Antitrust in Asia
Continued development of competition law
Since our last edition, multiple Asian antitrust regimes have undergone significant change either through new or amended legislation, or through shifts in enforcement practices.
We have seen the introduction of new regimes such as in Cambodia where the jurisdiction’s first antitrust laws were introduced, in China and South Korea where the local antitrust laws were updated, in Japan where enforcement is on the rise and Malaysia where a general merger control regime will soon be introduced. In Vietnam, the newly established Vietnam Competition Commission is anticipated to be fully operational over the course of 2023, when it will take over the enforcement of the antitrust regime from the interim authority (please refer to our blog for more details). Member states of ASEAN have also commenced negotiations on a formal cooperation agreement facilitating cross-border cooperation and coordination on antitrust policy and law. It is expected that this will boost inter-regulator cooperation on antitrust enforcement in the region once formalised.
The most significant development in mainland China was the enactment of the amended Anti-Monopoly Law (AML) in 2022 and the newly released implementing rules in March 2023 which come into effect on 15 April. This revamped the regime both in relation to the merger control rules and procedures, and key antitrust provisions. Key changes include:
- Empowering the State Administration for Market Regulation (SAMR) to create safe harbours for vertical agreements. This aligns with more mature antitrust regimes and signals greater legal certainty in the context of vertical business arrangements. That said, the implementing rules released in March 2023 have yet to introduce these safe harbours.
- Introducing a mechanism for defendants to prove where a resale price maintenance agreement does not restrict or eliminate competition, and therefore removing the per se approach to resale price maintenance.
- Implementing harsher penalties for instances of non-compliance such as multiplying a fine by two to five times in cases of extremely serious violations of the antitrust rules, as well as increasing the fine for failure to notify reportable transactions in the merger control context tenfold for transactions with no anticompetitive effects and up to 10% of annual turnover for transactions which are deemed to produce anticompetitive effects.
- Enabling SAMR to require transacting parties to notify concentrations that fall below the merger control thresholds of the AML, but are nonetheless likely to eliminate or restrict competition.
- Introducing a ‘stop-the-clock’ mechanism and other features to streamline SAMR’s merger control review process. The ‘stop-the-clock’ mechanism is welcome as it avoids the current practice of (sometimes repeatedly) pulling and refiling notifications in instances where parties are unable to conclude remedy discussions with SAMR within the prescribed statutory review period.
- Clarifying the scope of ‘hub-and-spoke’ violations. The AML makes it illegal for parties to either ‘organise’ or ‘provide material assistance’ to members of anti-competitive horizontal agreements. In particular, the implementing rules released in March 2023 suggest that there is no intention required on the part of the ‘hub’ (i.e., the party facilitating the anti-competitive agreement) to facilitate the meeting of minds or information exchange between the ‘spokes’ (i.e. competitors participating in the anti-competitive agreement). The implementing rules also clarify that leniency is available to the ‘hub’ as well as the ‘spokes’.
The AML amendments and the updated implementing rules are thus both a modernisation of China’s antitrust regime especially as regards assessment of vertical conduct, and an attempt by SAMR to close certain perceived enforcement gaps.
Merging parties must always tailor their global strategies to the local requirements of a specific jurisdiction, including in relation to factors such as review periods, stakeholder engagement and remedies. This is particularly the case in China where review periods can be long, stakeholder views play a key role in SAMR’s assessment and remedies are often different from those accepted in other jurisdictions.
*RuiMin is an independent PRC law firm that is part of our global StrongerTogether Network.
There also have been a number of notable developments around antitrust enforcement in Japan.
- Since the revised Anti-Monopoly Act came into full effect in late-December 2020, many cartel cases have been investigated following changes which introduced more flexibility to the leniency framework. The introduction of a limited form of attorney-client privilege in cartel investigations also had the effect of encouraging companies to seek legal advice on leniency. In addition, the number of dawn raids conducted by the Japan Fair Trade Commission (JFTC), which had remained stagnant since the end of 2019 due to the COVID-19 pandemic, is on the rise again.
- In June 2022, the JFTC announced it would strengthen coordination between its advocacy and enforcement functions to actively promote antitrust policies in response to digitisation and other socioeconomic changes. Specifically, in matters of enforcement, the JFTC has stated it would proactively use the statutory power of compulsory orders during investigation of violations, increase agency headcount, and utilise economic analysis in collaboration with its newly-established “Economic Analysis Office” to bolster its investigation and merger review in the digital sphere among other areas.
- With regard to advocacy, the JFTC has been particularly active in the digital sector, conducting multiple market surveys in recent years. In 2021, the agency published reports on antitrust policy in the digital and data markets and on transactions in the digital advertising sector, followed by reports on public sector procurement of IT systems, the cloud services sector, and subcontracting in the software industry in 2022.
Hong Kong’s antitrust regime has rapidly matured since entering into force in 2015. While the prosecutorial nature of the regime has led the Competition Commission (HKCC) to commence a total of thirteen enforcement proceedings before the specialist Competition Tribunal (as at March 2023), the HKCC has been developing practices around the alternative enforcement tools at its disposal, which include:
- Cooperation agreements with parties under investigation. This happened in the case of ATAL Building Services Engineering Limited (ATAL) in 2022. After commencing proceedings in the Competition Tribunal against ATAL and two of its senior engineers for price-fixing, market sharing and/or bid rigging, ATAL and the relevant engineers entered into a cooperation agreement with the HKCC. The cooperation agreement stipulates (among other conditions) that a joint application will be submitted to the Competition Tribunal seeking a consent order to impose a pecuniary penalty of HKD 150 million (approx. USD 19million) on ATAL, which is the largest pecuniary penalty sought by the HKCC to date.
- Commitments to end alleged anti-competitive practices. For example, in a 2022 case involving 17 international car brands, their respective distributors tied the continuing validity of warranties to authorised repair centres (which are typically owned by the same distributors). In response to the investigation, the parties under investigation offered commitments not to enforce such restrictions for existing warranties or include such restrictions in the future.
Other recent enforcement trends and developments include:
- The HKCC brought its first vertical case before the Competition Tribunal in 2022, alleging the imposition of minimum resale prices on monosodium glutamate (MSG) powder by a major supplier in Hong Kong on its two main local distributors. The HKCC is contending that the arrangement constitutes serious anticompetitive conduct and amounts to an infringement ‘by object’. The case is still pending before the court.
- There is increasing evidence that the HKCC is transitioning from targeting SMEs to larger and even multinational corporations. In late 2020, the HKCC commenced proceedings against German medical gases supplier, Linde HKO Limited and its parent, Linde GmbH, in its first case involving an abuse of substantial market power. If the Competition Tribunal rules in HKCC’s favour, this would be the first instance of a Hong Kong company’s overseas parent being liable for conduct that took place in Hong Kong, which would have the potential to materially increase the size of antitrust infringement fines going forward. In 2022, the HKCC also commenced an investigation into global online food delivery platforms for potential anti-competitive conduct involving exclusivity arrangements with partner restaurants.
- The HKCC has also identified three priority areas for enforcement, namely digital markets, potential exploitation of public funding and subsidies, and issues concerning people’s livelihood or affecting the underprivileged. This focus was reflected in the HKCC’s first new Competition Tribunal proceedings of 2023, which concerns alleged cartel conduct in applications for a government-sponsored COVID-19 subsidy programme. To identify the anti-competitive conduct in this case, the HKCC undertook a comprehensive data screening exercise over as many as 14,000 applications received from government body overseeing the scheme.
- There is a trend of increasing collaboration between the HKCC and the Hong Kong Police Force, which has included joint operations to search premises of respondents suspected to be involved in both anti-competitive and criminal infringements and referring possible criminal conduct encountered during HKCC investigations to the police (for example, potential criminal conduct around forgery and misleading statements in the abovementioned COVID-19 subsidy programme investigation was referred to the police).
South Korea has been fine-tuning its antitrust framework in recent years to complement its track record of active enforcement.
- An important development has been the amendment to the Monopoly Regulation and Fair Trade Act (FTA) which took effect in December 2021. The key amendments include:
- a per se prohibition on exchanges of competitively sensitive information that substantially restrict competition;
- the maximum fines for cartels, abuses of dominant position and unfair trade practices have doubled, rising from 10% to 20%, 3% to 6% and 2% to 4% of turnover generated during the period of a violation, respectively; and
- the introduction of a transaction value-based test for mergers and acquisitions which do not satisfy the existing merger control thresholds. The Korea Fair Trade Commission (KFTC) is also currently consulting on its merger review procedures with an aim to align them with global standards.
The KFTC is highly active in antitrust enforcement across different sectors of the economy, with recent actions including:
- Fining Google around USD 185 million for abusing its dominance in the mobile operating systems space in September 2021. The appeal for this case is ongoing.
- Fining three German automakers around USD 33 million for colluding on emissions-cleaning technology in diesel cars in February 2023.
- Obtaining a draft consent decree with Broadcom for allegedly abusing its power by forcing smartphone manufacturers to sign long-term agreements, which was published for public consultation in January 2023.
On 25 April 2022, the Malaysian Competition Commission (MyCC) commenced a public consultation on proposed amendments to the Competition Act 2010, including the introduction of a general merger control regime. MyCC is currently finalising the draft amendments for presentation to the Malaysian Parliament by June 2023. The key elements of the proposed general merger control regime are:
- A regime that is mandatory and suspensory in nature, covering all combinations, amalgamations, acquisitions of direct or indirect control, or acquisitions of assets where buyer substantially replaces the asset seller in the relevant business. The creation of full-function joint ventures would also be captured.
- The proposed regime would not cover mergers in certain sectors (e.g., aviation, covered by the current sector-specific law), licensed businesses (e.g., financial services), mergers conducted in compliance with a legislative requirement, and mergers carried out by a company entrusted by the state with the operation of services of general economic interest or which has a revenue-producing monopoly.
- The proposed notification thresholds for the mandatory regime have yet to be published. Although the regime is envisaged to be mandatory, businesses can nonetheless voluntarily notify non-qualifying transactions to MyCC to obtain clarification that the transaction will not result in a substantial lessening of competition. This is relevant because the proposed regime empowers MyCC to review any transaction notwithstanding the notification thresholds where there is expected to be a substantial lessening of competition.
- The proposed timelines for the merger regime feature both an initial phase and extended review, which would commence after MyCC accepts the notification file. For voluntary notifications, MyCC is not bound to any timeline.
- Under the proposed amendments, MyCC can impose a financial penalty of up to 10% of the transaction value for failure to notify and/or gun-jumping. Implementing the transaction following a prohibition decision will attract a financial penalty of up to 10% of the business's worldwide turnover for the duration of the infringement as well as an order to cease non-compliance.
Under the current sectorial regime, only acquisitions relating to the broader aviation, telecommunications and multimedia sectors are required to make filings. Korean Air’s proposed acquisition of Asiana is the first merger that was notified and cleared in December 2021 under that regime
The first antitrust law in Cambodia was signed into law on 5 October 2021. There are a number of key observations on the new regime.
- The Cambodian antitrust regime covers three core areas of antitrust: anticompetitive agreements (both horizontal and vertical), abuse of dominance and anticompetitive mergers.
- As is the case in other countries, certain conduct is regarded as a ‘per se’ infringement of the law. The jurisdictional reach of the Cambodian antitrust law is based on an effects-test, meaning agreements or conduct effected outside of Cambodia can be caught by the law if they affect Cambodian markets. At present, no market share-based safe harbour is available although businesses can defend conduct if it produces ‘pro-competitive’ effects.
- The law foresees penalties both for natural persons or businesses engaging in anticompetitive agreements, abuse of dominance or anticompetitive mergers. Violations may be subject to a fine of up to 10% of total turnover generated during the period of the infringement for up to 3 years. Repeated violations can result in revocation or withdrawal of business registration certificates, permits or licenses. Natural persons engaging in serious anticompetitive conduct may be subject to a term of imprisonment of up to 2 years and a fine of up to KHR 100 million (approx. USD 25,000). Businesses engaging in such conduct can be fined up to KHR 2 billion (approx. USD 490,000).
While the law has been enacted and the Commission has been established, enforcement has yet to commence in practice, and it remains to be seen how the law will be applied and what the sector focus, if any, will be. As at February 2023, Cambodia’s Ministry of Commerce is looking to conclude the review of its proposed regulations under the new antitrust regime.
Our Asia contacts
Kaori Yamada Partner
Ninette Dodoo Partner
Alastair Mordaunt Partner
London, Hong Kong
Laurent Bougard Counsel