Hong Kong’s First Economy-Wide Competition Law: A Review of the Law and the Challenges Ahead

Margaret Wang, Jul 18, 2012

Traditionally seen as averse to regulation, perhaps best exemplified by the maxim “small government, big market,” Hong Kong has finally joined the growing ranks of Asian jurisdictions that formally regulate competition across all sectors of the economy. After two rounds of heated public consultations and a long legislative passage, Hong Kong’s first economy-wide competition law, the Competition Bill (“the Bill”), was formally signed into law, on June 21, 2012.

The Competition Ordinance (“the Ordinance”) imposes behavioral competition law provisions and prohibits anti-competitive conduct by multiple undertakings and unilateral anti-competitive conduct by a single undertaking. The merger control regime will remain confined to transactions involving telecommunications carrier licensees for now, although it is anticipated that the merger control regime may be extended in a few years. A Competition Commission (“the Commission”) equipped with investigatory powers will shortly be established, while adjudicatory powers will be vested in a specialist Competition Tribunal (“the Tribunal”). The Ordinance is expected to come into effect in one to two years’ time, while the Commission and the Tribunal will be constituted well before then to begin the substantial amount of preparatory work necessary to enforce the Ordinance.

This article will examine the key provisions of the Ordinance, the extent to which aspects of its implementation are unclear, and consider the challenges with enforcing the law.

Previous Asia Antitrust columns:

• Letter from the Editor (Vanessa Yanhua Zhang)
• China’s Merger Control Policy: Patterns of New Developments (Xinzhu Zhang & Vanessa Yanhua Zhang)
• To File or Not to File: The Treatment of Offshore Joint Ventures Under the EU and China’s Merger Control Regimes (Angela Zhang & Mark Jephcott)
• Chinese Enforcement Against Abuses of Dominance Ramps Up (Peter Wang, Yizhe Zhang & Sébastien Evrard)
• Marching Through the Next Twenty Years: Recent Developments of the Taiwan Fair Trade Law (Andy Chen)
• An Overview of Competition Law in Southeast Asia  (Dr. Robert Ian McEwin)
• Recent Amendments to Hong Kong’s Competition Bill (Ping Lin & Jingjing Zhao)
• Public Enforcement Against Cartels in China (John Yong Ren & Jet Zhisong Deng)
• The Sun Also Sets: Trending Away from Japanese Exceptionalism in Merger Control and Closer to Global Standards (Mel Marquis & Etsuko Kameoka)
• MOFCOM’s Approach to Merger Remedies: Distinctions from Other Competition Authorities (Michael Han & Zhaofeng Zhou)
• Using Competition Policy to Promote “Shared Growth” in Korea (Seonghoon Jeon)
• Evidence Rules in Private Antitrust Litigation in China (Dr. Hao Zhan)
• Singapore Steps up Competition Enforcement (Chester Toh)
• China’s Current Approach to Vertical Arrangements Under the Anti-Monopoly Law (Margaret Wang)
• Judicial Practice Under Code of Conducts in China’s Anti-Monopoly Law (Susan Ning)
• Antitrust Litigation in China – A Step Forward (James Modrall, Matthew Bachrack & Cunzhen Huang)
• A Competition Law for Hong Kong (Marc Waha & Julienne Chang)

* Counsel, Freshfields Bruckhaus Deringer. The author would like to extend special thanks to Richard Hughes of Freshfields Bruckhaus Deringer, who assisted in the preparation of the article.

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Hong Kong’s First Economy-Wide Competition Law: A Review of the Law and the Challenges Ahead