Legal problems related to pre-merger information exchange (gun-jumping) in Thai competition law

Gun-jumping focuses, among other things, on pre-merger coordination between merging parties prior to receiving clearance from the competent authority, particularly in jurisdictions with a mandatory pre-merger notification requirement under ex ante merger control. While crucial for due diligence, such exchange raises significant anti-competitive concerns as it may prematurely implement concentration before receiving clearance, potentially facilitating behavior akin to collusive practices despite lacking explicit collusion agreements. In Thailand, the Trade Competition Act has undergone amendments to address issues of effectiveness and enforceability, including a dual merger control system that includes a mandatory pre-merger notification. However, concerns persist due to the absence of precedents, guidelines, and legal measures, which makes it challenging to assess the unlawfulness of premerger information exchange. Therefore, this independent study aims to determine to what extent premerger information exchange can be considered as gun-jumping, and whether Thailand’s Trade Competition Act B.E. 2560 (2017) sufficiently addresses pre-merger information exchange. The study first examines the legal implications of a standalone information exchange within the context of a merger. It highlights the potential violation of “gun-jumping” under merger control and the general rules governing anti-competitive agreements or cartels. Subsequently, the approaches taken by the EU and the US are explored to illustrate case law and the competitive relevance of pre-merger information exchange, specifically substantive gun-jumping violation, an aspect yet to be widely addressed in Thailand. The analysis demonstrates that certain thresholds and legal measures are employed to assess gun-jumping in relation to pre-merger information exchange through the interpretation and application of existing regulations by the judiciary and competent authorities. Concerning Thailand's competition law, this independent study reviews the framework of merger control and anti-competitive agreements in light of the amendment of the Trade Competition Act B.E. 2560 (2017). Despite the existence of gun-jumping concept, the current regulations pertaining to merger control and anti-competitive agreements are still insufficiently applicable to the issue of pre-merger information exchange, requiring further clarification. Eventually, this independent study proposes several alternatives to reinforce the Trade Competition Act B.E. 2560 (2017), considering the perspectives of competent authorities and businesses. Particularly, it provides the potential advantages and disadvantages of adopting either the European Union or the United States model in Thailand.