Antitrust in Asia 2021
Continued development of competition law
The newer competition regimes have made significant enhancements to their tool boxes of regulations, rules and guidelines.
For example, Brunei, Hong Kong and Indonesia have introduced regulatory guidelines or policies covering procedures such as leniency, settlement, penalties and merger assessments.
In Singapore, the Competition and Consumer Commission assumed a consumer protection function in April 2018 and has since issued price-transparency guidelines to clarify pricing practices for suppliers.
Meanwhile, the development of the more established Asian competition regimes has showed no sign of slowing down.
In March 2018, a large-scale organisational reform of the Chinese government led to its three existing competition authorities being merged into the current regulator known as the State Administration for Market Regulation (SAMR).
Since then, SAMR has adopted a wide range of regulations and rules, including general guidance on leniency, commitments and antitrust compliance, as well as more specific guidelines targeting the automobile and intellectual property sectors.
To reflect a more aggressive enforcement policy, in January 2020 SAMR published proposed amendments to China’s anti-monopoly law, featuring procedural changes regarding merger review and increased penalties for antitrust violations. And towards the end of 2020, SAMR stepped up enforcement in the digital platform space.
On the merger front, SAMR has increased its review speed for simple cases, shown increasing sophistication in reviewing complex transactions and ramped up its enforcement of unnotified acquisitions.
Japan has also made significant changes to its enforcement regime, most notably through the amendment of its antitrust legislation in June 2019 to abolish the cap on the number of leniency applicants and provide more flexibility for the Japan Fair Trade Commission to determine co-operation discounts.
This amendment also introduces legal privilege-like protections where investigators will not be able to access documents containing confidential client-attorney communications regarding legal advice on hardcore cartels, although these protections do not apply to in-house lawyers.
The purpose of the amendment, which took effect in December 2020, is to ensure the effectiveness of the new leniency programme and align Japan’s regime with standard international practice.
Following past criticism of being insufficiently transparent in its enforcement practices, the Korea Fair Trade Commission (KFTC) is aiming to improve its rules on dawn raids and procedural issues involving, among other matters, meetings with the respondent companies. The KFTC has also emphasised the need for economic expertise and is expanding the role of its economic analysis team.
In December 2020, South Korea’s National Assembly approved a revision to the Fair Trade Law, which will strengthen the KFTC’s enforcement capabilities and is likely to take effect in late 2021.
India has witnessed substantial changes to its merger control regime since 2018.
A welcomed development in August 2019 was the introduction of the ‘green channel’ route, which enables transactions with no horizontal, vertical or complementary overlaps to be completed prior to the approval of the Competition Commission of India based on a short-form filing.
In addition, the India merger regime now allows the voluntary submission of remedies during a Phase I investigation and addresses gun-jumping concerns in public bids.
Further updates to India’s antitrust enforcement regime are also on the horizon, including the introduction of settlement and commitment mechanisms, and the addition of a US-style ‘leniency plus’ incentive under the current leniency regime.