Hong Kong antitrust regulator aims for new leniency, cooperation guidance this year, CEO Snyder says

29 May 2018 8:42am
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24 May 2018. By Xu Yuan and Leah Nylen

Hong Kong’s antitrust regulator is looking to introduce possible changes to its leniency policy before the end of this year, along with guidelines for parties that cooperate in investigations without applying for leniency.

“We are undertaking a review of our leniency policy, and what I expect is going to happen is that we will be bringing out around the same time or appending to it cooperation policy, so that you really can see the spectrum of what is available to companies that make the decision to cooperate,” Brent Snyder, CEO of the Competition Commission, told MLex in an interview.

The Competition Commission is now reviewing its existing policies after having had some experience applying them, with a priority on its policy on leniency. That policy only gives immunity to the first applicant. The cooperation policy is aimed at providing guidance on issues such as reductions in fines and coverage for individuals for non-leniency applicants who are willing to cooperate.

Snyder said the commission hadn’t decided whether to change the existing leniency policy.

“There are certainly aspects of the policy … that are quite good and reflect exactly the same types of incentives that you would see in most other leniency policies around the world,” he said. “There are then other aspects of the leniency policy here that are drafted with the specific aspects, or the unique aspects, of the Hong Kong Competition Ordinance.”

One of the issues that the commission is considering with regard to the cooperation guidelines is crediting companies for having pre-existing compliance programs.

“I believe very strongly in the value of having compliance programs and believe in creating incentives for compliance programs,” Snyder said, adding that compliance programs, though not 100 percent effective, should still deserve credit.

Snyder said it should be a priority for the regulator to incentivize compliance because the Competition Ordinance is still relatively new — having gone into effect in December 2015 — and there is probably not a long history of compliance culture in Hong Kong. “So I do think we are probably going to end up crediting compliance in some form,” he said.

The CEO added that his personal preference would be to go further than what is done in the US, which is to credit forward-looking compliance efforts as opposed to pre-existing compliance programs, because the different level of maturity of the compliance culture in Hong Kong compared to the US may warrant having a more liberal or open-minded attitude toward crediting compliance.

Snyder said the commission is also looking out for an appropriate case or an opportunity to propose settlement to the Competition Tribunal, in order to have more clarity on procedures that the court may require in considering and accepting settlements.

The ordinance is not explicit as to whether settlements are permitted.

The commission is also working on a separate set of guidelines on how the regulator calculates penalties it recommends to the tribunal and the factors it will take into consideration.

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