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A Guide to Antitrust and Competition Law in Asia Pacific Introduction

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A Guide to Antitrust and Competition Law in Asia Pacific Introduction A guide to antitrust and competition law in Asia Pacific Introduction 2 A guide to antitrust and competition law in Asia Pacific Introduction Antitrust and competition law has never impacted business as Over the last few decades, Clifford Chance has accumulated much as it does today – and getting it wrong has increasingly significant antitrust expertise and technical knowledge across the severe repercussions for individuals and for a company’s strategy, Asia-Pacific region, assisting companies on some of the most reputation and growth opportunities. complex multi-jurisdictional transactions as well as advising on high-profile cases brought against domestic and international The rapid expansion and diversity of antitrust and competition businesses. legislation has created a complex operating environment for international business in recent years. Asia Pacific exemplifies This guide contains insights into 12 Asia-Pacific jurisdictions, this trend. Mainland China is now established as a key merger including Australia, Mainland China, Hong Kong, India, Japan control regime, along with the EU and the US, and is beginning and Singapore, reflecting the experience and reach of the firm’s to extend its antitrust enforcement activities. Additional regimes regional network; a depth of expertise that empowers our are imminent, such as in Hong Kong, which recently enacted a clients and assists them in risk and compliance strategies in this general antitrust and competition law (although not yet in force), increasingly complex global regulatory environment. and the ten member states of the Association of South East Asian Nations (ASEAN), which have each agreed to implement national Dave Poddar antitrust and competition laws by 2015. Head of Antitrust, Asia Pacific, Clifford Chance In a transactional context, this growth in antitrust regimes means We express our thanks and appreciation to the firms that have a well-executed merger control strategy can be the difference kindly contributed chapters on India, Indonesia, Malaysia, Taiwan between success or failure for a company’s transforming and Vietnam respectively: AZB & Partners, Linda Widyati & transaction. At an enforcement level, incorrect handling of Partners, Skrine, Lee and Li, and VILAF. antitrust and competition investigations may severely impact a company’s legal position, reputation and financial performance, as the incidence of criminalisation, high penalties and cross-border cooperation in antitrust enforcement rises. This guide does not purport to be comprehensive or constitute legal advice. The information and the laws referred to are correct as of January 2014 but may change quickly. If you would like any advice or further information on any of the matters referred to in this guide, please contact Clifford Chance. This handbook is copyrighted material. No copying, distribution, publishing or other restricted use of this handbook is permitted without the written consent of Clifford Chance. A guide to antitrust and competition law in Asia Pacific 1 Growing antitrust and competition activity across the Asia Pacific region Mainland China Mainland China has cemented its position as a key merger control regime and is now extending its other antitrust enforcement activities. Mainland China’s merger regime is now undisputedly one of the “big three” approval locations, along with the EU and the US, although concerns persist over timing and predictability. 2013 saw antitrust enforcement significantly increase, with the country’s fining record for anticompetitive conduct, including cartels and vertical agreements, being broken three times that year alone. Hong Kong Hong Kong’s competition policy is currently restricted to the telecoms and broadcasting sectors, although a new cross-sector competition law is expected to come into force by early 2015. Given that the new law does not contain a merger control regime, it is expected that there will be a heavy focus on enforcement actions (which must be taken through litigation in the High Court) and follow-on litigation. India India’s merger control regime came into force in June 2011. Filings are mandatory and suspensory, and the thresholds are complex. Only two cases have been subject to remedies (the rest have been cleared unconditionally), and fines have already been imposed for late notifications. India’s competition enforcement agency is also increasingly active in enforcement matters. Thailand The Thai Competition Act (TCA) came into force in April 1999. The main agency to enforce the TCA is the Trade Competition Commission (TCC), chaired by the Minister of Commerce. The TCC has issued guidelines Malaysia concerning cartels, abuse of a dominant position, The Malaysia Competition Commission and anti-monopoly or a reduction of competition (MyCC) has received 40 complaints although there are very few reported cases. No detailed since its inception in January 2012. As of regulations for merger control have yet been issued. September 2013, MyCC was working on Singapore 26 ongoing cases, while another 14 had Singapore has a well-respected been dismissed. MyCC recently imposed competition authority in the a proposed fine of around USD6 million on Competition Commission of Malaysia Airlines and AirAsia for entering into Singapore (CCS) that is astutely an agreement for market allocation. tackling competition issues in Singapore. Recent activity includes sanctioning two ferry operators for exchanging and providing sensitive and confidential information, including the prices of tickets sold to travel agencies, marking the first (and to date only) infringement decision by the CCS for anticompetitive exchange of information. 2 A guide to antitrust and competition law in Asia Pacific South Korea The Korean Fair Trade Commission (KFTC) is a highly active regulator, accounting for a significant volume of the enforcement action in Asia Pacific. Its complaints and ex-officio investigations surged by 54% in 2012 when compared to 2011, handling 5,316 process records (that is, cases where measures were in fine adopted), against 3,879 cases in 2011, an increase of 37%. The total fine amount imposed by the KFTC in 2012 was KRW510.5 billion, with the percentage of investigated cases in which a fine was eventually imposed increasing from 24% to 54% (2011/2012). Japan The Japanese Fair Trade Commission (JFTC) is a well resourced and active regulator and a regular participant in regional capacity building initiatives. 2012 marked a significant year for Japanese cartel enforcement with the largest fine ever imposed on an individual company – JPY9.6 billion (USD97 million) to Yazaki, a participant in the wire harness cartel. There were other car parts cartel cases in 2013, where the JFTC also imposed significant fines. Taiwan The Taiwan Fair Trade Commission (TFTC) has been active since 1992. In 2012, the TFTC imposed fines totalling NTD121.9 million (USD4.1 million) on 12 companies for illegal collusion in the recycling of waste electrical and electronic equipment. Australia As a significant exporter of mineral, energy and agricultural commodities to Asia, the interaction of Australia’s merger control regime with other antitrust and competition laws in the Asia Pacific region is increasing, especially given the growing number of regimes in Asia. It is also essential to coordinate Australian foreign investment filings with merger control notifications. The Australian Competition and Consumer Commission (ACCC) has also been very active in enforcement matters bringing cartel proceedings against a major global industrial company and a leading Australian retailer in December 2013 to highlight its focus on cartel actions. Vietnam Indonesia Vietnam’s competition law prohibits cartel Indonesian competition law is enforced by the Supervisory conduct if the cartel concerns at least 50% Commission for Business Competition (KPPU), which of the relevant market. In 2010, 19 insurance also has powers to undertake market studies and review companies were fined a total of 0.025% of their government policies to determine whether they are total turnover. A major ongoing investigation consistent with fair competition. The KPPU is active in in Vietnam relates to the cinema market. Six enforcement, with a consistently high volume of reported Vietnamese cinema operators have accused a cases each year. A large number of these relate to tender big operator of abusing its market dominance by conspiracy, but a significant portion also concern cartels, imposing a margin squeeze. abuse of dominance and mergers. A guide to antitrust and competition law in Asia Pacific 3 Contents 4 A guide to antitrust and competition law in Asia Pacific Contents Australia ...............................................................................................................................................................................................8 Mainland China .....................................................................................................................................................................................20 Hong Kong ..........................................................................................................................................................................................28 India .....................................................................................................................................................................................................38 Indonesia ..............................................................................................................................................................................................50
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