Hong Kong's prosecutorial system avoids conflict between antitrust enforcement and human rights law, senior judge says

29 May 2018 4:44pm

18 May 2018. Analysis by Xu Yuan.

The prosecutorial system under which Hong Kong’s competition regime operates allows it to avoid controversies such as whether enforcement complies with rules on protecting human rights, which is subject to heated discussions in other jurisdictions such as the EU, a senior local judge said.

“By adopting a judicial enforcement model in the cross-sector Competition Ordinance, Hong Kong has avoided these arguments that are open in the European Union,” Justice Godfrey Lam, president of Hong Kong’s Competition Tribunal, said today at an antitrust conference* in Hong Kong.

Under Hong Kong’s competition regime, the Competition Tribunal is responsible for the determination of infringement and the imposition of sanctions. The tribunal is part of Hong Kong’s judiciary and its membership consists of all the judges of the Court of First Instance of the High Court, he noted.

“This provides, I hope, assurance that the tribunal is independent from the executive government and from many business interests and free from improper influence,” Lam said.

In the EU, the question of whether competition law enforcement satisfies the requirements of Article 6 of the European Convention on Human Right has become a much discussed topic, raising among other issues the question of the intensity of review by the General Court of the decisions of the European Commission, Lam pointed out.

Article 6 stipulates that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. It’s similar to Article 10 of the Hong Kong Bill of Rights, which says that all persons shall be equal before the courts and tribunals.

Noting that the courts in the EU could be signaling a shift toward the possibility of more intense judicial review of competition enforcement, Lam said there are also voices from commercial sectors that the leeway given by the General Court to the European Commission, such as by limiting judicial review to “manifest error of appraisal,” raises serious doubts as to the adequacy of the EU’s procedures.

“Considerations of this kind can have actual consequences on the human right law that protects due process,” the judge said, citing an example from two years ago in which he handed down a decision to quash a fine imposed by the Communications Authority on the basis of violation of Article 10 of the Hong Kong Bill of Rights.

*"Antitrust in Asia: One Size Fits All? Asean, China, Hong Kong, India," Hong Kong, May 18, 2018

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