Procedural Fairness in Hong Kong Competition Law

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Procedural issues, while often overlooked, are of paramount importance to every competition law regime. Given the heavily punitive nature of competition law penalties in many jurisdictions and the stigma attached to being a violator of competition law, it is important that parties enjoy adequate procedural rights to allow them to mount an effective defense. Procedural issues are all the more important in a new regime like Hong Kong’s, where many questions regarding the parties’ procedural rights remain unsettled. These questions will need to be addressed before the competition law regime can hit its stride and focus on the important task of ferreting out anticompetitive practices and advancing consumer welfare. This chapter explores the current state of a number of procedural issues under Hong Kong’s competition enforcement regime, including the party’s right to legal protection, access to case file, agency engagement, and the sufficiency of judicial oversight. Pertaining to the final issue, special attention will be paid to the hugely important matter of the applicable standard of proof under the competition legislation. The resolution of this issue will largely determine the effectiveness of competition law enforcement in Hong Kong.