25 September 2017
The joint seminar with Des Voeux Chambers was a fascinating day for the Monckton Silks.
There is an obvious connection between the provisions of the Hong Kong Competition Ordinance. Both the First and Second Conduct Rules are closely analogous to rules in EU and UK law. The EU regime has been in place for 60 years, and the UK law has been in force for 17 years. There has been a large amount of enforcement action against cartels and abuse of market power, as well as private damages actions. Whilst there are also important distinctive features of the Hong Kong regime, this body of experience offers some insight into how the law may develop.
At the moment there are many unanswered questions. Will the new leniency policy be used by businesses worried they had been involved in cartel action? In the EU and UK, leniency actions have been used repeatedly to expose major cartels involving large international corporations. Will Hong Kong law allow the use of competition law as a defence to contract actions? In the UK, this is a matter of routine and a powerful tool in contractual disputes.
We also discussed how the Ordinance itself might develop: at the moment, there is no provision for “standalone” damages actions, in the absence of a prior finding of the Competition Tribunal. In the UK and EU, such standalone actions have been a valuable complement to enforcement by the competition authorities. Stephen Ryan of the Competition Commission offered a tantalising glimpse of a possible future change in Hong Kong law.
On the procedural side, the Ordinance requires the Commission to prove its case in the Tribunal; in the UK and EU, penalties are decided administratively. That raises many questions about how the rights of defence will be respected through the investigation.
It was great pleasure to discuss these issues with colleagues in Hong Kong and a distinguished audience. We await developments with great interest!
Tim Ward QC