Thailand’s Competition Law Under Review: Insights from the OECD Peer Review of the Trade Competition Act B.E. 2560 (2017)

On 2 May 2025, the Trade Competition Commission of Thailand (“TCCT”) hosted an international conference in Bangkok, in collaboration with the Organization for Economic Cooperation and Development (“OECD”), to present the OECD Peer Review of Thailand’s competition law and policy. The event was a significant moment in the continuing development of Thailand’s competition regime under the Trade Competition Act B.E. 2560 (2017) (“TCA”). Representatives from SCLNA attended the event and are pleased to share some of the key takeaways from the OECD’s findings, observations, and recommendations.

Scope of Application of the TCA

The TCA applies exclusively to “business operators,” as defined therein, excluding certain entities such as government agencies, state-owned enterprises, and businesses subject to regulation under other laws. However, the extent to which sectoral laws displace the TCA remains unclear. Some individuals and entities currently interpret the exclusion narrowly, stating that it applies only where sectoral law contains competition provisions equivalent to those in the TCA; others argue that any regulatory authority over competition suffices to displace the TCCT. This ambiguity may create a gap in enforcement in the regulated sectors. The OECD recommends that Thailand clarify the interaction between the TCA and sector-specific laws, to ensure effective enforcement across all sectors.

The TCA also applies only to conduct that occurs in Thailand, and contains no express provisions addressing extraterritorial application. It remains unsettled whether the TCA extends to conduct abroad that has anti-competitive effects in the Thai market.

Challenges to Enforcement

The OECD raised concerns over the limited number of decisions issued by the TCCT since enactment of the TCA. For instance, investigating cartels in Thailand requires the TCCT to determine that the relevant conduct has the effect of reducing or restricting competition in a specific market, with an exemption for business operators holding less than a 10% market share. This effects-based assessment, combined with the high standard of proof required for criminal sanctions, makes enforcement against hard-core cartels particularly burdensome. By contrast, OECD member countries typically treat hard-core cartels as illegal per se, allowing enforcement agencies to proceed once the relevant conduct has been identified.

Similar challenges arise in cases involving abuse of a dominant position. Simply holding a dominant position does not violate the TCA. A violation occurs only if specific, listed forms of conduct are committed and deemed unfair or unreasonable. The OECD deems the current regulatory approach to focus more on form than on actual market impact. As a result, entities that engage in conduct that harms competition but falls outside the exhaustive list in the TCA may escape liability.

Among its recommendations, the OECD advised more active enforcement actions in both areas, the application of an administrative regime to hard-core cartels and abuse of dominant positions, the adoption of a more effects-based analytical approach, and the use of a non-exhaustive list of prohibited practices to allow greater flexibility in addressing anti-competitive conduct.

Merger Assessment and Regulatory Powers

Several aspects of the current merger control framework were found to be in need of refinement. These include the clarity of notification thresholds, the efficiency of procedural timelines, and the analytical tools used to assess competitive effects. While the TCCT has conducted investigations and reviewed merger filings, the relatively low volume of public decisions has been identified as a weakness, which also limits guidance for market participants.

In particular, the OECD observed that the criteria for sales turnover, which currently are limited to turnover generated in Thailand, are unclear, as this condition is not set forth expressly in laws or guidelines. In other jurisdictions, the notification thresholds typically incorporate a local nexus requirement. The TCCT also lacks authority to take action on ex-post transactions. Its role is limited to acknowledging them, and it has no power to intervene, for example, by imposing remedies or blocking transactions after completion. The absence of detailed reasoning in published merger decisions further reduces legal certainty and predictability for businesses.

The OECD suggests that the TCCT be granted effective authority to review and intervene in merger transactions where appropriate. It also supports the adoption of clear notification thresholds and a well-defined substantive test for merger assessments. These thresholds should be reviewed periodically to ensure they remain aligned with developments in the Thai economy.

Looking Ahead: Will the TCA Evolve?

Whether these findings will result in legislative amendments remains to be seen. The TCCT has expressed openness to considering the OECD’s recommendations and regulatory reform in the near future. SCLNA will continue to monitor these developments closely. We anticipate that implementation of the OECD recommendations will mark the next stage in Thailand’s journey toward a more dynamic and internationally harmonized competition law regime.

This article is intended merely to provide a regulatory overview; it is not comprehensive, and is not intended to constitute legal advice. If you have any questions on this or on any other areas of law, please do not hesitate to contact the author

Siriwan Nopareporn
Associate

Jarawee Suksngacharoen
Associate

Authors