Relevansi Pendekatan Per Se Illegal dalam Tying agreement di Indonesia-Amerika Serikat

Supardi, Equenaldo Teguh Hadi Pranata and Hazhin, Utiyafina Mardhati (2026) Relevansi Pendekatan Per Se Illegal dalam Tying agreement di Indonesia-Amerika Serikat. Jurnal Persaingan Usaha, 6 (1). ISSN ISSN 2087-0361; E-ISSN 2809-6304 (Submitted)

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Abstract

The enforcement of competition law in Indonesia regarding tying agreements has traditionally been based on Article 15 paragraph (2) of Law No. 5 of 1999, which adopts a per se illegal approach. This approach presumes that certain practices, including tying, are inherently anti-competitive and therefore do not require further economic impact analysis. However, in practice, the Indonesian Competition Commission (KPPU) has shifted toward applying the rule of reason approach in several tying agreement cases, assessing the potential positive and negative effects of business practices on market competition. This research employs a normative juridical method with statutory and case approaches, along with comparative analysis of the legal system in the United States. The findings indicate that in several KPPU decisions, such as in the cases involving PT Pelindo II, PT Bank Rakyat Indonesia, and PT AHM, the rule of reason approach was used, despite the fact that Article 15 paragraph (2) still reflects the per se illegal doctrine. Similarly, legal developments in the United States also show a shift from strict application of the per se rule toward a more flexible rule of reason analysis that emphasizes economic effects and evidentiary evaluation. In conclusion, the per se illegal approach is no longer fully relevant when applied rigidly to tying agreement cases in Indonesia. To ensure legal certainty and fairness, it is recommended that the rule of reason approach be applied consistently and that regulatory reforms be undertaken to align with contemporary business practices. Keywords: Tying, Agreement, Competition.

Item Type:	Article
Subjects:	K Law > K Law (General)
Divisions:	Faculty of Law > Department of Law
Depositing User:	UTIYAFINA MARDHATI HAZHIN
Date Deposited:	06 Aug 2026 08:24
Last Modified:	19 Aug 2026 05:28
URI:	http://repository.ubaya.ac.id/id/eprint/51143

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