Private Competition Action Lawyer Malaysia | Follow-On Claims

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Private Competition Actions in Malaysia — Claiming Damages for Anti-Competitive Conduct

If your business has suffered financial loss as a result of anti-competitive conduct — whether a price-fixing cartel that inflated your input costs, a dominant competitor’s predatory pricing that drove your business out of a market, or an exclusive dealing arrangement that locked you out of customers or supply channels — you may have a right to recover compensation through a private competition law action in the Malaysian courts.

At NZSK, our competition lawyers in Kuala Lumpur and Selangor advise on private competition law claims under section 64 of the Competition Act 2010 — both follow-on actions (brought after MyCC has already found an infringement) and stand-alone actions (brought directly in the courts without a prior MyCC decision). We act from offices in Mont Kiara, KL and Puchong, Selangor, and we represent both claimants seeking to recover damages and defendants resisting private competition claims.

Why Choose Us?

The Private Right of Action — Section 64 of the Competition Act 2010

Section 64 of the Competition Act 2010 provides that any person who suffers loss or damage directly as a result of an infringement of the Competition Act has the right to bring a civil action in the courts to recover that loss. This private right of action exists independently of MyCC’s enforcement powers — meaning that a business harmed by anti-competitive conduct can pursue a compensation claim in the High Court regardless of whether MyCC has investigated or found an infringement.

The private right of action under section 64 is an underutilised but increasingly important tool for Malaysian businesses. As MyCC enforcement becomes more active and infringement decisions accumulate, the pool of established infringements against which follow-on damage claims can be brought continues to grow.

Types of Private Competition Claims

Follow-on actions — where MyCC has already issued a Final Decision finding an infringement, the private claimant can bring a follow-on action in the High Court using MyCC’s findings as evidence of the infringement — focusing the court proceedings on quantifying and recovering the loss suffered, rather than re-litigating the existence of the infringement
Stand-alone actions — where no prior MyCC decision exists, the claimant must establish both the existence of an infringement and the loss suffered — a more demanding evidentiary exercise, but not unprecedented in Malaysia
Cartel overcharge claims — where a price-fixing cartel has caused a claimant to pay more for goods or services than it would have paid in a competitive market — a classic category of competition damage claim
Predatory pricing claims — where a dominant enterprise’s below-cost pricing has caused a competitor to lose sales, reduce prices below profitable levels, or exit the market
Exclusive dealing and foreclosure claims — where an anti-competitive exclusive arrangement has denied a claimant access to customers or supply channels, causing lost business
Abuse of dominance claims — where the abusive conduct of a dominant enterprise has caused directly quantifiable economic loss to the claimant

Quantifying Damages in Competition Cases

Establishing that an infringement has occurred is only the first step in a private competition action. The claimant must also quantify the loss suffered — demonstrating the difference between the price paid (or revenue earned) in the anti-competitive market and what would have happened in a counterfactual competitive scenario. This ‘but for’ analysis is typically the most complex and contested element of a competition damages case.

We work with economic experts and forensic accountants to build robust quantum assessments — ensuring that the damages claimed are properly supported by economic analysis and that the methodology is defensible in litigation. We also advise on the limitation period for competition damages claims, the pass-on defence (available to defendants who argue that the claimant passed the overcharge on to its own customers), and other defences that are commonly raised in competition damage proceedings.

Using MyCC Decisions as Evidence in Private Actions

One of the most significant features of the Malaysian competition law framework is the evidentiary weight given to MyCC Final Decisions in subsequent private litigation. Where MyCC has issued a Final Decision finding an infringement, that decision constitutes evidence — and in many cases, strong evidence — of the infringement in any subsequent private action. This significantly reduces the cost and complexity of follow-on private actions compared to stand-alone claims, where the claimant must establish the infringement from scratch.

With MyCC enforcement continuing to intensify, the number of established infringement decisions available as the basis for follow-on claims will continue to grow. Businesses that have purchased goods or services in markets where cartels or dominant abuses have been established — including the poultry feed, construction, logistics, and insurance sectors — should assess whether they may have follow-on claims to bring.

How We Have Helped — Private Competition Action Cases

Anonymised examples of private competition action matters we have handled. Details modified to protect client confidentiality.

Procurement | Follow-On Private Action | Cartel Overcharge Recovery

The Situation

A large corporate buyer in the manufacturing sector approached NZSK after MyCC issued a Final Decision finding that several of its key suppliers had engaged in a price-fixing cartel over a four-year period. The buyer had been purchasing goods from the cartelised market throughout the infringement period and had paid prices inflated by the cartel — but had not previously considered whether it had a private right of action to recover that overcharge.

What We Did

We advised the client on its right of private action under section 64 of the Competition Act 2010, using the MyCC Final Decision as the foundation for establishing the infringement in the civil proceedings. We engaged a forensic economist to quantify the overcharge — calculating the difference between the prices actually paid and the but-for competitive price — and prepared and filed a High Court claim against the cartel members for the recoverable loss, interest, and costs.

✔ Outcome

The defendants, faced with clear evidentiary foundation from the MyCC decision and a well-supported quantum assessment, entered settlement discussions before the matter proceeded to trial. The client recovered a substantial sum in settlement representing a significant proportion of the estimated overcharge, together with its legal costs.

Frequently Asked Questions

Can I sue a company in Malaysia for damages caused by a cartel, even if I was not directly party to the cartel agreement?

Yes. Section 64 of the Competition Act 2010 gives any person who suffers loss directly as a result of an infringement of the Competition Act the right to bring a private action for compensation — regardless of whether they were a party to the infringing agreement. Businesses that purchased goods or services at inflated prices from a cartel, or that were excluded from markets by anti-competitive conduct, can bring private competition actions to recover their loss.

Does MyCC need to have found an infringement before I can bring a private competition action in Malaysia?

No. A private action under section 64 can be brought as a stand-alone claim — without a prior MyCC decision. However, where MyCC has already issued a Final Decision finding an infringement, a follow-on private action is significantly simpler and less expensive: the claimant can use the MyCC decision as evidence of the infringement and focus the court proceedings on quantifying and recovering their loss. We advise on the relative merits of stand-alone vs follow-on claims in each specific situation.

What losses can I recover in a private competition action in Malaysia?

A successful claimant in a section 64 private action may recover: the financial loss directly caused by the infringement (including overcharges paid, lost profits, and business opportunities lost); interest on those losses from the date the cause of action arose; and in appropriate cases, costs. The claimant must prove that the loss was directly caused by the Competition Act infringement and must quantify the loss using credible economic methodology. We advise on the recoverable categories of loss and on the evidence and expert support required.

What is the limitation period for a private competition action in Malaysia?

Competition damages claims in Malaysia are subject to the general limitation periods under the Limitation Act 1953 — typically 6 years from the date the cause of action accrued. Where the infringement was concealed (as is often the case in cartel situations), the limitation period may run from the date of discovery rather than the date of the infringement. We advise on the applicable limitation period for each specific claim and on any steps needed to preserve the right to claim.

Speak to a Competition Lawyer Now!

If your business may have suffered loss as a result of anti-competitive conduct in Malaysia, contact NZSK for practical and commercially focused trade mark legal advice. Contact us to arrange a consultation.