[...] 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 identiﬁed.
(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
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 conﬁnes 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, ﬁrstly, 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 inﬂuence on the Hong Kong choice)
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
comparativelyﬂedgling 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, ﬁrstly, 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, ﬁrstly, 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.
In Hong Kong, Competition Ordinance of 2012 came fully into force in 2015. 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. The Commission, an administrative body,
may investigate suspected infringements, accept commitments, operate a leniency
programme and issue notices. It took its ﬁrst case in March2017 to the Tribunal. Only the
Tribunal may determine whether a competition law infringement has occurred and issue