Analisa Perbandingan Pengaturan Exclusive Dealing dalam Hukum Persaingan Usaha di Indonesia dan Australia

Abstract

Every transaction in economic activity is always based on an agreement or contractual relationship that binds the parties to the agreement. This framework is a contradiction to competition, where competition is supposed to compete for market dominance and not bind each other. Therefore, competition law in Indonesia stipulates agreements that are prohibited. Prohibition of monopolistic practices and anticompetition Act Number 5 1999 contains 14 types of prohibited agreements, one of which is an exclusive dealing regulated in Article 15. Exclusive dealing are divided into 3 types; exclusive distribution dealing, tying agreement and vertical agreement on discount. Exclusive dealings are not only regulated in Indonesian competition law. Australia as a country with an earlier developed competition law system also regulates exclusive dealing through Section 47 of the Competition and Consumer Act 2010, which includes 13 subsections. The regulation also has a connected with Section 93 regarding notification of exclusive dealing. Although both countries regulate exclusive dealing, there are differences and similarities in their regulation. This thesis aims to analyze exclusive dealing in competition law in Indonesia and Australia by comparing competition law, exclusive dealing instruments, and exclusive dealing cases. The research method used is normative law method with comparative study approach. This research is descriptive in nature by describing legal phenomena obtained from literature study. The regulation of exclusive dealing in competition law in Indonesia and Australia has similarities and differences. The differences include the legal system, the authority of competition law enforcement commission, the process of competition law enforcement, the amount of fines, the consideration of judges, the types of exclusive dealing, the approach in competition law, and the notification of exclusive dealing. In addition to these differences, there are similarities in the regulation of business competition law between the two countries, in terms of analyzing violations of agreements and the types of sanctions given; administrative sanctions and criminal sanctions.