On 13 September 2023, the Malaysia Competition Commission ("MyCC") issued its decision of 11 September 2023 relating to an abuse of dominance investigation into Delivery Hero (Malaysia) Sdn Bhd ("Foodpanda") and found that Foodpanda did not infringe section 10 of the Competition Act 2010. The alleged conduct of concern was the imposition of an exclusivity clause in the agreements between Foodpanda and its merchants in an arrangement known as the "preferred partnership category". MyCC took the view that such an arrangement could harm competition as such conduct could disincentivise merchants from partnering with other food delivery platforms, thereby causing distortion in the process of competition in Malaysia.
Based on the assessment of the evidence and facts, MyCC found that there was insufficient evidence to support a finding that Foodpanda is a dominant player in the relevant market (i.e. intermediary online platform markets that match customers, merchants and delivery partners for the provision of food ordering and delivery services in Malaysia). MyCC held that there was no abuse of dominance by Foodpanda.
In determining that Foodpanda is not dominant in the relevant market, MyCC considered various factors including market shares of the relevant enterprises in the relevant market. In addition to MyCC's assessment of Foodpanda's revenue and its identified competitors to determine market shares, MyCC also used Gross Merchandise Value (GMV) as a metric to estimate Foodpanda's market share in the relevant market. Specifically, MyCC compared the GMV of Foodpanda's platform against its closest competitor, GrabFood, during the period of 2020 and 2021. MyCC also assessed whether Foodpanda was conferred an advantage to create network effects in the relevant market, and considered the degree of countervailing buyer power that Foodpanda faced in the relevant market. In making its non-infringement finding, MyCC took a practical and more economics-based approach in its assessment of this matter.
