Competition Law Developments in East Asia - June 2012

This month’s editors: Maxime Vanhollebeke, Julienne Chang, Zhao Jingjing and Lydia Fung.

Below is an excerpt from our monthly Competition Report. More detailed commentary on these issues and other recent competition law developments in the Asian region is to be found in this month’s edition of our report available on a free subscription basis (see further below).

A total of $570 million in fines have been imposed since January by competition authorities in East Asia, with the Korean competition authority being the most aggressive enforcer by far. The amount of penalties imposed in the first six months of the year is however lower than the record $800 million imposed in the first half of 2011. Sanctions for antitrust violations are also imposed less frequently: 19 decisions imposing fines were adopted during the first six months of 2012, compared to 34 in the same period last year.

The half-year statistics confirm established trends in the region. Korea and Japan have long been the most aggressive enforcers when it comes to fines. Taiwan’s competition authorities would frequently impose fines, but their amounts remain comparatively very low. China’s Antimonopoly Law enforcement agencies remain very cautious and have only imposed fines in hardcore conduct involving small local players. The only jurisdiction that shows a significant change is Indonesia, with fewer decisions and much lower fines.

Time will tell whether these trends will be confirmed. One may expect higher fines in Taiwan, following the recent increase in the maximum amount of fines that can be imposed for infringements of the Fair Trade Law. Mainland China’s agencies have so far shown much more prudence and restraint than their counterparts in new antitrust jurisdictions. For instance, the Competition Commission of India did not wait long before imposing very significant sanctions under the new Indian Competition Act, which entered into force a year after China’s Antimonopoly Law. One would expect that it will take a while longer for China’s agencies to develop the robust procedural framework required for the imposition of significant sanctions.

New developments can however be observed in terms of industrial sectors affected. During the period, most sanctions were imposed on companies active in fast-moving consumer goods, particularly food and consumer electronics. Capital-intensive industries such as energy, construction or chemicals, which have long been the hardest hit by fines for cartel conduct, now account for a smaller proportion of total sanctions. The largest fine imposed so far this year concerns the automotive components industry, a sector which is facing investigations for bid-rigging conduct worldwide.

Another interesting development, illustrated in the graph below, is the continued enforcement focus on vertical restraints, in particular resale price maintenance, in addition to cartel and bid-rigging practices.

The statistics used are based on public announcements made by competition authorities in East Asia during the first half of 2012. The amount for China is an estimate as no detailed figures were published. US dollar equivalent amounts were calculated using annualised exchange rates established on 2 January 2012.

The Legislative Council adopted the Competition Ordinance on 14 June.

The Ordinance will enter into force at a date to be decided by the Government. The Ordinance introduces a cross-sector competition law regime and will be implemented in phases. The institutional provisions will come into force first to allow the Competition Commission and the Competition Tribunal to be set up and to commence work on enforcement guidelines, which will be subject to public consultation. The substantive provisions will only come into force at a later date, probably not before late in 2013 or 2014, at which time guidelines should have been finalised.

On 21 June, the Competition Ordinance 2012 was signed into law by the Chief Executive and published in the Official Gazette of the Hong Kong Government Special Administrative Region on 22 June 2012.