Chapter 7 explores how the legal cultures in East Asia relate to criminal cartel sanctions. For context, the chapter retraces the incorporation of Confucian ethics in the criminal codes of ancient China. This exercise indicates the possibility of stigmatizing cartels on the moral ground that they constitute improper profit-making contrary to the principle of righteousness. The chapter submits that debates concerning the morality of and prohibition of cartels in East Asia are properly informed by an understanding of Confucian norms—including not only those that allow an actor to achieve virtue internally but also those associated with one’s status and the maintenance of harmonious social order externally. It is submitted that condemning cartel conduct and characterizing it as morally wrongful requires a conception that goes beyond individualist assumptions and calculations. In East Asia, the likely effectiveness of criminal sanctions targeting cartel behaviour can be enhanced if the moral wrongfulness of such behaviour is properly defined, and if its immoral character becomes widely recognized and internalized.

Chapter 2 summarizes the key principles of Confucian philosophy and the influences of Confucian values on individuals, societies, and modern economic activity in East Asia. As the chapter explains, the most important principle in the development of internal ethics is benevolence, and it is part of the virtues that are considered to be preconditions for a hierarchically structured, harmonious society. The impact of Confucian principles on business activities in East Asian countries has been reflected in internal moral development (business ethics), interpersonal relations (organization and management structure of companies), and business culture in general. The chapter discusses the significant variation of this impact in East Asian countries and regions (specifically, in mainland China, the Hong Kong and Taiwan regions, Japan and Korea). It explores the impact of Confucianism on business culture; and then, in light of that discussion it considers the implications of Confucian business culture for competition law and policy in East Asia.

Chapter 5 discusses the bureaucratic characteristics of Confucianism, and the shaping of administrative competition enforcement. It explores the continuity between ancient bureaucratic practices and modern administrative structures. While competition law is making important strides in the countries concerned, old traditions have impeded a more complete trust in open markets. The chapter recounts the influence of the Confucian heritage and discusses the bureaucratic elements that derive from that tradition, all of which sheds light on the features of the administrative model in East Asia. Since far-reaching reforms such as the abandonment of the administrative model would entail profound upheaval and are unlikely, the chapter underlines the feasibility of less radical improvements. In this regard, more effective enforcement appears to require a modernization of bureaucratic systems. Among other things, the chapter advocates reforms that would: enhance the independence of competition authorities from government; increase accountability through checks and balances; and promote predictability and certainty through transparency in rules, policies and decision-making.

Chapter 6 turns to the subject of 'private enforcement', which in East Asia is uneven and inadequate. It discusses this through the lens of ‘litigation culture’, or rather the culture of non-litigiousness. Claims of non-litigiousness in East Asia, and above all in Japan, have been fiercely contested by scholars. Yet the subject is nuanced; the impact of non-adversarialism has not simply been ‘debunked’. In the context of this debate, the chapter examines factors that have limited the development of consumer antitrust claims. Consistent with the value of social harmony and the ancient authoritarianism that prioritizes social stability, methods of mediation and conciliation have been favoured over court conflict. Under the influence of this tradition, private parties have often been encouraged to settle their differences. Deviating from this tradition, the chapter highlights Korea, where recent legislative developments are producing, at least on paper, stronger litigation incentives. Overall, the view is expressed that, where cultural factors contribute to non-adversarialism, thereby leading to a deficit in the vindication of private claims, it appears that cultural messaging and a shift in norms may assist in unlocking the potential of legal and procedural reforms that reduce institutional barriers and activate economic incentives.

Chapter 4 analyses corporate culture in East Asia with a view to understanding how Confucian cultural norms can inform efforts to promote compliance with competition law. It suggests that practices to secure compliance among commercial operators can usefully be tailored to takes account of cultural characteristics. This implies a need to consider the legacy of Confucian ethics, which has had a profound influence on the organizational psychology and behaviour of commercial entities in the region. The importance of that legacy suggests that compliance will not be achieved within firms solely on the basis of the external legal environment, an environment in which deterrence-oriented factors such as sanctions and the threat of detection play a central role. Beyond traditional tools, more attention should be given to the internal moral and social environment, and to shaping the logic of appropriateness within a given firm. A compliance culture can thus be constructed on the basis of elements such as moral commitment, Eastern-style education, the cultivation of virtue, and the constructive convergence of the interests of the enterprise and those of its employees.

The concluding chapter recaps a number of points made in the book. It expresses views on the co-evolution of culture and institutions in developed and developing states, and recognizes the need to avoid a deterministic approach when exploring the impact of culture. The chapter suggests that, although competition laws in China, Japan, and Korea are understandably considered legal transplants, they exhibit distinctive characteristics that differ from the legal regimes of the ‘West’. A culture-based investigation of the factors that underlie the substance, enforcement patterns, institutions and legal and regulatory features in the countries concerned facilitates a better understanding of the distinctiveness of competition law and practice in East Asia.

Chapter 1 provides background by introducing concepts of Confucianism and Confucian culture, and by emphasizing the diversity of the Confucian tradition as it evolved in different countries. It is suggested that approaches to competition law and policy in East Asian countries should be shaped and implemented in ways that respond adaptively and strategically to cultural factors. The characteristics of East Asian firms should also be taken into account for purposes of competition law and policy, not merely in the sense that particular vigilance is required, but also because it underlines the need for proactive and creative efforts to change cultural attitudes. The chapter suggests that existing attitudes and mental frames are not always aligned with the legal rules that appear on the books, and they may impede the emergence of cultural pre-conditions that could support or catalyse desirable legal and behavioural change. The chapter describes the various dimensions of Confucian cultural influences that are discussed in the substantive chapters of the book; and it outlines the structure of the book.