Abstract: In a market economy, businesses have the conditions to rise up, gradually increasing in quality and quantity to survive and develop in a harsh competitive environment. In that process, the market will inevitably have "winning" businesses, occupying a dominant position over their competitors. The dominant market position of a business is not inherently bad, it even brings many benefits to the economy, especially creating a national competitive advantage. However, when a business abuses its dominant position to restrict competition, the State must control it with its own control mechanism to protect fairness in competition. In fact, there have been many cases of abuse of dominant market position, but the number of cases that have been handled by the Competition Law is very small. Establishing criteria to determine the dominant market position of an enterprise is extremely important in handling cases of abuse of dominant market position, especially in the context of the new economy characterized by rapid technology and innovation.Keywords: criteria, market dominance, new economy.
I. Introduction
The rapid and transformative development of digital technology has given rise to a “new economy” in Vietnam, characterized by platform-based business models, intangible services, and massive data flows. In this context, competition law plays a vital role in maintaining fairness and fostering innovation. However, the application of traditional legal rules—particularly the criteria for determining market dominance—has encountered unprecedented challenges. Vietnam’s Competition Law 2018 still primarily relies on quantitative criteria, especially market share, supplemented by certain qualitative factors, to assess market power. Yet emerging markets such as e-commerce, social networks, and ride-hailing applications possess fundamentally different characteristics: strong network effects, high switching costs, and a focus on exclusive data advantages. These factors may create market dominance without reaching conventional market-share thresholds.This reality raises a critical question as to whether the existing criteria remain sufficiently precise and appropriate to accurately identify enterprises capable of acting independently and harming competition in the digital economy. Failure to timely and accurately determine market dominance may hinder the effective enforcement of competition law, facilitate abuses of dominant position, and ultimately suppress innovation while disadvantaging consumers.
This study aims to analyze and evaluate the shortcomings of the criteria for determining market dominance under Vietnam’s Competition Law 2018. On that basis, it proposes the supplementation and adjustment of these criteria, with greater emphasis on features distinctive to the new economy, such as control over data, network effects, and the role of essential platforms. The ultimate objective is to develop a more comprehensive and flexible set of criteria that enables Vietnam’s competition authorities to address abuses of market dominance effectively and fairly, thereby safeguarding a healthy competitive environment in the new economy.
II. Content
2.1. Certain concepts
2.1.1. The concept of a dominant market position
Worldwide, depending on historical periods as well as the perspectives of individual countries, a dominant market position is defined in line with the objectives of competition policy. From an economic perspective, there are also various approaches based on different criteria. The United States, a country with leading competitive capacity in the world [1], early recognized the significant influence of enterprises holding a dominant market position, which it generally refers to as “monopolies.” In the United States, the market power of an enterprise holding a dominant position is also understood in connection with its ability to increase or decrease social welfare, provided that the enterprise is capable of acting independently of its competitors. Thus, in U.S. legislative history as well as judicial practice, the concept of a dominant market position is not explicitly mentioned, but the notion of market dominance is implicitly included within the concept of monopoly. In other words, such an enterprise possesses significant market power and the ability to control market relations. In France, multiple criteria are used to determine a dominant position, including the enterprise’s market share; imbalances among market forces such as the scale of the enterprise; whether the enterprise is affiliated with a corporate group; financial capacity; the weakness of competitors; developments and changes in the enterprise’s market share; possession of certain technological advantages; management efficiency; brand advantages; and external factors that may allow the enterprise to avoid effective competition. Also influenced by competition theory in the United States, Canada considers “market power” as the ability to maintain prices above competitive levels while remaining profitable over a significant period of time, typically one year. These differences have led to variations in the legal bases used to determine the dominant position of enterprises or groups of enterprises in the laws of different countries [2]. According to the French–Vietnamese Dictionary [3], a dominant position (position dominante) is a position reflecting the economic strength of one or a group of enterprises that enables them to act independently of competitors in a given market. Article 4 of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services defines significant market power (SMP) as follows: “An undertaking shall be deemed to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance on the relevant market, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers.”
Competition law in Vietnam was enacted relatively late compared with that of some other countries. Although Vietnam follows the Civil Law tradition, its competition law has been significantly influenced by doctrines and legal systems of the Common Law family such as those of the United States and the European Union. Recognizing the position and power of enterprises holding a dominant market position, Vietnam has combined both the Chicago and Harvard schools of thought when formulating concepts in the field of competition law. Accordingly, a dominant market position is defined as “the position of an enterprise or group of enterprises holding significant market power, capable of restricting competition in the relevant market and acting independently of competitors, customers, and consumers” [4].
Thus, due to differing approaches and perspectives, the substantive content of the concept of a dominant market position may not be entirely uniform across countries. However, most countries share the common view that a dominant market position refers to an enterprise or group of enterprises possessing market power. This power enables the subject to act independently of other market participants, including competitors and customers, thereby potentially controlling market mechanisms. Defining the substantive content of the concept of a dominant market position plays a crucial role in identifying such a position as a basis for recognizing enterprises concerned, because if an anticompetitive conduct is not carried out by an enterprise holding a dominant position, it may not constitute a violation of competition law or may instead constitute a different form of anticompetitive conduct. Nevertheless, practice shows that determining whether an enterprise holds a dominant market position is far from simple. The development of criteria for identifying an enterprise’s dominant position must be consistent with the political, economic, and socio-cultural conditions of the country concerned. In other words, such criteria must be highly feasible in practice.
2.1.2. The concept of the new economy
Worldwide, when referring to the concept of the “new economy,” scholars often associate it with a distinctive phenomenon of the United States economy in the second half of the 1990s. This economic transformation originated from the third industrial revolution, also known as the digital revolution. In his seminal work, Manuel Castells defined the new economy as an “informational, global, network economy,” in order to identify its core distinctive characteristics and emphasize their interconnection. It is a system in which productivity and profitability are generated primarily through the creation, processing, and application of knowledge based on information technology [5]. According to Manuel Castells, the informational nature of this economy is reflected in the fact that the productivity and competitiveness of units or actors within it, whether enterprises, sectors, or nations, fundamentally depend on their capacity to generate, process, and effectively apply knowledge-based information. Its global nature is characterized by the organization of core activities of production, consumption, and circulation, as well as their components such as capital, labor, raw materials, management, information, technology, and markets, on a global scale, either directly or through networks connecting economic actors. Its networked nature is manifested in the creation of productivity under new historical conditions, where competition takes place within a globally interactive business network.
Posner [6] points out that industries in the new economy are characterized by declining average costs over a wide range of output, varying rates of innovation, rapid and frequent entry and exit, along with strong network effects. Dosi argues that change is always the hallmark of modern market economies, in which technological and organizational innovations are the primary drivers of change, shaping, reshaping, and sometimes completely overturning existing orders [7]. Although economists hold different views on the new economy, they share several common points: first, an affirmation of structural changes in the global economy as well as shifts in the drivers of economic growth; second, the recognition that the principal causes of such changes are the rapid development of information and communication technologies, network effects, and the accelerated pace of innovation.
In Vietnam, with its transition from a centrally planned, bureaucratic, subsidized economy to a socialist-oriented market economy still relatively recent, the country has faced numerous challenges while learning from international experience in order to stabilize and develop. The concept of the new economy was initially rather unfamiliar to a developing country such as Vietnam in the early years of the renovation period. However, by grasping global economic trends, the Party and the State, together with the people, have gradually transformed their awareness and actions and achieved notable accomplishments. In 2020, when the global economy suffered severe impacts from the Covid-19 pandemic, Vietnam’s economy was still ranked by The Economist in August 2020 among the top 16 most successful emerging economies worldwide. According to World Bank data, with an average annual economic growth rate of 6.8 percent during the period 2016–2019, Vietnam ranked among the top ten fastest-growing countries [8]. By 2024, Vietnam became the only Southeast Asian representative to enter the top ten, with a projected growth rate of 6.4 percent for the period from 2024 to 2029. The International Monetary Fund forecasts that Vietnam will experience a period of robust economic growth, becoming one of the fastest-growing emerging economies, thereby opening significant opportunities to attract foreign investment and promote economic development both regionally and globally [9]. Thus, Vietnam can be regarded by the IMF as belonging to the group of emerging market economies. An emerging market economy refers to the economy of a developing country integrating into the global market, marked by rapid growth in gross domestic product, trade volume, and foreign direct investment, and characterized by a transition from agriculture toward industrialization, as well as the adoption of reforms and standards from developed markets to support this transformation. However, such economies are also accompanied by risks such as political instability and currency volatility, presenting both opportunities and challenges for investors.
In the current context, Vietnam has also leveraged free trade agreements to expand business-to-business trade. The Vietnamese Government has invested in digital infrastructure, enhanced connectivity and payment capabilities, and created favorable conditions for cross-border electronic commerce. Vietnam’s e-commerce market is projected to exceed USD 25 billion by 2025, marking an important milestone in the digital transformation process. Consequently, the influence of the new economy has had a profound impact on Vietnam’s markets, particularly the dominance of major technology companies such as Google, Amazon, and Meta (Facebook), which raises new challenges for competition law. These companies often achieve dominant positions through network effects, the collection and use of massive volumes of data, and the acquisition of potential competitors. The application of traditional competition rules based on price and output encounters difficulties, as many digital services are provided “free of charge” to users, such as search engines.
2.2. Criteria for determining a dominant market position in the new economy
2.2.1. Traditional criteria for determining a dominant market position in the new economy in Vietnam
Schumpeter was one of the most influential economists of the twentieth century and is well known for introducing the concept of “creative destruction” in economics. He explained that the inherent processes of any capitalist society generate a form of creative destruction, whereby innovations destroy existing technologies and production methods, only to be challenged in turn by rival products that imitate them with newer and more efficient configurations [10]. Schumpeter’s theory has exerted a profound influence on innovation and economic development worldwide. Vietnam officially integrated into the international economy in 1986 with the initiation of the renovation process, the opening of its economy, and its accession to the Association of Southeast Asian Nations in July 1995, marking an important milestone in its integration trajectory. As the economy develops, competitive pressure among enterprises intensifies, particularly with the growing strength of enterprises holding a dominant market position. With significant market power, enterprises in a dominant market position may cause harm to competitors and consumers if they abuse that position.
Many countries around the world have long regarded competition law as an effective instrument for regulating the economy. According to statistics from the United Nations Conference on Trade and Development, nearly 150 countries and territories worldwide have enacted competition or antitrust laws, including Vietnam. Vietnam’s first Competition Law was enacted in 2004, containing relatively comprehensive, specific, and detailed provisions on the control of abuses of a dominant market position. In order to conclude that a case involves an abuse of a dominant market position, the competent authority must first determine whether the enterprise in question actually holds such a position. The criteria for determining a dominant market position differ depending on whether the subject is a single enterprise or a group of enterprises. For a single enterprise, one of two criteria applies, namely market share or the ability to substantially restrict competition. For a group of enterprises, two criteria must be satisfied: market share, defined as two enterprises having a combined market share of 50 percent or more in the relevant market, three enterprises having a combined market share of 65 percent or more, or four enterprises having a combined market share of 75 percent or more; and concerted action to restrict competition [11]. Thus, for a single enterprise, the competent authority may choose either of the two criteria to determine a dominant market position. However, after more than ten years of implementation, these provisions revealed numerous shortcomings. The application of rules on abuse of a dominant market position to determine whether an enterprise holds such a position, to identify abusive conduct, and to impose sanctions has remained difficult and complex. During the period from 2006 to 2017, the Competition Management Authority, the competent state authority in Vietnam for competition management, accepted for investigation only eight cases involving restrictive practices, of which four concerned abuses of a dominant market position. To address the shortcomings of the 2004 Competition Law and to meet the requirements of improving market economy institutions, especially in the context of global economic integration and Vietnam’s deep participation in regional and global arenas, the 2018 Competition Law was promulgated with numerous positive amendments relating to the control of abuses of a dominant market position. Under this law, the criteria for determining that an enterprise holds a dominant market position are having a market share of 30 percent or more in the relevant market, or possessing significant market power [12]. However, inheriting the approach of the 2004 Competition Law, the determination of a dominant market position still requires the satisfaction of only one of these two criteria.
With regard to the market share criterion, international experience shows that determining a dominant market position primarily on the basis of market share, or solely on market share as is currently the case in Vietnam, may often lead to inaccurate results. This is because in many cases factors such as the existence of barriers to market entry, the current market structure, and the relative positions of enterprises exert a significant influence on the formation of a dominant market position. Under the 2018 Competition Law, an enterprise’s market share in the relevant market may be determined using one of the following methods: the percentage ratio between the enterprise’s sales revenue and the total sales revenue of all enterprises in the relevant market on a monthly, quarterly, or annual basis; the percentage ratio between the enterprise’s purchase volume and the total purchase volume of all enterprises in the relevant market on a monthly, quarterly, or annual basis; the percentage ratio between the number of units of goods or services sold by the enterprise and the total number of units sold by all enterprises in the relevant market on a monthly, quarterly, or annual basis; and the percentage ratio between the number of units of goods or services purchased by the enterprise and the total number of units purchased by all enterprises in the relevant market on a monthly, quarterly, or annual basis [13]. Although the methods for determining the market share of an enterprise holding a dominant market position have been expanded in order to better capture developments in the market economy, when placed in the context of the new economy, particularly in the digital sector, the market share criterion reveals numerous limitations.
First, there is a lack of accuracy in terms of revenue. If market share is determined based on revenue obtained from users of digital platforms such as Google Search, Facebook, or Instagram, the resulting market share would be zero or negligible and would fail to reflect actual market power, since the services provided are offered free of charge in exchange for user data. Market share calculated on the basis of advertising revenue is also not entirely accurate, as advertising revenue does not represent the core market in which users actually participate.
Second, the quantitative threshold of 30 percent market share does not accurately reflect market power because, in the new economy, there may be enterprises with a market share below 30 percent that nonetheless possess industry-wide exclusive algorithms, proprietary technologies, big data, network effects, and integrated ecosystems of products and services that create consumer lock-in. Conversely, an enterprise with a high market share may still face strong competitive pressure from numerous new entrants.
Third, with regard to the relevant market. Whether a dominant market position is determined on the basis of market share or significant market power, the products or services concerned must be assessed within the same relevant market. However, for digital platforms, defining the relevant market in the traditional sense is no longer appropriate. In terms of the relevant product market, digital products and services often integrate multiple functions and, in many cases, are provided free of charge. As a result, identifying substitutable products using traditional methods becomes difficult to apply in practice, including the SSNIP test. With respect to the relevant geographic market, digital products and services frequently operate on a global, cross-border scale, rendering market definition based on traditional geographic boundaries inappropriate. The Grab–Uber acquisition case in Vietnam was prolonged due to disputes over the definition of the relevant market. In the investigation report of the Vietnam Competition Authority, the relevant product market was defined as intermediary services connecting passengers and drivers of automobiles with fewer than nine seats through software platforms and call centers. Under this approach, traditional taxi companies would not be considered to operate in the same relevant market as Grab and Uber. However, throughout the investigation process, the Authority consistently treated taxi companies as competitors operating in the same relevant market as Grab and Uber [14]. This led to a lack of logic and internal inconsistency. A more recent illustrative case in Vietnam further demonstrates the critical importance of accurately defining the relevant market in determining a dominant market position. In early 2025, SPX Express was sanctioned by the National Competition Commission for acts of unfair competition involving misleading information provided to customers regarding products and services [15]. SPX Express is not merely an independent logistics provider. Within the corporate structure of Sea Group, SPX serves as the core internal logistics unit. At the time of the sanction, SPX handled the vast majority of orders on Shopee, an e-commerce platform holding a dominant position in terms of traffic and transaction volume in Vietnam. This case reveals characteristic features of digital platforms, namely the lock-in effect and ecosystem effects, whereby sellers and buyers on Shopee are effectively locked into SPX services due to algorithms prioritizing visibility or free-shipping policies applicable only when SPX is used. Large e-commerce platforms are increasingly becoming “dual-role players,” acting simultaneously as marketplaces and owners of logistics providers, thereby giving rise to potential conflicts of interest. When a platform prioritizes its own logistics arm, combined with non-transparent marketing information, the market risks becoming distorted, creating additional difficulties for independent logistics enterprises already facing intense competitive pressure.
With respect to the criterion of significant market power, although the 2018 Competition Law introduced additional factors for determining significant market power of enterprises holding a dominant market position [16], these factors remain insufficient in the context of the new economy.
First, the factors used to determine significant market power are largely qualitative in nature and lack specific measurement thresholds, making them difficult to apply in practice, such as financial strength, technological advantages, and technical infrastructure.
Second, the factors relating to enterprise assets, including technological advantages, technical infrastructure, the ability to hold, access, or control distribution markets, and ownership or use of intellectual property rights, fail to capture assets that are distinctive to the new economy, such as big data and algorithmic monopoly. Algorithms commonly used on digital platforms, including content recommendation, ranking, and advertising personalization algorithms, have become core trade secrets of dominant firms such as Google and Facebook. In addition, vast user data repositories constitute the most critical input resource, creating data-based entry barriers that new competitors cannot readily overcome.
Third, switching costs for enterprises and consumers, understood mainly in terms of time and monetary expenses, are inadequately conceptualized. In practice, within the digital sector, users may be more concerned with other forms of switching costs, such as losing social networks, business partners on social media platforms, or having to learn how to use a new digital platform. Empirical reality shows that these barriers can be substantial, sometimes even more significant than direct financial costs. This is further reinforced by lock-in effects deliberately created by enterprises, making it difficult for customers to switch to alternative products or services.
Fourth, the factor concerning control over distribution or consumption networks, supply sources, and access to infrastructure is assessed in a largely static manner. Infrastructure and distribution networks in traditional markets differ fundamentally from infrastructure and networks in digital environments. A typical example is the Google Shopping case, in which Google, as a platform provider, engaged in self-preferencing and discriminatory treatment against competitors by leveraging its infrastructural advantages [17]. In contrast, in a similar situation in a traditional market, a supermarket that uses its infrastructural and distribution advantages to prioritize its own products, for example through prime shelf placement or competitive pricing, is generally not considered to be in violation.
Fifth, although there is a residual clause intended to capture sector-specific characteristics of the industries in which dominant enterprises operate, the absence of detailed guidance may lead either to the omission of relevant factors or to arbitrary application of so-called “sectoral characteristics” during investigations aimed at determining significant market power.
2.2.2. International experience regarding criteria for determining a dominant market position
In the United States, the concept of “monopoly” encompasses what is understood as a dominant market position; accordingly, the criteria for identifying a monopolistic undertaking also serve as the criteria for determining a dominant market position. The Sherman Act was enacted with two primary objectives: to combat agreements among enterprises aimed at market manipulation (cartels) and to prevent monopolization. Under Section 2 of the Sherman Act, an enterprise holding a dominant market position is understood as one that is capable of setting prices significantly above the competitive level and intentionally engaging in such conduct over a certain period in order to exclude new entrants or restrict market expansion. Under this approach, U.S. law relies primarily on price-based market power as a criterion. In addition, through judicial practice, including landmark cases such as Alcoa (1945), AT&T (1974), and Standard Oil (1911), market share has also been a commonly used criterion by U.S. courts in determining a dominant market position [18]. Subsequently, in technology-related cases, the criteria applied in the United States were further expanded. In the context of the new economy, U.S. judges have acknowledged that many criteria rooted in the “old economy” are no longer suitable for identifying dominance. The Microsoft case (2001) is a typical example. Although Microsoft was found to hold a monopoly, the court emphasized factors other than market share, including network effects, the dynamic nature of technology markets, rapid innovation, and significant barriers to entry [19]. A clear illustration of the insufficiency of relying solely on market share is the Syufy case (1990). Despite Syufy’s very high market share in the Las Vegas cinema market, the court rejected a finding of monopoly power due to the absence of significant entry barriers [20]. In contrast, the Kodak case (1992) expanded the criteria for determining dominance in the United States by introducing considerations of information barriers and switching costs. Although Kodak held a relatively low market share in the primary photocopier market, the court determined that Kodak possessed monopoly power in the aftermarket for parts and servicing of its own machines. This case marked a turning point, demonstrating that the assessment of monopoly power must go beyond a narrow focus on market share in the primary market [21].
European Union competition law has also been significantly influenced by U.S. antitrust law. Article 102 of the Treaty on the Functioning of the European Union establishes criteria for determining a dominant market position based on market share, as well as additional factors where market share alone is insufficient, such as barriers to entry or expansion, the position of potential competitors, countervailing buyer power, and other competitive advantages. The European Commission and the courts have developed market share thresholds as follows: a market share above 50 percent is generally considered indicative of dominance, as reflected in cases such as Tetra Pak Rausing SA v Commission with a market share of 91 percent [22], BPP Industries Plc and British Gypsum Ltd v Commission with a market share of 96 percent [23], as well as Microsoft Corp. v Commission [24] and Google v Commission [25], both involving market shares exceeding 90 percent. Market shares between 40 and 50 percent may indicate dominance but require examination of additional factors. Market shares between 25 and 40 percent generally do not establish single-firm dominance unless the market is highly fragmented and other significant factors are present, although dominance has been found in cases such as Virgin/British Airways with a market share of 39.7 percent. Below 25 percent, the likelihood of establishing dominance is very low unless combined with other factors, typically around 20 percent. In addition to quantitative market share thresholds, the Commission places emphasis on qualitative criteria where market share alone does not sufficiently demonstrate market power. Criteria relating to barriers to entry or expansion and potential competition are elaborated in paragraphs 16 and 17 of the relevant EU guidance [26]. The Commission examines whether potential entry or expansion by competitors is likely, timely, and sufficient to constrain the conduct of the undertaking concerned. Barriers considered include legal barriers, economic advantages enjoyed by the dominant undertaking, costs and network effects that impede customer switching, and the conduct and performance of the dominant firm itself. The Nestlé case illustrates this approach: despite holding nearly 50 percent of the market in France, Nestlé was not found to hold a dominant position due to the presence of strong potential competitors such as Badoit and Evian [27]. The Microsoft case (2004) further demonstrated that technological factors and the dynamic nature of markets, particularly entry barriers, play a decisive role in determining the existence and durability of dominance [28]. The criterion of ownership of standard-essential patents was also examined by the Commission in the Motorola and Apple cases [29]. In these cases, the Commission found Motorola to hold a dominant position not on the basis of its overall market share in mobile phones, but on the exclusive nature of its patents. Dominance was inferred directly from the characteristics of standard-essential patents, namely their non-substitutability. Once a technology has been standardized and incorporated into an industry standard, any firm wishing to produce standard-compliant products must use the patented technology, creating an irreplaceable monopolistic position regardless of the patent holder’s overall market share in the downstream market. This results in very high barriers to entry, as competitors cannot deviate from the industry standard. Overall, the European Union employs both quantitative and qualitative tools in determining a dominant market position. However, market share thresholds are defined with greater specificity and clarity than in the United States.
According to the Model Law on Competition of the United Nations Conference on Trade and Development (UNCTAD) [30], no quantitative market share criteria are prescribed; instead, only qualitative criteria relating to the market power of an enterprise or a group of enterprises are provided. The UNCTAD Model Law serves merely as a proposed framework intended to assist countries, particularly developing countries, in formulating or reforming their competition laws. The competition law of each country may adapt and concretize these criteria by establishing specific market share thresholds or other determining factors.
In Japan, similarly to the United States, the concept of a dominant market position is not clearly defined but is understood as being equivalent to the concepts of private monopolization and superior bargaining position [31]. Private monopolization is identified by the Japan Fair Trade Commission (JFTC) on the basis of the following criteria: (i) market share; and (ii) other factors, including the firm’s rank, competitive conditions in the market, and potential competitive pressure in the relevant market. With respect to the market share criterion, the JFTC prioritizes the investigation of cases involving exclusionary private monopolization where the firm’s market share exceeds approximately 50 percent after the suspected conduct has commenced. The Japanese Antimonopoly Act (AMA) also provides for a separate concept, namely the abuse of a superior bargaining position. This does not require the firm to hold a dominant market position in the traditional sense, as understood in the European Union. Instead, it requires a relative superiority vis-à-vis trading partners. A superior bargaining position is determined on the basis of four factors: (i) the degree of dependence of the trading partner on transactions with the firm; (ii) the firm’s position in the market; (iii) the ease with which the trading partner can switch to alternative trading partners; and (iv) other relevant circumstances. Enforcement practice in Japan shows that antitrust cases have primarily focused on restrictive agreements and unreasonable restraints of trade. According to annual reports for the period 2019–2023, the JFTC issued warnings regarding indications of such conduct as follows: in 2020, the JFTC issued 47 warnings concerning abuses of market power related to a superior bargaining position; in 2022, the JFTC issued a total of 275 warnings, including 192 warnings related to unfair low-price sales, a form of violation associated with the abuse of market power; in 2023, the JFTC issued three formal warnings to specific enterprises for violations of competition law [32]. In 2023, the Japanese authorities conducted an investigation and, in April 2025, the JFTC issued a decision against Google concerning alleged violations of the AMA, particularly in the market for search services on Android smartphones. The JFTC concluded that Google had used its dominant position to engage in anticompetitive conduct in the general search services market through contractual arrangements with Android smartphone manufacturers (OEMs) and telecommunications operators [33]. This marked the first time that Japan had applied such measures against a major technology conglomerate from the United States.
Enacted later than Vietnam’s Competition Law, China’s Anti-Monopoly Law (AML) has become an effective instrument in the fight against monopolistic conduct, aimed at protecting the domestic market from competitive pressure exerted by large foreign technology companies. Pursuant to Article 23 of the AML, the determination of a dominant market position is based on the following criteria: (1) the enterprise’s market share in the relevant market and the degree of competition in that market; (2) the enterprise’s ability to control the sales market or the market for the purchase of raw materials; (3) the enterprise’s financial resources and technical capabilities; (4) the extent to which other enterprises rely on the enterprise in their transactions; (5) the degree of difficulty for other enterprises to enter the relevant market; and (6) other factors relevant to determining the enterprise’s dominant market position. With respect to market share, the AML sets thresholds of 50 percent for a single enterprise, 66.6 percent for two enterprises, and 75 percent for three enterprises in the relevant market as indicative of dominance. However, where evidence demonstrates that an enterprise does not hold a dominant market position, a high market share alone is insufficient to establish dominance. Accordingly, China relies on multiple criteria to determine a dominant market position, including both presumptions based on market share and qualitative criteria relating to market power. Similar to the United States, the European Union, and Japan, China does not regard market share as an automatic or decisive criterion for establishing dominance. Enforcement practice in cases of abuse of a dominant market position in China shows that the State Administration for Market Regulation (SAMR) determines dominance on the basis of a combination of quantitative and qualitative criteria. In particular, in cases involving Alibaba, with a market share exceeding 90 percent, and Meituan, with a market share above 50 percent, although these enterprises held high market shares, the SAMR also relied on other factors such as control over data and advantages in algorithms, network effects, and barriers to market entry to determine the existence of a dominant market position. This demonstrates an appropriate evolution of China’s anti-monopoly law in the context of the new economy, in response to the exceptionally strong influence of leading technology companies.
2.3. Some proposals on criteria for determining a dominant market position in Vietnam in the new economy
The new economy is often characterized by features such as multi-sided platforms, zero-price markets, network effects, big data, and a high speed of innovation, among others. The United States and the European Union belong to the common law legal tradition; therefore, the supplementation of criteria for determining a dominant market position is relatively flexible through judicial practice in antitrust cases. For countries following the civil law tradition such as Japan, China, and Vietnam, most cases are handled on the basis of statutory law. Accordingly, the handling of cases involving the abuse of a dominant market position mainly relies on existing legal provisions. If the criteria are not amended or supplemented to keep pace with the rapid development of science and technology in the new economy, competition law will not be able to operate effectively, and competition authorities will lack effective tools to deal with enterprises holding a dominant market position or may misidentify dominance, thereby causing harm to enterprises. The current criteria for determining a dominant market position in Vietnam focus primarily on market share and market power and are generally suitable only for traditional markets. It is therefore necessary to amend and supplement these criteria in the direction of a flexible combination of traditional criteria and new criteria, as follows:
First, the market share criterion (over 30 percent) should not be regarded as the sole factor for determining whether an enterprise holds a dominant market position, but should be combined with other qualitative factors. Under the 2018 Competition Law of Vietnam, the investigating authority may choose one of two approaches: (i) a market share-based approach, under which an enterprise or group of enterprises is automatically deemed to hold a dominant market position without the need to apply qualitative criteria if one enterprise holds a market share of 30 percent or more, two enterprises hold 50 percent or more, three enterprises hold 65 percent or more, four enterprises hold 75 percent or more, or five or more enterprises hold 85 percent or more of the relevant market; or (ii) an approach based on significant market power. Such a regulation may disadvantage enterprises that reach the prescribed market share threshold but do not, in reality, possess market power. Conversely, there are enterprises with relatively low market shares that nonetheless possess significant market power due to superior technological advantages, network effects, big data, and similar factors, but are overlooked because they are not identified as holding a dominant market position. Both situations cause harm to enterprises, competitors, consumers, and the economy as a whole. In addition, determining dominance on the basis of qualitative criteria relating to significant market power requires investigating authorities to have a high level of economic expertise, involves considerable time and costs, and necessitates coordination with specialized agencies. As a result, where the law allows a choice between the two approaches, investigating authorities may be inclined to rely on the market share criterion because it is easier to apply.
Second, with respect to the qualitative criterion of significant market power, it is necessary to supplement several factors that are appropriate to the new economy, such as advantages in big data, network effects, ownership of algorithms, switching costs, the position of potential competitors, and countervailing buyer power. Currently, under the 2018 Competition Law of Vietnam, the qualitative determination of a dominant market position based on significant market power, which replaces the criterion of “the ability to cause significant restriction of competition” [34], has been supplemented with several factors to reflect the development of Vietnam’s economy in the context of international integration, including: the ability to hold, access, or control distribution or consumption markets for goods and services or sources of supply of goods and services; advantages in technology and technical infrastructure; ownership of, holding, or access to infrastructure; and ownership or rights to use intellectual property rights objects, among others. However, these factors do not fully capture the sources of market power advantages of enterprises in the new economy. Although, to date, the competent authorities in Vietnam have not handled cases involving the abuse of a dominant market position similar to the Google Shopping and Google Android cases in the United States, the Microsoft case in the European Union, or cases such as Kodak in Japan and Meta in Germany, which involve self-preferencing, the foreclosure of competitors, and the use of algorithms and network effects, as Vietnam continues to integrate into the international economy, leading global corporations and technology groups are entering the Vietnamese market. These entities engage in similar conduct on technological platforms in Vietnam, yet such conduct has not so far been addressed by competition authorities.
It is necessary to provide a clearer quantitative specification of the criterion of significant market power, with reference to the European Union’s Digital Markets Act (DMA), specifically as follows:
- Supplementing the concept of “gatekeepers.” Under the DMA, the identification of a gatekeeper is generally based on three groups of criteria: economic scale, control over users, and durability. Vietnam could regulate gatekeepers along the following lines: enterprises with a valuation exceeding USD 1 billion (unicorns) operating in core sectors such as e-commerce and digital payments; holding more than 35 percent of total traffic in a given product or service sector nationwide; and maintaining such a position for three consecutive years.
- With regard to exclusive access to data: the ability to collect exclusive datasets that competitors cannot replicate, and the ability to leverage data from one market (for example, electronic wallets) to establish dominance in another market.
It is therefore submitted that detailed provisions in the Competition Law specifying the factors for determining a dominant market position would serve as an important legal basis for addressing enterprises holding such dominance.
III. Conclusion
Enterprises in the new economy attain their market positions through strong innovation. Patent protection, economies of scale, network effects, and similar factors may all lead to significant market power. In many cases, individual technologies dominate the market, and a single enterprise controls those technologies without necessarily relying on a high market share in the relevant market. Accordingly, traditional criteria for identifying a dominant market position are no longer suitable in the face of the continuous innovation characterizing the new economy. When analyzing market dominance in the new economy, it is necessary to clearly distinguish between the abuse of a dominant position and the mere existence of a dominant position. The fact that an enterprise holds a dominant market position does not in itself constitute a violation of law; only where an enterprise with a dominant market position abuses that position by engaging in conduct prohibited under the positive law of each country will it be regarded as a violation of competition law. The identification of an enterprise or group of enterprises as holding a dominant market position constitutes the first and crucial basis for competent authorities to initiate investigative and enforcement procedures in respect of the conduct carried out by such enterprise or group of enterprises. At present, market share and significant market power are widely used by many countries, including Vietnam, as benchmarks for determining a dominant market position. However, the substantive content of the concept of significant market power needs to be further developed by drawing on the experience of jurisdictions with a long-standing tradition in competition law and rich practical experience in handling cases involving the abuse of a dominant market position
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2. Law on Competition 2008.
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5. Competition Law Textbook, Hanoi Law University, Justice Publishing House, 2024.
6. Decision No. 26/Decision of the Competition Case-Handling Council dated June 17, 2019 on the settlement of competition case No. 18 KX HCT 01.
7. French–Vietnamese Dictionary of Legal Terminology, Encyclopedia Dictionary Publishing House, Hanoi, 2009, p. 660.
8. Enforcement practice of competition law in Australia, Japan and some notes for Vietnamese enterprises when participating in business activities in these markets,
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[*] Master of Laws, Deputy Head of the Faculty of Law, Hoa Binh University; PhD candidate at Hanoi Law University.
[1] According to the ranking of the World Economic Forum (WEF).
[2] Competition Law Textbook, University of Economics and Law, 2010.
[3] French–Vietnamese Dictionary of Legal Terminology, Encyclopedia Dictionary Publishing House, Hanoi, 2009, p. 660.
[4] Competition Law Textbook, Hanoi Law University, Justice Publishing House, 2024.
[5] Manuel Castells, The Informational, Global, Network Economy, 2000, p. 77.
[6] POSNER, Richard A. Antitrust Law. 2nd ed. Chicago: The University of Chicago Press, 2001, pp. 245–246.
[7] DOSI, Giovanni; TEECE, David J.; CHYTRY, Joseph. Technology, Organization, and Competitiveness: Perspectives on Industrial and Corporate Change. Oxford: Oxford University Press, 1998, p. 1.
[8] https://laodong.vn/thoi-su/thu-tuong-viet-nam-lot-top-16-nen-kinh-te-moi-noi-thanh-cong-nhat-the-gioi-865885.ldo, accessed on October 1, 2025.
[9] https://vtv.vn/kinh-te/viet-nam-lot-top-thi-truong-moi-noi-tang-truong-kinh-te-nhanh-nhat-20240523095728237.htm, accessed on October 1, 2025.
[10] Rafael Alves de Almeida, “Market Dominance in the New Economy,” DIREITO GV Law Review 2, no. 2 (July–December 2006): 74.
[11] Article 11, Law on Competition 2004.
[12] Clause 1, Article 24, Law on Competition 2008.
[13] Article 10, Law on Competition 2018.
[14] Decision No. 26/QD-HDXL dated June 17, 2019 of the Competition Case-Handling Council on the settlement of competition case No. 18 KX-HCT-01.
[15] https://vcc.gov.vn/default.aspx?page=news&do=detail&id=ec2a1e2c-0a76-4a3b-b7e1-cd0c6758a5e0, accessed on January 17, 2015.
[16] Article 26, Law on Competition 2018; Article 12, Government Decree No. 30/2020/ND-CP dated March 24, 2020, detailing a number of articles of the Law on Competition 2018.
[17] https://www.globalpolicywatch.com/2024/09/ecjs-google-shopping-judgment-the-end-of-a-long-saga/, accessed on September 18, 2025.
[18] https://en.wikipedia.org/wiki/Standard_Oil_Co._of_New_Jersey_v._United_States;
https://en.wikipedia.org/wiki/Breakup_of_the_Bell_System;
https://law.justia.com/cases/federal/appellate-courts/F2/148/416/1503668/, accessed on October 12, 2025.
[19] https://law.justia.com/cases/federal/appellate-courts/F3/253/34/576095/, accessed on October 12, 2025.
[20] https://law.justia.com/cases/federal/appellate-courts/F2/903/659/435777/, accessed on October 12, 2025.
[21] https://supreme.justia.com/cases/federal/us/504/451/, accessed on October 12, 2025.
[22] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61989TJ0051, accessed on October 13, 2025.
[23] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61989TJ0065, accessed on October 14, 2025.
[24] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62004TJ0201, accessed on October 14, 2025.
[25] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62017TJ0612, accessed on October 14, 2025.
[26] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=oj:JOC_2009_045_R_0007_01, accessed on October 15, 2025.
[27] https://eur-lex.europa.eu/eli/dec/1992/553/oj/eng, accessed on October 14, 2025.
[28] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62004TJ0201, accessed on October 15, 2025.
[29] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014XC1002(01), accessed on October 15, 2025.
[30] UNCTAD (2010), Model Competition Law, https://unctad.org/system/files/official-document/tdrbpconf7d8_en.pdf, accessed on June 4, 2025.
[31] Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (Act No. 54 of April 14, 1947), https://www.jftc.go.jp/en/policy_enforcement/21041301.pdf, accessed on October 20, 2025.
[32] Enforcement practice of competition law in Australia and Japan and several notes for Vietnamese enterprises when engaging in business activities in these markets,
https://vcc.gov.vn/default.aspx?page=news&do=detail&category_id=e0904ba0-4694-4595-9f66-dc2df621842a&id=e52f6732-475b-4089-be01-dfb76d3b58fc, accessed on October 22, 2025.
[33] Japan Fair Trade Commission (JFTC), JFTC Issues a Cease and Desist Order to Google LLC,
https://www.jftc.go.jp/en/pressreleases/yearly-2025/April/250415.html, accessed on October 22, 2025.
[34] Clause 1, Article 11, Law on Competition 2004.
