On December 7, 2023, Competition Advisory Services (India) [COMPAD] LLP and Khaitan & Co. conducted a virtual competition law town hall with the theme “Digital Competition Law: International Perspective with special reference to Asia.” Among the esteemed panelists were Mr. Dhanendra Kumar, IAS (retd.), who serves as the Chairperson of COMPAD and the First Chair of the Competition Commission of India (CCI); Mr. Manas Kumar Chaudhuri, a partner at Khaitan & Co.; Ms. Kala Anandrajah, a partner and Head of Competition, Antitrust, and Trade; Mr. Atsushi Yamada, a partner at Anderson Mori & Tomotsune, Japan; and Mr. Pranjal Prateek, a partner at Khaitan & Co. The event’s media partner was BW Legal.
In addition to moderating the webinar, Mr. Manas Kumar Chaudhuri introduced the subject and the panelists. He brought out the shared connections that ASEAN nations, including Singapore, Japan, India, and others, have about the digital marketplaces. Every competition agency in the world is talking about competition law in the digital sphere. He proposed a discussion about the convergence of international regulators. In light of the continuing discussions of the Committee on Digital Competition legislation (CDCL), he also stated the government’s consideration of drafting a distinct digital competition legislation.
Mr. Dhanendra Kumar discussed India Stack, the country’s fast-expanding digital economy, and other digital efforts including the UPI fintech regime in his speech. He gave a brief overview of the development of competition law in India, his first-chair experience with the Commission, and how, in just a few years, the CCI has grown into a capable regulatory body. He emphasized CCI’s strategy for handling both traditional and digital markets. He emphasized the distinct features of digital markets as well as the function of the CCI’s Digital Markets and Data Unit (DMDU) in their regulation.
In his discussion on the necessity of digital market regulation in India, he cited the 53rd report of the Parliamentary Standing Committee on Finance’s recommendations. He talked about the antitrust concerns and the app store economy in India, covering topics such as in-app purchases, app store commissions, and mobile app pre-installation. In closing, he stated that regulators must adapt to shifting market dynamics and identify actions that go against the goals of competition legislation.
During his speech, Mr. Atsushi Yamada expressed his opinions regarding the methods used by the Japanese government, government agencies, and the Japan Fair Trade Commission (JFTC). JFTC has the authority to examine all M&A transactions, regardless of thresholds. The JFTC has been actively reviewing killer acquisitions and, if required, punishing those that make them. Digital marketplaces are seeing a very rapid evolution in competition.
The JFTC is also involved in market research, whereby it collects data from pertinent parties, identifies the main issues, and evaluates them. This serves as a tool to educate customers about antitrust concerns in the digital economy. He discussed the recently passed Japanese Transparency Act as well as the Digital Markets Competition Headquarters (DMCH). The Act requires digital platforms to abide by its rules, which are intended to encourage parties to disclose information from the perspective of competition law.
Ms. Kala Anandrajah discussed her opinions on the competition legal framework in ASEAN nations, with a focus on Singapore, during her speech. In particular, she spoke on big data, self-preferencing, interoperability, and other important antitrust challenges in digital marketplaces, particularly in the e-commerce and payment systems industries. There are several things to think about, like if there is an obvious harm if new rules should be implemented, or if the laws that are already in place need to be amended. These are difficult problems with potentially national variations in answers. She also talked about the universal problems with ex-ante and ex-post regulation in different legal systems. In the context of the digital economy, she stressed the significance of mergers and acquisitions.
Mr. Pranjal Prateek discussed his opinions on the situation in India’s digital economy throughout his speech. He traced the history of digital enforcement in India back to the 2012 legal battles against Google’s web search and the ongoing legal disputes over the current system. He mentioned that the Competition Law Review Committee (CLRC) was established by the Ministry of Corporate Affairs (MCA) to assess the effectiveness of India’s current competition law system.
Separate legislation for digital markets was nonexistent during the CLRC period because there were few instances and the sector was still in its infancy. The number of instances in digital markets has grown since 2018 and is steadily increasing due to digitization. There is general agreement in India that traditional and digital markets should be treated differently. He said that matters about the digital market that were brought before the CCI have taken several years to resolve, and some of these cases are still unresolved in High Courts or Tribunals. He claimed that since India is in a unique position due to its fast-paced innovation, expanding startup industry, and investment in technology, taking a tough stance towards digital markets will have a deterrent impact.
The panelists also covered the CCI’s legal authority to collaborate internationally and the most recent Memorandum of Understanding it had with the JFTC. They emphasized how the Commission has conducted investigations as a result of CCI’s market research in industries including telecom and e-commerce. They talked about how the ex-post vs. ex-ante dispute is still being worked out and how the EU has different worries than specific countries like Singapore, Japan, India, and the US.
They also talked about how nations must strike a “balancing act” between retaining their demands and learning from one another to control digital markets. The goal of competition law is to promote economic growth in the economy; therefore, regulations about the digital economy should align with this goal.
In conclusion, global competition law regimes must strike a balance between regulating digital markets and allowing for innovation.