Policy on Section 60 CommitmentsClick here to read the full article online
Under Hong Kong’s Competition Ordinance the Hong Kong Competition Commission (HKCC) may accept a commitment from a party to take (or refrain from taking) any that the HKCC considers appropriate to address its concerns about a possible contravention of a competition rule. The HKCC has accepted commitments in two cases and considered there to be benefits in publishing a commitment policy (the Policy).
The Policy explains the procedural aspects of the commitment process. It also clarifies the factors the HKCC will take into account when considering whether a commitment may be an appropriate remedy. Specifically: a) Seriousness of the conduct. b) Ability to address competition concerns. c) Effective implementation and monitoring. d) Severity Factors & Remedial Goals. e) Good faith. f) Timing considerations.
The Policy also explains, types of substantive commitments, clauses that would be unacceptable in a commitment (e.g. statements seeking to minimise the seriousness of the relevant conduct). The policy also explains that the Commission will usually be willing to accept a commitment that does not include an admission of a contravention.
Alongside publication of the Policy the Commission has highlighted the importance of thinking about commitments, including summarising the contents of the Policy, in its regular seminars to lawyers and the business community.
It is too soon to evaluate the impact of the Policy but the Commission is confident that by publishing the Policy it will be easier for parties to investigation to know whether commitments may be a possible enforcement outcome as well as streamline the process if commitments are suitable.