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Pharmaceutical Sector in Malaysia under Market Review of the Malaysian Competition Commission

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The Malaysian Competition Commission (“MyCC“) has commissioned Third World Network (“TWN“), an independent non-profit international research and advocacy organisation, to conduct a market review on the pharmaceutical sector in Malaysia (the “Review“). The market review is being conducted by the MyCC pursuant to powers under Chapter 3 of the Competition Act 2010 (“MCA“).

The Review is being commissioned with a view to determining the pharmaceutical sector’s market profile and TWN has examined industry issues such as:

  •  market structure and supply chain issues;
  •  the level of competition among players at different levels of the supply chain;
  •  identification of anti-competitive practices; and
  •  whether governmental intervention in the industry would be necessary.

As part of the Review, TWN has prepared a draft final report on the outcome of the Review. The draft is currently available on MyCC’s website (http://www.mycc.gov.my/market-review-on-pharmaceutical-sector).

The draft report has identified certain potential anti-competitive conduct including:

  • the use of patent strategies and product life-cycle management measures to maintain dominance and delay the entry of generic medicines;
  •  intervention before regulators which determine marketing authorization;
  •  pricing and reimbursement of generic products and price discrimination.

TWN has recommended that the Malaysian government take action to revise existing regulations and policies which it believes facilitates anti-competitive conduct. Among other measures, TWN has suggested the regulation of mark-ups in the distribution chain and the introduction of rules to ensure increased transparency in pricing policies of industry players.

Pharmaceutical companies and other relevant stakeholders should take this opportunity to provide feedback especially if there are any discrepancies or inaccuracies in the draft report. MyCC has set a deadline of 9 am on 7 December 2017 for the submission of feedback.

The finalised report, which will be issued after the public feedback sessions, may ultimately be used by the MyCC as the basis for its analysis and findings of anti-competitive practices by pharmaceutical companies in Malaysia.

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Author

Andre Gan is the managing partner of Wong & Partners. He is a corporate and securities partner who also heads Wong & Partners’ Competition Group. His practice areas covers mergers and acquisitions, corporate securities, venture capital and private equity, and competition. He has been acknowledged by Chambers Asia Pacific 2016 as one of only three Band 1 practitioners for Corporate/M&A in Malaysia and also a recognised competition practitioner. Andre is also a member of the Firm's Global Antitrust and Competition Steering Committee and is noted as a leading competition lawyer in Global Competition Review - Who's Who Legal in 2016. He has worked in the Singapore and London offices of Baker McKenzie International.

Author

Kherk Ying Chew heads the Intellectual Property and Dispute Resolution Practice Groups of Wong & Partners. She has decades of experience in IP, commercial litigation, corporate compliance, information technology and Internet regulatory issues. Ms. Chew has been named among the Commended External Counsels of the Year 2017 by the In-House Community. She is also one of two Malaysians ranked in Top 250 Women in IP 2017 by Managing IP. She is ranked in the first tier of IP practitioners in Malaysia by Chambers Asia and Asia Pacific Legal 500. According to Chambers Asia Pacific, Ms. Chew is "an acclaimed figure in the sector, drawing praise as a lawyer who is 'really commercial, very practical' and 'knows her subject impressively well'". Asia Pacific Legal 500 had previously commented that she is "highly respected for contentious and non-contentious work" and has won "an important precedent-setting case for Malaysian software copyright law.”

Author

Hong Sze Chen is a partner in the Intellectual Property Practice Group. She advises on IP, information technology and communications ("ITC"), data protection, competition, pharmaceuticals, consumer Ms. Chen represents clients on transactional IP matters and regularly advises clients on a wide range of commercial issues relating to IP assets; from corporate and IP due diligence, documentations, negotiations and licensing requirements to compliance obligations and registration procedures in obtaining regulatory approvals. She has been involved in assisting clients with ground-breaking work in IP valuation, and regularly advises on issues in corporate M&As and joint ventures involving the transfer of IP and/or technology assets.protection, franchising and advertising matters.

Author

Lydia Kong is a Partner in Wong & Partners, Kuala Lumpur office.

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