Overview: Cartels and Abuse

In summary

This chapter provides an overview of recent regulatory developments, including legislative changes and enforcement activity, in the vibrant and dynamic Asia-Pacific region. In addition to new laws and regulations being established in a number of jurisdictions, regulators in the region have reacted swiftly to the pressures brought about by the covid-19 pandemic, as well as the rise of digital markets.

Discussion points

• Regulatory response to the covid-19 pandemic;
• antitrust issues arising in the digital sector; and
• legislative and regulatory updates across the Asia-Pacific region.

Referenced in this article

• Hong Kong Competition Commission (HKCC);
• Australian Competition and Consumer Commission (ACCC);
• Competition and Consumer Commission Singapore (CCCS);
• Korean Fair Trade Commission (KFTC);
• State Administration of Market Regulation of China (SAMR);
• Taiwan Fair Trade Commission;
• Commission for the Supervision of Business Competition of Indonesia;
• Japan Fair Trade Commission (JFTC);
• Office of Trade Competition Commission of Thailand;
• Malaysia Competition Commission (MyCC);
• Competition Commission of India (CCI);
• Thailand’s Office of Trade Competition Commission (OTCC);
• Philippine Competition Commission (PCC); and
• Association of Southeast Asian Nations (ASEAN).

Introduction

Following major legislative and policy changes in a number of jurisdictions across the Asia-Pacific region in recent years, the regulatory and enforcement landscape has continued to flourish, even in spite of the difficulties presented in 2020 by the covid-19 pandemic.

Since the previous GCR Asia-Pacific Antitrust Review enforcement update, new competition laws have been passed or entered into active enforcement in a number of jurisdictions (including Brunei Darussalam, Laos, Myanmar and Vietnam), while substantial amendments have been enacted in others (such as Japan, South Korea and New Zealand). New or substantially amended laws appear to be on the horizon in Cambodia, Indonesia and Malaysia. China has also merged its competition regulatory powers and formed a new leading regulator in the region, SAMR.

As detailed in this chapter, several newer regulators have taken ambitious enforcement actions during this period, not least in Hong Kong and the Philippines. Meanwhile, more established regulators have kept pace with regulators in Europe and the US in dealing with the challenges posed by large global platforms in complex digital markets. For both of these reasons, the region has seen a rise in abuse of dominance cases. These developments also demonstrate the increasing convergence in enforcement priorities in key competition jurisdictions, and the importance of global compliance planning for businesses with activities both in and outside of Asia.

Perhaps just as importantly, competition law awareness among businesses in Asia appears to have increased, in terms of both compliance and the use of complaints to regulators as a means of advancing commercial positions.

This chapter aims to capture the key developments in this diverse and dynamic region.

The impact of covid-19

Although countries in the Asia-Pacific region have generally coped better with the outbreak of the covid-19 pandemic than elsewhere in the world, competition regulators in the region have faced the same challenges of responding to price gouging of daily essentials, providing guidance on acceptable forms of competitor cooperation to deal with supply shortages and dealing with remote working under lockdowns.

As elsewhere in the world, at the outbreak of the pandemic, Asia-Pacific competition regulators took swift action in response to the immediate market interruptions, managing a careful balance between demonstrating flexibility towards potentially anticompetitive conduct that may be justified under the circumstances, while also discouraging businesses from taking advantage of the pandemic to engage in plainly unlawful conduct.

On the one hand, regulators stressed that competition law would continue to apply during the pandemic, and vowed to uphold antitrust enforcement especially against conduct that sought to profit from the public health crisis.^[1] As early as March 2020, the KFTC made a statement that it would monitor the entire face-mask supply chain for signs of unfair pricing and distribution practices.^[2] Similarly, regulators in Mainland China, Taiwan, Thailand and Indonesia combatted price-fixing and price-gouging conduct in relation to essential medical supplies and groceries. ^[3]

On the other hand, recognising the need for an increased level of cooperation between competitors to deal with temporary shortages in supply and to efficiently allocate inventory, regulators across the region issued guidance clarifying what they considered to be acceptable cooperation. Some regulators, most notably the ACCC, provided mechanisms to explicitly authorise specific collaboration. Authorisations provided by the ACCC spanned the provision of medical equipment and pharmaceutical products, supermarkets, hospitals and oil supply.^[4] The JFTC referred companies back to earlier guidance issued in the aftermath of the March 2011 Tohoku earthquake and tsunami. ^[5]

Nevertheless, as the economic fallout from covid-19 caused hardship for businesses, at least some regulators did take a softer approach in antitrust enforcement. In two separate cartel decisions (relating to automotive bearings and railway equipment providers), the CCI decided not to fine the companies involved, taking into account that the companies were already suffering from a decrease in revenues.^[6] The MyCC similarly granted a 25 per cent discount of the fines it imposed on participants in an automotive insurance cartel (described below). ^[7]

Lockdowns and efforts to avoid unnecessary personal interactions did lead to a slowdown in some enforcement activities, including dawn raids. China’s SAMR remained closed for a further week after the Chinese New Year, though dawn raids continued to be conducted by SAMR’s local branches across China against manufacturers producing fake masks and drugstores selling fake or excessively priced masks, even at the peak of covid-19 infections in February and March.^[8] The PCC suspended dawn raids altogether,^[9] as did the KFTC, although raids had resumed at least by December.^[10] Myanmar was forced to suspend dawn raids originally planned to launch in 2020.^[11] Cambodia, as the only jurisdiction in the ASEAN that still does not have its competition regime, had to delay the introduction of its draft law to the legislature. ^[12]

At the same time, as described in the following sections, competition regulators remained busy during 2020 in enforcing ‘business as usual’ infringements of competition law, with fines in fact increasing in South Korea and Taiwan.

New regulators hit their stride

Significant progress has been made in various ASEAN countries where competition laws were introduced or significantly revised under commitments made under the ASEAN Economic Community Blueprint, which required ASEAN Economic Community Member States to have competition laws in place alongside the formation of the Community. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership, of which several ASEAN countries are members, similarly imposes certain competition law obligations. Almost all of the ASEAN countries now at least have competition legislation in place and are stepping up their efforts in building and enforcing their competition regimes: be it by way of increased resources to empower their regulators (such as in Thailand), new trends in enforcement (such as in the Philippines) or recent as well as upcoming significant overhauls of legislation (such as in Vietnam and Indonesia).

The OTCC, for example, had an exceptional year of activity, introducing various new guidelines and amendments to existing regulations. For instance, during the course of 2020, the OTCC introduced amendments to the definition of a ‘dominant player’ under Thailand’s Trade Competition Act 2017^[14] which have seen unprecedented growth in light of the pandemic. All this follows the regulator’s first penalty under its new law, which was imposed in 2019 on M-150 Company Limited for abuse of dominance. This was also the first competition law penalty in the country ever, since the predecessor legislation was first introduced in 1999. ^[15]

In the Philippines, the PCC continues to operate with the same fortitude it has shown since its inception in 2015, issuing its first Statement of Objections based on alleged anticompetitive agreements in December 2019 against a number of insurance companies and the state-owned National Home Mortgage Finance Corporation in relation to mortgage redemption insurance. ^[16]

By way of recent and upcoming new legislation, Vietnam’s new competition law came into force in July 2019 and the new competition regulator is currently being established.^[17] Meanwhile, a number of key enforcement decrees have been published, which flesh out key aspects of the law, including the assessing of anticompetitive effects and establishing market dominance. However, Indonesia’s competition law regime has been under review for many years, although reports suggest that recent legislative activities have stalled.^[18] Nevertheless, changes are expected to be significant and may introduce important new features to the law including a leniency regime and extraterritorial applicability.

There have also been major changes to the regulatory landscape elsewhere in Asia. China, for example, has completely overhauled its antitrust enforcement landscape. After consolidating antitrust enforcement powers from three separate regulators in 2019 into the newly established SAMR, China has focused on decentralising enforcement activities to over 30 different regional-level counterparts of SAMR. This has greatly increased the overall capacity of the regulator to deal with smaller, localised behaviour around the nation, and focus remains on cartels. For example, in 2019, four regional-level regulators handed down penalties for separate, localised cartels in the cement and building materials industry.^[19] The largest of these cases occurred in the Zhejiang province, involving eight different undertakings. However, the aggregate fines amounted only to approximately 7.7 million renminbi.

In total, during 2019, Chinese regulators formally investigated 28 cases involving anticompetitive agreements and concluded 12 cases, as well as concluding four out of 15 abuse of dominance cases. Additionally, SAMR has published a range of new guidance materials, including its new Guidelines to the Application of the Leniency Regime in Horizontal Monopoly Agreement Cases in August 2020, formalising the leniency framework that applies to cartel conduct. ^[20]

These younger regulators in Asia are also seeking to increase regional engagement and cooperation. In 2019, the PCC signed a memorandum of understanding (MOU) for technical cooperation with SAMR,^[21] and a second MOU with the HKCC in 2020.^[22] SAMR, in turn, entered into similar arrangements in 2019 with the JFTC^[23] and the KFTC^[24] and a number of trading partners along the Belt and Road Initiative. ^[25]

Another highlight is the cooperation between regulators in the ASEAN network. The CCCS, a long-time advocate and pioneer of regional collaboration of competition law enforcement, regularly seconds its personnel to other regulators in the region to build up their enforcement capability. The newly established ASEAN Experts Group on Competition, comprising representatives from Member State competition regulators, issued a joint notice in June 2020, encouraging businesses in the region to continue complying with competition law during the economic downturn. ^[26]

Enforcement in digital markets

Policy

Competition regulators around the world are increasingly turning their attention to digital markets, and regulators in APAC are among the leading regulators tackling the complicated challenges presented by the application of competition law to these markets.

The more established regulators in APAC (especially Australia, Japan, South Korea and Taiwan) appear to be closely aligning with Europe (which has recently announced an ambitious package of new legislation, including the Digital Services Act (DSA)) and the US (which has brought a series of high-profile cases against major tech companies) in terms of both policy and enforcement priorities, and this is often supported by government legislation.

To take Australia as an example, the ACCC has conducted a number of inquiries in the digital sector, including a digital platforms services inquiry and a digital advertising services inquiry, and has made recommendations to the government in relation to a mandatory code of conduct for news media businesses and digital platforms. These recommendations were incorporated into a new piece of draft legislation, which has recently been passed by the Australian parliament. The ACCC is also currently considering changes to merger control provisions, including a possible new mandatory notification regime for large digital platforms.

In Japan, the national legislature passed a law in 2020 governing the relationship between digital platforms and their business counterparts that is similar to the EU’s DSA package, which the Japanese government is aiming to put into effect before Spring 2021. The application of this legislation is limited to designated digital platforms, which is likely to include Rakuten and Yahoo.^[27] Legislation regulating digital platforms is also expected in South Korea shortly. ^[28]

Regulators are increasingly getting to grips with the key issues relevant to the digital sector. The KFTC is reported to be formulating new regulations to deal with issues such as big data, AI and algorithmic collusion.^[29] Even more established regulators appear to acknowledge the need to foster the requisite expertise required to deal with the digital sector, with the JFTC creating a 10-person digital policy unit tasked with considering competition issues in the digital sector, and similar groups being set up in jurisdictions like South Korea.^[30] In October 2020, the Taiwan National Communications Commission approved new rules for the determination of ‘significant market power’ in telecoms and tech sectors. ^[31]

In China, SAMR published draft guidelines on the application of competition law rules to the platform economy in November 2020, which suggests that the regulator will seek to apply existing competition law rules to the digital sector rather than introducing a new sector-specific regime. The guidelines deal with a number of hotly debated issues in China, such as personalised pricing through data analytics.^[32] Japan and Singapore have also recognised the importance of big data in recent statements. ^[33]

Enforcement

Aside from legislation and policy developments, digital platforms have also been targeted in enforcement actions in the region. This is in part due to the increasing number of complaints that are being brought to competition regulators in Asia by customers, suppliers and competitors of the big digital platforms. This may prove to be a catalyst for some of the younger regulators to grow more sophisticated as they upskill staff to deal with these complaints.

The KFTC has been particularly active in this space. In October 2020, the regulator fined digital platform Naver (South Korea’s main search engine and leading comparative shopping services provider) nearly 26.7 billion won for abuse of dominance by manipulating search results in the online shopping and video sectors by favouring its own online shopping site and products offerings. ^[34]

The KFTC is also investigating Google on multiple fronts; for example, in relation to Android and the Google Play Store.^[35] This concern about app stores is reflected in other enforcement action across the region, with Japan, South Korea, Taiwan and Australia investigating this market.^[36] In India, the competition regulator has opened investigations into Google, WhatsApp and Amazon. ^[37]

The use of most favoured nation clauses by online booking platforms have also come under the spotlight, with South Korea, Japan and Hong Kong all taking enforcement action in this area, and Singapore conducting a market study. In South Korea, enforcement action resulted in a fine on Delivery Hero of 468 million won for abuse of its superior bargaining position, while in Japan and Hong Kong competition law concerns were dealt with by way of commitments from Rakuten (in Japan) and Expedia.com, Booking.com and Trip.com (in Hong Kong).^[38] Both the Japanese and Hong Kong investigations centred around online hotel booking services.

Indonesia has made it clear that digital markets are an enforcement focus at the moment, and less established regulators, such as the PCC and the OTCC, have also made it clear that e-commerce will be a priority going forwards, although there is a recognition that this will involve upskilling staff to deal with the types of issues that digital markets give rise to, including in relation to abuse of dominance. ^[39]

Cartel enforcement

Enforcement priorities

Together with this shift in focus towards digital markets and abusive conduct by platform companies (considered in further detail below), competition regulators in the Asia-Pacific region continue to widen their cartel enforcement priorities beyond bid-rigging and purely domestic commodity cartels into increasingly international and sophisticated markets.

To give but one example, the relatively less experienced regulators in the Philippines and Malaysia each brought investigations in the insurance sector over the past two years: in the case of the Philippines, in relation to mortgage redemption insurance,^[40] and in the case of Malaysia, in relation to motor insurance.^[41] The latter involved the local arms of numerous global insurers, although it has faced criticism from Malaysia’s central bank. ^[42]

India’s CCI participated in its first truly global cartel investigation, with findings of infringements against local participants in the electric power steering and bearings auto parts cartels in 2019 and 2020.^[43] The CCI’s decisions came several years after those of other regulators, but the CCI, whose decisions in respect of other cartels have faced numerous court challenges, will undoubtedly have benefited from watching those other investigations play out. The Taiwanese Fair Trade Commission also cemented its position as a global regulator, imposing fines totalling NT$ 637.3 million on hard disk drive component manufacturers TDK and NHK Spring in November 2020, following similar investigations in Japan, South Korea, the US and Brazil.^[44]

Despite the KFTC under the Moon administration having declared an intention to rein in the power of the chaebol business conglomerates, actual enforcement practice to date appears to be very much focused on foreign companies. Its major decisions over the past few years include fines totalling 128 billion won against (mostly Japanese) manufacturers of capacitors, alternators and ignition coils, as well as fines against foreign banks for rigging currency swap bids for Korean clients.^[45] The KFTC has also joined EU and China in investigating Mercedes Benz, Volkswagen and BMW for allegedly colluding to restrict the rollout of emissions reduction technology.^[46]

This contrasts with Japan, where, notwithstanding the JFTC’s stated desire to more actively enforce against foreign companies, its cartel enforcement activities have remained largely focused on domestic cartels. This includes the highest ever fine imposed by the JFTC, totalling ¥40 billion, which it levied in 2019 against construction companies for fixing the price of asphalt. ^[47]

Somewhat uniquely in Asia, Singapore’s CCCS fined hotel operators in 2019 for ‘pure’ information exchange of competitively sensitive information, without demonstrating a subsequent coordination of prices. The CCCS’ ‘by object’ infringement decision makes numerous references to EU and other European precedents in relation to information exchange-related infringements,^[48] importing a new standard for competition compliance into the region.

Recent amendments to Korea’s Monopoly Regulation and Fair Trade Law similarly prohibit pure information exchanges by creating a rebuttable presumption that any sensitive information received by a competitor was used in their strategic decision-making. Other changes include doubling the cap for fines (to 20 per cent of relevant turnover), and measures to facilitate private enforcement of competition law.^[49] These changes will no doubt reinforce the KFTC’s role as one of the most active enforcers globally: in 2020, the KFTC was once again the highest fining regulator in the world after the European Commission and US regulators, imposing a total of US$147 million in fines. ^[50]

Criminal enforcement

At least in Japan and South Korea, criminal enforcement of cartel conduct is on the increase, both against companies and individuals. In 2018, the KFTC referred as many as 44 cases for prosecution by the Supreme Prosecutor’s Office.^[51] In Japan, where criminal cases are relatively rarer, the JFTC referred companies and individuals for prosecution in relation to bid-rigging in both 2018 and 2020. ^[52]

Other jurisdictions are also signalling a harder line on cartel conduct. Following the lead of Australia, which introduced criminal penalties for cartel conduct in 2009 (and recently imposed its second criminal fine worth A$34.5 million), New Zealand introduced a criminal cartel offence for hardcore cartel offences to its Commerce Act in 2019. Once the amendments enter into force in April 2021, participants in cartels may face criminal fines of up to NZ$10 million or up to NZ$500,000 or seven years’ imprisonment for individuals.^[53] Criminal penalties are also being mooted in Taiwan. ^[54]

An exception is Indonesia, which removed almost all criminal sanctions from its competition law under the 2020 Omnibus Law (although the Omnibus Law did remove existing caps from administrative penalties). ^[55]

Leniency

Whereas regulators elsewhere in the world bemoan the decrease in cartel leniency applications, these remain strong (albeit declining) in Asia. The KFTC and JFTC saw 94 and 72 leniency applications respectively in 2019, each down from more than 100 a year earlier. ^[56]

Notwithstanding an already high number of leniency applications in both Japan and South Korea, governments in both jurisdictions have taken steps to drive further applications. In Japan, recent amendments to the Anti-Monopoly Law (which entered into effect in December 2020) provide the JFTC with discretion in setting fines in a leniency context, giving it both a carrot and stick to encourage active participation in investigations.^[57] Hitherto, leniency applicants received automatic discounts from fines according to their place in the queue. These amendments are accompanied by controversial new guidance from the JFTC on how it will respect the confidentiality of attorney–client communications when seizing or demanding documents from cartel participants, creating a (non-legally binding) system of quasi-privilege.^[58] In South Korea, the Supreme Prosecutor’s Office issued new leniency guidelines in December 2020, potentially allowing participants in serious cartels to apply for leniency directly with the prosecutor, bypassing the KFTC. ^[59]

Elsewhere in Asia, new leniency regimes continue to proliferate, having been recently introduced in Vietnam under its new competition law,^[60] and the Philippines (in both cases available to a limited number of applicants only),^[61] while the Competition Commission of Pakistan has also been consulting on the introduction of a leniency regime since 2019. ^[62]

The leniency regime was greatly clarified in China with the publication of consolidated guidelines in 2020 (although the lack of confidentiality protections under the guidelines is likely to continue to dissuade applications).^[63] In Hong Kong, revisions to the leniency regime in 2020 introduced the concepts of ‘Type 1’ and ‘Type 2’ leniency, the former being available only where the HKCC is not already investigating relevant conduct, and can result in immunity not only from penalties imposed by the HKCC but also from liability arising in third-party damages claims. ^[64]

Australia’s Immunity and Cooperation Policy was also updated in October 2019,^[65] and now requires applicants seeking immunity to enter into a cooperation agreement early in the immunity process. The ACCC cannot guarantee immunity in cases involving criminal prosecution, as the Commonwealth Director of Public Prosecutions exercises independent discretion. However, it is unlikely to refuse immunity in criminal prosecution if the ACCC has granted immunity from civil prosecution.

Further leniency-related milestones include the first grant of full immunity to an applicant in India in 2019 (to Panasonic, for its participation in a dry cell battery cartel),^[66] and the first application of Singapore’s ‘fast-track’ procedure, granting discounts in fines for parties that acknowledge the existence of an infringement and cooperate with the CCCS’ investigation. ^[67]

Abuse of dominance

Growing confidence

Enforcement against abuse of dominance in the region has been mixed, although it is clear that the majority of regulators are keen to pursue such cases, despite the fact that they are typically harder to prove, as they require undertaking a market definition exercise and establishing a party’s dominance, as well as proving an abuse of that dominance.

Abuse of dominance cases also continue to be pursued by more established regulators, such as those in Taiwan, India and Indonesia. In Malaysia, dealing with abuse cases is a priority for the MyCC, and this has manifested itself in continuing antitrust related difficulties for Grab, which in 2019 was fined by the regulatory for abusing its dominance by preventing its drivers from promoting and providing advertising services for its competitors.^[68] This follows various public statements by MyCC officials that it regretted not being able to take action against Grab’s widely reported acquisition of Uber in 2018, due to the lack of a merger control regime in its legislation. ^[69]

China’s SAMR has also made a marked effort to improve the depth of its legal and economic analysis in abuse of dominance cases (which have most recently focused on public utilities and active pharmaceutical ingredients), to improve its overall enforcement standards. ^[70]

Despite the complexity in bringing abuse of dominance cases, a number of relatively newer regulators have recently pursued such cases. The year 2020 saw the PCC bring its first abuse case, imposing a fine of 27 million Philippine pesos on property developer 8990 Holdings and its condominium subsidiary, Urban Deca Homes Manila, for forcing tenants to use a particular internet-service provider exclusively.^[71] This case can be seen as a success for the regulator, with 8990 Holdings and Urban Deca choosing to settle the case and, in doing so, committing to remove exclusive agreements from all nine of its condominium developments around the country.

In Hong Kong, the HKCC has followed up a string of cartel cases with the first abuse of dominance case, alleging that medical gas supplier Linde HKO Limited and its parent company Linde GmbH has engaged in abusive refusal to supply. ^[72]

Last, the concept of self-preferencing, where an undertaking engages in conduct that favours its own products or services over those of its competitors, which is currently a hot topic in various jurisdictions such as the EU, is also beginning to gain traction in the region. The JFTC, in particular, has recognised it as a potential abuse of dominance,^[73] and SAMR has also addressed relevant behaviour in its recent guidelines on platform economies. ^[74]

In a move that will hopefully contribute to alleviate the difficulties in establishing abuse of dominance, the JFTC introduced a new commitments procedure in late 2018 allowing businesses to voluntarily offer commitments in exchange for discontinuing investigation without a finding of infringement.^[75] This was welcomed by businesses, and such commitments have already been accepted in a few cases. Furthermore, economic analysis is increasingly playing a more prominent role. The JFTC engaged external economists for the first time in its action against Amazon, to assist with assessing the amount of compensation payments that Amazon agreed to pay to vendors under the new commitments procedure. ^[76]

An alternative approach

While the above examples demonstrate the successful enforcement of the abuse of dominance rules by a number of regulators, the difficulty of proving such cases has led some regulators toinstead rely on the concept of an abuse of a superior bargaining position, which is where an enterprise in a relatively superior position in commercial negotiations (not necessarily in a marketdominant position or an absolutely dominant bargaining position) engages in abusive behaviour, to establish infringement decisions.

This approach allows regulators greater flexibility and is particularly helpful where local market conditions do not indicate dominance. As mentioned above, one example of this is the KFTC fining Delivery Hero 468 million won for abuse of its superior bargaining position, by preventing restaurant owners from selling food in their own restaurants, or through other delivery services, at lower prices than those sold on Yogiyo, Delivery Hero’s food-delivery app.^[77] The KFTC has also scrutinised conduct by Apple in relation to an abuse of a superior bargaining position for imposing various advertising and repair costs on mobile carriers.

In Japan, where abuse of dominance cases remain rare (the last being in 2015 against an agricultural cooperative, which ended with a cease-and-desist order only), the JFTC tends to take enforcement action under the Anti-Monopoly Act provisions relating to ‘unfair trade practices’, which include ‘abuse of a superior bargaining position’. One recent example is the JFTC’s investigation into Apple, for requiring Japanese component suppliers to provide information and technology for free.^[78]Newer regulators such as Thailand’s OTCC have also had recourse to the concept of a superior bargaining position, and the OTCC successfully handed down a penalty of around 6 million baht on a fruit picking and sorting business in 2018. ^[79]

Notes