OECD kpcdb

1. Scope

Part VI (Competitive Market Conduct) of the ICCC Act prohibits certain anti-competitive conduct, namely entering or giving effect to any contract, arrangement or understanding or any covenant that has the purpose or has the effect or is likely to have the effect of substantially lessening competition in a market as provided under Sections 50 and Section 51.

 

Section 52 prevents entering or giving effect to any contract, arrangement or understanding that contains an exclusionary provision. This is a provision in a contract, arrangement or understanding between competitors that has the purpose of preventing, restricting or limiting the supply of goods or services to or the acquisition of goods or services from particular persons or classes of persons who are in competition with one or more of the parties. However, such conduct would not be caught by the ICCC Act if the persons engaging in the conduct could prove that it does not substantially lessen competition.

 

Price Fixing conduct is per se prohibited and includes cartel arrangements relating to price and collusive tendering. Price fixing agreements are defined broadly as arrangements between persons that have the purpose, effect or likely effect of fixing, controlling or maintaining: (i) the price for any goods or services; or (ii) any discount, allowance, rebate or credit for any goods or services. These are deemed by Section 53 to substantially lessen competition and are a breach of Section 50.

Section 59 of the Act explicitly prohibits resale price maintenance. This is also a per se prohibition.

2. Assessment

The ICCC is yet to publish guidelines that explain how horizontal and vertical agreements are assessed.

 

Authorisations are available for anti-competitive agreements, agreements containing exclusionary provisions and resale price maintenance. These essentially allow for a conduct which may be in breach of the law, to proceed on the grounds that public benefit arising from the conduct outweighs the anti-competitive effects. However, authorisation is not available for price fixing.

 

An authorisation may be revoked or varied only after giving an applicant the opportunity to be heard by the ICCC on the issue prior to further action.

3. Remedies and sanctions

See Section I.4 above on Remedies and Sanctions.

4. Leniency

The ICCC has approved a leniency programme and should implement it shortly.

 

 

* This information is based on Competition Law in Asia-Pacific: A Guide to Selected Jurisdictions (2018).