Relevant market definition in mergers an approach of the united states regulations and lessons for vietnam

NGUYỄN TÀI TUỆ BỘ GIÁO DỤC VÀ ĐÀO TẠO TRƯỜNG ĐẠI HỌC LUẬT TP HỒ CHÍ MINH -*** -BAN ĐIỀU HÀNH CÁC CHƯƠNG TRÌNH ĐÀO TẠO ĐẶC BIỆT THE US ANTITRUST LAW ON MARKET DEFINITION-LESSONS FOR VIETNAM NGUYỄN TÀI TUỆ RELEVANT MARKET DEFINITION IN MERGERS: AN APPROACH OF THE UNITED STATES REGULATIONS AND LESSONS FOR VIETNAM KHÓA LUẬN TỐT NGHIỆP CỬ NHÂN LUẬT Khoa: Luật Thương Mại Niên khóa: 2012 - 2016 NĂM 2016 THÀNH PHỐ HỒ CHÍ MINH NĂM 2016 BỘ GIÁO DỤC VÀ ĐÀO TẠO TRƯỜNG ĐẠI HỌC LUẬT TP HỒ CHÍ MINH -*** BAN ĐIỀU HÀNH CÁC CHƯƠNG TRÌNH ĐÀO TẠO ĐẶC BIỆT NGUYỄN TÀI TUỆ RELEVANT MARKET DEFINITION IN MERGERS: AN APPROACH OF THE UNITED STATES REGULATIONS AND LESSONS FOR VIETNAM KHÓA LUẬN TỐT NGHIỆP CỬ NHÂN LUẬT Khoa: Luật Thương Mại Niên khóa: 2012 - 2016 Người hướng dẫn khoa học: Ts Trần Hoàng Nga Người thực hiện: Nguyễn Tài Tuệ MSSV: 12538101011859 Lớp: CLC37A THÀNH PHỐ HỒ CHÍ MINH NĂM 2016 DECLARATION I hereby declare that this thesis is my own research under the supervisory guidance of Dr Trần Hoàng Nga Apart from my points of view, all of the information which is used or cited in this thesis has been acknowledged by means of complete references The result has yet not been published elsewhere I would bear full responsibility for my protest Ho Chi Minh, July 19th, 2016 Nguyễn Tài Tuệ TABLE OF CONTENTS LIST OF ABBREVIATIONS INTRODUCTION 1 The rationale of this thesis Literature reviews Objectives 4 Delimitations Methodologies Structure of the thesis CHAPTER I: GENERAL CONCEPTS FOR RELEVANT MARKET DEFINITION 1.1 The concept of relevant market 1.2 Basic economic principles for relevant market definition 10 1.2.1 Own-price elasticity of demand 10 1.2.2 Cross-elasticity of demand 11 1.2.3 Market power and the Lerner index 11 1.3 The history of relevant market definition in the United States 13 1.4 The role of relevant market definition in mergers 16 1.5 Remarks 19 CHAPTER II: THE RELEVANT MARKET DEFINITION IN MERGERS UNDER THE UNITED STATES REGULATIONS 20 2.1 Conceptual approaches to relevant market definition 20 2.1.1 Supply substitution 20 2.1.2 Demand substitution 24 2.2 Relevant product market definition 25 2.2.1 The Hypothetical Monopolist Test as an analytical tool in defining relevant market 25 2.2.1.1 Definition 25 2.2.1.2 Benchmark price and magnitude of price increase (SSNIP size) 27 2.2.2 Relevant product market definition with targeted consumers (pricediscrimination market) 29 2.3 Other Methodologies 30 2.3.1 Critical Loss Analysis 30 2.3.2 Natural Experiment 33 2.3.3 Pattern Analysis 34 2.4 Geographical market definition 35 2.5 Types of evidence in defining the relevant market 36 2.6 Remarks 38 CHAPTER III: THE VIETNAMESE REGULATIONS ON RELEVANT MARKET DEFINITION: CURRENT LEGISLATIONS AND SUGGESTIONS FOR THE IMPROVEMENTS 39 3.1 Current Vietnamese regulations 39 3.1.1 Overview 39 3.1.2 Analytical Insides 40 3.1.2.1 Relevant product market 40 3.1.2.2 Relevant geographical market 44 3.2 Several suggestions for the improvements of Vietnamese regulations on relevant market definition 45 3.2.1 The need of a detailed structure for relevant market definition 45 3.2.2 Reconsidering supply substitution for relevant market definition 46 3.2.3 Implementing the Hypothetical Monopolist Test 46 3.2.4 Consider using other relevant market definition methodologies and types of evidence included 48 3.3 Remarks 49 CONCLUSION 51 BIBLIOGRAPHY LIST OF ABBREVIATIONS AEC ASEAN Economic Community CLA Critical Loss Analysis DOJ Department Of Justice EU European Union FTC Federal Trade Commission HMT Hypothetical Monopolist Test SSNIP Small but Significant and Non-transitory Increase in Price TPP Trans-Pacific Partnership US United States INTRODUCTION The rationale of this thesis In 2007, that the time when Vietnam participating in the WTO marked a milestone for globalization in our country After the depression in 2008, the Vietnamese economy was in the process of recovering, corporations getting over the depression were getting better and better Also, with the efficient criteria place at the utmost, the state-owned enterprises were going to get personalized to grow up from the previous failing Along with histories, the act of expanding their productivity and mechanism by merging with other enterprises is unavoidable when firms want to grow stronger and more durable The process of globalization in Vietnam is going to turn over a new leaf with the several super events such as joining in Trans-Pacific Partnership (hereinafter referred to as TPP), the establishment of ASEAN Economic Community (hereinafter referred to as AEC) and so forth These events would let to the rapid growth in mergers, which become more and more sophisticated nowadays It would, on the one hand, bring numerous advantages for the economy to quickly bloom while bringing an abundance of problems on the contrary Therefore, there must be improvements in the legal framework for controlling mergers to keep pace with the universal moves Mergers always play a significant role in every economic sector and the relevant market is always an essential part of defining mergers Both concepts are vital and complex The latter issue should take lots of considerations as it is the prerequisite element represents in merger analysis In the circumstance when our current competition regulations are somehow soft and a bit outdated, dealing with the complexities of mergers might be way too much The need for revising and enhancing our competition regulation on defining the relevant market, especially in mergers, is as urgent as ever This is the main reason why the name of this thesis contains the phrase "relevant market definition in mergers" for emphasizing the crucial need to define relevant market for merger analysis As a pioneer in controlling the anti-competitive behaviors, the United States (hereinafter referred to as U.S) have experienced over 100 years of regulating the competitive matters since the enactment of the Sherman Act in 1890 Throughout their history, the U.S have experienced six waves of mergers1, their economy has witnessed unfathomable changes As a result, the U.S have paid a significant number of resources on analyzing mergers by enacting several antitrust acts, many precedents and Antitrust Agencies' documents In most merger analyses, the relevant market definition is proved to be fundamentally vital and thereby receives numerously careful and detailed analyses from both authorities and legal scholars Thus, the U.S are undeniably the most promising country for collecting information for relevant market definition analyses for improving Vietnamese regulations on delineating relevant market Therefore, from the above reason, the author chooses “Relevant Market Definition in Mergers: An Approach of the United States Regulations and Lessons for Vietnam” as a bachelor of law graduation thesis Literature reviews The author has reviewed a decent number of legal materials, which shall be listed below: In Vietnam: Several reports issued by Vietnam Competition Authority (VCA) called “Report on Economic Concentration” in the year 2009, 2012 and 2014, “Review Report on Vietnamese Regulations on Competition” in 2012 have given several basic concepts of relevant market and merger contexts in Vietnam A legal article by Nguyễn Ngọc Sơn (2004) “Defining Relevant Market in Vietnamese Competition Law of 2004” clarifies some issues of the relevant market and introduces some legal systems defining the relevant market A legal bachelor thesis by Lê Trung Nhân “Criteria for relevant market definition in some countries – experiences for Vietnamese Laws on Competition” defines the concept of relevant market and introduce the methods of defining the relevant market in the U.S and the E.U law However, due to its huge magnitude in the thesis level (a comparison of three different legislations over relevant market definition concept), those analyses (mostly in relevant market definition methodologies sections) are conducted for general understanding The analytical For a summary, see Gaughan, Pattrick A (2011), Mergers, Acquisitions and Corporate Restructurings (5th ed.), John Wiley & Sons Inc, p.35-73 insides, mostly for “how the EU and the U.S define relevant market”, has not yet been given sufficiently Secondly, this thesis paid more attentions on the EU regulations The analysis of the U.S regulations on relevant market definition was conducted but be not enough Finally, the economic analysis of law is limitedly employed in this thesis The above Vietnamese studies give several basic overlooks for relevant market definition However, there has yet not been a specific and in-depth study of relevant market definition by using the economic analysis of law, especially under the approach of the U.S Antitrust Law Merger and relevant market definition are themselves a “law and economics” issue Only by considering the interpretations of economic analysis to those matters could all the competitive matters of which be efficiently controlled at best Therefore, with the knowledge from the below papers, the author has found useful data for conducting this thesis In Worldwide: “A practical guide to the Hypothetical Monopolist Test for market definition” (2008) by Malcolm B Coate gave a thorough explanation of the methods used to define the relevant market in the U.S Coate discretely explained each method, pointed out pros and cons of them in an organized structure “Market Definition: An Analytical Overview” (2007) by Jonathan Baker provides an economic analysis of Relevant market definition in the U.S In this paper, Baker has clarified thoroughly all the issues of relevant market definition in the U.S: supply and demand substitution; the Hypothetical Monopolist Test; economic methodologies; input data for delineating relevant market in the U.S Moreover, Baker also explains and questions about the past drawbacks such as Cellophane Fallacy in this paper “The History of Antitrust Market Delineation” (1992) provided the development of relevant market definition in the U.S Antitrust Law Along with time frame development, the fundamental doctrines and careful analyses of relevant market definition in the U.S were excellently organized in this paper The system of case laws as well as Guidelines enacted by Federal Trade Commission (hereinafter referred to as FTC) and Department of Justice (hereinafter referred to as DOJ) – the two competition authority in the U.S controlling competition – are carefully researched Besides, the author also collected legal materials in HeinOnline, Social Science Research Network, the Internet and other online and offline Library universally Objectives The author shall discuss the concept and definitions of relevant market in both theory and practice and thereby lighten some following points: Firstly, Chapter I provides the general concept for relevant market definition In this Chapter, the author has clarified the concept, rationale, history, economic principles of the relevant market and thereby answer the questions: “What is a relevant market?”; “What is the impacts of relevant market to mergers?” Secondly, Chapter II provide the analytical overviews of Relevant Market in the U.S Law By focusing and analyzing economically of the conceptual approaches, methodologies, input data for relevant market definition, the author has given the resolutions to the question: “How to define the relevant market in mergers under the U.S Antitrust Law?” Finally, through briefly summarizing the Vietnamese regulations on identifying the relevant market and comparing to which of the U.S, the author has pointed out several shortcomings in Vietnamese regulations Thereof, the author has selected with discretion the advances of the U.S Antitrust Law in defining the relevant market and suggested several recommendations suitable for the Vietnam to improve Vietnamese Law on competition Delimitations Owning to the fact that relevant market is very sophisticated element to define in competition and with the matter of time and material limitations, the author shall delimit the thesis in the below points: Firstly, the thesis shall focus on analyzing the concept and the methodologies to define the relevant market in mergers Other concepts such as entry, buyer power and so on shall not be discussed Secondly, as merger play an importance role in all economic sectors, many laws regulate that phenomenon such as corporate law, tax law, intellectual property 3.1.2.2 Relevant geographical market As stated above, while the relevant product market is defined based on the substitutability between products, the relevant geographic market is defined based on the assessment of competition conditions between substitutes As article 8, the Decree 115/2005/NĐ-CP, the boundaries of the relevant geographic market could be lied on the below grounds: - The geographical area contains the business establishments of firms distributing/ producing relevant products (relevant geographical firms) - Business establishments of other enterprises which have situated in neighboring geographical areas are sufficiently near the geographical area of the current relevant geographical firms to enable participation in the distribution of the relevant products in such geographical area - Transportation costs in the geographical areas of the relevant geographical firms - Duration of transportation of goods of provision of services in the geographical areas of relevant geographical firms; - Barriers to market access140, which are listed bellow: o Patents, utility solutions, industrial designs, trademarks and geographic indications in accordance with the laws on industrial property o Barriers regarding financial matters including costs of investment in production and distribution, commercial promotion and ability to access financial sources o Administrative decisions by State administrative bodies Regulations on business conditions, on use of goods or services, and on professional standards o Import duties and import quotas o Practices of consumers o Other barriers to market access The assessment of the competition conditions in relevant geographical market to other neighboring areas should be based on two conditions: 140 Article 8, Decree 116/2005/NĐ-CP 44 - Transportation costs and the duration of transportation results in an increase in the retail price of goods not exceeding 10% - One of the barriers (listed above) to market access exist141 3.2 Several suggestions for the improvements of Vietnamese regulations on relevant market definition 3.2.1 The need of a detailed structure for relevant market definition As analyzed above about the fundamental roles of relevant market definition in merger142, there should be a detailed, careful and analytical structure for relevant market definition Firstly, designing detailed structure for relevant market definition is a global trend The issue of sketching an appropriate structure for the market definition was considered initially by the U.S through their first enactment of Horizontal Merger Guidelines in 1968 Heretofore, many competitions authorities143 has constructed a detailed and sufficient contents in their Merger Guidelines and even the EU144 has passed a law solely for relevant market definition So, the demand of a detailed structure for the relevant market definition would be plausible in reality Secondly, according to Vietnamese legal documents, the current Decree 115/2005/NĐ-CP is the most analytical regulation for market definition but has proved to be outdated according to the fast development145 of mergers in Vietnam In fact, in the year of 2016, with a lot of economic innovation and international exposure, it could be difficult to apply these regulations in the reality (which would be discussed in the following suggestions) In short, Merger Guidelines should be soon designed, as a part of which, the market definition should be sketched with detail and care If our competition authority could have adequate analytical tools for relevant market delineation, mergers would be sufficiently controlled in practice 141 Id See Section 1.4, Chapter I of this thesis 143 For example: U.S Horizontal Merger Guidelines 2010, Canada Merger Enforcement Guidelines 2011, United and etc 144 Commission Notice on the definition of relevant market for the purposes of Community competition law 97C, 372/03 145 For an overlook of merger picture in Vietnam, see: VIR (2015), M&A Outlook 2015: Countdown to The Next Market Boom, Special issue of Vietnam Invest Review The author's team have conducted detailed vertical and conglomerate merger contexts in the 2015 research See: Nguyễn, Tài Tuệ and et al (2015), supra note 55, p.73-81 142 45 3.2.2 Reconsidering supply substitution for relevant market definition As Article 4.6d of the Decree 115/2005/NĐ-CP states: “If the method of determining whether goods or services are capable of being substituted for each other as stipulated in clause of this article produces results insufficient to make a conclusion on such issue consider Ability to replace supply pursuant to Article of this Decree" for determining substitutes for relevant product market The questions here are: "how to define the insufficiency?"; "in which level is enough and in which level is not enough?" It could be difficult to answer those questions in practice Pursuant to this Article, the relevant market could be defined by examined both supply and demand substitution at the same time Again, if such situation happens, it would lead to the complexities for drawing relevant market boundaries146 Base on the previous analysis, the author summarizes the reason why the exclusion of supply substitution from relevant market definition stage should be done when demand substitution is readily available for three main reasons: (1) to avoid potentially fatal faults; (2) to give more reliable references for assigning market shares and market power (3) to pave the way for relevant market treatments to cope with a wide range compilations147 Supply substitution is undeniably vital and it is plausible for analyzing this element normally in further steps such as determining market participant and entry analysis 3.2.3 Implementing the Hypothetical Monopolist Test The author would like to once again state the article 4.5 of the Decree 115/2005/NĐ-CP: “Goods or services shall be deemed capable of being substituted for each other in terms of price if above 50% of a random sample quantity taken from one thousand (1,000) consumers living in the relevant geographical area change to purchasing or intend to purchase other goods or services with the same 146 See Section 2.1.1, Chapter II of this thesis For the explanation of this reason, see Werden (1992) example on stampings and hubcaps If the supply substitution is considered, the choice for substitutes is more limited rather than excluding it from relevant market definition stage See Werden, Gregory K (1992), tlld, p.192 147 46 characteristics and use purpose as the goods they are currently using or intend to use where the price of such goods or services increases more than 10% and remains stable for six consecutive months Where the number of consumers living in the relevant geographical area stipulated in this clause is less than 1000, the minimum random sample quantity shall be equal to fifty (50) percent of the total number of such consumers" Accordingly, the above price-test is based on cross-elasticity of demand principle with the margin of 10% to unlimited figure in months With this margin, in all likelihood, the relevant market would be subsequently defined too broadly and thereby lead to the misleading in assigning market shares and assessing the market power of firms Raising price like lifting the tablecloth If lifting the tablecloth too high, even the furthest products would be substitutes to the relevant products Reflecting the realities, if the price of the standard shoe is lifted too high, even a low quality and cheap shoes could be tentative choices for the former's customers In term of the price increase duration, the 6-month lasting time could be arbitrary The 6-month duration might have been the most suitable for the economy conditions of Vietnam 11 years ago (2005) However, the current situations are much more different than the past due to too many economic accelerations such as becoming a WTO member in 2007, signing a good number of Free Trade Area agreements, the establishment of the AEC 2015, joining the TPP 2016 and among others As a result, the at-the-moment economic situation is more developed as well as more challenging Additionally, the market power duration is various depended on the basis of industries (case-by-case) In some cases, six months are enough for assessing the market power of firms but in other situations, more time should be needed to give the most exact result Thus, the arbitrary of 6-month price increase is empirically inappropriate Those problems could be avoided by using the HMT with a plausible magnitude of price increase and duration Firstly, The name of the HMT itself is at best in reflecting the primary purpose of relevant market definition – assessing the market power The HMT defined the relevant market where the owner of which – the Hypothetical Monopolist could base on the controlling all the relevant products to exert his market power by raising the price above the competitive level 47 Secondly, the HMT would generate the most reasonable relevant market for the antitrust purpose Indeed, by stopping at the point (finishing delineating the relevant market) where the Hypothetical Monopolist find it profitable when increase price of products, the relevant market definition would avoid the overbroad situation Finally, the HMT with the implementation of the CLA would make it easier for delineating relevant market in practice Indeed, relevant market and other issues such as market shares, market power and so forth are themselves economic issues and could be at best described by economic tools The CLA could be easily numbered and calculated for defining the above-listed issues (including the relevant market definition) Moreover, the CLA input data are quantitative evidence, which could be reasonably collected in practice Therefore, for the implementation of the HMT (the CLA in economic forms), several elements must be taken into accounts: - The benchmark price: the starting price must be the competitive price In each circumstance, the benchmark price is defined differently148 The purpose is to avoid the Cellophane Fallacy and other errors - The magnitude of price increase: the price increase should be in the margin of 5-10%149 - Duration of price increase: depends on the characteristics of the case (case- by-case) under the U.S regulations, duration may be one or two years150 - Input data: quantitative evidence, normally through customer survey, other types of evidence might be useful151 3.2.4 Consider using other relevant market definition methodologies and types of evidence included When the HMT (CLA) is impossible to conduct, other methodologies such as Natural Experiment and Pattern Analysis could be used to determine the relevant market For summarizing, the Natural Experiment based on the significant shocks to market equilibrium and thereby delineating the relevant market The shocks could range from entry and exit; change in competitive strategies and the change in the 148 See section 2.2.1.2, Chapter II of this thesis There are three reasons for this margin See: section 2.2.1.2, Chapter II of this thesis 150 Id 151 Section 2.6, Chapter II of this thesis 149 48 input cost Meanwhile, Pattern Analysis could be divided into two methodologies: price-correlation test and shipment test The price-correlation test is based on "the law of one price" to assess if the two products having simple common cost factors and their prices are similar, they must be treated as the same relevant market Meanwhile, the shipment test is mostly used in defining the relevant geographical market by assessing the "flow of products" Each Analysis has both disadvantages and advantages152 Those analytical tools must be examined with discretions and be based on case-by-case basis Secondly, under the Vietnamese regulations, it seems the input data for market definition analytical methodologies would mostly come from customer survey Such types of evidence would be insufficient in practices So, based on the above analysis153, the author would highly suggest using five types of evidence as sources of input data for analytical tools Those types of evidence should be used flexibly for each analytical methodologies so as to maximize the efficiency in the relevant market definition 3.3 Remarks Under the Vietnamese regulations, the relevant market is formed by product and geographical dimension The former relies on the interchangeability between products by reasons of characteristics, use purpose and price while the latter examines the competition conditions of relevant products in geographical areas In defining relevant market, both supply and demand substitution would be considered The price-test in relevant product market is based on cross-elasticity of demand with the margin of price increase is 10% - unlimited figure in months consecutively For over ten years coming into effective, the Vietnamese regulations on relevant market definition could have witnessed several drawbacks mostly on the overbroard relevant market definition Through the analysis in Chapter II and Chapter III, the author has suggested the following points: 152 For the controversy sides of Natural Experiment and Pattern Analysis, see: Coate, Malcolm B & Fisher, Jeffrey H (2008), supra note 88, p.14-31 153 Section 2.6, Chapter II of this thesis 49 - A detailed structure for relevant market definition must be conducted for maximizing the efficiency of assessing the competitive analysis - Relevant market definition should be based solely on demand substitution when it is feasible - Implementing the HMT (with CLA is the economic form) with the margin of 5-10% price increase for a reasonable duration - Applying Natural Experiment and Pattern Analysis in case the HMT is not feasible - Utilizing five types of evidence for collecting data: (1) past buyer responses; (2) consumer survey; (3) product characteristics; (4) seller behaviors in buyer side and (5) the view of industry experts Those types evidence could be effective methods for collecting input data depending on case-by-case basis 50 CONCLUSION “International integration process of Vietnam is shifting to a more profound phase The multi-layered economy with state-of-the-art regulations and the higher level of the market opening not only creates an extensive development capacity but also poses considerable challenges for the economy and enterprises to ameliorate their competitiveness to a more superior level Another worth-mentioning point may refer to a ripple effect on competition and integration In other words, the deeper the economic integration, the wider the playing field, the more extreme of the competition Therefore, enhancing the competitiveness has become an urgent demand for the development of Vietnam economy and enterprises Dr Vu Tien Loc – Chairman of Vietnam Chamber of Commerce and Industry stated that the competitiveness of Vietnam had not been highly appreciated yet The problem of institutions and creativities are still low-powered indeed Specifically, regarding institutional economic factors, Vietnam only ranked at the 92nd position in the world and took the 9th place among ten other ASEAN countries Relating to the element of creativity, Vietnam ranked 87th in the world Dr Loc also pointed out some of the weakness in the competitiveness for most of Vietnam enterprises, including the strategic planning ability, market development capabilities, and branding, along with the limitation in management skills and low labor productivity among business sector On the other hand, the barriers in the administrative procedures, as well as the deficiency in the investment and business environment, are also some hinder contribution which put additional burdens on enterprises154” The above paragraph has covered the picture of the competition environment in Vietnam Recently, the merger context has been hotter and hotter along with facing numerous challenges Moreover, It has been over ten years since the enactment of Vietnamese regulations on relevant market definition With the current legislations on the relevant market definition, it would be tough to carefully and efficiently cope with the present Throughout the analysis of the U.S regulations, the author would hope to give a reliable study as a basic reference for those who would like to conduct researchs on determining relevant market 154 Thu Hà, “Promote the role of corporates, Enhance the Competition Capacity of Nations”, [http://vbcsd.vn/detail.asp?id=584], (last retrieved on 17/07/2016) 51 Due to the limitation of time, knowledge and academic sources, the thesis may not be a sufficiently detailed analysis However, it is conducted with all the capacities and passions of the author Every section is analyzed with discretions and qualities The author would highly and appreciatively receive the comments and advices from the readers Relying on which, the author could further competition studies for improving Vietnamese law on regulating such issue 52 BIBLIOGRAPHY A Legal documents - Vietnamese documents Law No 27/2004/QH11 dated on December 3rd, 2004 of the National Assembly on Competition Decree No 116/2005/NĐ-CP dated on September 15th, 2005 of the Government on providing detailed regulations for implementation of a number of articles of the Law on Competition - English documents The Sherman Act 1890 The Clayton Act 1914 The Celler-Kefauver Act 1950 The Commission Notice on the definition of relevant market for the purposes of Community competition law 97C, 372/03 The Horizontal Merger Guidelines 1968 The Horizontal Merger Guidelines 1982 The Horizontal Merger Guidelines 1992 10 The Horizontal Merger Guidelines 2010 B Cases 11 A.G Spalding & Bros Inc v FTC (1962), 301 F.2d 585 12 Crown Zellerbach Corp v FTC 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