Key Takeaways from the 'Hong Kong Competition Ordinance: Developments and Considerations' Webinar

5 January 2021 | by LexisNexis Hong Kong

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Mr. Marcus Pollard, a Competition Counsel from Linklaters, and Mr. Carter Chim from Denis Chang’s Chambers were invited to speak at the LexisNexis Knowledge Sharing Webinar on 25 November 2020, in which they discussed the current situation and the development of the Hong Kong Competition Ordinance since its commencement in the past 5 years.

1. Current Situation of the Hong Kong Competition Ordinance

Since the commencement of the Hong Kong Competition Ordinance in 2015, many complaints were made. Those complaints were the focus of the Hong Kong Competition Commission’s (“HKCC”) investigations. However, only 20% of them have proceeded to the investigation, and even a smaller amount of them have led to an enforcement outcome.

The following cases were highlighted by the Speakers:

  • HKCC commenced a proceeding against Quantr and its director in January 2020. This is the first case taken to the Competition Tribunal on the basis of leniency application by the parties.
  • A proceeding was commenced against 3 textbook companies and an individual in March 2020. This case was significant as an action was filed against the parent company.
  • There were 2 voluntary commitment cases in relation to the Online Travel Agencies and the Hong Kong Seaport Alliance respectively.

Another point to note is that despite the level of fines has been very limited, but in some cases, the number of fines actually reached the 10% statutory cap, which shows that these fines could be very significant.

2. Development of the Hong Kong Competition Ordinance

In relation to determining the amount of penalties to be imposed, the HKCC has made the following amendments.

First of all, in terms of the determining penalties, the HKCC recommended a 4-step approach to determine pecuniary penalties for undertakings and associations of undertakings.

Secondly, in terms of leniency policy, the leniency policy has now been revised for undertakings. A new leniency policy has also been launched for individuals.

Thirdly, HKCC has launched a Cooperation and Settlement Policy for those who did not benefit from the leniency policy.

3. What corporations could do under COVID-19?

The law has not changed because of COVID-19. If corporations are unsure of whether their proposed cooperations are legitimate or not, they could seek for preliminary views from the HKCC. HKCC once charged for this service, but now this service is provided free-of-charge. When deciding whether to seek for preliminary views from the HKCC, corporations have to take a balance because during applications, corporations are voluntarily providing much information to the HKCC.

This article is provided for reference purposes only and are not intended, nor should they be used, as a substitute for professional advice or judgment or to provide legal advice with respect to specific circumstances. If you require any legal advice or other expert assistance, please consult a competent professional adviser.

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