In this podcast, members of the Herbert Smith Freehills Competition, Regulation and Trade team examine key competition law and related regulatory developments. In each instalment, we update you on the latest developments across Asia, as well as those affecting Asian businesses around the world, from merger control and foreign direct investment regulation to cartels and compliance.
SERIES ONE – COMPETITION LAW IN SOUTHEAST ASIA 2020
In the inaugural series of the Unbundling Competition podcast, Adelaide Luke (Partner and Asia Head of Competition) discusses recent developments in competition law regimes in Southeast Asia with experts in the region.
Episode 1: Competition Law in Southeast Asia - Regional enforcement and Thailand
Adelaide and Tokyo senior associate Joel Rheuben review the current state of competition law enforcement in Southeast Asia, and take a closer look at Thailand, where the competition law regime has changed significantly. This episode is a good starting point for understanding why and how Southeast Asia is an increasingly important region for deal and competition compliance planning.
Adelaide and Hiswara Bunjamin & Tandjung partner Sakurayuki discuss recent amendments to Indonesia's competition law rules and its proposed new legislation. Hiswara Bunjamin & Tandjung is Herbert Smith Freehills' longstanding associate firm in Indonesia. This episode provides a broad overview of the rapidly changing competition law landscape in Indonesia and the direction of future reform.
Adelaide and Prolegis Managing Director Ban Leong Oo discuss the competition law landscape in Singapore and look at the Competition & Consumer Commission of Singapore, regarded as one of the most active and sophisticated regulators in the region. Prolegis is Herbert Smith Freehills' formal foreign law alliance partner in Singapore. This episode explains why companies doing business in the region should pay attention to the Singaporean regime.
Adelaide and Frasers Law Company partner Justin Gisz discuss the newly enacted Vietnamese Competition Law, which is anticipated to lead to a new era of competition law enforcement in Vietnam. Frasers Law Company is an independent, full service commercial law firm based in Vietnam. This episode provides a practical overview of the new law, including the implications for merger control.
SERIES TWO – Screening of Asian investment in Europe
Episode 5: Screening of Asian investment in Europe - The UK’s proposed new National Security and Investment regime
Tokyo senior associate Joel Rheuben and head of HSF’s global Foreign Direct Investment group Veronica Roberts discuss the recent bill for a new National Security and Investment screening regime in the UK. The proposed regime introduces mandatory notification requirements for investments (including minority investments) in certain key sectors, adding to the regulatory complexity for Asian companies doing deals in the UK.
Asia Head of Competition Adelaide Luke and EMEA Head of Competition Kyriakos Fountoukakos provide an overview of the European Commission’s recent “White Paper on Levelling the Playing Field as regards Foreign Subsidies”. They discuss the various models under consideration for reviewing a wide range of foreign government and public body support for companies that impacts competition in the EU. If implemented, the proposals under this White Paper are likely to have a substantial impact on investment in Europe by Asian companies in particular.
Head of Competition Asia, Adelaide Luke, and London partner Mark Jephcott discuss the UK competition law system, and how it will apply to Asian companies after the expiry of the UK EU Withdrawal Agreement on 31 December 2020. Asian companies with operations in both the UK and EU should be aware that, from 2021, the two competition regimes will operate in parallel, and should note key differences.
Tokyo senior associate Joel Rheuben and EMEA Head of Competition Kyriakos Fountoukakos outline the Regulation on the Screening of Foreign Direct Investment, which became fully operational in October 2020. They provide an overview of the relationship between the screening framework established under the Regulation, and the potential impact for Asian companies investing into sensitive sectors in the EU.
A summary of the podcast is available in here.
SERIES THREE – COMPETITION LAW IN DIGITAL MARKETS
Episode 9: Competition Law in Digital Markets - Digital platforms and competition regulation
Asia Head of Competition Adelaide Luke and Australia senior associate Patrick Clark discuss how competition authorities approach digital platforms, the new and unique competition concerns that authorities might identify with those businesses, and the global trend to develop innovative regulatory responses.
As digital platforms continue to grow in influence and importance across economies around the world, competition law regulators around the world are turning their sights on various practices that are common in the digital sector. In this episode of Unbundling Competition, senior associate Howard Chan and Herbert Smith Freehills Kewei Law Firm partner Frances Xu consider potentially problematic pricing practices on digital platforms, including recent updates from China.
Asia Head of Competition Adelaide Luke and Tokyo senior associate Joel Rheuben discuss the increasingly significant role that data plays in merger control analysis by competition authorities worldwide. Analysis of data as a factor of competition is being examined not only in deals involving large digital platforms, but also in more traditional sectors, as companies seek to monetise data they produce and use data analytics to gain an edge over their competitors. However, the unique characteristics of data create challenges when considering it through a conventional competition law lens.
史密夫斐尔科伟反垄断百「科」中文播客 Herbert Smith Freehills Kewei competition law podcasts (Chinese language)
Episode 1: SAMR Guidelines on overseas competition compliance: China's competition law regulator, the State Administration for Market Regulation, has recently released its Antitrust Guidelines on Platform Economies for consultation. These Guidelines are expected to have far-reaching consequences on how tech giants will be regulated in future, covering a range of common practices in the market, including exclusivity and loyalty inducing conduct. In this podcast, Herbert Smith Freehills associate Howard Chan discusses these updates with Kewei Law Firm partner Frances Xu and associate Hazel Xu.
Episode 2: SAMR guidelines on platform economies – deep dive into "one between two" arrangements: China's competition law regulator, the State Administration for Market Regulation, has recently released its Antitrust Guidelines on Platform Economies for consultation. These Guidelines are expected to have far-reaching consequences on how tech giants will be regulated in future, covering a range of common practices in the market, including exclusivity and loyalty inducing conduct. In this podcast, Herbert Smith Freehills associate Howard Chan discusses key issues such as "one between two" arrangements and market definition for platform operators in detail with Kewei Law Firm partner Frances Xu and associate Hazel Xu.
在国家市场监督管理总局发布的《关于平台经济领域的反垄断指南（征求意见稿）》中，针对经营者通过用算法分析数据对消费者实施价格歧视的问题。这亦就是通过俗称的“大数据杀熟”去达到“千人千价”：当中既涉及反垄断问题，亦涉及数据问题。本期的反垄断百【科】，科伟律师事务所的合伙人徐明妍Frances Xu将联通史密夫斐尔北京办公室的龚钰律师James Gong及香港办公室的陈孝廉律师Howard Chan一起聊一聊“大数据杀熟”的问题。
Episode 3: personalized pricing through data analytics – the data protection and antitrust perspectives: In the recently released consultation draft of the Antitrust Guidelines on Platform Economies, China's State Administration for Market Regulation addresses the conduct of pricing discrimination through the use of big data and algorithms, also known as 'personalised pricing'. This is both an antitrust issue, and a data protection issue. In this podcast, Kewei Law Firm partner Frances Xu discusses personalized pricing with Herbert Smith Freehills Of Counsel James Gong and Associate Howard Chan.
最近中国的反垄断执法相当活跃，中国国家市场监督管理总局对一些重大案件做出了处罚决定, 包括公布对扬子江药业集团有限公司实施垄断协议行为作出行政处罚的决定书。国家市场监督管理总局同时强调将持续加强医药领域反垄断执法，有效预防和制止垄断行为，切实保护市场公平竞争及维护消费者合法权益和社会公共利益。本期的反垄断百「科」， 我们会重点讨论在中国政府对国内各行业巨头进行大刀阔斧的反垄断执法的大环境下，中国医药企业应当如何做好反垄断合规？
Episode 4: Competition enforcement and compliance in the pharmaceutical sector: The State Administration for Market Regulation has recently intensified its efforts in tackling anti-competitive practices in various industries, including the pharmaceutical sector. It has issued several major administrative penalty decisions, such as the record fine against Yangtze River Pharmaceutical Group for implementing monopoly agreements. The competition law regulator stressed that it would continue to strengthen anti-monopoly law enforcement in the pharmaceutical sector to curb and prevent monopolistic conduct for the purpose of protecting consumer interests and ensuring fair market competition. In this podcast, Herbert Smith Freehills senior associate Howard Chan discusses with Kewei Law Firm partner Frances Xu and associate Hazel Xu how Chinese pharmaceutical enterprises can improve regulatory compliance.
Episode 5: Determining the arbitrability of competition law in China: The question of the arbitrability of competition law related issues have been considered in many jurisdictions around the world. Whilst resolution of competition disputes by way of arbitration has been recognised in some jurisdictions such as the European Union and the United States, the public law nature of competition law is still a major factor considered by the Chinese courts when deciding the extent to which antitrust issues can be covered by an arbitration agreement. In this podcast, Herbert Smith Freehills senior consultant Stella Hu and senior associate Howard Chan discuss the arbitrability of competition law in China with Kewei Law Firm partner Frances Xu.
RECENT DEVELOPMENTS IN CARTEL INVESTIGATION & LENIENCY PRACTICES, IN & OUTSIDE JAPAN (BILINGUAL)
Recent developments in cartel investigation & leniency practices, in & outside Japan (English)
HSF Tokyo senior associate Joel Rheuben is joined by Yusuke Takamiya, a partner at leading Japanese law firm Mori Hamada & Matsumoto, to discuss recent developments in cartel investigation and leniency practices. Recent amendments to Japan's Antimonopoly Law have provided the Japan Fair Trade Commission (JFTC) with wider discretion in setting cartel fines, with the aim of encouraging greater cooperation from cartel leniency applicants. At the same time, the JFTC has promised greater protection for confidential attorney-client communications during cartel investigations. This podcast provides an overview of these developments, as well as a counterpoint from the recent practice of jurisdictions outside of Japan.