Asia-Pacific Competition Law Guide 2022

Introduction

There have been a number of important developments since the last edition of this Guide was published in 2020, including significant reforms on existing regimes, as well as the passage of new competition law in Cambodia.

Regulators across the Asia-Pacific region have ramped up enforcement activities and significant fines have been imposed. Criminal enforcement has also continued in jurisdictions where criminal penalties are available.

Many competition authorities in the region have declared digital markets to be one of their key enforcement priorities going forward. China, in particular, has imposed heavy fines on tech companies for anti-competitive conduct.

Australia

MAINLAND CHINA

MAINLAND CHINA HIGHLIGHTS

On 24 June 2022, long-awaited amendments to the Anti-Monopoly Law (AML) were approved by the Standing Committee of the National People's Congress and the amended AML will come into force on 1 August 2022. These are the first changes to China's competition legislation since the AML first came into force in 2008, and bring about significant changes to the regime and substantial increases to the penalties for infringement. Further changes are expected with revisions to a number of substantive antitrust guidelines published for consultation immediately following the passing of the amendments of the AML. These include important changes to the merger control regime, with notification thresholds proposed to be increased significantly. If the proposed changes are passed, this will result in fewer transactions falling to be notified in China. In terms of enforcement priorities, the digital sector is expected to remain a significant focus, with a reference to infringements conducted through digital means being added to the body of the AML. This follows a string of fines being imposed against internet giants and the introduction of the Antitrust Guidelines for the Platform Economy in 2021. Merger control enforcement has also been a key priority for the Chinese regulator, SAMR. Since the last edition of this guide, it has taken enforcement action and issued fines in over 100 cases of failure to file.

MALAYSIA

HONG KONG

INDONESIA

JAPAN

SINGAPORE

THAILAND

ASEAN

AUSTRALIA HIGHLIGHTS

Although cost of living issues, rather than COVID-19, now inform the Australian Competition and Consumer Commission (ACCC)'s approach, the current priorities largely reflect an evolution of the existing enforcement priorities. The ACCC will focus enforcement efforts on global and domestic supply chains that have been disrupted by the pandemic - the ACCC has joined a working group with other competition regulators aimed at detecting attempts by businesses to use COVID-19 conditions as a cover for cartel conduct. Exclusive vertical arrangements by firms with substantial market power, and anti-competitive conduct in the financial services sector, are also enforcement priorities. For consumer law, the ACCC will focus on businesses making environmental and sustainability claims, as well as on any non-compliance by businesses with consumer guarantees and small business protections. The ACCC will continue to strengthen enforcement efforts in digital platforms and markets, and in particular will scrutinize deceptive advertising and marketing practices in the digital economy, while considering the need for any sector specific rules.

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HONG KONG HIGHLIGHTS

The HKCC will pay particular attention to: (1) anti-competitive behaviour which affects people's livelihood; (2) cartels which aim to take advantage of government funding or subsidy schemes; and (3) cases involving digital economy. In line with these areas of focus, the HKCC has been conducting investigations into fuel companies, anti-epidemic subsidy scheme participants, and online food delivery platforms in late 2021 to early 2022. The HKCC published an advisory bulletin regarding potential risks regarding membership admission criteria and procedures of trade associations, showing its increased attention on trade associations.

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INDONESIA HIGHLIGHTS

The KPPU focuses mainly on "serious anti-competitive conduct", such as cartels, price fixing, market control or conspiracy. While the KPPU focused more on tender conspiracy (especially involving state-owned enterprises) previously, it is increasing concerned with horizontal arrangements. Strategic sectors such as oil and gas, banking, other business industries with high concentrations (including food, commodities and automotive sectors) and the digital economy sector appear to be more closely scrutinized by the KPPU.

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JAPAN HIGHLIGHTS

Digital markets remain a key priority area for the JFTC, with significant budget allocated towards it in 2022. In 2021, the JFTC closed investigations into Apple as well as Rakuten, an e-commerce platform. An Act on Improving Transparency and Fairness of Specified Digital Platforms, which applies to a small number of platforms including Apple and Rakuten, also came into effect. Unfair trade practices against small and medium-sized enterprises, including undervaluing of IPOs of smaller companies, is another area on which the JFTC is increasing its attention.

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MALAYSIA HIGHLIGHTS

The Malaysian competition law regime is aimed at not only protecting consumer welfare, but also promoting the process of competition. MyCC’s enforcement actions in 2021 to 2022 indicate a continued focus on cartels. A key development on the horizon is the potential passage of a cross-sector merger control regime.

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SINGAPORE HIGHLIGHTS

Tasked with maintaining and promoting competitive markets in Singapore, the CCCS has nonetheless confirmed that it is likely to impose the most severe financial penalties in cartel cases and also abuses of dominance. As such cartel conduct and abuses of dominance are key enforcement priorities of the CCCS. Following a comprehensive review and two public consultations, the CCCS published a revised set of guidelines which took effect on 1 February 2022. These guidelines are wide-ranging, and supplement the Competition Act 2004. The updates provide clarification and guidance on a number of issues, including the CCCS' approach to network effects and the assessment of market power in the digital sector.

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THAILAND HIGHLIGHTS

The Trade Competition Commission of Thailand (TCCT) aims to regulate competition whilst also promoting sustainability. In 2021, 71 complaints were filed under the Trade Competition Act B.E. 2560 (2017), with 40 allegations on abusive conduct by dominant businesses, 28 on unfair trade practices and 3 on anti-competitive agreements. The TCCT has imposed a cumulative fine of approximately THB 34 million over 14 cases. Merger control generally appears to be a key priority for the TCCT. The TCCT also indicated that it will accord more attention to trade practices and mergers in the digital economy.

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ASEAN HIGHLIGHTS

Under the ASEAN Economic Community Blueprint 2015, member states agreed to each introduce competition legislation by 2015. While only half of the 10 ASEAN member states (Indonesia, Malaysia, Singapore, Thailand and Vietnam) had competition law regimes by the end of 2014, a further four member states (Brunei, Laos, Myanmar and the Philippines) enacted competition legislation in 2015 and the remaining member state (Cambodia) in 2021. Competition authorities are now operational in Philippines, Brunei, Laos and Myanmar, while the Cambodian competition authority is awaiting the appointment of its members. Of these newer regimes, only Philippines has a track record of merger control and enforcement, although merger reviews have been recently limited by pandemic-related regulatory measures. Certain member states, such as Vietnam and Thailand, used this period as an opportunity to substantially revise their existing competition regimes, and to reform the enforcement architecture of their competition authorities. The ASEAN Economic Community Blueprint 2025 aspires for effective competition regimes in all member states and cooperation in promotion and capacity-building efforts. Focus will shift from the enactment of competition laws to their implementation and enforcement.

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Significant regulatory and institutional developments

Stricter penalties and enforcement

Digital market under scrutiny

Click on the jurisdiction tabs to read the highlights

As with previous editions, this Guide covers jurisdictions in which Herbert Smith Freehills and its associated offices have an established presence, namely: Australia, Mainland China, Hong Kong, Indonesia, Japan, Malaysia, Singapore and Thailand. It is intended to provide clients, businessmen and lawyers with concise information on the competition law regimes, both antitrust and merger control, in these key jurisdictions across the region. The Guide also provides some commentary on the status of competition law in the ASEAN member states.

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