| Summary: | The spirit of fair trade in market mechanism could be shown through behavior or
perfomances of the business entreprenuers. Business actors in trading could perform
individually through their corporation or companies or facilitate through trade associations.
Indonesia joined the group by enacting of Law No 5/1999 on Prohibitions of Monopolistic
Practices and Unfair Business Competition, which regulate business actors in conducting
their business. Certainly, it is not easy to change the paradigm or approach from regulated
economy to fair business practices towards the market mechanism. There have been several
conducts in the past, which were not prohibited but because of the enactment of the new law,
considered to be breaching the law. The conducts either known or not known by the business
actors or their trade associations constitutes elements, if proved to have anticompetition
effect, would be considered breaching the law.
Per se illegal is an approach to affirm that such business agreement or activity is
illegal without necessarily finding out a further evidence of the business excess. Rule of
reason is an approach to evaluate the excess of certain business agreements or activities in
order to declare whether or not the business agreements or activities hamper or support to
competition. The benefit of using per se illegal method is simplicity and clarity in
administrative process, besides it is more powerfull in self-enforcing than prohibitions that
depend upon impact evaluation of market complex. Whereas the advantage of rule of reason
is to recognize whether or not such businessmen activity has implication on fairness
competition through economy analysis.
The aim and result of every antimonopoly law, if effective, is in the creation of fair
competition in the market economy. Once established, it may generate wealthier public
prosperity, improve efficiency amongst economic organizations and therefore enhance
national economy competitiveness. To be fair, hopefully, the Court and the Commission
(KPPU) together decide the standard of reason whether business arrangement or agreement is
restraint of trade or not. These are by no means perfect rules, at least, the Court and/or the
Commision has the same perception in the anticipation of the challenger that will be faced
with.
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