Table Of Contents

Select Monthly Report:

March 2024 Report

India


There have been news reports that the CCI is not properly doing its job. The Ministry of Finance will review CCI’s functions.


The government announced the Draft Digital Competition Bill (a DMA-like bill) which has been in the works for around a year. It is very similar to the DMA and incorporates a lot from the DMA. Public consultation is taking place until April 15. The general elections will be in May and then the Bill will go to parliament. The Committee agrees with the DMA-like approach. They consider this regulation should be a priority regardless of the elections and the new government should hit the ground running with this bill. The penalties are focused on the broader business entities rather than the specific companies. There are restrictions on data combination and cross-use, which appear to be already covered by India’s Data Protection Law.


The government implemented its final regulations on settlements and commitments in early March. Timelines of the new regime are very restricted (45 days). It is expected that fewer people will offer commitments under the new regime.


Korea


The KFTC is focusing on Chinese platform companies from the perspective of antitrust and personal information protection regimes. The government has assembled a specific task force to address and analyze the issues and concerns identified.


Korea’s proposed online platform act does not appear to have much support so far. However the KFTC’s head still wants to enforce these avenues to address the need for this regulation. The Korean proposed DMA legislation is waiting until after the elections to revamp the efforts to have this piece of legislation passed.


The KFTC has an increased focus on how consent decrees are being fulfilled in merger reviews. This is particularly true for global transactions.


Singapore and South East Asia


Singapore’s competition agency is conducting an in-depth review of a merger involving a digital taxi app. The merger brings some novel antitrust concerns as the merger is neither horizontal nor vertical.


The Philippines published new guidelines for mergers in the digital markets at the end of 2023. The guidelines are based on the DMA and have concepts like acquisitions by a gatekeeper, nascent acquisitions, killer acquisitions, etc.


Thailand has a draft act for principles of the digital economy. This has been released for public comment. It combines the DSA and DMA regulatory models. The digital transaction authorities will be the supervising agencies of the new regulatory framework.


In Indonesia, there is a new study by a think-tank to determine if the country will need a DMA-like bill.

January 2024 Report

China


 The new turnover thresholds have been published. Below are the new turnover thresholds that will come into immediate effect;


India


 There has been a big push domestically to have a draft law like a DMA-style bill. However, it is unlikely for it to be presented before the May election. CCI is pushing for increased regulation on the digital economy sector. It is worth noting that there is a statutory obligation to seek public comments when CCI wants to reform regulations.


CCI has suggested that there is an ongoing study on AI and competition although no further details have been provided so far.


The Supreme Court may start hearing Google’s Android case this month.


Australia


The Treasury’s Merger Reform Consultation public comments period will close January 19. The consultation is based on the ACCC’s proposal for merger reform. 


Ex-Ante reform. Treasury released a response to the ACCC’s Digital study and proposal for reform, which includes an Ex-ante approach like the UK DMCC. The timing for the consultation is not clear. It might be about to start (sooner rather than later in the next 2-3 weeks). The proposal will more likely follow the UK DMCC rather than the EU DMA.


Korea


The KFTC’s online platform competition act (a DMA-like bill) was initially thought to pass with this government. Legislation is picking up speed at this point but there is opposition from the business community. The Kakao issues/blackout reignited the discussion on the regulation. However, the bill will cover not only Korean companies but also several other companies, even multi-national companies.


Kakao-taxi company has been accused of excluding competitors (in the taxi service sector). A consent decree was applied for but it was denied.


Taiwan


The TFTC continues to enforce the law against keyword advertising of advertisers on tech platforms. Google has been a focus on the TFTC’s enforcement to determine if the platform misused their algorithms to facilitate advertisers’ keyword advertising using their competitors’ company/brand name in their keyword combinations. 


There is an on-going consolidation between online and offline distribution channels. Online platforms are using offline methods and offline businesses are using online services.  The mergers between sales channels has become one of the TFTC’s key enforcement areas.


As the AI industry is fast growing in Taiwan, the TFTC has commissioned research papers on competition issues concerning AI’s application in different contexts.   This shows the TFTC’s preparation of its capability to conduct enforcement actions on AI-related issues.


The second draft amendment to the Taiwan Fair Trade Act may come soon for public comments.  The amendment to the TFTC’s jurisdiction over merger review, its investigative power and sectoral inquiry power will be key issues. 


Singapore


A FDI law is scheduled to be introduced soon. The country had traditionally been very open to investment, but there has been an increasing sentiment that there is a need to ensure self-sufficiency and depend less on the rest of the world. 


Under the proposed FDI law, designated entities will have some restrictions as to investment and acquisitions, and there will be a higher level of control from the government. 


It includes an entity-based approach although there is a catch-all provision with a national security approach and concern in reviewing FDI deals.

November 2023 Report

India


 CCI is fully staffed in the commission and chairpersons. They will have five-year terms, which, despite the learning curve, will help build better institutional knowledge.


Ex-Ante regulation. The report on the CDCL got the timeline extended and is still pending. There is no clear time frame on when the report might be published.


No draft for comments or anything on the Digital Market Competition Act. No news on when it might come.


Many of the regulations of the amendment of the Competition Act are not applicable yet. However, the CCI has been enforcing draft merger guidelines and new thresholds.


Updates on Google Payment cases. The high court dismissed the claims from private plaintiffs and indicated it was CCI’s jurisdiction to investigate.


Japan


JFTC opened an investigation into Google regarding Google Search for anticompetitive exclusionary conducts relating to licensing agreements to install Google Apps.


JFTC G7 Enforcers Summit.  Discussions based on AI, and business trends on digital markets. JFTC will increase its focus on the matter


Australia


ACCC digital platforms services inquiry - digital ecosystem report is overdue. It is realized by the government, not ACCC directly. The focus will be on theories of harm.


Competition task force advisory committee to review the country’s competition laws. Looking into merger control processes and other competition settings and arrangements in Australia. 2-year review.



August 2023 Report

India


Since the new chairperson's arrival, there has been a greater movement at the CCI, but mostly just catching up on previously opened matters. There is still some movement and discussion regarding a new digital markets bill. The Google case is set to be heard by the Supreme Court in October. Both the commission and Google appealed the tribunal’s decision.


Google’s payments policy was found to be anti-competitive in October-2022. The appeal to the tribunal is pending. In the meantime, they are obliged to comply with the commission’s decision and announced some policy changes in this regard. These were challenged before various for including the Madras High Court, which held that it didn’t have jurisdiction over contractual disputes between Google and app developers, but also found that Google’s dispute resolution clause was void as it went against public policy to subject such disputes to California’s courts. 


The data protection bill has been passed by Parliament. Certain provisions such as data localization requirements were purposefully left vague to be dealt with in the future. 


Taiwan


The Taiwan telecom market consists of three big telecom companies and two small ones. The small telecom companies are facing difficulties in trying to compete. The TFTC previously approved the acquisition by one of the big companies of one of the small ones. The market is getting more concentrated as a result. There is currently a proposed acquisition by another bidding company of another small company which is pending the TFTC’s clearance.  The TFTC is assessing whether the proposed acquisition may increase the market power of a subsidiary of the acquirer which is the top player in Taiwan’s e-commerce market if post-merger the acquirer shares the data of the target company with such subsidiary.


The TFTC is currently in the process of amending its merger guidelines.  According to the draft amendments, the existing extraterritorial merger guidelines will be abolished and extraterritorial mergers will be subject to the simplified procedure (as opposed to waiver-of-jurisdiction decisions under the extraterritorial merger guidelines) if they will not result in direct, substantial, and reasonably foreseeable effects on the Taiwan market.  


Singapore / Southeast Asia


Policy is on the back foot in the region so far.


The CCCS established that yellow taxis are not in the same market as rideshare cabs (apps).


Thailand is looking to implement an emergency royal decree that would become an actual law called the digital platform law. It appears to be inspired by the British DMA and similar legislation.



China


There was a penalty decision against a non-poaching agreement based on the regulator’s determination that it is anti-competitive. However, there are no guidelines regarding how this will be assessed or established in future cases. It is likely through the catch-all provision and following the international trend to view no-poaching agreements as anticompetitive.

July 2023 Report

India


A fresh Data Protection Bill is expected to be introduced in the upcoming parliament session. Localization and storage of the information will be a key area of focus of the Bill. With regards to current data localization requirements, in the context of banking, there is already some regulation. At present, there hasn’t been that much regulation from the competition authority’s perspective on these issues.

 

Note, while the previous iteration of the Data Protection Bill went through a lengthy committee process (and was subsequently withdrawn), this version is likely to see expedited passage as the Government is entering its last year in this parliamentary cycle and general elections are due next year.


The Competition Amendment Act still has some provisions which are yet to be implemented. These include provisions that will impact the digital economy. These provisions require the CCI to issue implementation regulations which are yet to be published for public comment. On the other hand, since the CCI chairperson’s recent appointment, there seems to be an uptake on the enforcement front at the CCI. 


The proceedings brought by app developers against Google before the High Court of Madras for the Google Play Store Billing Policy are still in their preliminary stages. At this point, there is a discussion on the appropriate forum for these proceedings. The complaint was brought in India, but the agreement signed between Google and the app developers listed California court as the appropriate and competent forum for any dispute settlements. A preliminary decision on the maintainability of these proceedings before the Madras Court is awaited. 


The Committee on Digital Competition Law (CDCL)’s report on the Digital Competition Bill is expected to be released in early August if not extended further. 


South Korea


There continues to be active discussions on the KFTC’s push to possible adoption of an online platform act similar to the EU DMA. A growing consensus among experts is that the DMA-style legislation may not fit for Korea.  However, unfortunately, it appears the KFTC attempts to push the bill through the ruling party’s political support, which is causing controversy. 


The KFTC has appointed a new vice-chair for investigation, following the separation of enforcement(investigation) and policy functions early this year. Since the reorg, the authority has become very active in launching investigations and enforcing competition law.  


Japan


The JFTC published an interim report on innovation and competition policy as a result of their working group discussions. They are still accepting comments from the public on this report. Discussion will then resume inside the JFTC.


The DMCH published the final report on the competitive assessment of the mobile ecosystems and app distribution, which will form basis of a targeted ex-ante legislation to address competition issues related to app distribution.  A public consultation on this report is currently ongoing until mid-August. 


The newly appointed Secretary General of the JFTC mentioned that the JFTC should review and discuss the topic of AI’s implications on competition. There is the possibility of market research to be conducted on this topic, including the relevance between the competition environment and AI. The JFTC is already advancing in a report on this relationship. The report will not be disclosed at this time because the research is still to be conducted.



Thailand


Thailand published key principles of “Platform Economy Law” which contains elements of the EU Digital Services Act (DSA) and Digital Markets Act (DMA).  There is no legislative text yet but the Parliament will soon start drafting a legislative text.


Australia


The ACCC’s eight installment of the Digital Platform Services inquiries is underway, which is about data brokers. The focus of the previous inquiry was about the expansion of digital ecosystems, in particular cloud and home connectivity. Now the focus is shifting to Data Brokers. The shift from big tech to the collecting of Big Data and the usage of data-by the so-called Data Brokers. There is acknowledgement that there is a lack of transparency on how Data Brokers work and use the information they have access to. Usually, personal information of the consumers is used for profiling. The inquiry will focus on third-party data brokers (those that collect data and used it with third parties). The six-month review and report is scheduled to be submitted to the government by March 2024. The focus will include the lack of transparency and knowledge by the consumers as to what personal data is collected and how it is used.

June 2023 Report

India


A new Chairperson has been appointed at the Commission. With this appointment the Commission is once again quorate and is expected to get on with business. Chairperson Ravneet Kaur will have a 5-year tenure. Nevertheless, there are two more Member retirements expected between August and September. 


Certain provisions of the Competition (Amendment) Act have been notified. These included provisions on facilitators of cartels, participants in ‘hub and spoke’ cartels and expanding the powers of the Director General. Important provisions on the merger control and enforcement fronts – including deal value thresholds and the settlements/commitments regime -– are  yet to enter into force. Importantly, the Commission is now required to publish draft regulations inviting comments before they are finalized. The pending amendments are likely to be notified once implementing regulations are near final. 


The Committee on Digital Competition Law is in advanced stages of discussing a draft law focused on digital markets, which might potentially include ex-ante regulation. Initially, it is expected to cover a variety of gatekeepers and platforms including those relating to search, e-commerce, ride sharing and food delivery. A report should come out towards the end of July with the draft bill. It is likely to be made public for comments and the final bill will likely be introduced in the Indian Parliament by the end of the year.


Following the CCI’s decision finding Google’s Play Payments Policies anticompetitive, Google expanded its User Choice Billing program to enable app developers to offer an alternate payment system. The complainants before the CCI in the Google Payments Case have highlighted concerns with the User Choice Billing program and sought action against Google for non-compliance with the CCI’s directions. Separately, app developers have approached the High Court of Madras for interim protection from being delisted from the Play Store for not agreeing to Google’s revised Payments Policies. Conditional protection from delisting has been provided as an interim measure. 



South Korea


There is a legislative push for a DMA-like bill. The aim is to pass the bill by the end of the year. A very fast-moving advancement and a fast process. There is not clarity if there will be a transition period, but there might be a 1-year transition period to give the companies a chance to comply with the new regulations.


Japan


Not much to update. There is more active JFTC enforcement. It is not public yet if there are further investigations being conducted regarding digital markets. July will be a month for personnel change in the JFTC. Both the head of the investigations team in digital markets and the secretary general might change.


China


There are more investigations being conducted after the slow-down during COVID. One of the investigations is related to a US company, the other important one is related to an EU company. Both investigations are regarding abuse of dominance behavior. There are also local investigations regarding both abuse of dominance and cartels. Daily necessities products are involved in these local investigations.


On the Merger Control side, the Microsoft – Activision deal was approved.


Australia


The ACCC is currently conducting its seventh investigation on Digital Platform Services. This one focuses on competition and consumer issues on the expansion of digital platform companies into cloud computing services, among other topics

April 2023 Report

India


The Amendment bill was passed by both houses of congress. It just needs the president’s signature to come into effect. Nevertheless, the individual sections will also need to wait on the notification and public comment period before being enacted in case any specific sections require further regulation.

 

On the merger control chapter of the bill, the size of transaction requirement is going to seek to capture big tech transactions. The limit might not change, but the way the commission is going to review and analyze these limits might change. There may not be more published orders of prima facie reviews considering the new law if the waiting period is over. This is similar to HSR review guidelines in the US.

 

The Supreme Court made it clear that the turnover limit for the fines imposed by the CCI is the global turnover of the company.


South Korea


There was a press release on a decision against Google concerning the Game publishers case reporting that there will be a 300 million US dollar fine imposed by the KFTC. Under the illegal conduct which lasted 2 years, if game publishers published only on Google’s app store, Google would give them priority and a better deal.


Japan


JFTC published the result of the merger review for the Microsoft-Activision deal. It was approved without any restrictions. The review determined that there was no need to worry about surplus capacity or supply capacity as the game was distributed in the cloud.


China


Regulations for merger control and abuse of dominance were passed. The merger control provisions provide more certainty in some grey areas. They established what is understood as “control” for merger review and what might constitute control. There is also more clarity on what constitutes “gun jumping” and when “gun jumping” will be considered to exist. The turnover will be calculated on the total turnover of the last fiscal year. “Closing Date” turnover will not help.


Abuse of dominance: A special item added under abusive behavior is on unfair high or low price and how to compare it and what other factors can be considered when doing this kind of review, as well as the reasonable grounds to argue these kinds of behaviors.


Horizontal and Vertical Agreements: The regulation is important for clarifying what can be considered a potential competitor. The Safe Harbor percentage has also been removed (15%) which keeps the Safe Harbor percentage as previously calculated at 30%.


Leniency Application: There is clarification on what qualifies or not as a leniency application, how to apply for such leniency and the consultation process during the investigations


March 2023 Report

India


The CCI’s Chairperson is still to be appointed and as a result, there are several CCI cases and investigations on hold because of the absence of a Chairperson. The earliest expectation is that a chairperson will be appointed is late March.


The Committee on Digital Competition Law has been set up by the government and is working on a draft bill to propose ex-ante regulation of Big Tech, like the DMA. They have three months to prepare it before having to submit it to the government, to be then tabled in Parliament for discussion. 


The Supreme Court ruled against Google and established that they had to comply with the CCI’s requirements on previous cases, and Google has announced its proposal to comply with these decisions. However, the CCI is unable to assess whether compliance is effective in the absence of a chairperson.


South Korea


There are plans to change the structure of the KFTC, splitting the policy and prosecution sections. There would be two separate “Secretary General” positions but with a different name. There is also ongoing research on how digital companies are being regulated in other countries and how should they be regulated in Korea. So far, there are arguments towards implementing self-regulatory measures for Digital Delivery Apps.


Singapore - Southeast Asia


The Malaysian authority has still an ongoing investigation into Shoppee, an e-commerce platform, regarding the delivery and quality of the service considering the time lapses occurring in the services provided.


There is an inquiry on TikTok and other tech companies that are storing on Singapore servers’ information and data of users located in the EU in an apparent attempt to “by-pass” EU data protection laws. It would be important to see how this issue might affect these companies in the future considering the GDPR.


Japan


The ICN meeting held in Japan focused its discussions on digital markets and unilateral conduct.


There was a forum on Metaverse and Competition law and how should competition be regulated within the Metaverse. Authorities seemed interested and consider it worth investigating and paying close attention to. Nevertheless, it is still a very new issue to properly approach and investigate it but it will definitely be in the focus of authorities in the near future.


Australia


There is an ongoing study on Digital Platforms focused on competition and consumer protection. The next report will focus on social media.


There is a new 6-month long inquire on Digital Platforms -Big Tech- ecosystems and how these ecosystems and branches of Big Tech are extending. It will focus on how competition works in the market with the two main focuses on homy systems and cloud services. The ACCC wants to have a better understanding of the market and these ecosystems to know how they work and better analyze incoming investigations or mergers.


The ACCC’s priorities for 2023 as recently published show a higher focus on consumer law and consumer protection than on hardline competition enforcement.


China


There is not much to report other than that authorities have established that the digital economy is a priority and is still a priority which means that the enforcement will be focused on Big Tech. Priorities and enforcement will also focus on sectors of vital importance to consumer livelihood and welfare. There is, nevertheless, doubts on which sectors those this concept cover.


Taiwan


The TFTC’s Chairperson discussed the investigation on Google following some advertisement issues and complaints. The main concerns as of now focusses on the potential anticompetitive effects of an apparent conduct of some companies colluding with Google to push competitor’s advertisements on the search engine to the bottom of the page after a search of certain key words.


February 2023 Report

India


Following an opinion from the Attorney General, CCI is starting to approve mergers that were backed-up since late 2022 due to the absence of quorum by the Commission. On the other hand, there is no enforcement or prosecution yet as there is still to be an appointment of the chairperson which means there is still a lack of quorum.


May is the deadline for the report on whether it will be necessary or not to have a separate digital competition authority or law moving forward, as some view as necessary in order to regulate and oversee the digital tech companies.


The Ministry of Commerce wants to review the merger guidelines and wants to move forward with the review of the legislation. On the other hand, the CCI does not consider it is necessary to review them since times for review and approval would be crunched.


South Korea


There seems to be somewhat of a mobile ecosystem war in the telecom industry. The communications authority is investigating Apple and Google for not complying with the app store’s regulations. The KFTC is reviewing with academics a study on whether or not to adopt a statute similar to the DMA. The KFTC issued a request for proposals for this research project on whether Korea should legislate a new DMA-like law. Legislators are hosting public hearings on the need to have digital regulations like the DMA.


Singapore - Southeast Asia


Digital Markets still have a great importance and are one of the priorities of the authorities.


The Malaysian authority launched an inquiry into Shoppy, an e-commerce platform, regarding the delivery and quality of the service considering the time lapses occurring in the services provided.


Thailand’s TCC chairman sounded a cautionary measure saying they do not want to have over-enforcement in digital markets


Japan


The JFTC issued a report on mobile app distribution; they will continue to do market surveys and market research. They are also considering whether there might be a need for ex-ante regulation on digital markets like the DMA.


Currently, there is follow-up market research on the cloud services report of last year.

 

January 2023 Report

Taiwan

English translation for the white paper summary in February. Final version is very similar to the first draft but with just some minor adjustments.  Issues discussed include Merger control reviews, including mergers on the tech sector especially Nascent Acquisitions, as well as Privacy issues among other.

 

Apple investigation for just Apple-Pay usage on the App Store in Taiwan. Complaint from local App developers. Self-preference is not illegal per se. TFTC will first have to analyze if Apple has enough market power for a dominant position in the market. Is the company sacrificing some short-term benefits to recover from their loss (e.g., costs) to avoid a competitor from entering the market.

 

TFTC will reach out to external experts to review some aspects in which they do not currently have the know how to analyze some specific aspects with algorithms or information-technology aspects in new cases. It is likely that the experts will be from Taiwan. TFTC decision would be very difficult to appeal unless there is a different expert opinion on the algorithm in this type of cases.


India


There has not been an appointment of the CCI chair so far.

 

Both Google cases have been appealed. No interim relieve has conceded initially for Google by the appellate tribunal, who appealed to the supreme court. The approach from the appellant from the tribunal is changing from what has happened in other cases. Google decision will now be heard in the Supreme Court.

 

Report on the competition amendment bill. The bill introduces some minor adjustments on the text of the laws specially in the technological sector.

 

The Parliamentary committee is trying to introduce a digital competition act separately and “copy” EC progress in recent years. Not all members of the committee are clear on whether a separate DCA or not. There is a separate report for digital markets that is very similar to the EC’s regime, which is also very similar to what is established in previous Indian jurisprudence. 


South Korea


KFTC passed guidelines for digital companies and markets. This is not a revolutionary change to prior KFTC views on the topic. The guidelines target online platforms and their various conducts. -especially how the relevant market for these companies can be established. The guidelines introduce the concept of “gatekeeping”, which is different to what is established in the DMA. The overall market reaction seems to be concern regarding the guidelines.

 

KFTC’s general market survey on cloud computing has been completed. The results might affect the focus on cloud related investigations.


China


Not much in terms of updates on the tech sector. There are six drafts of tech regulations prepared. The timeline is going to be delayed due to covid and some of them have received several comments and adjustments. turnover threshold for merger control will be postponed which would be higher in the new regulation. The same is true as to the safe harbor threshold. There is no clarity on when the regulations will apply since the timeline for the new regulations are being delayed.


Japan


Not much in terms of updates. There is research going on mobile ecosystems which might be published in March of this year. There is also an analysis and survey conducted by the JFTC of digital and news media companies’ markets after Google’s and Yahoo’s conducts and the different cases that have been going on in other jurisdictions that will be published. Media and newspaper companies have been complaining about those conducts.


ABA Antitrust Asia Meeting

The American Bar Association (ABA)’s Antitrust Section hosted its biennial regional conference “Antitrust in Asia” in Singapore on December 8-9, 2022.  This is one of the major competition conferences in the region and over 130 senior enforcers, practitioners and academics attended this two-day event, including enforcers from India, Japan, Singapore, Malaysia, Thailand, the Philippines, Taiwan, as well as the FTC. 


Key takeaways: 

 

More recent developments:

The KFTC published new guidelines on assessing digital platforms’ abuse of dominance.  In addition, some developments on the KFTC:  it has created a new unit for digital platform policymaking; it has also created a new unit dedicated to cross-border M&A cases; and it is forming a task force, including external experts, to study whether an ex ante regulatory approach is needed for Korea. 


December 2022 Report

India


The chairperson of the Competition Authority (CCI) completed his term on October 25th. There is still no replacement for the Chairperson, although there is an acting Chairperson. As a result of this absence there is no quorum for the Committee to make decisions as they need all three Commissioners to have a quorum and there are currently just two.

 

There have been some consequences and fallouts following the decisions made in the two Google cases handled by the CCI. First, in the mobile payment market, the National Payments regulator proposed a ceiling for market share in this market. This would mean that companies that want to compete in the mobile payments market, cannot have a market share above that which the regulator allows as a ceiling. As of now, the deadline for companies to comply has been extended for two years.

 

There is no clear timeline for the amendment bill to the competition law to be passed. It has not been listed in the sessions for parliament to discuss for now. It is expected to be introduced in the next session but, following the aftermath of the Google’s decisions, there is uncertainty on when the bill will be discussed.


Finally, there is a Digital and Personal Data Bill to be discussed. There is still little clarity on how the digital personal data will be managed after this bill. It is also unclear if the interface used will be allowed to reside abroad or it must be in an Indian hotspot. The only clear aspect as of now is that the regulator will still be the Digital Markets regulator. 


China

There is a Draft of Judicial Regulations and Interpretations for Antitrust Litigation that has been sent for review and comments from different sectors and authorities. This draft would bring several changes to antitrust litigation, being the most significant the shift of the burden of proof. The draft is proposing for the plaintiff to not be the one to bring forth the proof on why the conduct is anticompetitive, but rather it is the defendant who will have the burden of proof to allege the competitiveness and legality of their conduct.

A recent court decision has disregarded the arbitration clause in some contracts. It established that parties cannot, via an arbitration clause in their contracts, avoid the scope of courts in potential antitrust issues.


Taiwan

After some months of review, the White Paper on Digital Economy was finalized. This final version will not differ on much from the draft that was circulated for comments and review. Next year there will be available an English summary of the paper.

There was an investigation launched against Apple. This was following a complaint from App developers on Apple’s prohibition for them to use other mobile payment methods different than Apple Pay on the apps within the Apple store. A similar complaint was filed against Google but the authority decided not to investigate as they argued Google had a more open ecosystem for these payments.

Besides the now more common revenue share issue with digital platforms and publishers, there is also some discomfort amongst online advertising agencies that are requiring the authorities to better regulate digital platforms and the online advertising model. Advertising agencies were used to getting a fee from companies to publish their advertisements according to their needs and requests as it was very difficult for a company to contract with all the possible distributers of the advertisement. Now, Digital Platforms are bypassing these agencies by contracting directly with the companies that want to advertise, basically leaving the agencies role being redundant.


South Korea

The KFTC recently formed an Online Platform Policy Division within the Antimonopoly bureau. Normally, there are significant hurdles to setting up new divisions in the KFTC, such as approval from the interior and safety ministry and budget office. This new division was set up based on a more simplified process. The need for continuation of this new division will be reviewed in certain time periods, including in one year. Hence, this may add fuel for a more scrutiny on the platform companies. .

The Kakao-breakdown may add fuel to several national assembly persons' attempts to pass new Online Platform Act. Nevertheless, this might take some time as it requires to follow all the necessary steps for a new bill to come to reality. On the other hand, the KFTC is also working on a set of Guidelines on Monopoly Regulation which will be directly related with online platforms. These guidelines will be related to the Online Platform Act but will be much easier and faster to start adopting

Japan

There is an ongoing discussion on how to regulate digital platforms and mobile ecosystems. It is expected that a new report on this subject will be published soon. In conversations between the American Chamber of Commerce in Japan and the JFTC, the Chairman for the competition authority mentioned that they are very keen on having both a strong advocacy and a strong enforcement of competition law. Nevertheless, it appears as if for now the focus is more on the advocacy side rather than the enforcement.


November 2022 Report

India

The chairperson of the Competition Authority (CCI) completed his term on October 25th. There is still no replacement for the Chairperson, although there is an acting Chairperson. As a result of this absence there is no quorum for the Committee to make decisions as they need all 3 Commissioners to have a quorum and there are currently just 2. Another consequence of this absence relates to the pending mergers that are being processed as the 30-day period for approvals is running, but the Commission can’t meet to approve without a full quorum.

The Supreme Court dismissed the challenge presented against the investigation that is under course against Meta. This means that the investigation might continue and, if it is concluded that way, an order would be issued once the Chairperson is appointed.

There have been three major decisions made by the CCI before the Chairperson’s term ended: One regarding MakeMyTrip/OYO Rooms, and two regarding Google.

In the MakeMyTrip/ OYO case, the CCI found that online travel agencies MakeMyTrip and Goibibo (collectively MMT-Go) had engaged in abuse of dominance by imposing wide platform parity obligations on hotel partners (including price / rate parity, as well as parity on room availability), and misrepresentation by showing rooms of delisted hotels as sold out. The CCI also found that an agreement between MakeMyTrip and OYO which resulted in the delisting of OYO’s competitors from the MMT-Go platform, amounted to the denial of market access and was also an anti-competitive vertical restraint.

As for the Google decisions, the first one of them was regarding the Android Platform. The CCI examined Google’s conduct in the Android ecosystem and held that Google abused its dominant position (in a number of markets) by: (i) requiring smartphone and tablet manufacturers (OEMs) to pre-install, prominently place and make as default, its bundle of apps; (ii) tying Android with Google Search, Chrome and YouTube; and (iii) through a series of restrictive agreements and other conditions, disincentivising and effectively restricting OEMs from developing or otherwise using alternative versions of Android i.e., Android forks on their devices.  The CCI issued immediate cease and desist orders and directed Google to modify several counts of conduct within a prescribed timeline.

The second decision involved the Playstore Payment System. According to the CCI there was an abuse of dominance as Google tied all the purchases made in the Google Playstore to be done using Google’s Paying System. The CCI also found that Google was preferencing its own payments app (Google Pay). The CCI ordered Google to allow app developers / users to process payments through third party payment processors, cease discriminatory practices against other payment apps, and to modify (again) several separate counts of conduct within a prescribed timeline.


China

There have been queries around merger control and approvals, as well as the timing and process for mergers of US and non-US companies in China. Before the end of the year a new comprehensive set of Guidelines for the new antimonopoly law regulations implemented in August is expected to be published. One of the most significance issues covered in these new guidelines would be regarding merger control and the increase of the new approval thresholds.


Southeast Asia

Malaysia and Indonesia are requiring undertakings and additional information in different mergers on the Telecom Sectors. Competition and Merger Control in the region is much more active which could be an indicator that the region is headed in the right directions as far as antitrust and competition law is concerned. 

There is also an apparent change of policy in Indonesia as they opened an investigation for alleged antitrust violations against Google for their Playstore management. This is a change in policy as Indonesia in the past usually wasn’t focused as much on the behavior of international companies.


South Korea

The Kakao outage, which limited the access of several consumers to the Kakao services, placed the different Agencies on high alert as they are looking for different solutions to avoid these problems in the future. The different Agencies are looking into changes to prevent and avoid a single company from having too much power and market concentration. This all points towards a new digital communications and platforms act. This new legislation might be the solution towards which the authorities are leaning towards.

There is currently an active investigation against Apple and Google for the inner purchases in their platforms. This is taking place following the amendment of the antitrust regulations that entered into force in September. 


Japan

There is an advancement for the Guidelines that will be released and that will try to provide measures for supply-chain companies – including SMEs, to combat cyber-attacks that might gravely affect consumers.

Amazon Japan and Apple Japan are being called upon to have their practices and behavior modified and fall in line with Japan’s Digital Commerce Guidelines and Practices.


October 2022 Report

India

Late this month (October 25th) the head of the Competition Commission of India – CCI will retire. Before this date, the CCI will probably issue 3 additional orders relating to digital markets. Two of them regarding Google and one regarding online travel companies. There is still no news on who the new Chair might be so there is no news on what approach will the CCI have on tech and Digital Markets. Although, it is possible that the approach remains the same for this sector. Once the head of the CCI retires, there will be no quorum for decisions in the Commission as there will be only two out of minimum three required commissioners.

There is an additional investigation regarding Google in process, relating to complaints filed by news outlets regarding the revenue Google shares with news publishers for extracts from their articles visible on Google’s search engine results pages. News outlets believe there is an unfair revenue share and competition authorities should intervene.

There is currently a bill to amend the competition law before parliament. The bill is currently before a parliamentary committee, and it may be tabled for passing into law in the next session of parliament, in the December – January window.

The government wants to create a platform that competes with Amazon. They intend to have this platform be considered as a public good. There has been some shares-buying by large companies of India and the Government has pledged seed money as they are very interested in this platform to be a public good. The newly created platform will be complementary to the already existent payment platform that is also a public good in India.


Taiwan

According to recent news reports, the “White Paper on Digital Economy Policies” (“White Paper”) prepared the Taiwan Fair Trade Commission (“TFTC”) is currently planned to be finalized by the end of this year. There is still no clarity on the topics the White Paper will cover but there will be 14 topics covered. Depending on the discussions and issues covered, the White Paper might have some notable changes from the draft released early this year.

There is currently a discussion on how news revenue share should be regulated. Legal scholars, local news companies, and practitioners have been invited by the TFTC to join the discussion. There is a proposition to create new legislation that regulates this topic instead of regulating it under the Taiwan Fair Trade Act. There is also some discussion on who will be the enforcing authority, if there should be an interagency enforcement or if the enforcing authority should be the newly created Ministry of Digital Economy.

This discussion on news revenue share also considers a proposal for Google and Meta – Facebook to pay a percentage of the revenue they obtain in Taiwan to a special fund (“Fund”). These resources would then be paid by the Fund to the news companies. There are still different proposals, and the discussion continues. But there appears to be a decision coming in the upcoming months.


Japan

No major advancements or cases to report. On October 3rd, Digital Advertisement began being subject by the Transparency Act which is an ex-ante regulation that might affect the way these advertisements are handled. A report published regarding Cashless Payments and Credit Cards established that there will be a study on whether to implement or not an interchange fee for these services.