The Digital Economy and Competition Law in Asia (Perspectives in Law, Business and Innovation)

The digital economy, broadly defined as the economy operating on the basis of interconnectivity between people and businesses, has gradually spread over the world. Although a global phenomenon, the digital economy plays out in local economic, political, and regulatory contexts. The problems thus created by the digital economy may be approached differently depending on the context. This edited collection brings together leading scholars based in Asia to detail how their respective jurisdictions respond to the competition law problems evolving out of the deployment of the digital economy. This book is timely, because it will show to what extent new competition law regimes or those with a history of lax enforcement can respond to these new developments in the economy. Academics in law and business strategies with an interest in competition law, both in Asia and more broadly, will find the insights in this edited collection invaluable. Further, this volume will be a key resource for scholars, practitioners and students. Preface Contents Editor and Contributors The Digital Economy and Asian Competition Law: An Introduction 1 The Digital Economy 2 Asia’s Desire to Reach a Full-Fletched Digital Economy 3 Digital Economy, a Recently Emerging Term in Competition Law Literature 3.1 Microsoft, High Technology Markets or New Economy 3.2 The Shift Towards Digital Economy 4 The Digital Economy in Asia and Competition Law References Part I Platforms, Unilateral Conduct and Competition Law Competition Law Enforcement for Exploitative Abuse by Digital Platforms: The Japanese Approach in a Global Context 1 Introduction 2 How to Address Platforms’ Exploitative Abuse of Their Suppliers 2.1 Reining in Buying Power of Powerful Platforms 2.2 Should Competition Agencies Become Regulators of Exploitative Conduct? 2.3 Digital Platforms’ Bargaining Power Over Their Suppliers 2.4 Criteria for Identifying Abusive Exploitation 2.5 How to Delimit the Use of the Exploitative-Abuse Clause by Competition Agencies 3 How to Address Platform Exploitative Abuse of Consumer Data 3.1 Which to Choose: Competition Law or Consumer Protection Law for Addressing Abusive Terms on Consumers 3.2 Proving Platform Bargaining Power Over Consumers 3.3 Identification of Exploitative-Abuse in Platform Handling of User Data 4 Conclusion References Regulating Competition Between Digital Platforms: The Japan Fair Trade Commission’s Preference for Unfair Trade Practices 1 Introduction 2 Regulating Anticompetitive Conduct Under the Antimonopoly Law 2.1 An Historical Perspective on Anticompetitive Conduct in Japan 2.2 Using Unfair Trade Practices to Enforce the AMA Against Unilateral Conduct and Vertical Agreements 3 Unfair Trade Practices Regulating the Platform Economy 3.1 The JFTC’s Enforcement Actions in the Platform Economy 3.2 The Competitive Advantage of the Use of Unfair Trade Practices 4 The Flexibility of Unfair Trade Practices in Perspective 4.1 Unfair Trade Practices Allowing Early Enforcement of the AMA 4.2 Unfair Trade Practices Permitting Swift Action in Concentrated Markets 4.3 The Absence of Real Sanctions, a Weakness 4.4 Commitment Plans as a Formalization of Voluntary Compliance 5 Conclusion References Part II The Limits of Competition Law in the Digital Economy The Nexus Between Competition and Personal Data Protection Laws: Thailand’s Perspective 1 Introduction 2 The Principle: Personal Data Should Remain Personal 3 Giving up Privacy for a Greater Good 3.1 The Tradeoff Between Private and Public Interests 3.2 Presumption 1: Competition Is in Place 3.3 Presumption 2: A Redistribution System Is in Place 3.4 Presumption 3: The Government Always Does What Is Best for Individuals and Each Individual Knows What Is Best for Herself 4 Digging Deeper into the Case of Thailand 4.1 The Powerful State and the Priority of Public Interests 4.2 Presumptions 1 and 2 in the Context of Thailand: A Competition Law and Redistribution System Are Not in Place 4.3 Presumption 3 in the Context of Thailand: The Government’s Policies Do Not Always Benefit Individuals 4.4 The Problem Eventually Goes Back to Politics 5 The Merger Between Personal Data Protection and Competition Laws 6 The Necessity of Drawing the Lines 6.1 The Line Separating Privacy and Utility 6.2 The Line Separating Privacy and Security 7 Conclusion and Future Research References Ride Hailings Apps Enter in Competition with Ojek: Indonesia’s Response to the Impact of Disruptive Innovation 1 Introduction 2 Ojek, a Flexible but Unregulated Mode of Transportation with Motorcycles 3 Ride Hailing Apps Change the Transportation Scene in Indonesia 4 The Impact of Ride Hailing Apps on Ojek and Beyond 5 The Traffic and Road Transportation Law Under Constitutional Court Review 6 The Difficult Birth of Regulatory Approaches Towards Ride Hailing Apps in Indonesia 6.1 Ride Hailing Apps, but also Ojek, Declared Illegal 6.2 The Supreme Court Forces the Government to Reconsider Its Regulatory Attempts 7 Ojek, Ride Hailing Apps and Competition Law 7.1 Competition Advice on Legislation Related to Transport Services 7.2 Enforcement of the Competition Law 8 Conclusion and Recommendation References Part III Algorithms, Coordinated Price Setting, and Competition Law Algorithmic Collusion and Indian Competition Act: Suggestions to Tackle Inadequacies and Naivety 1 Introduction 2 Anti-Competitive Agreements Under the Indian Competition Law 2.1 The Definition and Scope of Anti-Competitive Agreements 2.2 The Section 3 Prohibition: Tacit Collusion and Action in Concert 2.3 Standard of Proof 2.4 Agreements and Concerted Practice’s Under the European Union 3 Involving Algorithms in Anti-Competitive Agreements 3.1 Algorithms in a Hub-and-Spoke Scenario 3.2 The Predictable Agent Scenario 3.3 The Digital Eye or Self-Learning Scenario 4 A Way Forward for the Competition Commission of India 4.1 A Shift in Corporate Governance: Misplaced Antitrust Penalties 4.2 What Is Muddled? 4.3 Competition by Design 4.4 Market Studies 4.5 Specialized Agency 5 Conclusion References Algorithmic Hub-and-Spoke Cartels: A Japanese Perspective 1 Introduction 2 Algorithmic Hub-and-Spoke Cartels 2.1 Hub-and-Spoke Cartels, the General Context 2.2 Algorithms Acting as Hub 3 Cartels and the Japanese Antimonopoly Law 3.1 A Historical Perspective on the Japanese Antimonopoly Law and Anti-Cartel Enforcement 3.2 Agreements and Concerted Practices with a Substantial Impact and Conformity with the Public Interest 3.3 Horizontal Agreements Engaged in by Enterprises in a Competitive Relationship 4 ‘In Competition with’ in a Broader Antimonopoly Law Perspective 4.1 Trade Associations Regulated Separately in the Antimonopoly Law 4.2 Bureaucrats as the Linchpin of Bid Rigging Outside the Scope of the Antimonopoly Law 5 Algorithms as the Facilitator of a Cartel and the Antimonopoly Law 5.1 Trade Associations, Bureaucrats, and Algorithms as a Hub 5.2 Algorithms not Employed by Trade Associations and Bureaucrats as a Hub 6 Conclusion References Index