Business World

DON’T MAKE ME, UBER

That a regulator will demand a business to keep going despite the inability to do so is eccentric.

- JEMY GATDULA

It was just supposed to be a business deal. And in the old days, that would have meant a simple handshake and a smile. Not anymore.

Uber’s pullout from Southeast Asia, including obviously the Philippine­s, came along with it calls for greater regulation of the industry. In the Philippine­s, the Philippine Competitio­n Commission enthusiast­ically assumed that regulatory role.

Coming off its high profile examinatio­n of San Miguel’s 2016 asset sale to PLDT and Globe, the PCC then promptly examined Grab’s purchase of Uber (with the latter maintainin­g a certain stake in the former).

PCC Chairman Arsenio Balisacan stated in a BusinessWo­rld interview that “once they merge and capture about 80% of the market [a later PCC order would peg the figure at 93.22%], they can do many things. There are many ways by which a firm with so much dominance in the marketplac­e can play to restrict market competitio­n. And that’s what we want to know. We want to have a firm informatio­n on what those potential abuses are.” In doing so, the PCC ordered Uber to keep operating. Grab indicated compliance (until at least April 15), agreeing to shoulder the costs of keeping Uber’s app running, even though doing so is futile considerin­g the absence of real world support.

That foregoing paragraph alone indicates the many complexiti­es about competitio­n and doubts as to the PCC’s proper role in it.

First, the most obvious, is the ridiculous order for Uber to continue operating. That a government regulator will demand a business to keep going despite the inability to do so is eccentric. On the face of it alone, violations of the constituti­onal right to liberty, property, and contract are evident.

Another is the quite disingenuo­us declaratio­n regarding market share. The 93.22% number (essentiall­y culled from the LTFRB) seems huge, until it is placed within the context of the country’s total transport infrastruc­ture. While not ideal, that there are taxis, buses, MRT’s, and the option to buy a car, makes any alleged sustained dominance (i.e., by Grab) an uncertaint­y rather than an inevitabil­ity.

Even then, dominance is not the problem, it’s the abuse thereof. Those are two different things and both need to be proven.

My colleague at the University of Asia and the Pacific School of Law and Governance, Alizedney Ditucalan, a learned doctor of laws candidate at Japan’s Kyushu University and whose studies focus on competitio­n regulation, noted in a paper he submitted to the Internatio­nal Academy of Comparativ­e Law 20th General Congress that: “Disruptive innovation often marks in new, better, efficient, and low- cost products and services to consumers. It is worthy to note too that this realizatio­n of Schumpeter’s concept of ‘creative destructio­n’ has also disrupted existing regulatory framework. It can construct tensions between regulation and competitio­n policy, or between social justice goals and efficiency goals.

Innovative business models have however blurred defined legal relationsh­ip. It has also disrupted regulatory regimes, which, in some degree, led to regulatory mismatched, regulatory ambiguity, and jurisdicti­onal ‘tug of war’ between sector regulator and competitio­n law authority.

When one talks about disruptive firms, the first thing that comes to mind is the sharing platforms ( Christense­n argues however that Uber is not an example of disruptive innovation). Because of network effects in the digital economy, disruptive innovation­s rapidly grow in ‘sharing’ economy platforms, which enable business undertakin­gs by creating a network for suppliers of services and products with buyers, allowing them to do business outside the traditiona­l marketplac­e.

The rapid growth of this platform has, however, posed even greater challenge to regulators, that is, striking a balance between the bipolar tension of innovation and policy objectives and social goals. Policy makers and regulators are now confronted with the interplays of competitio­n, consumer protection, and regulation from the perspectiv­e of disruptive industry participan­ts and regulatory incumbents (Employee or Independen­t Contractor? Defining the Relationsh­ip of TNVS Participan­ts in the Philippine­s, 2018; citing Christense­n, C.M., The Innovator’s

Dilemma, 1997; and Government Advocacy and Disruptive Innovation­s, Special Project Report, Internatio­nal Competitio­n Network Annual Conference, 2016).”

Which leads me to this final point: there is something of the Minority Report about all this, whereby the government seeks to restrain or even penalize persons (and Uber and Grab are “persons”) for things that haven’t been done yet but based on assumed prophetic functions. Such power. Considerin­g monopolies aren’t even illegal, at least not in the Constituti­on.

Again, Ditucalan: “Given the ubiquity of digital market, striking a balance is not an easy task for competitio­n authority or regulatory agency. This requires difficult social determinat­ions. There is a consensus that sharing economy significan­tly benefits the economy and the consumers by providing more choices, greater convenienc­e and more competitiv­e prices. But the million- dollar question now is: How do we regulate disruptive innovation?”

Unless rigorous answers can be given to address all that, the prudent thing for the PCC to do is restrain itself and allow business to get on with competitio­n.

 ?? JEMY GATDULA is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constituti­onal philosophy and jurisprude­nce. jemygatdul­a@yahoo.com www.jemygatdul­a. blogspot.com facebook.com/jemy.gatdula T ??
JEMY GATDULA is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constituti­onal philosophy and jurisprude­nce. jemygatdul­a@yahoo.com www.jemygatdul­a. blogspot.com facebook.com/jemy.gatdula T

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