Jurisdiction - Hong Kong
Reports and Analysis
Hong Kong – Litigation Rules For Competition Law Enforcement.

11 June, 2015

 
 
Today, the Competition Tribunal Rules (“Rules“) and other subsidiary legislation relating to the procedure and operation of the Competition Tribunal were tabled in LegCo for negative vetting.  These pieces of subsidiary legislation were gazetted by the Hong Kong government on 5 June 2015.
 

The Competition Tribunal is the court established under the Competition Ordinance (Cap 619) with primary jurisdiction to hear and adjudicate competition law related actions. 

The Rules are generally harmonised with the existing Rules of the High Court. Accordingly, proceedings before the Competition Tribunal should largely resemble litigation proceedings before the High Court and should therefore be familiar to Hong Kong litigants.

 

The Competition Tribunal Rules

 

The Rules set out general rules of procedure for proceedings before the Competition Tribunal, including for the commencement of proceedings, discovery and inspection of documents, case management, hearings and appeals.

 

Specific rules of procedure for actions arising under the Competition Ordinance are also set out, namely for reviews of reviewable determinations, enforcement cases brought by the Competition Commission, private follow-on actions and cases transferred from the Court of First Instance (for instance, where the alleged contravention of a conduct rule is raised as a defence to an action). 

 

The Judiciary’s approach has been to harmonise the Rules with the existing Rules of the High Court where appropriate.  Notably, rule 4  provides that where neither the Competition Ordinance nor the Rules address a particular matter, the relevant Rules of the High Court will apply as the default position. Proceedings before the Competition Tribunal should therefore largely resemble litigation proceedings before the High Court and should therefore be familiar to Hong Kong litigants. 

 

It may be queried whether the modelling of the Rules on existing High Court procedure is consistent with section 144(3) of the Competition Ordinance, which states that proceedings before the Competition Tribunal are to be conducted with “as much informality as is consistent with attaining justice”.  In this regard, the policy behind the Rules has been to balance the need for informality in proceedings with the need for certainty in procedure and the desire for a set of rules which will be familiar to most users of the Competition Tribunal. 
 

Other Subsidiary Legislation

 

The other pieces of subsidiary legislation also gazetted on 5 June 2015 include:
 
  • the Competition Tribunal Fees Rules, which set out various fees to be paid by users of the Competition Tribunal; and
  • the Competition Tribunal Suitors’ Fund Rules, which governs the handling of funds transferred into the Competition Tribunal by parties to actions. Both of these pieces of subsidiary legislation are modelled on the corresponding rules applying to the High Court.

 

Also gazetted were amendments to the existing Rules of the High Court to provide procedures for transferring cases between the Competition Tribunal and the Court of First Instance.

 

The gazettal of the Rules and other subsidiary legislation is another important step forward in ensuring the Competition Tribunal, and the Hong Kong competition framework generally, will be in place when the Competition Ordinance comes into full effect, expected in late 2015. 

 

Hogan Lovells  

For further information, please contact:  

 

Patrick Sherrington, Partner, Hogan Lovells

[email protected] 

 

Henry Wheare, Partner, Hogan Lovells
[email protected]
 
Danny Leung, Hogan Lovells

[email protected]

 

Dickie Mok, Hogan Lovells

[email protected]

 

Comments are closed.