Brazil and Korea grapple with women’s role in antitrust enforcement

Charley Connor and Julie Masson

25 September 2019

Competition authorities overseeing two of the largest economies in the world have faced questions about the presence of women – or lack thereof – at those agencies.

Economics professor Joh Sung-wook has become the new head of Korea’s Fair Trade Commission, making her the agency's first female chair in its 38-year history. But in the days leading up to her official appointment earlier this month, a male lawmaker reportedly berated her for being unmarried and childless. 

At a National Assembly confirmation hearing for Joh, Jeong Kab-yoon from the opposition Liberty Korea Party reportedly scolded her for having a “great resume” but failing to "fulfill her duty to the nation" by having a child.

“I’m aware that you are still single,” but the “biggest problem in South Korea is that women are not giving birth,” Jeong said, according by Yonhap News Agency. Although Joh reportedly appeared “taken back” by the lawmaker’s comments, she did not respond to his remarks.

Following the hearing, fellow lawmaker Kim Byung-wook of the ruling Democratic Party of Korea called out Jeong's remarks as inappropriate, saying that a confirmation hearing is intended to verify the nominee's ability to lead the commission, not to inquire about private matters like marriage and children. 

"If the nominee were a man, would Representative Jeong ask the nominee such questions? This kind of situation should not occur again at a hearing," Kim was quoted as saying by the Korea Times

The report added that Jeong later apologised to the new KFTC head for his remarks. 

Bae Kim & Lee partner Kim Hyun called Jeong’s comments “inappropriate” and “absolutely ridiculous”. She said a criminal complaint may have been filed against him for allegedly violating Korea’s Labour Act, although his status as a congressman may interfere with him being found guilty.

Kim suggested the congressman may have been using Joh’s confirmation hearing as a chance to “humiliate” candidates from opposing political parties. But his comments “ironically” show that it was “very hard” for Joh’s opponents to level any meaningful criticisms against her outside of her marital status, Kim said.

Han Ye Sun, a partner at Shin & Kim in Seoul, said Jeong has since been “widely criticised” for his “inappropriate” comments. 

“It is a blatant manifestation of his ill-advised perception of gender roles and a lack of respect for others,” she said, noting that the comments were made during an event that was “intended to verify Professor Joh’s professional abilities and qualifications”.

Joh’s appointment “broke the glass ceiling” in Korea’s civil service, Han said. The appointment of a female professor as the KFTC chairperson in a “male-centered officialdom” proves that gender equality is improving in Korea, she said.

Han added that she expects Joh to enforce Korean competition law in a “rational and reformative” manner, and effectively administer the KFTC based on her expertise and experience as an economist. 

“She is expected to intensively monitor, regulate and impose sanctions on Korean conglomerates for unfairly transferring wealth and disrupting fair market competition by engaging in unfair business transactions with affiliates,” Han said.

In her inaugural speech as the new chair, Joh reportedly said that she intends to take measures to tackle big tech companies that allegedly abuse their dominant market position. However, she added that the KFTC will strictly enforce laws to all companies, regardless of their size, and will closely monitor and take action against unfair business practices. 

Joh has said that as the KFTC chair, she looks to establish a more level playing field for the economy by emphasising chaebol reforms and tackling abusive business practices by dominant companies. 

President Moon Jae-in tapped Joh to lead the KFTC after the agency’s previous chair, Kim Sang-Jo, was selected to serve as the president’s chief policy officer.  

Korean media has already dubbed Joh “Kim Sang-jo’s avatar,” citing her policy similarities to her predecessor. He was widely referred to as the “chaebol sniper” for his hard-nosed activism against the country’s dominant family-run conglomerates. 

“A clearly political decision”

Meanwhile, across the world, another competition agency has been criticised for its lack of female representation. 

In August, Latin American trade groups Women in Antitrust and Women Inside Trade published a joint letter addressed to Brazil's president, Jair Bolsonaro, and other government officials. The letter urged the government to consider increasing the number of female commissioners at Brazil’s competition enforcer, the Administrative Council of Economic Defence.

“There is a high prevalence of gender inequality within the authority,” the letter said. “In fact, despite the growing number of female experts in [the economic and legal] fields in recent years, the Council has only had one female president and 10 female advisers since its creation in 1962.”

A week later, Bolsonaro released a list of four nominees for roles at CADE. The authority needs at least one more commissioner to reach its quorum, and is unable to conduct plenary sessions or issue any decision until that minimum is satisfied.

Bolsonaro’s list of nominees sparked criticism at first, however, as all four nominees were male. The government has since updated the list to add Lenisa Rodrigues Prado, a former member of the Federal Administrative Tax Court, although it did not give a reason for the additional nomination.

The nominees – Luiz Augusto Azevedo De Almeida Hoffmann, Luis Henrique Bertolino Braido, Sergio Coast Ravagnani and Prado – were grilled by politicians during a Senate hearing today. Tomorrow they will attend a plenary session, after which Bolsonaro is expected to officially confirm their appointment as CADE commissioners. 

One Brazilian lawyer, who wished to remain anonymous due to the sensitive nature of the topic, claims to “speak for Brazil’s antitrust community” in being “disappointed” by the nominees. Not only do they lack gender diversity, but most do not any have previous antitrust experience, the anonymous source said. 

CADE has a “very important and specific” role, and therefore needs commissioners who are prepared, the source said. “Unfortunately, although there are a lot of women in the antitrust bar and already inside CADE who are very well prepared, we are not well-represented by these names.”

The source is unsure whether the criticisms surrounding the all-male nominees led to the nomination of one woman, but said that all the nominees were “a clearly political decision instead of a technical one”.

“In an ideal world, CADE would have a balance between male or female with all necessary prerequisites – but unfortunately that is not what we see today,” the lawyer said. 

However, other practitioners are less convinced that the lack of female commissioners at the authority reflects any wider gender inequality. 

“The bar in Brazil and Latin America has a significant number, if not a majority, of women, and at least in Brazil that is reflected at a senior level,” said Adriana Giannini, a partner at Trench Rossi Watanabe in São Paulo.

Giannini said the number of female antitrust practitioners suggests there is “no particular challenge to women” in Brazil – and if there were, those challenges “have already been overcome”. Brazil has had “very successful female practitioners” from “early on” that paved the way for the next generations, she said.

“The current CADE nominees are a result of political negotiations between the senate and government, and there was no particular concern regarding diversity,” Giannini said.

Female antitrust experts from around the world will be speaking about competition matters ranging from the impact of elections to the line between conversations and collusion at GCR Live: Women in Antitrust. The conference takes place on Tuesday 12 November at the W Hotel in Washington, DC; tickets at the super early bird rate are available until Friday.

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