SURUHANJAYA PERSAINGAN MALAYSIA

On the court record

Illustrates how the courts supervise the competition regulator, review its investigations and proposed decisions for legality and fairness, and mark the boundary between enforcement under the Competition Act 2010 and the rights of the businesses it investigates.

The Suruhanjaya Persaingan Malaysia (the Malaysia Competition Commission) appears in this corpus as the statutory competition regulator, most often as a respondent in judicial review and occasionally as an appellant. The decisions engage administrative law and the enforcement of the Competition Act 2010. A recurring pattern consists of applications by businesses under investigation for an order of certiorari to quash steps taken by the Commission, including the manner in which an investigation was conducted, where the applicants contend that the Commission acted outside its powers or in breach of procedural fairness. The corpus also includes appellate consideration of the Commission's substantive enforcement, including a decision in which the Court of Appeal upheld the High Court's treatment of a proposed decision by the Commission, engaging the analysis of an alleged infringement of the prohibitions in the Act against anti-competitive agreements or conduct. Because the Commission exercises investigative and adjudicative functions over market conduct, the litigation tests the boundary between the legitimate exercise of those regulatory powers and the rights of the undertakings subject to them, and the stage at which judicial review of a regulatory process is properly available. The matters are decided in the High Court and the Court of Appeal. Collectively the decisions in which the Malaysia Competition Commission is a party illustrate how the courts supervise the competition regulator, review the conduct of its investigations and proposed decisions for legality and fairness, and mark the boundary between regulatory enforcement under the Competition Act 2010 and the rights of the businesses it investigates. Several of the reported matters also concern the stage at which judicial review of a regulatory process is properly available — whether a party may challenge an investigation or a proposed decision before the Commission's process has run its course — so that the decisions address both the legality of the regulator's conduct and the timing of any challenge to it. Across these matters the courts calibrate the supervision of a competition regulator whose statutory functions combine investigation and adjudication, mindful of the enforcement objectives of the Competition Act 2010.