This chapter addresses the interpretive complexities surrounding the competition law in Myanmar. The chapter indicates that this problem is particularly acute when the law deals with the following issues. First, the subjective scope of the Myanmar competition law is determined by the concepts of businessman and person. Are they identical? Second, the concept of acts restraining competition raises the question of limiting this concept to agreements or also expanding it to include unilateral conduct. Third, powerful market participants are addressed through four different concepts: dominant position, business power, monopolization and extreme increase of dominance. However, the law does not explain how to differentiate these concepts. Without addressing these interpretative uncertainties, the chapter holds, the Myanmar competition law will be confusing for the business world and legal practitioners.
Steven Van Uytsel
Over a period of five decades, the landscape for advice on adopting a competition law in Asian countries has drastically changed. This chapter highlights that there has been a growth in competition law models, whereas when competition law was first discussed in an Asian context there was only one model. With an increase on models, tension grew between converging or diverging on these models. Law and economic scholarship advocated for convergence, but soon had to acknowledge its inspirational limitations. As a result, divergence started to be recognized by enforcement agencies grouped in an international network. From a different angle, law and development scholarship advocated for divergence by adapting competition law to the local needs of developing countries. One document goes against the current idea of divergence, at least in content, and that is the ASEAN Guidelines on Competition Law. This document advocates taking inspiration from the European competition law provisions.
Steven Van Uytsel
This chapter sets out the reasons why competition law spread in Asia. After detailing the forced adoption of competition law in Japan, which was the result of the post-Second World War economic policy of the United States, the chapter goes on to map out the different origins of the proliferation of competition law. Despite the fact that forced adoption, such as was seen in Japan, no longer occurs, pressure has been exerted on some countries to adopt a competition law. This pressure came through international organizations (International Monetary Fund or World Trade Organization) or through other countries’ foreign trade policies (free trade agreement). Some countries decided to embrace competition law for reasons that fit with their own economic reformation of the market. The last dash towards the proliferation of competition law in Asia has been through ASEAN, which suggested the adoption of competition law to achieve market integration within the ASEAN region.
Steven Van Uytsel and Somsack Hongvichit
The competition law in Laos is relatively simple and transparent to apply. Unfair business practices have been interpreted in detail. Unilateral conduct provisions work with a per se illegality standard. Concentrations have been limited in scope to only apply to large firms. The provision on agreements of restraint includes lots of details. Despite the transparent conceptualization, there are some complexities in the law. The provision on agreements in restraint of trade has been made immensely complex by creating different standards of illegality where only one could have sufficed. Moreover, while the provision is upfront with its standards of illegality for price-related agreements, no guidance is given for agreements that are not price related. Whether or not this transparent document will be a matter for enforcement or not will depend on the enforcement agencies. Different interests could capture the agencies, potentially leading to an effective standstill of the law.
Steven Van Uytsel and Yoshiteru Uemura
This chapter details the cease-and-desist order of the Japan Fair Trade Commission (JFTC) against DeNA for attempting to exclusively link the most important third-party game developers to its social network service to the detriment of Gree. Even though this conduct is unilateral in nature, the order does not provide a market power analysis. Instead, the JFTC emphasizes that the method used was inappropriate and this on the basis of Article 19 of the Antimonopoly Law (AML) in combination with Section 14 of the General Designation of Unfair Trade Practices. This choice is unusual. Section 14 is barely used. By reconstructing a possible relevant market, the chapter seeks the reason for this exceptional choice in the desire of the JFTC to opt for an early market intervention. It is argued that the market in which DeNA and Gree were operating was still in full development. Market power may have been difficult to establish and, therefore, JFTC would not have been able to intervene on the basis of more conventional sections of the General Designation.
Edited by Steven Van Uytsel, Shuya Hayashi and John O. Haley
Steven Van Uytsel, Shuya Hayashi and John O. Haley
This book aims to elaborate on whether Asian competition laws converge with or diverge from the competition laws that have inspired their drafting. For this reason, the book chapters elaborate on the modelling process of the respective country’s competition law (which competition laws stood as a model for both the original version and, if any, its amendments) and to what extent and for what reason(s) the legislator or enforcer gave his or her own direction to their respective competition law. In other words, the aim is to identify specific characteristics of the respective competition law. This research is done for Cambodia, China PRC, Hong Kong, Indonesia, Japan, Korea, Malaysia, Myanmar, Philippines, Singapore, Taiwan, Thailand and Vietnam.