Edmund Wan, Partner, and James Wilkinson, Senior Associate, King & Wood Mallesons
The Hong Kong Judiciary has published two new Practice Directions for the Competition Tribunal that will apply once Hong Kong’s competition law comes into full effect on 14 December 2015.
The Practice Directions will operate together with the Competition Tribunal Rules (Cap. 619D) and The Rules of the High Court (Cap. 4A) to govern the practice and procedure of the Tribunal.
The newly-established Tribunal will be responsible for hearing and determining cases brought under the Competition Ordinance (Cap. 619). It is a specialist tribunal consisting of all the judges of the Court of First Instance (excluding Justices of Appeal, Recorders and Deputy Judges).
The Tribunal has jurisdiction to adjudicate on competition cases including:
- applications made by the Competition Commission with regard to alleged contraventions, or alleged involvements in contraventions, of the competition rules;
- applications for the review of Competition Commission decisions; and
- private follow-on actions by persons who have suffered loss or damage as a result of an act that has been determined to be a contravention of a competition conduct rule.
Practice Direction No. 1 – Proceedings before the Tribunal
Practice Direction No. 1 sets out procedures for the conduct of Tribunal proceedings. Key features include the following:
- General approach of the Tribunal: Active and robust case management will form a central element of the Tribunal’s procedures. The Tribunal will aim to run cases as efficiently, inexpensively and expeditiously as is consistent with fairness.
- Constitution of the Tribunal: The Tribunal may appoint one or more assessors to assist it in the proceedings. Such assessors will be persons with relevant expertise such as economics and industry experts.
- Discovery: There is no automatic general discovery in Tribunal proceedings. Parties may instead apply for directions on discovery.
- Evidence: Except in the case of proceedings for a pecuniary or financial penalty, the Tribunal may receive any evidence whether or not it would otherwise be admissible in a court of law.
- Hearings: The Tribunal will indicate, as early as practicable, a target date or range of dates for the substantive hearing of a matter. Hearings will be held in open court unless otherwise ordered.
- Representation: Legal representatives who have a right of audience in the Court of First Instance will have the same right of audience in the Tribunal.
- Tribunal website: The Tribunal will have its own website: www.comptribunal.hk.
Practice Direction No. 2 – Confidential Information
Practice Direction No. 2 sets out the practice relating to confidential information in Tribunal proceedings. The Tribunal may, on the application of a party, order that documents are to be accorded confidential treatment. This will place restrictions on who may view the documents.
The Practice Direction notes that confidential treatment will only to be accorded to information that genuinely requires protection. In general, confidentiality cannot be claimed for the entire or whole sections of a document, as it is normally possible to protect confidential information with limited redactions.