Antitrust Laws Gain Momentum In Asia Pacific
An economic boom in the Asia Pacific is leading to more antitrust and competition laws.
November 30, 2010 at 07:00 PM
18 minute read
Putting it mildly, Asia Pacific business historically has lacked enthusiasm for competition and antitrust regulation.
“Antitrust laws are simply not ingrained in the culture and are in fact contrary to the way business people have operated in this part of the world,” says Marc Waha, a competition partner at Norton Rose. “If you look at the success of the Asian tigers in the '80s and '90s, you'll see that much of their success was built on joint ventures and cartels and the like.”
But the environment changed rapidly as Asia Pacific economies sought economic aid and foreign investment in an increasingly globalized world.
“A good number of competition laws were enacted as a condition of entry to the WTO (World Trade Organization), as a condition of IMF bailouts or as part and parcel of bilateral trade agreements,” Waha says.
In 2010 the pace picked up as Hong Kong and Malaysia scheduled the introduction of new competition laws for the first time; Indonesia implemented a new merger clearance regime; and several countries amended their laws significantly.
“All of the jurisdictions in East Asia except North Korea and Myanmar, but including Cambodia and Laos, have adopted antitrust regulations or committed to introducing them in the next few years,” Waha says.
Even where extraterritorial assets are the subject of a merger, the fact that the merging parties' main customers are in Asia may be enough to trigger local merger control requirements. Japan, for example, recently reformed its laws to broaden their extraterritorial effect.
“When BHP Billiton and Rio Tinto proposed to pool their resources in Australia, the fact that Japan, China and Korea joined the European Union in objecting to the transaction was the trigger for the deal's demise,” Waha says.
But the process has been a long time coming.
Signing Up
Japan and the Philippines were the first to adopt antitrust laws, part of their 1950s legacy from the American occupation under Gen. Douglas MacArthur. But the governments did little to enforce the laws in any meaningful way.
South Korea adopted competition legislation in 1993, followed by Thailand (1999), Indonesia (1999), Taiwan (2002), Vietnam (2004) and Malaysia (2010, taking effect in 2012). The enactment of China's Anti-Monopoly Law (AML) in 2008 was a significant step for a country edging ever closer to a truly modern economy. In many ways, the AML followed the lead of the American and European antitrust regimes by providing broad guidelines regarding abuse of dominance, cartels and merger review. It also gave private parties (as well as the government) a right of action against offenders.
As for the longstanding free-market economies, Singapore adopted a competition statute in 1994. Hong Kong, which unlike other international economies did not have a general competition law regime, finally came on board with the mid-2010 introduction of the Competition Bill, expected to take effect in 2012 or 2013.
Bearing Down
Still, enactment is one thing and enforcement quite another.
“It wasn't until the end of the '90s that Japan discovered that competition laws could be a tool of economic regulation and started enforcing the country's laws very seriously,” Waha says. “The Philippines still doesn't enforce its competition laws, even though they constitute part of the penal code, and it's only lately that Korean authorities have been serious about enforcement, using the legislation as a tool of economic deregulation at the expense of the conglomerates that still operate there.”
In 2009, regulators in Asia imposed $1.5 billion in fines, with Japan and Korea imposing 95 percent of the total.
Yet there are signs that other Asia Pacific regulators are starting to bear down. So far this year, fines have totalled $260 million in Japan, $141 million in Korea and $120 million in Indonesia. China imposed its first fines, totalling $200,000. Singapore and Taiwan have also imposed fines in 2010, albeit less than $1 million in either country.
“While these sums may be small by American and European standards, they have drawn the attention of business in the Asia Pacific context,” Waha says.
And even where the goodwill to enforce competition laws exists, tactical difficulties can get in the way.
“For example, there are very nice laws on the book in Vietnam,” Waha says. “But the competition people we deal with earn less than $100 monthly and often defect to the private sector, where salaries are 20 or 30 times as much.”
Politics also plays a role. In places such as Malaysia and Vietnam, appointments to the regulating bodies are at the discretion of the Prime Minister.
“Enforcement is only effective if the regulator has a degree of independence, and that is lacking in many jurisdictions,” Waha says.
Yet progress continues in many places.
“There's a good focus on educating the business community about competition law in Vietnam and other places, and that's making the countries a better place in which to invest,” says Martin Commons, special counsel at Baker & McKenzie in China.
Client Counsel
Still, giving advice to clients can be a difficult task for both internal and external counsel. That's largely because even in jurisdictions where enforcement is taken seriously, guidance can be scant.
“If you go on the Singapore regulator's website, you'll get a pretty good idea of how the authorities look at the law, and Vietnam is coming along,” Commons says. “It's very different in China and Thailand, where it's hard to get information, details are long in coming, and sometimes the best you can do for a client is help them to make a risk assessment or hope there is no investigation.”
The upshot is that legal advice on the subject must focus on the specific.
“There's a commonly accepted view that it's very difficult to draw conclusions or give advice with reference to the region as a whole,” Waha says.
Putting it mildly, Asia Pacific business historically has lacked enthusiasm for competition and antitrust regulation.
“Antitrust laws are simply not ingrained in the culture and are in fact contrary to the way business people have operated in this part of the world,” says Marc Waha, a competition partner at
But the environment changed rapidly as Asia Pacific economies sought economic aid and foreign investment in an increasingly globalized world.
“A good number of competition laws were enacted as a condition of entry to the WTO (World Trade Organization), as a condition of IMF bailouts or as part and parcel of bilateral trade agreements,” Waha says.
In 2010 the pace picked up as Hong Kong and Malaysia scheduled the introduction of new competition laws for the first time; Indonesia implemented a new merger clearance regime; and several countries amended their laws significantly.
“All of the jurisdictions in East Asia except North Korea and Myanmar, but including Cambodia and Laos, have adopted antitrust regulations or committed to introducing them in the next few years,” Waha says.
Even where extraterritorial assets are the subject of a merger, the fact that the merging parties' main customers are in Asia may be enough to trigger local merger control requirements. Japan, for example, recently reformed its laws to broaden their extraterritorial effect.
“When BHP Billiton and
But the process has been a long time coming.
Signing Up
Japan and the Philippines were the first to adopt antitrust laws, part of their 1950s legacy from the American occupation under Gen. Douglas MacArthur. But the governments did little to enforce the laws in any meaningful way.
South Korea adopted competition legislation in 1993, followed by Thailand (1999), Indonesia (1999), Taiwan (2002), Vietnam (2004) and Malaysia (2010, taking effect in 2012). The enactment of China's Anti-Monopoly Law (AML) in 2008 was a significant step for a country edging ever closer to a truly modern economy. In many ways, the AML followed the lead of the American and European antitrust regimes by providing broad guidelines regarding abuse of dominance, cartels and merger review. It also gave private parties (as well as the government) a right of action against offenders.
As for the longstanding free-market economies, Singapore adopted a competition statute in 1994. Hong Kong, which unlike other international economies did not have a general competition law regime, finally came on board with the mid-2010 introduction of the Competition Bill, expected to take effect in 2012 or 2013.
Bearing Down
Still, enactment is one thing and enforcement quite another.
“It wasn't until the end of the '90s that Japan discovered that competition laws could be a tool of economic regulation and started enforcing the country's laws very seriously,” Waha says. “The Philippines still doesn't enforce its competition laws, even though they constitute part of the penal code, and it's only lately that Korean authorities have been serious about enforcement, using the legislation as a tool of economic deregulation at the expense of the conglomerates that still operate there.”
In 2009, regulators in Asia imposed $1.5 billion in fines, with Japan and Korea imposing 95 percent of the total.
Yet there are signs that other Asia Pacific regulators are starting to bear down. So far this year, fines have totalled $260 million in Japan, $141 million in Korea and $120 million in Indonesia. China imposed its first fines, totalling $200,000. Singapore and Taiwan have also imposed fines in 2010, albeit less than $1 million in either country.
“While these sums may be small by American and European standards, they have drawn the attention of business in the Asia Pacific context,” Waha says.
And even where the goodwill to enforce competition laws exists, tactical difficulties can get in the way.
“For example, there are very nice laws on the book in Vietnam,” Waha says. “But the competition people we deal with earn less than $100 monthly and often defect to the private sector, where salaries are 20 or 30 times as much.”
Politics also plays a role. In places such as Malaysia and Vietnam, appointments to the regulating bodies are at the discretion of the Prime Minister.
“Enforcement is only effective if the regulator has a degree of independence, and that is lacking in many jurisdictions,” Waha says.
Yet progress continues in many places.
“There's a good focus on educating the business community about competition law in Vietnam and other places, and that's making the countries a better place in which to invest,” says Martin Commons, special counsel at
Client Counsel
Still, giving advice to clients can be a difficult task for both internal and external counsel. That's largely because even in jurisdictions where enforcement is taken seriously, guidance can be scant.
“If you go on the Singapore regulator's website, you'll get a pretty good idea of how the authorities look at the law, and Vietnam is coming along,” Commons says. “It's very different in China and Thailand, where it's hard to get information, details are long in coming, and sometimes the best you can do for a client is help them to make a risk assessment or hope there is no investigation.”
The upshot is that legal advice on the subject must focus on the specific.
“There's a commonly accepted view that it's very difficult to draw conclusions or give advice with reference to the region as a whole,” Waha says.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrending Stories
- 1Trump's DOJ Files Lawsuit Seeking to Block $14B Tech Merger
- 2'No Retributive Actions,' Kash Patel Pledges if Confirmed to FBI
- 3Justice Department Sues to Block $14 Billion Juniper Buyout by Hewlett Packard Enterprise
- 4A Texas Lawyer Just Rose to the Trump Administration
- 5Hogan Lovells Hires White & Case Corporate and Finance Team in Italy
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250