Hee Eun Kim, can you tell us a bit about yourself and what your work focuses on?
I am a member of Baker McKenzie’s antitrust and competition team in the Asia-Pacific region. Before joining Baker McKenzie, I spent more than 10 years as in-house antitrust counsel in the tech sector, so I tend to approach issues from a practical perspective. My practice covers all aspects of competition law, including merger control, compliance, cartels, and abuse of dominance.
Over the past several years, many countries in Southeast Asia have been considering how best to address emerging issues arising from digital platforms and artificial intelligence (AI). Policymakers look at developments in Europe, the United States, and elsewhere, but ultimately, they want to find the approach that best suits their own markets. Businesses, in turn, want to engage constructively with regulators and policymakers in that process.
That is a good segue. Do digital platforms raise antitrust problems that are new, or does the novelty of the technology create a sense that the law must be tailored to it?
Several years ago, I worked on similar questions in jurisdictions that were among the first in the region to consider platform regulation. There, the discussions were shaped both by technological development and by domestic platform markets.
In the jurisdictions that are now most active, the discussions tend to be more issue-driven. Various stakeholders, including business users, have raised concerns about the terms on which they access platforms, including high fees. Competition authorities are not price regulators, but these concerns naturally inform the policy debate.
Complaints from ride-hailing drivers and restaurants on food-delivery apps could be framed as labor-law, collective-bargaining, or contract problems. Why are they treated as antitrust problems? And are there other issues driving the push to regulate platforms?
These issues span several areas of law, including competition, consumer protection, online safety, e-commerce, and payments. Part of the interest in addressing them through competition law and ex ante frameworks, such as the European Union’s (EU) Digital Markets Act (DMA), relates to the broader regulatory tools these frameworks can provide.
Contestability is also part of the discussion. Policymakers are generally interested in fostering a dynamic digital economy with opportunities for a range of market participants.
Is there any weighing of the benefits that foreign platforms bring? They have helped business users reach customers who were previously out of reach, and the evidence suggests most of the gains from new technologies go to users rather than to the firms that introduce them. Are the perceived costs of foreign players ever set against those benefits?
Digital platforms, whether local or foreign, make a significant contribution to the region’s digital economies and drive growth, and policymakers recognize that. Much of the focus is on accountability: making sure there are effective mechanisms for consumer redress and regulatory engagement when issues arise.
Is that new? International companies without a physical presence operated in these markets long before the platforms, and authorities presumably have jurisdiction over them because they generate turnover locally. Is this a difference in kind or in scale?
From a regulatory perspective, the scale of cross-border transactions and data flows is relatively new. Traditionally, regulators could rely on a company’s local office or facility as a point of contact. In the online economy, that is not always the case.
Regulators are also observing how other jurisdictions are addressing this. For example, some have introduced local representative requirements for certain foreign operators, and these developments are being followed with interest across the region.
If I understand correctly, the goal is accountability, and competition law is the chosen vehicle, even if it fits awkwardly with disputes over platform commissions, because of the powers it confers. Ex ante rules like the DMA confer even more. Is that a fair reading?
Accountability is one consideration among several. DMA-style frameworks address competition concerns, but they also provide broader investigative and information-gathering powers. Transparency about how platforms rank and recommend content and products is one area of interest for policymakers in the region.
In Europe, the Digital Services Act (DSA) and the DMA each provide transparency-related tools, and the DMA gives the European Commission broad information-gathering powers concerning designated gatekeepers. A similar framework would give regulators in the region comparable tools. However, in considering such frameworks, it is important to take into account the specific European policy context in which the DMA was developed, which may not be directly analogous to the circumstances in each country.
So they are less concerned with theories of contestability and fairness and more attracted to the toolkit. In your opinion, is the DMA the appropriate framework for Southeast Asia? One might say it is better to have tools and not need them than to need them and not have them. What is the counterargument?
I would frame it a little differently. The considerations are varied, and local context is important. The DMA was developed in response to a specific set of circumstances in Europe, and the market dynamics in Southeast Asia differ in a number of ways. Two considerations stand out to me.
First, many competition regimes in the region were adopted relatively recently, and authorities are continuing to build experience through enforcement and policy activities. There is a good case for allowing the existing frameworks to be fully tested before deciding whether additional tools are needed.
Second, ex ante regulation is sometimes seen as a quicker and simpler alternative to case-by-case enforcement. Experience to date, however, suggests that ex ante regimes can also involve complex and lengthy processes, so it is worth weighing the tradeoffs carefully.
Europe’s experience bears that out. Specification proceedings under the DMA have required the Commission to decide who gets access to data, which data, how recent, and on what terms. Telling Apple it can charge something, but not 30%, comes close to price regulation. Before we move on, do Southeast Asian authorities already have the tools we take for granted in Europe and the United States, such as behavioral and structural remedies, document-production powers, and mandatory merger notification? Or would the DMA take them from very little to the most powerful version of those tools?
Broadly, I think the foundations are in place. When countries in the region adopted their competition laws, they generally draw on international best practices, including guidance from bodies such as the Organization for Economic Cooperation and Development (OECD) and the International Competition Network (ICN). Most have adopted internationally recognized frameworks, and authorities continue to strengthen their capacity and expertise in applying them.
Policymakers in the region continue to study the DMA, the DSA, and other regulatory models closely, but increasingly as case studies rather than ready-made templates. The discussion has shifted from whether to adopt a particular model to which elements, if any, fit local market conditions and institutional settings.
In practice, this calls for a more holistic approach: identifying the specific harm, considering the most appropriate response, and ensuring alignment with existing domestic rules and international frameworks. That is more likely to produce coherent outcomes than adding new layers of regulation, particularly as provisions designed for one legal and institutional context may operate quite differently in another.
What prompted that change? The DMA was initially presented as modern, fast, and nearly costless. Did authorities become aware of its costs or of better alternatives? Is there a geopolitical dimension?
Policymakers in the region are monitoring the implementation of the DMA closely, including the ongoing debate around its effects on innovation and competitiveness. It is still relatively early to assess its outcomes, but that debate is naturally informing thinking in the region.
International academic and policy exchange has also influenced regulatory thinking in the region. Many experts in the region have studied abroad or worked abroad and bring home the experience of different regulatory approaches, which can contribute to the development of new competition, digital, and AI regulation.
That suggests experts play a central role in shaping these reforms and that adopting these ideas lets authorities signal they are up to speed. It also strikes me as ironic that a call to separate integrated companies is treated as novel when antitrust had that debate a century ago. Why are policymakers drawn to that view in particular?
Debates about integration and market structure have a long history in antitrust, and recent scholarship has brought renewed attention to them. It is valuable for policymakers to have access to a broad range of perspectives, including economic evidence and international experience.
Anu Bradford’s “Brussels Effect” thesis has been influential in presenting Europe’s regulatory reach as close to inevitable. Has that shaped thinking in the region?
The influence of European regulation has varied by area. In data-protection regulation, the General Data Protection Regulation (GDPR) has been an influential reference point for many countries. In digital competition regulation, policymakers in the region increasingly emphasize developing approaches suited to their own markets.
From a business perspective, developing an appropriate compliance approach is not always a straightforward exercise. Businesses may need to develop and refine their approach iteratively, taking into account the particular legal requirements, regulatory expectations and circumstances of each market.
Let’s turn to Vietnam, which is a good case study. The International Center for Law & Economics (ICLE) has submitted several rounds of comments to the Vietnamese authorities this year. Can you tell us what is happening there and why it matters, starting with some history if useful?
Vietnam’s current competition law dates from 2018.
Vietnam has seen significant legislative activity in recent years across the digital economy, including new frameworks addressing data, digital transactions, and more recently AI. As part of this broader development, this year, the competition law and implementing decrees are being revised.
This matters because it reflects an evolving debate about where digital platform regulation should sit within Vietnam’s broader regulatory framework. The move toward competition law also raises important questions about how these rules will interact with existing competition concepts and enforcement mechanisms.
I was surprised when I read the draft. I expected something closer to a copy of the DMA. Instead, the self-preferencing rules are not limited to digital companies. A dominant supermarket chain that gives its own milk more prominent placement could be liable. How did that happen?
The current draft no longer refers specifically to digital platforms, meaning that the provisions are not formally limited to the digital sector. However, some of the provisions continue to address conduct and practices commonly associated with digital platforms, while potentially applying more broadly to businesses in other sectors.
Continued dialogue between stakeholders and the drafting team will help ensure that the final law works well in practice.
Let’s take a broader view. What role do these frameworks play? Are they about making markets work better for consumers, about having some control over foreign firms seen as beyond reach, or about trade disputes? Or are there bigger forces at play?
These reforms take place against a broader backdrop that includes international economic relations and domestic policy priorities. The digital economy is an important area of development, and governments want effective legal frameworks to support and oversee it.
