Overview on The Proposed Block Exemption for Liner Shipping Agreements by the MyCC

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1 Overview on The Proposed Block Exemption for Liner Shipping Agreements by the MyCC 1

2 Briefing overview Introduction on the block exemption application filed Assessment conducted by the MyCC Proposed block exemption Public consultation 2

3 Introduction on the block exemption application filed An application for a block exemption was submitted by the Malaysia Shipowners Association, the Shipping Association of Malaysia and the Federation of Malaysian Port Operators Council on 16 December 2011 pursuant to Section 8 of the Competition Act

4 Introduction on the block exemption application filed In their application, the applicants applied to the MyCC that a block exemption order be granted to the liner shipping agreements entered into between ocean common carriers. The term liner shipping agreement shall include, among others Voluntary Discussion Agreements and Vessel Sharing Agreements. 4

5 Assessment conducted by the MyCC In the course of assessing the block exemption application, studies were conducted on the shipping industry. Engagements were also made with various stakeholders including MITI, MOT, MOF and EPU. 5

6 Assessment conducted by the MyCC Based on the studies conducted, the MyCC found that: a) there is a need for regularity in meeting shippers demand at ports; - Liner shipping companies provide scheduled services for the transport of cargoes over a specified geographic range of ports within an established time schedule including pre-determined regularity and frequencies. - A consequence of providing such schedules was the need to balance supply and demand at ports served by these scheduled services. 6

7 Assessment conducted by the MyCC b) there is a latent market demand for multiple small shipments; - There is a latent demand for such regularity and frequency of services by small shippers who would not be in a position to charter a whole ship for their small cargo lots. - This is where such scheduled services are different from the bulk services that operate on charters such as time or voyage charters, carrying whole ship load of usually one cargo such as for example, among others oil, grain, iron ore, and chemicals. 7

8 Assessment conducted by the MyCC c) high fixed costs - A recognised aspect of the need to put in place a scheduled service is the high fixed cost nature of operations that carriers would face in the form of certain costs that include voyage and operating costs. - In this regard, voyage costs include port and canal costs which will become fixed when a particular schedule is advertised in advance. 8

9 Assessment conducted by the MyCC d) numerous operational costs, finance costs and chartering costs - There are operating costs such as fuel, crew costs, supplies and stores as well as related costs that should be provided for the ship in its services. - Necessary also to take into account the administration and other costs that are incurred such as capital and interest repayments charges in cases where the ships are not completely amortised - There could also be charter rates since not all ships in these services are owned by the liner service providers. (in fact it is known in the industry that at least 50% of ships in service are leased in by container ship operators). 9

10 Assessment conducted by the MyCC e) unbalanced demand on various trade routes - The unbalanced demand in the different directions of the trade route and the consequent costs that this entails pose strong pressures on liner shipping companies providing scheduled services. - These pressures have turned shipping companies to form conference agreements under which they are in close price and scheduling cooperation with other shipping lines that are also providing substantially similar services to the same range of ports. 10

11 Assessment conducted by the MyCC f) dependency on growth of specialised ports to handle containers carried by liner ships - The evolution of major container ports and their location and distribution also reflect the effect of globalisation on the world economy and the growth of world trade. - To cope with the specialised nature of containerised cargo, ports have emerged in different parts of the world in line with economic growth. These ports provide important infrastructure for the transfer and distribution of container goods flowing in the international supply chain. 11

12 Assessment conducted by the MyCC g) East Asia and Oceania trade is largely unregulated - Other countries with such exemptions:- Australia New Zealand Japan Korea. - Although China has anti-trust laws in place, these laws are not enforced against liner companies operating there as most of the largest liner fleets are Chinese owned and a strict application of competition rules in practice will jeopardise the industry. - Block exemption required for liner shipping in Malaysia so that the competition law regime here reflects the practice of other countries in this region. - For ships trading from Malaysia with the US and UK, principle of reciprocity applies and there has to be compliance with the stricter standard there, regardless of whether a block exemption is given for liner shipping. 12

13 Assessment conducted by the MyCC h) dense service volume in trade with Asia compared with other jurisdictions - Malaysia s largest trading partners, other than the US are various countries in Asia. - There are dense service volumes not only to regional ports such as Singapore, but also East Asian ports in China. - Most of the cargo that goes to the US apparently goes through Singapore. - There is little cargo moving directly from Malaysia to the US. - Further, trade with EU accounts roughly for about 10 percent of the containers cargo. 13

14 Assessment conducted by the MyCC i) Malaysia ranks in the top 7 of UNCTAD s maritime connectivity index - external trade of Malaysia has an important containerised shipping component, i.e. in terms of ports, ships as well as connections with global markets. - The services are provided by the largest shipping companies in the world and they are providing important shipping network connections to major markets for the output of the economy of the nation. - These services have been ongoing for several decades and would have been in parallel with the pace of containerisation of the external trade of the country. - Further, there have been massive investments in container port infrastructure in various parts of the country in order to provide a more efficient network of services to various trading regions of the world. 14

15 Proposed block exemption MyCC proposes to grant a block exemption for liner shipping agreements in respect of:- Vessel Sharing Agreements and Voluntary Discussion Agreements made within Malaysia or has an effect on the liner shipping services market in Malaysia. 15

16 Proposed block exemption Liner shipping services means the containerised and scheduled transport of goods on a regular basis on any particular route between ports and in accordance with timetables and sailing dates advertised in advance and made available, even on an occasional basis, by a liner operator to any transport user against payment. 16

17 Proposed block exemption The proposed block exemption is only in respect of liner shipping services and therefore does not cover the whole of the intra-modal transport services. The land carriage of goods and warehousing services are not part of the proposed BEO. When importing goods, the proposed block exemption will not cover post port services whereas when exporting goods, it will not cover pre port services. The proposed block exemption shall be given for a duration of 3 years. After two years, a review of the exemption shall be conducted. 17

18 Proposed block exemption The proposed exemption is only in respect of Section 4(2) of the Act and does not apply to a section 10 infringement. Therefore, parties to these agreements may be liable if there is any abuse of dominance as defined under the Act. In respect of pricing, any attempt to raise prices in concert shall be viewed unfavourably and may be taken as prima facie a breach of Section 10 of the Act. It is therefore recommended that the various stakeholders are consulted prior to imposition of any pricing changes. 18

19 Proposed block exemption This proposed block exemption would be granted under Section 8 of the Competition Act 2010 provided all the conditions under Section 5 of the Act are satisfied, ie;- (a) there are significant identifiable efficiency benefits arising from the liner shipping agreements; (b) the benefits could not reasonably have been provided by the parties to the liner shipping agreement without the agreement having the effect of preventing, restricting or distorting competition; (c) the detrimental effect of the liner shipping agreements on competition is proportionate to the benefits provided; and (d) the exemption proposed to be granted does not allow liner operators to eliminate competition completely in respect of a substantial part of the liner shipping services. 19

20 Conditions under the proposed block exemption (i) the duration of any agreement shall not exceed 2 years; (ii) parties to any of these agreements shall be allowed to withdraw at any time without any form of financial repercussion or liability; 20

21 Conditions under the proposed block exemption (iii) liability; (iv) (v) parties to any of these agreements shall be allowed to depart from any pricing agreement or recommendation without notice and no form of penalty shall be imposed and the departing party shall not suffer any financial repercussion or copies of the liner shipping agreements shall be filed with MyCC. Relevant information from these agreements shall be published by MyCC and any variation or amendment to the liner shipping agreements shall be notified in writing and deposited with MyCC within 30 calendar days from the date of the variation or amendment; relevant information from these agreements shall be published by MyCC. 21

22 Public consultation Section 9 of the Competition Act 2010 requires the MyCC, before granting a block exemption to : (a) publish details of the MyCC s proposed block exemption; (b) give at least thirty days from the date of publication to allow any submission to be made by members of the public in relation to the proposed block exemption; and (c) give due consideration to any submission made. 22

23 Public consultation The public consultation shall commence from 19 August 2013 to 18 September Members of the public are welcome to make any submission and submit the same to: or or 23

24 Thank you 24

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