05 April 2017
Competition Tribunal hands down decision on confidentiality in first enforcement case brought by Hong Kong Competition Commission against suspected bid-riggers
Mr Justice Godfrey Lam handed down the first written decision of the Competition Tribunal on 28 March 2017 setting precedent for the treatment of confidential information in originating documents filed in the specialist court.
The decision was given in Competition Commission v Nutanix Hong Kong Limited & Ors, CTEA 1/2017, the first case ever commenced before the tribunal since the Competition Ordinance (“Ordinance”) came into effect on 14 December 2015. These maiden proceedings are brought against Nutanix (Hong Kong) Limited (“Nutanix”), BT Hong Kong Limited (“BT”) and three other information technology companies over alleged bid-rigging in a tender exercise conducted by the Hong Kong Young Women’s Christian Association (“YWCA”) in mid-2016 for the supply and installation of a new server system based on Nutanix technology. The Competition Commission (“Commission”) is seeking pecuniary penalties and a declaration that each of the respondents has contravened section 6(1) of the Ordinance, i.e. the First Conduct Rule, which prohibits anti-competitive agreements or concerted practices.
It is alleged that Nutanix and BT employees had colluded to invite “friends” from the other respondents to submit “dummy” bids to meet the number of tenders required under YWCA’s procurement policy.
The Commission applied pursuant to rule 37 of the Competition Tribunal Rules for confidential treatment in respect of three categories of information contained in the Originating Notice of Application, namely, (i) the prices submitted in the tenders; (ii) the identities of the individuals employed or formerly employed by the YWCA and the respondents; and (iii) the identity of the complainant. The confidential treatment was sought as against the public but not as against the respondents.
In considering an application for confidential treatment, the tribunal is required under rule 37(6) of the Competition Tribunal Rules to have regard to “all the circumstances of the case including (a) the public interest; (b) for any commercial information relating to an undertaking – the legitimate business interests of the undertaking; (c) for any information relating to the private affairs of a natural person – the interests of the natural person; and (d) the interests of justice.”
Mr Justice Godfrey Lam granted the confidentiality treatment sought. The tender prices are commercial information of the respondents not generally available in the public domain. The current and former employees named in the Originating Notice of Application are not parties to the proceedings and disclosure of their identities, at least before any findings are made, may cause them unnecessary harm. The identity of the complainant is of little significance to these proceedings and unnecessary disclosure may become a disincentive for potential complainants.
Catrina Lam is instructed by Winston & Strawn to act for the Commission in the ongoing proceedings.