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Antitrust in Asia. the Business Impact of Fast-Evolving Competition Laws Contents Antitrust in Asia. The business impact of fast-evolving competition laws Contents Asia now crucial for global deal Indonesia planning and compliance 4 Focusing on cartels and bid-rigging Contributors: Asian antitrust milestones 18 Ben Clanchy Jonathan Tjenggoro Asian competition laws Benedicta Frizka at a glance 20 Makarim & Taira S 36 China Quick reference guides: Gaining momentum as one of comparison of Asian competition the three major antitrust regimes law enforcement and merger control regimes 40 Contributors: Nicholas French Ninette Dodoo Japan Alastair Mordaunt Asia’s oldest competition Janet Wang authority modernises Freshfields Bruckhaus Deringer 22 Contributors: Kaori Yamada Hong Kong Joel Rheuben New Competition Ordinance Yuki Sugawa off to strong start Freshfields Bruckhaus Deringer 46 Contributors: Alastair Mordaunt Malaysia Ninette Dodoo Increased enforcement appetite Joy Wong Contributors: Freshfields Bruckhaus Deringer 28 Nadarashnaraj Sargunaraj Sharon Tan Suyin India Fiona Lim Cho Ching India’s competition authority Zaid Ibrahim & Co continues to grow (a member of ZICO Law) 50 Contributors: Gaurav Desai Mongolia Vijay Pratap Singh Chauhan Focusing on domestic monopolies Platinum Partners 32 Contributors: Daniel Mahoney Munkhbaigali Chimedregzen Ariuntuya Rentsen Mahoney Liotta 54 2 Freshfields Bruckhaus Deringer LLP Philippines Taiwan A new era under the Sweeping changes to the law Philippine Competition Act Contributors: Contributors: Joyce C Fan Emmanuel M Lombos Wei-Han Wu Franco Aristotle G Larcina Lee & Li 70 Arlene M Maneja SyCip Salazar Hernandez Vietnam & Gatmaitan 58 A new, more active regime in the pipeline Singapore Contributors: Getting tougher and more Don Stokes sophisticated Dang Hai Nguyen Contributors: Ngoc Nguyen Ameera Ashraf Alastair Mordaunt Chan Jia Hui Freshfields Bruckhaus Deringer 74 WongPartnership 62 South and Central Asia South Korea A multi-speed continent One of Asia’s toughest regulators Contributors: Contributors: Alastair Mordaunt Gene-Oh Kim Joel Rheuben Maria Hajiyerou Janet Wang Kim & Chang 66 Freshfields Bruckhaus Deringer 78 Contributors 82 Freshfields Bruckhaus Deringer Editorial team John Davies Ninette Dodoo Janet Wang Alastair Mordaunt Terry Calvani Joel Rheuben Nicholas French 3 Asia now crucial for global deal planning and compliance Competition becomes more and more a guiding principle in Asia. And while globalization and digitalization enhance worldwide competition there is also an expanding common understanding that this guiding principle needs safeguards. These developments are not only reflected in the growing number and activity of Competition Agencies in Asia but also in the efforts to align competition law and policy among Asian countries, in particular through ASEAN. The increasing importance of the principle of competition in Asia also shows within the International Competition Network (ICN). In 2016 the ICN held its Annual Conference for the first time in Southeast Asia. More than 500 participants from more than 75 jurisdictions met in Singapore to have in-depth discussions about competition law and competition policy. Andreas Mundt Chair of the International Competition Network and President of the Bundeskartellamt 4 Asia now crucial for global deal planning and compliance Asia now crucial for global deal planning and compliance Overview We trust that you will find this publication useful for deal planning and compliance work, Some of the most complex mandates and we look forward to sharing our regional we have ever taken on have involved significant experience and expertise with you in person Asian challenges. With new competition regimes and in future publications. in place and existing regimes getting tougher, antitrust in Asia is now a consideration that no one can afford to ignore in global deal New enforcers and greater enforcement planning or corporate compliance. Our own The past five years have seen a number of Asian resources in the region have grown substantially jurisdictions enter the realm of competition law over the last few years. enforcement – especially Hong Kong and ASEAN This publication summarises the recent members such as Brunei, Laos, Myanmar and, highlights of competition law enforcement perhaps most notably, the Philippines – as part activities in some of the largest economies in of the establishment of the ASEAN Economic Asia. Similar to our 2013 edition, we wield our Community in 2015. Today, with only the ‘crystal ball’ to identify the enforcement trends exception of Bhutan, Cambodia (which does we’re likely to see in the region over the next have an advanced draft law) and North Korea, three to five years. We also include a standalone competition laws have been enacted in all South chapter featuring the remaining Asian and East Asian jurisdictions and have become jurisdictions, a set of regional enforcement effective across most of Asia. ‘heat maps’ and an at-a-glance reference table The jurisdictions that already had competition for 19 jurisdictions in the region to provide laws in place are taking steps to develop their the full picture of Asian competition laws existing laws and enhance the power of their and enforcement. competition authorities. In particular, Taiwan Besides our own competition law practices in has made sweeping changes to its competition Beijing, Hanoi, Hong Kong and Tokyo, several laws recently. China, Indonesia, Japan, Mongolia, other firms with whom we work regularly Thailand and Vietnam are all considering have contributed to this project. We would like or are in the process of making substantial to thank them and a number of our clients for amendments to their competition laws. their enthusiastic response to this publication. As well as legislative reform, enforcement activity has increased considerably. As well as legislative reform, Well-established authorities such as the Japan enforcement activity has Fair Trade Commission (JFTC) and the Korea Fair Trade Commission (KFTC) have grown increased considerably. increasingly robust and are exploring new targets Our special thanks also go to Mr Andreas Mundt, for future enforcement. In the short time since Chair of the International Competition its competition law came into force, China has Network and President of the Bundeskartellamt, already established itself as one of the world’s and Mr Han Li Toh, Chief Executive of the most active competition law regimes, intervening Competition Commission of Singapore, for in global transactions and aggressively pursuing sharing their valuable observations on cartel, resale price maintenance and abuse of competition law enforcement in Asia from dominance infringements by both domestic and the authorities’ point of view. foreign companies. Singapore and India have also evolved markedly, leading competition law 5 Asia now crucial for global deal planning and compliance It is clear that Asia is a key focal point for global competition law enforcement. A decade ago, many of our clients were focusing on antitrust risks in the US and Europe. Today, we are answering their questions on competition law enforcement in Asia on a daily basis. enforcement in the ASEAN region and South Mongolia, starting from July 2017, is now able Asia, respectively. Malaysia’s and Indonesia’s to impose community service and travel bans appetites for cartel investigations continue to against individuals for cartel and abuse of grow. In Hong Kong, one of the youngest Asian dominance infringements. In addition, competition law regimes, the Competition competition authorities in Taiwan and Indonesia Commission is also proving to be a serious are working towards including the power of enforcer, bringing its first two cartel cases search and seizure into their new competition before the court only 20 months after its laws laws to enhance the authorities’ evidence- took full effect in late 2015. In the medium term, gathering ability. These new developments signal a number of highly sophisticated competition more vigorous enforcement in Asia going authorities will likely emerge in Asia, exerting forward, especially as previously less active significant influence on the business world competition authorities gain momentum. together with their more mature counterparts However, in line with the disparate economic in the West. This is already the case with China. and political development in the region, the The past five years have also seen Asian competition law enforcement climate varies competition laws amended to provide for more considerably across Asian jurisdictions. severe sanctions and enhanced enforcement Competition law remains dormant in a few powers. The KFTC imposed total fines of jurisdictions in South and Central Asia, and US$760m in 2016, almost double that of the US, infringement findings and penalties in some and in 2017 imposed a fine of circa US$900m on countries are frequently annulled as a result Qualcomm. The authority has also been actively of political influence or domestic interests. pursuing criminal penalties against individuals Different economic contexts may also result in cartel investigations. Between 2015 and 2016, in drastically different enforcement priorities. it made more than 30 referrals for criminal For instance, competition authorities in China prosecution, with prison sentences ranging from have been taking a strict stance towards resale several months to one year. Indonesia is expected price maintenance, whereas vertical agreements to remove its relatively low financial penalty cap are excluded altogether
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