Competition Compliance Contributing Editors Susan Ning and Kate Peng 2018
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GETTING THROUGH THE DEAL Competition Compliance Competition Compliance Contributing editors Susan Ning and Kate Peng 2018 2018 © Law Business Research 2018 Competition Compliance 2018 Contributing editors Susan Ning and Kate Peng King & Wood Mallesons Reproduced with permission from Law Business Research Ltd This article was first published in June 2018 For further information please contact [email protected] Publisher Law The information provided in this publication is Tom Barnes general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does James Spearing Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. 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Printed and distributed by First published 2017 Encompass Print Solutions Second edition Tel: 0844 2480 112 ISBN 978-1-78915-003-2 © Law Business Research 2018 CONTENTS Global overview 5 Japan 65 Susan Ning and Kate Peng Kenji Ito, Hideki Utsunomiya and Yusuke Takamiya King & Wood Mallesons Mori Hamada & Matsumoto Australia 7 Korea 71 Sharon Henrick and Wayne Leach Gene-Oh (Gene) Kim and Luke Shin King & Wood Mallesons Kim & Chang Brazil 15 Malaysia 77 Leopoldo Pagotto Sharon Tan and Nadarashnaraj Sargunaraj Freitas Leite Zaid Ibrahim & Co China 19 Russia 84 Susan Ning and Kate Peng Anna V Maximenko and Elena M Klutchareva King & Wood Mallesons Debevoise & Plimpton LLP France 27 Spain 90 Katrin Schallenberg and Amélie Lavenir Edurne Navarro Varona, Raquel Lapresta Bienz and Clifford Chance Jordi Calvet Bademunt Uría Menéndez Germany 32 Michael Dallmann and Kim Manuel Künstner Sweden 96 Schulte Riesenkampff Fredrik Lindblom, Elsa Arbrandt and Sanna Widén Advokatfirman Cederquist KB Greece 38 Eleni Papaconstantinou and George Risvas Switzerland 101 Law Offices Papaconstantinou Thomas A Frick Niederer Kraft Frey AG India 45 Suhail Nathani and Ravisekhar Nair Turkey 106 Economic Laws Practice M Fevzi Toksoy and Bahadır Balki ACTECON Ireland 52 Richard Ryan and Patrick Horan United Kingdom 113 Arthur Cox Paul Gilbert and Alexander Waksman Cleary Gottlieb Italy 59 Elisa Teti and Alessandro Raffaelli United States 121 Rucellai&Raffaelli Olivier N Antoine, Britton D Davis and Robert B McNary Crowell & Moring LLP 2 Getting the Deal Through – Competition Compliance 2018 © Law Business Research 2018 PREFACE Preface Competition Compliance 2018 Second edition Getting the Deal Through is delighted to publish the second edition of Competition Compliance, which is available in print, as an e-book and online at www.gettingthedealthrough.com. Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross- border legal practitioners, and company directors and officers. Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes new chapters on Italy, Malaysia and Switzerland. Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com. Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to Susan Ning and Kate Peng of King & Wood Mallesons, the contributing editors, for their continued assistance with this volume. London May 2018 www.gettingthedealthrough.com 3 © Law Business Research 2018 King & Wood Mallesons GLOBAL OVERVIEW Global overview Susan Ning and Kate Peng King & Wood Mallesons Introduction Antitrust Competition compliance has become more and more challenging In antitrust, we notice that big data has become more and more influ- for multinational companies doing businesses around the world. ential to businesses. Especially, if such data is costly and time-con- Currently, more than 120 countries are adopting or have already suming to replicate and gives a business a competitive advantage that adopted their own national competition laws, which vary from coun- is difficult or impossible for others to match, it could be considered as try to country. Yet competition authorities’ support for competition a barrier to entry or even the ‘essential facility’ to which competitors compliance programmes is wildly inconsistent. For example, a few pro- should be given access. As such, big data could be used in a way that vide guidance about compliance, and will consider a genuinely imple- enhances the ability of a dominant player to employ abusive measures mented compliance programme to be a mitigating factor. But many will to the detriment of its competitors or customers. In this regard, such not give credit to such programme. Attitudes towards legal professional exponential growth of the digital economy has already raised the new privilege also differ across the globe. This may create difficulty in the issue as to how to assess the power of data in antitrust cases. face of a cross-border antitrust investigation as to how to disclose infor- mation to different competition authorities. Antitrust investigation and sanction Nevertheless, the different national competition laws still share In antitrust investigations, we notice that increasingly sophisticated similarities. First, the ultimate purposes of competition compliance investigative techniques are being employed by competition authori- shared across jurisdictions are to ensure efficiency in resource alloca- ties. Such as, the types of media that agencies may want to access, data tion, to protect the interests of consumers, and to create a level play- protection and even the types of behaviour treated as cartels. ing field for all the participants. Second, detection and prevention of In addition, we also notice there is an increased tendency towards competition law violations is the primary focus of compliance pro- deterrence in countries such as Australia, Canada, Israel, Japan, grammes. Third, the major themes that are most frequently found in Norway, the UK and the US, to impose sanction against individuals, most countries are horizontal restraints of trade among competitors, including imprisonment. Certain concerns may thus arise when cartels vertical restraints of trade among non-competitors, abuse of dominant are investigated in a multi-jurisdictional context. For example, evi- position and mergers. Last, common methods for deterring competi- dence from one jurisdiction could be used elsewhere, thus subjecting tion law violations are also widely adopted, such as pecuniary fines and an individual to be prosecuted in multiple jurisdictions. The principle leniency programmes. of double jeopardy may prevent authorities in different countries from For the purpose of providing businesses, legal practitioners and sanctioning the same individual for participation in the same cartel. in-house counsels with a global overview of the state of play of com- As such, certain coordination among jurisdictions would be needed to petition compliance, in this edition we survey 19 jurisdictions, includ- avoid any conflict or excessive penalties. ing the European Union, to summarise their countries’ applicable rules and practices in relation to competition compliance. Merger control In merger control, the new challenge relates to jurisdictional nexus. New trends The European Commission, the German competition authority and We would like to highlight a few major trends of competition law devel- MOFCOM are currently considering whether to introduce a ‘deal opments, which may give rise to new challenges for businesses to miti- value’ into the notification thresholds to increase the jurisdictional gate competition law risk. nexus to deals in the digital economy. The growing digitisation of economy impacts competition law in a Another visible trend in mergers is that China’s MOFCOM has comprehensive way. Against this backdrop, there is an ongoing debate intensified efforts to increase punishment for companies failing to as to whether the competition authorities should refrain from interven- notify. The speculation is that MOFCOM may follow the European ing in fast-moving, technology-driven industries. Conversely, some Commission’s model to calculate the pecuniary fine to be imposed on observers argue that a new regulatory framework would be required to the company who fails to notify based on the company’s turnover in the address new problems arising from the digital economy. As such, the year prior to the proposed transaction. But whether this new model will current competition legal framework around the