Vietnamese Merger Law: Missed Opportunities in Applying the Potential Competition Theory

Abstract

Potential competition theory is widely used all over the world. Notably, it plays a crucial role in merger regulation. In Vietnam, competition law is gradually moving towards an effects-based approach. However, this approach is applied inconsistently, with the law sometimes providing only minimal guidance or even staying silent altogether. It therefore remains a topical issue, leading to an ineffective mechanism to effectively catch mergers that could possibly impact competition. This article begins with a review of the potential competition theory, before examining merger control in other jurisdictions, particularly US antitrust law and enforcement, from which the potential competition theory supposedly stems and where it is effectively applied. The article then highlights certain aspects that Vietnam should explore in order to address existing problems and, more importantly, to implement a functional regime to mitigate the harmful effects of mergers. These recommendations include factors and proven methods applied to enhance the analytical framework for merger assessment.