Competition law enforcement in Asia and globalization_Presentation at the second FCP Annual Conference, 20-21 October 2017, Florence

1. COMPETITION LAW ENFORCEMENT IN
ASIA AND GLOBALISATION
Semin Park
OECD Competition Division
* The views expressed in the slides are those of the author and do not necessarily represent the views of the
OECD and the KFTC(Korea Fair Trade Commission)

2. • Given Asia’s diversity, there are significant differences across the
competition regimes in Asian countries in both substantive and
procedural aspects.
• There are many positive steps being taken by competition authorities in
Asia to enhance enforcement of competition law.
• The enactment of competition laws in Asia continues to grow.
– Hong Kong, China (Competition Ordinance, enacted in 2015).
– Philippines (The Philippine Competition Act, 2015)
– Myanmar (The Competition Law, 2015)
– Brunei (The Competition Order, 2016)
– Laos (The Law on Business Competition, 2015)
– Malaysia (The Malaysian Competition Act, 2010)
– China (Anti-monopoly Law, 2008)
The Evolving Landscape of Competition
Law in Asia
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3. • Further developments in some countries
– Vietnam’s revised competition law (scheduled to take effect in 2019)
• Introduction of a Leniency programme
• Consolidation of competition authorities
• Explicit inclusion of foreign firms
• Introduction of “Significant Market Power” criteria for determining
dominance.
– Thailand’ s new Trade Competition Act (took effect on 5 October 2017)
• Application to state-owned enterprises and their subsidiaries
• New merger control (dual merger control system)
• Consolidation of competition authorities
• Defining market-dominant business operator
– Indonesia’s competition authority has been pushing for amendments
The Evolving Landscape of Competition
Law in Asia
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4. The Evolving Landscape of Competition
Law in Asia
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Source: OECD (2012), “Looking to 2060: A Global Vision of Long-Term Growth”, OECD Economics Department Policy Notes, No. 15 November 2012.

5. • There have been concerns that countries use competition law
for protectionism.
– Example: the European Commission’s decision on the merger between
GE and Honeywell (2001).
• Also some critics raised concerns that the enforcement of
competition law in Asia was being used to pursue industrial
policy goals.
– Report of the U.S. Chamber of Commerce on China’s Anti-Monopoly
Law Application and the Role of Industrial Policy (2014)
Competition Law in Asia and Anti-globalisation
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6. • Antitrust enforcement
– Merger
• Example: China’s Ministry of Commerce’s decision to prohibit the merger
between Coca-Cola and Huiyuan (2009)
– Anticompetitive practices
• Antitrust probe to foreign companies
• Heavy fines on foreign companies
• Antitrust regulations
– SOE’s exemption from the application of competition law
– Support for Export Cartels
– Broad language and a lack of clarity
Competition Law in Asia and Anti-globalisation
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7. • Dominant position of many foreign firms in Asian markets.
– Higher fines due to larger size and revenues
• Agency inexperience and a lack of resources
– Some agencies in infancy and nascent stages and the lack of experts
• Difference 0f competition law objectives
– The public interest and the development of a socialist market economy; To
heighten the level of employment
• A lack of transparency and due process
– Authorities in Asia start investigating complex cases and we have seen high
profile cases against foreign firms with procedural fairness issues raised in Asia.
• Insufficient independence
– Intervention by Ministry of Trade or Industry in charge of industrial policy
Possible explanations
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8. Due process and Transparency
• Detailed guidelines
– Introduce or revise public guidelines, giving more insight into the
agencies’ enforcement policies and practices
• Example: Merger guidelines, Antirust fine guidelines.
• An agency decision: (a) is provided in writing (b) in
sufficient detail so as to identify the basis and rationale
for the decision
Independence
• Strategic steer by Ministers and independence
• Decision-making remains fully independent from external
influence including Government
Suggestions
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9. Thank you for your attention!
Semin Park
semin.park@oecd.org
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