Competition law enforcement in Hong Kong SAR and in Ireland: similar and atypical

Author:Mary Catherine Lucey
Position:Sutherland School of Law, University College Dublin, Dublin, Ireland
Pages:108-123
SUMMARY

Purpose This paper aims to understand the emergence, operation and evolution of judge-centred models for the enforcement of competition law in Ireland and in Hong Kong SAR. The public enforcement model in Hong Kong chimes with the Irish regime where competence to adjudicate on competition law violations and to impose sanctions is intentionally reserved exclusively to judges. This design choice renders the Irish and Hong Kong regimes both similar to each other and atypical on the ... (see full summary)

 
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Competition law enforcement in
Hong Kong SAR and in Ireland:
similar and atypical
Mary Catherine Lucey
Sutherland School of Law, University College Dublin, Dublin, Ireland
Abstract
Purpose This paper aims to understandthe emergence, operation and evolution of judge-centredmodels
for the enforcement of competitionlaw in Ireland and in Hong Kong SAR. The public enforcement modelin
Hong Kong chimeswith the Irish regime where competence to adjudicateon competition law violations and to
impose sanctions is intentionally reserved exclusively to judges. This design choice renders the Irish and
Hong Kong regimes both similarto each other and atypical on the global stage, wherein many jurisdictions
an administrative competition agency investigates suspected infringements, makes determinations of
infringementsand may penalise infringers.
Design/methodology/approach This paper starts by detailing the current competition law
architecture in each jurisdiction. Then, it examines closely the discourse (expressed in consultations,
expertsreports and Parliamentary documents) in the lengthy period preceding their introduction. This
approach aims, rstly, to understand why judicial models were chosen over more familiar
administrative ones and, secondly, to unearth any similar concerns which had a bearing on the choice of
atypical design. Next, it analyses some implications of the judicial model in operation for, rstly,
parties; secondly, the administrative competition agencies; and, thirdly, the evolution of competition
law.
Findings It nds the existence of similar concerns surrounding due process/separation of power
arose in each jurisdiction. Other similar strands include a sluggish political appetite which delay ed
reform. Each jurisdiction actively sought to inform itself about international experience but did not
feel obliged to copy the enforcement dimension even where substantive prohibitions were
persuasive.
Research limitations/implications It shines a light on the independent response by two small
Common Law jurisdictions, which does not converge with popular administrative international models of
competitionlaw enforcement.
Practical implications It is hoped that the decades-long experience in Ireland may interest those
involvedin Hong Kong competition law, which is at a comparatively edgling stage of development.
Originality/value This is an original research and appears to be the rstpaper exploring the atypical
approaches taken in Hong KongSAR and Ireland to designing locally suited regimes for the enforcementof
competitionlaw.
Keywords Common law, Hong Kong competition law, Irish competition law, Judicial enforcement
Paper type Research paper
1. Introduction
Lord Neuberger described (extra-curially) the competition law enforcement model in Hong
Kong Special AdministrativeRegion (hereinafter, Hong Kong) as follows:
The author gratefully acknowledges the funding from the Irish Research Council (New Foundations)
scheme, which nanced authors research as a visiting scholar in Hong Kong University.
JITLP
18,2
108
Received3 October 2018
Revised9 March 2019
Accepted13 March 2019
Journalof International Trade
Lawand Policy
Vol.18 No. 2, 2019
pp. 108-123
© Emerald Publishing Limited
1477-0024
DOI 10.1108/JITLP-10-2018-0042
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1477-0024.htm
[...] in what I think is a unique departure from the international consensus in competition policy
the [Hong Kong Competition Commission] is given the role of prosecuting infringements against
businesses in the Competition Tribunal where serious anti-competitive conduct is identied.
(Neuberger, 2016) This article demonstrates that the public enforcement model in Hong
Kong chimes with the Irish regime where competence to adjudicate on competition law
violations and to impose sanctions is intentionally reserved exclusively to judges rather
than the competition agency. This design choice renders the Irish and Hong Kong regimes
both similar to each other and atypicalon the global stage where administrative models are
popular. In many jurisdictions(including the European Union (EU), most EU Member States
and some Common Law jurisdictions) an administrative competition agency investigates
suspected infringements, makes determinations of infringements and may penalise
infringers.
For reasons of space, the inclination towards greater convergence of competition law
enforcement models across the globe cannot be detailed here (Fox and Trebilcock, 2013;
Gerber, 2010;Elhauge and Geradin, 2007;Doernand Wilks, 1996;Rodger and Lucey, 2018;
Lucey,2017a, 2017b;Cheng, 2012;Gal, 2009). Instead, the focus connes itself to exploring
the emergence, operation and evolution of the judge-centred enforcement models enacted in
each of these CommonLaw jurisdictions with a view to highlighting some similaritieswhich
render these models atypical from a global perspective. This article, rstly, explores the
background to and reasons for their similar design by examining closely their legislative
history and, secondly, highlights some consequences of that design choice for competition
law enforcement in these jurisdictions. It will not be suggested that there is a causal
connection (in the sense of the Irish model exertingan inuence on the Hong Kong choice)[1]
or that the lessons from one jurisdictionare directly transferable to the other. It is hoped that
some issues which arose duringdecades of Irish experience of enforcement within a judicial
regime may interest those involved in Hong Kong competition law which is at a
comparativelyedgling stage of development.
This article starts by detailing the current competition law architecture in each
jurisdiction. Then, it examines closely the discourse in the period before their introduction
to, rstly, understand why judicial models were chosen over more familiar administrative
ones and, secondly, to unearth anysimilar concerns. Next, it analyses some implications of
the judicial model for, rstly, the parties;secondly, the administrative competition agencies;
and, thirdly, the evolutionof competition law before it offers some conclusions.
2. Current competition law regimes
An overview of the main substantive competition law provisions in Ireland and Hong Kong
assists in understanding their enforcement. The current principal Irish Act is the
Competition Act 2002, which re-enacted provisions of prior enactments starting in 1991[2].
In Hong Kong, Competition Ordinance of 2012 came fully into force in 2015[3]. Its First
Conduct Rule, like Section 4 of the Irish Competition Act, prohibits anti-competitive
arrangements. The second key prohibition in both jurisdictionsconcerns unilateral abuses.
Section 5 of the Irish Act prohibits the abuse of a dominant position (EU law), whereas the
Second Conduct Rule in Hong Kong prohibitsthe abuse of substantial market power (this is
more akin to Australianand New Zealand provisions) (Kwok, 2014).
In Hong Kong, the Competition Commission (Commission) and Competition Tribunal
(Tribunal) are the enforcement institutions[4]. The Commission, an administrative body,
may investigate suspected infringements, accept commitments, operate a leniency
programme and issue notices. It took its rst case in March2017 to the Tribunal[5]. Only the
Tribunal may determine whether a competition law infringement has occurred and issue
Competition
law
enforcement
109

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