Leniency in Asian Competition Law

This paper asks a central question: why have not Asian competition laws come of age? I argue that the answer lies largely in reliance on fairness-based principles in enacting and enforcing these laws. I canvass the statutory competition law and enforcement experience in those Asian jurisdictions like Japan, Korea, Taiwan, China, Thailand, and Indonesia that have some form of definitive competition law. I find most of them have legislative titles, abbreviations, specific provisions and enforcement agencies that are associated with fairness and fair trade. Free competition law (with antitrust rules governing freedom of competition) is often confused with (unfair) competition law. Whatever it means, fairness suggests reliance on some sort of non-efficiency goals in these laws and confusion with industrial policy. A strong emphasis on fairness also suggests insufficient political support for a strong competition law and policy in these Asian jurisdictions. I also compare the Asian experience and policy goals behind these Asian competition laws with experience in the United States, Germany and the European Union, which have gone through extensive debates to reach or move towards a consumer welfare/efficiency model of antitrust enforcement. So, one can infer that even though competition laws become more important in Asia, they will need more time to gain maturity.

Since the failure of the Havana Charter in 1950, it has not been possible to agree upon a binding competition law at the global level. However, following the fiasco of the World Trade Organization (WTO) Ministerial Conference in Cancún in 2003, the number of bilateral and regional trade agreements containing competition law chapters, or at least competition-related rules, has increased noteworthy. This reflects that trade and competition are closely intertwined. In an ever more integrated, globalized, and digitized economy, the competition law framework needs to be internationalized. If a binding competition law is not possible at the global level, it is only logical that bilateral and regional trade agreements fill the gap. This article questions the extent to which these agreements contribute to the convergence of competition law. In this context, the development in Northeast Asia seems promising and may provide a guidepost for establishing international standards of competition law cooperation and enforcement. Presented here is the idea of localized harmonization, which takes advantage of closer affinity between bilateral and regional partners. With a sufficient degree of convergence, it is not excluded that efforts towards a multilateral competition agreement could be relaunched one day. competition law, world trade law, WTO, free trade agreement, regional trade agreement, bilateral cooperation, convergence, localized harmonization, Asian competition law, digital economy

Two topics have featured in discussions of transnational competition law over the last few years — the evolution of competition law in Asia and the global convergence of competition laws. The role of Asia, especially China, in global competition law development has attracted attention primarily because of the dramatically increased economic importance of the region and because of the resulting political and economic leverage that this economic importance has generated for the enforcement of the region’s competition laws. Convergence is a central topic because it represents what is widely considered to be the only currently viable strategy for global competition law development. Curiously, however, the relationship between these two topics is seldom a focus of examination. This chapter sketches elements of that relationship.My objective here is to identify some of the factors in the dynamics of Asian competition law systems that may influence Asia’s role in convergence as a global strategy and thereby impact both the success of such a strategy and its shape. We focus here on decisions and on decisional influences — that is, factors that can be expected to influence decisions by relevant decision-makers.

To what extent does the policy goal of an international aviation hub affect the enforcement of competition law? This article examines the dynamics between competition law enforcement and the policy goal of an international aviation hub in three East Asian competition jurisdictions: Singapore, Korea, and Hong Kong. Broadly speaking, industrial policy is one of the goals identified by some competition jurisdictions and plays an important role in enforcing competition law both explicitly and implicitly. While making an international aviation hub is a legitimate policy goal that competition law agencies can consider in their enforcement, competition law enforcers should be aware of the difference between making an international aviation hub and making a national champion airline. Although there is overlap between the two (i.e., having a competitive airline with a good network is helpful for making an aviation hub), the two are not identical and not always complementary. In keeping with the principle of competitive neutrality, this article argues that competition law enforcers should not selectively favour flag carriers when pursuing the policy goal of an international aviation hub. aviation hub, competition law, industrial policy, competitive neutrality, national champion airline, state-owned airline

Algorithms and Artificial Intelligence (AI) are key to success in the digital economy. The Algorithm supported by AI has transformed the decision-making process and disrupted all aspects of human life. The algorithm-generated marketing benefited Asian businesses plethora but, on the flip, has equally facilitated anti-competitive business practices and undermined their consumer welfare. The algorithms deployed have a far-reaching impact on the consumer markets. The algorithm fosters tacit collusion or abuse of dominance that alters the consumers’ choice and creates search bias favouring the dominant firm or its verticals. Cases reveal algorithm uses AI to collude prices resulting in different consumers being charged different amounts for the same goods or services, besides filtering their choice and causing unfair diversion of search pages in a manner affecting the competitor’s volume of business by either pushing down or pushing out. Meanwhile, the criteria for ranking the “relevant” results cannot be effectively proven. And the ways algorithms form market-based interaction between competitors inter se and consumers, to collude (or use of algorithms to drive out competition) unable to be ruled as the digital feature has posed a major challenge on the competition law application. The paper examines the legal-policy challenges in Asian shore by reference to India and Malaysian firstly, examining the challenges on the standard of analysis and evidence to prove algorithmic collusion, abuse, and dominance. Secondly, human-related liability or accountability on computers’ behaviour with reference to Grab, Amazon and Google, India. The discussion proposes intervention options with regard to advanced jurisdictions like the European Union to propose improvement.

In response to cartel formation, competition lawyers and policymakers in nine Asian jurisdictions have experimented with leniency programmes. This mechanism allows firms to come forward with information in relation to their illegal cartel participation in return for a reduction of or immunity from a sanction. The experimentation plays out across three different dimensions: the revision of early adopted leniency programmes, the introduction of newly written leniency programmes, and the decision – deliberate or otherwise – not to create a leniency programme. This volume is the first to analyse the empirical evidence across a number of countries to determine how effective these measures have been, and how they have been amended in response to problems encountered. In this volume, local experts from key Asian jurisdictions, together with international experts, offer an introduction to this fast-developing field, and explore the theoretical, international and regulatory contexts of leniency programmes.

Guest Editors' Note: Asian Competition Laws

최근 아시아 개발도상국에서의 경쟁법 입법 및 현대화와 관련하여 여러 가지 논의 가 있다. 특히, 2015년 홍콩과 필리핀을 포함하여 동남아시아에서는 경쟁법 및 경쟁 정책의 도입이 있었으며, 2008년 경쟁법을 도입한 중국은 10년이 지난 지금 경쟁당국 의 현대화를 논의하고 있다. 이와 같이 아시아에서의 경쟁법의 최근 발전은 시장경제 및 자유경쟁의 개념이 세계시장에서 중요하다는 것을 보여준다. 그러나 위와 같은 발전에도 불구하고 아시아 경쟁법의 공적 집행과 관련하여 부족한 부분이 있다. 경쟁 법의 집행과 관련하여 미국과 유럽 혹은 우리나라의 경쟁법 및 경쟁정책 모델로 하는 현대화가 필요하며 이를 논의하기 위해 여러 가지 이슈들을 고려해 볼 필요가 있다. 무엇보다 경쟁법은 개인의 경제적 자유를 보장하기 위한 경제헌법으로 불리고 있 다. 따라서 경쟁법을 도입한 아시아 국가들은 경쟁법의 여러 목적에서 위의 내용을 보장하는 방법으로 공적 집행을 발전시킬 필요가 있으며, 공적 집행의 발전으로 아시 아 지역에서 자유 무역을 보장하고 경쟁법의 지역적 수렴화와 글로벌 스탠다드를 형성하는데 도움을 줄 수 있다. 위와 같은 경쟁법의 현대화를 위해서 우리나라 경쟁 당국의 역할이 중요하다. 특히, 다른 아시아 경쟁당국과 협조하여 국제 카르텔과 같 은 경쟁법 위반 사건을 효과적으로 조사할 수 있으며, 우리나라 경쟁법 사건의 내용 은 다른 아시아 경쟁당국에 참고가 될 수 있다. 이 연구는 아시아 여러 나라에서 도입 한 경쟁법 체계(competition regime)가 발전하는데 필요한 요소들을 논의하고 경쟁법 의 수렴화와 현대화에 대해서 논의하는 것을 목적으로 한다.