Third Party Participation in Merger Proceedings under the Thai Trade Competition Act B.E. 2560

Abstract

Literature on Thai competition law has repeatedly acknowledged the ineffectiveness of the Thai merger control regime. This issue has largely been attributed to the underdevelopment of the procedural rules surrounding merger reviews and the wide margin of discretion left to the Trade Competition Commission (the TCC) in rendering decisions to prohibit anticompetitive mergers. However, the TCC has yet to issue a prohibition, even in the face of merger proposals that would seemingly have anticompetitive effects. In these controversial cases, affected third parties have been vocal in their criticisms of the TCC and its failure to afford an opportunity to participate in merger proceedings. This article explores this procedural aspect of Thai merger proceedings as regulated under the Thai Trade Competition Act B.E. 2560. More specifically, it aims to answer whether and to what extent third party participation is necessary during the Thai merger review proceedings and whether the current procedural rules in the Thai merger control regime accommodate adequate third party participation.

To answer these questions, the article considers the arguments in favour of and against third parties’ participation and the legal gaps that currently exist under other Thai laws applicable to merger proceedings. A comparative study has also been done to compare the approaches adopted by the EU and the US and extract key takeaway points from their experiences to improve Thailand’s merger proceedings in addressing third parties’ participation.