCC, Clean Development Mechanism, 'CERC Announces Draft Regulation for

Terms and Conditions for Electricity Tariff' (UNFCCC, 2004)
<http://cdm.unfccc.int/Projects/DB/BVQI1189417216.52/ReviewInitialComments/
R4R2M896ODWH82ZV9TFJRASGJK4PWF

UK Office of Fair Trading (OFT), 'Competition in mixed markets: ensuring

competitive neutrality' (OFT- working paper No. OFT1242, 2010)
<http://www.oft.gov.uk/shared_oft/economic_research/oft1242.pdf>

UK Competition Commission, 'AES and British Energy: A Report on References

Made under Section 12 of the Electricity Act 1989' (UK Competition Commission,
2000) <http://www.competition-
commission.org.uk/rep_pub/reports/2001/453elec.htm>

US Federal Trade Commission, 'Staff Report: Competition and Consumer Protection

Perspectives on Electric Power Regulatory Reform' (FTC, 2000)
<http://www.ftc.gov/be/v000009.shtm>

U.S. Department of Justice and the Federal Trade Commission, 'Horizontal Merger
Guidelines' (U.S. Department of Justice and the Federal Trade Commission, 1997)

Vejjajiva, Abhisit and Wannarat Channukul, 'THAILAND’S ENERGY POLICY

delivered to the National Assembly ' (2008) <http://www.eppo.go.th/doc/policy-
wannarat-12jan2552-E.pdf>
 388

Vignolo, Mario, 'The New Electricity Supply Industry in Argentina and Chile'
(Instituto de Ingeniería Eléctrica, Working Group on Power System- Technical and
economic aspects, 2000)
<http://iie.fing.edu.uy/investigacion/grupos/syspot/Argch_reg.pdf>

Warwick, Mike, 'A Primer on Electric Utilities, Deregulation, and Restructuring of

U.S. Electricity Markets' (U.S. Department of Energy , Federal Energy Management
Program, 2002) <http://www1.eere.energy.gov/femp/pdfs/primer.pdf>

Webster, Douglas and Patharaporn Theeratham, 'Policy Coordination, Planning and

Infrastructure Provision: A Case Study of Thailand' (ADB-JBIC-World Bank East
Asia, 2004)
<http://siteresources.worldbank.org/INTEAPINFRASTRUCT/Resources/855084-
1137106254308/Thailand.pdf>

Wisuttisak, Pornchai and Nguyen Ba Binh, ‘Competition Law In ASEAN Countries

(Thailand, Singapore, and Indonesia)' (Vietnam Ministry of Justice, 2010)

Wolak, Frank A, 'Lessons from international experience with electricity market

monitoring' (The World Bank in its series Policy Research Working Paper Series
with number 3692, 2005) <http://ideas.repec.org/p/wbk/wbrwps/3692.html>

Wolak, Frank A., 'Lessons from the California Electricity Crisis,' (University of
California Energy Institute CSEM WP-110, 2003)

Wolak, Frank A., 'Managing Unilateral Market Power in Electricity' (World Bank
Policy Research Working Paper No. 3691, 2005) <http://ssrn.com/paper=801464>

Wolak, Frank A. and Robert Nordhaus, 'Comments on “Staff Recommendations on

Prospective Market Monitoring and Mitigation for the California Wholesale
Electricity Market”. California ISO Market Surveillance Committee' (Stanford
University, 2001) <www.stanford.edu/˜wolak.>

Woo, Pei Yee, 'Independent Power Producers in Thailand' (Program on Energy and
Sustainable Development, Standford University, Working Paper # 51, 2005)
<http://pesd.stanford.edu/publications/20978>

Woo, Pei Yee, 'Independent Power Producers in Thailand' (Program on Energy and
Sustainable Development, Standford University, Working Paper # 51, 2005)
<http://pesd.stanford.edu/publications/20978>

Woo, Pei Yee, 'Independent Power Producers in Thailand' (Center for

Environmental Science and Policy, at the Stanford Institute for International Studies
Working Paper # 51, 2005) <http://iis-
db.stanford.edu/pubs/20978/Thailand_Country_Study.pdf>
 389

Woodhouse, Erik J., 'IPP Study Case Selectionand Project Outcomes: An Additional
Note' (Working Paper #59, Program on Energy and Sustainable Development,
Freeman Spogli Institute for International Studies (FSI Stanford), 2006)

Woodhouse, Erik J., 'IPP Study Case Selection and Project Outcomes: An
Additional Note' (Working Paper #59, Program on Energy and Sustainable
Development, Freeman Spogli Institute for International Studies (FSI Stanford),
2006)

Working Group Ensuring Investments, 'Ensuring Investments in a Liberalised

Electricity Sector' (Union of the Electricity Industry–EURELECTRIC, 2004)
<http://www.erranet.org/index.php?name=OE-
eLibrary&file=download&id=2994&keret=N&showheader=N>

The World Bank, 'Public and private sector roles in the supply of gas services in
developing countries' (The World Bank, The Energy and Mining Sector Board,
2004) <http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2005/02/03/0000
90341_20050203094717/Rendered/PDF/313760Gas10Operational0Guidance0Note.
pdf>

World Bank, 'Report amd Recommendation of The President of International Bank

For Reconstruction and Development to the Executive Directors on a Stricutural
Adjustment Loan to the Kingdom of Thailand' (World bank, 1982) <http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2000/01/01/0001
78830_98101902390062/Rendered/PDF/multi_page.pdf>

World Bank, 'WORLD BANK GEF Post-Implementation Impact Assessment

Thailand Promotion of Electrical Energy Efficiency Project' (The International Bank
for Reconstruction and Development and World Bank, 2006)
<http://siteresources.worldbank.org/GLOBALENVIRONMENTFACILITYGEFOP
ERATIONS/Resources/Publications-Presentations/Thailand.pdf>

WTO, 'Trade Policy Review-Report by the Secretariat Thailand Revision' (WTO,

2008)

Zengery, Hans, 'Successive Monopolies with Endogenous Quality' (European

Commission, 2009) <http://mpra.ub.uni-
muenchen.de/15659/1/MPRA_paper_15659.pdf>

Published Thesis

Greacen, Christopher Edmund, The Marginalization of “Small is Beautiful”: Micro-

hydroelectricity, Common Property, and the Politics of Rural Electricity Provision
in Thailand (PhD Thesis, UNIVERSITY OF CALIFORNIA, BERKELEY
 390

2004) <http://www.palangthai.org/docs/GreacenDissertation.pdf>

Hooper, Elizabeth and Catherine Waddams, Innovation and Competition in

Generation and Retail Power Markets (PhD Thesis, University of East Anglia,
2010) < http://www.uea.ac.uk/ccp/Policy_briefing_10-18 >

Marshall, Brenda, Regulating Access To Essential Facilities in Australia: Review

and Reform of Part IIIA of Trade Practices Act (Queensland University of
Technology, 2003)

Ozbugday, Fatih Cemil, Light- VS. Heavy haned Regulation on the Natural
Monopolies: The case of New Zealand Electricity Distribution industry (Master
Degree Thesis, Tilburg University, 2008)
<http://www.tilburguniversity.edu/research/institutes-and-research-
groups/tilec/energy/pdf/20080827_Ozbugday.pdf>

Robinson, Deborah E., The impact of deregulation and restructuring: An empirical

case study of the electric utility industry from 1998 through 2007 (PhD Thesis,
Capella University
2008)<http://proquest.umi.com/pqdweb?index=30&sid=3&srchmode=1&vinst=PR
OD&fmt=6&startpage=1&clientid=25620&vname=PQD&RQT=309&did=1588779
121&scaling=FULL&ts=1242373727&vtype=PQD&rqt=309&TS=1242373735&cli
entId=25620>

Su, Hua, Competition Law and Policy in a Transitional China: Transplantation and
Localisation. (PhD Thesis, Queens Mary University, 2008)
<http://ethos.bl.uk/DownloadOrder.do?orderNumber=THESIS00283744>

Web pages

AEMC, Memoranda of Understanding (2010) <http://www.aemc.gov.au/About-

Us/Memoranda-of-Understanding.html>

AEMC,National Electricity Rules: Current Rules (2010)

<http://www.aemc.gov.au/Electricity/National-Electricity-Rules/Current-
Rules.html>

AEMC, Change and challenge in energy (2009)

<http://www.aemc.gov.au/Media/docs/AEMC%20Profile%202009-b24a7a70-e27c-
48dd-af08-f94c934a394e-0.pdf>

AEMC, Who we are? (2010) <http://www.aemc.gov.au/About-Us/Who-we-

are.html>

AER, About the AER (2011)

<http://www.aer.gov.au/content/index.phtml/itemId/659161>
 391

AER, Memoranda of Understanding and agreements with other agencies (2011)

<http://www.aer.gov.au/content/index.phtml/itemId/680477>

Australian Department of Finance and Deregulation, Competitive Neutrality (2010)

<http://www.finance.gov.au/financial-framework/financial-management-policy-
guidance/competitive-neutrality.html>

EGAT, What is Ft in Thai electricity prices? (2010)

<http://www2.egat.co.th/ft/definition.html >

EGCO, History of EGCO (2010)

<http://www.egco.co.th/en/corperate_profile_history.asp>

Energía, Pampa, The Argentine Electricity Sector (2010)

<http://www.mzweb.com.br/pampaenergia/web/conteudo_en.asp?tipo=23467&idio
ma=1&conta=44>

EPPO, Thailand’s electricity statistics (2010)

<http://www.eppo.go.th/info/5electricity_stat.htm >

NESAC, The National Economic and Social Advisory Council : Background (2010)
<http://www.nesac.go.th/english/nesac_info/nesac_background.html>

OECD, Policy Framework for Investment: User's Toolkit - Implementation of

Competition Law and Policy (2011) OECD
<http://www.oecd.org/document/17/0,3343,en_39048427_39049374_41887057_1_
1_1_1,00.html>

OFGEM, About Us (2007)

<http://www.ofgem.gov.uk/About%20us/Pages/AboutUsPage.aspx>

OFGEM, Industry Governance (2007)

<http://www.ofgem.gov.uk/Licensing/Pages/Licensing.aspx >

OFT, Concurrency (2011) OFT <http://www.oft.gov.uk/about-the-oft/legal-

powers/legal/competition-act-1998/Concurrency/#named1>

Public, Ratchaburi Electricity Generating Holding, Company Background (2010)

<http://ratch.listedcompany.com/company_background.html>

Public Utility Research Centre University of Florida, Body of Knowledge on

Infrastructure Regulation: Competition in Utility Markets (2010)
<http://www.regulationbodyofknowledge.org/chapter2/narrative/03/>

The Chinese State Electricity Regulatory Commission (SERC), Major

Responsibilities: (2010) <http://www.serc.gov.cn/english/index.htm#>
 392

The Malaysian Ministry of Energy Water and Communications (MEWC), About

The Ministry (2010) <http://www.kettha.gov.my/en/content/about-ministry>

Tasmanian Department of Treasury and Finance, Market and Regulatory

Framework (2010) <http://www.tenders.tas.gov.au/domino/dtf/dtf.nsf/v-
energy/BA435B8D47A8DC9DCA2573FE001C00A5>

US FERC, Electric Competition (2010) US Federal of Energy Regulatory

Commission <http://www.ferc.gov/industries/electric/indus-act/competition.asp>

US FTC, A Brief Overview of The Federal Trade Commission's Investigative and

Law Enforcement Authority (2008) US FTC
<http://www.ftc.gov/ogc/brfovrvw.shtm#N_1_>

Newspaper
'Case against AP Honda revived', Bangkok Post (Bangkok), 01/04/2010
<http://www.bangkokpost.com/business/economics/35390/case-against-ap-honda-
revived>

Arunmas, Phusadee, 'Competition Act to be revised', Bangkok Post 08/02/2010

Arunmas, Phusadee, 'Trade Competition Act to be revised', Bangkok Post 8/02/2010

<http://www.bangkokpost.com/business/economics/32537/trade-competition-act-to-
be-revised>

JSM, Mayer Brown, 'Overhaul of trade competition law, planned by the

government', The Nation, Thailand 01/03/ 2010

Mehta, Pradeep S, 'CCI needs to think out of the box', The Financial Express (Delhi,
India), 2011 <http://www.cuts-ccier.org/article-
CCI_needs_to_think_out_of_the_box.htm>

Natioin, The, 'AP Honda guilty of trade competition law violation', The Nation
Thailand 8/02/2010