SINGAPORE Law and Practice Contributed by: Lim Chong Kin and Corinne Chew, Drew & Napier LLC
• agreements restricting advertising; or • standardisation agreements on technical or design standards. In addition, the Section 34 Prohibition will apply only where agreements, decisions and concert - ed practices have, as their object or effect, the “appreciable” prevention, restriction or distortion of competition. The Commission considers that arrangements between competing undertakings involving price fixing, bid rigging, market sharing, or output limi - tation will always be considered, by their very nature, restrictive of competition to an appreci - able extent. On 28 December 2021, the Commission also released the Business Collaboration Guidance Note (the “Guidance Note” ), which supplements the Commission’s Guidelines on the Section 34 Prohibition. It clarifies the Commission’s posi - tion on the common types of business collab - orations and provides guidance on how it will assess such collaborations in view of the Sec - tion 34 Prohibition. The seven common types of business collaborations covered in the Guidance Note are: • information sharing – exchange of both price and non-price information among businesses; • joint production – collaboration to jointly pro - duce a product, share production capacity or subcontract production; • joint commercialisation – collaboration in the selling, tendering, distribution or promotion of a product; • joint purchasing – collaboration to jointly pur - chase from one or more suppliers; • joint research and development (R&D) – col - laboration on R&D activities, such as joint investment;
• standards development – the setting of indus - try or technical standards; and • standard terms and conditions in contracts – usage of terms shared among competitors establishing conditions of sale and purchase of goods and services between them and their customers. In particular, the Guidance Note sets out factors and conditions, such as the nature and extent of the collaborations, and indicative market shares, under which competition concerns are less likely to arise from the collaborations. In determining whether an agreement has the object of preventing, restricting or distorting competition, the Commission is not concerned with the subjective intention of the parties when entering into an agreement. Instead, it will deter - mine if the Section 34 Prohibition has been breached based on the content and objective aims of the agreement considered in the eco - nomic context in which it is to be applied. The Commission will also consider the actual con - duct and behaviour of the parties in the relevant market. However, an agreement will not be prohibited if it falls within an exclusion in the Third Schedule to the Competition Act or meets all of the require - ments specified in a block exemption order. The matters specified in the Third Schedule include: • an undertaking entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly, in so far as the prohibition would obstruct the performance, in law or fact, of the particular tasks assigned to that under - taking; • an agreement that is made to comply with a legal requirement;
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