Antitrust in Asia 2021
Asia’s maturing regimes
There have been significant developments across a number of jurisdictions with relatively new competition regimes, including the achievement of a number of ‘firsts’ since 2018. Meanwhile, the Grab/Uber deal has seen competition authorities collaborate on an unprecedented scale.
Developments by jurisdiction
The Hong Kong Competition Commission has obtained court victories in its first five competition cases, all involving cartel conduct.
The Commission has also:
- accepted its first two sets of commitments (in the online travel agents and Seaport Alliance cases);
- issued its first infringement notice (in a case involving bid rigging);
- published two consultation decisions (related to the Hong Kong Code on Banking Practice and a pharmaceutical sales survey); and
- filed its first case for abuse of substantial market power.
In October 2019, the Philippine Competition Commission (PCC) handed down a fine of approximately US$500,000 in its first abuse of dominance case, which concerned an exclusive arrangement between a housing developer and its in-house internet service provider.
In Malaysia, the Competition Commission (MyCC) in September 2020 fined 22 insurers a combined total of approximately US$42m for cartel conduct regarding trade discounts and labour rates for automobile workshops – the largest antitrust fine in South East Asia to date.
Turning to merger control, there has been an increase in merger filings in Vietnam since its competition law came into force in July 2019. While brief clearance announcements are now regularly published by the Ministry of Industry and Trade, no transactions have been prohibited to date.
In the first major test for Thailand’s Office of Trade Competition Commission (OTCC), the regulator conditionally cleared CP Group’s proposed US$10.6bn acquisition of Tesco’s regional operations in November 2020. This landmark approval was not without some controversy, with a minority of the OTCC commissioners giving a dissenting opinion.
Multijurisdictional developments – Grab/Uber
It is clear from the 2018 Grab/Uber merger that regulators across South East Asia are able and willing to collaborate on high-profile transactions with potentially broad effects on markets across the region.
Several authorities used their established networks to co-ordinate and exchange information during their respective investigations, although ultimately the regulators’ approaches to enforcement differed.
Despite the voluntary nature of Singapore’s merger regime, its Competition and Consumer Commission imposed a US$9.52m fine and several behavioural remedies on Uber and Grab, after finding that the merger substantially lessened competition in the ride-hailing platform market. (This decision was upheld by Singapore’s Competition Appeal Board.) The PCC similarly imposed fines on both parties and obtained voluntary commitments from Grab.
The merger also received interest from the competition authorities in Vietnam, Indonesia and Malaysia, although the Vietnam Competition Council ultimately cleared the transaction while the Indonesian Competition Commission (ICC) and MyCC announced that they had no jurisdiction over it.
Two years after the merger, Grab continues to face scrutiny in the region and has been issued with antitrust fines by both the ICC and MyCC for anticompetitive businesses practices, with both cases currently pending appeal.