This study reviews the competition policies of major ASEAN countries from institutional, legal, and economic perspectives, focusing on M&A in the digital platform market, and then proposes overseas competition policies for Korea. First of all, Chapter Two introduces the implications of the digital platform market in terms of competition policy, and the recent economic theories and global discussion trends for anti-competitive M&A which could arise from these features. Significant features of the digital platforms such as economies of scale, network effects, cost reduction in collecting, analyzing, and storing data will create pro-competitive effects of increasing consumer welfare on the demand side as well as reducing inefficiencies on the production side. However, these pro-competitive features at the same time can also lead to potential monopolization in the market, or “tipping” toward dominant firms, due to the significantly robust economies of scope possible in the digital platform market. In particular, even though “killer acquisitions” to eliminate potential competitors in the future can cause serious anti-competitive effects in the competitive process of tech companies, many mergers and acquisitions conducted by tech giants such as GAFAM (Google, Amazon, Facebook, Apple, and Microsoft) since 2010 have been approved by competition authorities without any conditions or screening process. This situation sparked debate on whether the previous competition law paradigm could be applied in the digital economy without any modification. In this line, some leading competition authorities worry that the current merger review policy can undermine the possible birth and development of start-ups, which could grow to be future competitors. They also address the need to introduce a new regulation paradigm.
Chapter Three covers market competition in the digital economy of six ASEAN member states – Indonesia, Singapore, Viet Nam, the Philippines, and Thailand – which have relatively sizable digital economies. This chapter explicitly addresses the issues of e-commerce, ride-hailing and online delivery, online travel booking, and over-the-top media service. In addition, we investigate global digital platform M&A cases in the region from 2015 to 2019 using the Thomson Reuters EIKON data set and identify the features of the cases by country and industry. While market competition structure and features differ from country to country, sustainable growth of the digital platform market in the region is expected considering the rapid growth rates of this region’s population and economy. The recent COVID-19 outbreak will accelerate the growing trend due to the subsequent increase in online activities, even though some sectors such as ride-hailing are experiencing adverse effects due to the pandemic. However, because ride-hailing companies such as Grab and Gojek are leveraging their platforms to expand their business areas into delivery and finance services, the growing effects in the market are greater than contracting ones in total. We find that the M&A activities of the digital platform companies are very active as the relevant market grows in the region. Most of all, e-commerce and ride-hailing account for the most significant portion of the market. M&A transactions in the e-commerce sector of Chinese companies occupy a large portion. Looking at major M&A cases in the e-commerce sector, we can identify the cases of Lazada and Tokopedia conducted by Alibaba in China. On the other hand, a promising local platform based on ASEAN, Grab merged with the global platform Uber. Through this market situation, we observe that fierce competition is taking place between local and global platforms.
Chapter Four first addresses the introduction of competition laws in all ASEAN member states and then delves into a comparison of competition laws in four countries (Indonesia, Singapore, Viet Nam, and the Philippines), focusing on merger review regimes. While Indonesia was the first country to introduce a competition law in ASEAN, Singapore and the Philippines operate relatively advanced competition policies vis-a-vis the United States or European Union. Viet Nam started to accept global standards since the comprehensive amendment of its competition law in 2018. In regulating anti-cartel behaviors, all four countries’ competition authorities commonly separate “per se illegal rule” and “rule of reason” when enforcing their laws, but the range and cartel types to apply those rules differ from country to country. Three countries except for Indonesia run leniency programs which grant exemptions or reduction of penalty when cartel firms concede their illegal behaviors to competition authorities. In the regulation of abuse of dominance, all four countries assume that a firm has a dominant position if the firm's market share is above a certain threshold. The competition laws explicitly regulate the types of prohibited behaviors. The threshold is 60% in Singapore, 50% in Indonesia and the Philippines, and 30% in Viet Nam, which implies that Singapore's competition law applies the most relaxed standards and Viet Nam the most strict standards. Compared to the regulation of cartel conduct and abuse of dominance, merger review regimes show significantly heterogeneous institutional characteristics. The requirements for reporting mergers and acquisitions show a wide spectrum: Singapore has a post-review process where competition law requires firms to report the M&As afterwards but do not have to report consolidations in advance. However, Viet Nam and the Philippines have a mandatory pre-review process where merging firms are obligated to report the M&As to the authorities and obtain approval in advance. In the middle of the two regimes, Indonesia runs voluntary pre-review and mandatory post-review regimes. These institutional differences can lead the firms to conduct cross-border M&As in the ASEAN region to deal with increasing competition law risks.
Chapter Five consists of two main sections. The first section studies and compares each of the four competition authorities’ decisions on whether the authorities approved a representative cross-border M&A case in the region in 2018, the Grab-Uber M&A case, or not. In particular, this section investigates why each competition authority reached different conclusions on the same M&A case. The competition authorities of Singapore and the Philippines both decided that the Grab-Uber M&A was anti-competitive. They argued that the consolidated Grab’s market power after the merger would be strengthened due to the elimination of its strong competitor, Uber. The merger had the effect of easing intense competition pressure in the digital platform market. Nonetheless, due to the institutional limitations of the voluntary post-review regime in the country, the merger was approved by Singapore’s competition authority with certain behavioral remedies, such as restrictions against raising prices. The Philippines’ competition authority approved the case, but took a slightly different method from Singapore’s by finalizing it by way of consent order. In Viet Nam, the Vietnam Competition and Consumer Authority (VCCA) delivered its initial opinion that the M&A should not be approved due to the potential competition restrictive effects, however the Vietnam Competition Council (VCC), as the final decision commission, chose not to accept the proposal and approved the merger without any conditions. The Indonesian competition authority did not apply the competition law, arguing that the merger did not show any changes of control rights regulated in the law and only was considered as sales of an asset. The second section empirically analyzes the economic effects of the Grab-Uber M&A case on market competition using the data set provided by Allied Market Research. The data set includes information on the features of consumers and three ride-hailing applications, Grab, Uber, and Gojek, from 2008 to 2019. Compared to other countries, the results show that the anti-competitive effects from the merger were weaker in Indonesia where the consolidated Grab still has a strong competitor, Gojek.
Based on the analysis results presented in Chapters two to five, we confirmed the rapid growth of digital platforms and intensified competition in the digital platform market of the ASEAN region. Also, it is expected that the competition authorities will more actively enforce their competition laws in the digital platform market. Considering the legal and institutional gaps across countries and divide in their capacity to enforce competition laws, it is important to synchronize the ASEAN member state’s regimes by reducing the heterogeneity in competition policy within the region. Also, capacity building programs to enhance enforcement skills should be addressed. In particular, due to the complicated nature and convergence features of the digital economy, competition authorities in ASEAN should consider a new regulation paradigm in competition policy suitable to the changing digital competition environments. This study provides four policy suggestions in the context of international competition policy to strengthen global cooperation with the ASEAN member states and minimize competition law risks of Korean companies that are conducting or planning to do business in the region. First, in line with the New Southern Policy, which emphasizes multilateral cooperation with ASEAN, Korea’s competition authority should build a cooperation channel with the ASEAN Experts Group on Competition and bilateral cooperation with each member state. Second, the authority should promote demand-based and customized collaborative projects in the areas of competition policy through joint investigation, research, and sharing best practices in the digital platform economy. This cooperation could provide the ASEAN member states with capacity building on cultivating competition environments and enforcing competition laws. Third, Korea’s competition authority should establish a cooperation network with the ASEAN Competition Enforcer’s Network to prepare for the increasing demand of competition law enforcement in the digital economy. Finally, we confirmed the increasing trend of business opportunities in the digital economy of the ASEAN region. Thus, the Korean government should provide the Korean companies with more detailed information on the local competition law and the authorities’ enforcement standards to minimize competition law risks by helping them avoid violating the local competition laws.