PERBANDINGAN PENDEKATAN PEMBUKTIAN JABATAN RANGKAP DALAM PENEGAKAN HUKUM PERSAINGAN USAHA ANTARA INDONESIA DAN AMERIKA SERIKAT

Abstract

Both Indonesia and the United States have laws that specifically regulate and supervise business competition activities to create business activities in a climate of fair competition. Indonesia has Law No. 5/1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition, which was established in 1999, and the United States has its antitrust legislation, which dates back to 1890. To enforce this law, Indonesia and the United States have specialized institutions, namely the Komisi Pengawas Persaingan Usaha (KPPU) in Indonesia and the Federal Trade Commission (FTC) in the United States. One of the contents of competition law in both Indonesia and the United States is the prohibition of Interlocking Directorates. However, the different approaches used to prove concurrent positions between the KPPU and the FTC are not the same. Thus, this study will examine the legal basis for the prohibition of dual positions in Indonesia and the United States and the differences in the approach to proving interlocking directorates between the KPPU and the FTC in enforcing business competition law in Indonesia and the United States. This research uses a normative method with a statute approach, conceptual approach, and comparative study of law approach. The results show that in Indonesia, dual positions are regulated in Article 26 of Law Number 5 the Year 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition, and KPPU, in proving the existence of interlock directors, uses a rule of reason approach. Meanwhile, in the United States, dual positions are regulated in Section 8 of the Clayton Act, and the FTC uses a per se illegal approach. However, currently, to resolve the issue of dual positions, the use of the rule of reason approach can be made by the FTC, considering that The Clayton Act provides several policies for the FTC to assess the impact of the dual position further.