Competition Tribunal pdf version (3,238 KB)

Introduction

The Competition Tribunal (“the Tribunal”) is a superior court of record set up by the Competition Ordinance, Cap 619 (“CO”) to deal with legal proceedings concerning competition matters.

Constitution of the Competition Tribunal

The Tribunal is headed by a President and a Deputy President. They are judges of the Court of First Instance (“CFI”). All other CFI judges are members of the Tribunal.

Specially qualified persons may be appointed as assessors to assist the Tribunal to dispose of any proceedings.

An application to the Tribunal may be heard and determined by a Tribunal constituted by any of the following—

1. (a) the President;
2. (b) the President and one or more other members appointed by the President; or
3. (c) one or more other members appointed by the President.

Jurisdiction

The Tribunal has jurisdiction to hear and determine:

1. (a) applications made by the Competition Commission or Communications Authority (“the Commission”) with regard to alleged contraventions, or alleged involvements in contraventions, of the competition rules;
2. (b) applications for the review of reviewable determinations;
3. (c) private actions in respect of contraventions, or involvements in contraventions, of the conduct rules;
4. (d) allegations of contraventions, or involvements in contraventions, of the conduct rules raised as a defence;
5. (e) applications for the disposal of property;
6. (f) applications for the enforcement of commitments;
7. (g) any matter related to a matter referred to in paragraph (a), (b), (c), (d), (e) or (f) if the matters arise out of the same or substantially the same facts; and
8. (h) cases transferred from the CFI.

The Tribunal in the exercise of its jurisdiction has the same jurisdiction to grant remedies and reliefs, equitable or legal, as the CFI. Further, with respect to all matters necessary for the exercise of its jurisdiction, it has all the powers, rights and privileges of the CFI.

The Registrar of the Tribunal (“the Registrar”) may exercise the same powers and perform the same duties, in so far as they are applicable to the business and proceedings of the Tribunal, as the Registrar of the High Court.

The Registrar also has power to transact all the business and exercise all the authority and jurisdiction that under the CO or the Competition Tribunal Rules (“the CTR”) may be transacted and exercised by a member of the Tribunal in chambers.

Practice and Procedure

The CTR and Competition Tribunal Practice Direction (“the CTPD”) No.1 and No.2 govern the practice and procedure in the Tribunal.

Where the CO and CTR make no provision for a matter, the Rules of High Court (“RHC”) apply to all proceedings, so far as they may be applicable to that matter.

As provided in section 144(1) of the CO, the Tribunal may follow the practice and procedure of the CFI. The general principles and concepts of the civil procedure of the CFI are relevant in proceedings before the Tribunal.

The Tribunal may, in a particular case, dispense with the application of the RHC if the Tribunal considers that doing so (a) will enable the Tribunal to conduct its proceedings expeditiously with as much informality as is consistent with attaining justice; (b) will save costs and is consistent with attaining justice; or (c) is otherwise in the interests of justice.

The relevant legislation and practice directions can be found at the
Tribunal website: www.comptribunal.hk/.

Cases heard by the Tribunal

There are four main types of proceedings before the Tribunal.

1. 1. Application to review a reviewable determination

   The Tribunal is empowered to review reviewable determinations under section 83 of the CO of the Commission.

   Leave however must be obtained from the Tribunal before a review can be made.

   A person who is not a party to a reviewable determination but has sufficient interest in it may apply to review the reviewable determination.

2. 2. Enforcement Proceedings

   Applications to enforce commitment under part 4 of the CO and part 4 of the CTR fall under this category.

3. 3. Follow-On Actions

   These are proceedings by persons who have suffered loss or damage as a result of any act that has been determined to be a contravention of a conduct rule, against (a) any person who has contravened or is contravening the rule; and (b) any person who is, or has been, involved in that contravention.

4. 4. Transferred Proceedings

   These are cases commenced in the CFI that are within the jurisdiction of the Tribunal and are transferred to the Tribunal under sections 113(1) or 113(3) of the CO.

Commencement of Proceedings

All proceedings before the Tribunal must be commenced by filing an originating document in specified form in the Schedule to the CTR (“the Schedule”). A fee of HK$1,045 is payable upon filing an originating document.

The forms can be downloaded from the Tribunal website. Copies are also available at the Registry of the Tribunal (“the Registry”).

For further information on application to review a reviewable determination, please refer to the leaflet entitled Review of Reviewable Determination.

For further information on commencement of follow-on actions, please refer to the leaflet entitled Follow-on Action.

Interlocutory Application

All interlocutory applications to the Tribunal must be made by filing a summons in Form 2 in the Schedule unless otherwise provided in the CTR or the Tribunal otherwise directs. The form can be downloaded from the Tribunal website. Copies are also available at the Registry.

Interlocutory applications may be heard by the Registrar or a member of the Tribunal.

Case Summary

Upon filing the originating application in the following types of proceedings, the applicant or plaintiff is required to lodge a case summary of the proceedings with the Registrar

1. (a) application for a review of a reviewable determination under section 84(1) of the CO;
2. (b) application for the enforcement of a commitment under section 63 or for the enforcement of competition rules under sections 92(1), 94(1), 97(1) or 99(1) of the CO; and
3. (c) a follow-on action brought in the Tribunal under section 110(1) of the CO.

A party who has obtained an order for the transfer of proceedings in the CFI to the Tribunal is also required to lodge a case summary with the Registrar.

The case summary must state:

1. (a) the names of the parties;
2. (b) the nature of the application;
3. (c) the grounds of the application;
4. (d) the particulars of the relief sought; and

5. (e) if the application is made under section 84 of the CO

   1. (i) the determination to which the application relates; and
   2. (ii) the person by, and against, whom the application is made.

The Registrar will, based on the case summary, prepare and publish the notice of application or proceedings pursuant to rule 19 of the CO.

Intervention

The Commission or a person who has sufficient interest in the matters to which any proceedings relate may apply for leave to intervene in the proceedings.

An application to intervene must be made by filing an application in Form 3 in the Schedule. The form can be downloaded from the Tribunal website. Copies are also available at the Registry.

Confidential information

Application can be made for confidential treatment of information under rule 37 of the CTR. Please also refer to CTPD No.2.

However, whether particular information is to be regarded as confidential and to be accorded confidential treatment is a matter for the Tribunal to decide in the circumstances of the individual case.

Mediation

Mediation is a process through which a mediator will assist the parties to reach settlement for their disputes. Experience has shown that this is a cheaper, more effective and faster process for resolution of disputes.

Parties to follow-on actions are particularly encouraged to consider and, where appropriate, adopt alternative methods of dispute resolution, such as mediation.

Further information may be obtained from the Integrated Mediation Office of the Judiciary at Room 113, 1/F, Wanchai Tower, 12 Harbour Road, Wanchai, Hong Kong.

Legal Representation

A party can act in person or engage a lawyer to act on his behalf.

However, if a party is a body corporate and intends to be represented by one of its directors in the proceedings, leave from the Tribunal is required. For further details, please refer to section 1.7, Leaflet entitled Follow-on Action.

In an appropriate case, a party may be represented by any other person with the leave of the Tribunal.

Legal aid is not available to proceedings in the Tribunal.

Hearing in public

All proceedings before the Tribunal are open to the public unless the Tribunal otherwise directs.

Inspection of Competition Tribunal documents

A party is entitled to inspect and obtain a copy of the originating document filed and the judgment or order made by the Tribunal on payment of the prescribed fee. As to other documents, leave from the Tribunal must be obtained.

Subject to any order for confidential treatment, any other person may inspect and obtain a copy of the originating document filed and the judgment or order made by the Tribunal on payment of the prescribed fee. As to other documents, leave from the Tribunal must be obtained.

Please also refer to rules 55 and 56 of the CTR and paragraphs 8 to 10 of the CTPD No.2.

Appeal

Appeal against decision etc. of a member of the Tribunal

Subject to section 154(2) and section 155 of the CO, an appeal lies as of right to the Court of Appeal against any decision (including a decision as to the amount of any compensatory sanction or pecuniary penalty), determination or order of the Tribunal.

For interlocutory decision, determination or order (except those specified under rule 44 of the CTR where appeal lies as of right), leave to appeal is required by the Court of Appeal or the Tribunal. The leave application must be made to the Tribunal in the first instance within 14 days from the date of the decision, determination or order unless the Court of Appeal allows the application for leave to be made direct to the Court of Appeal under Order 59, rule 2BA(2) of the RHC.

Appeal against decision etc. of the Registrar

A party may appeal against any interlocutory decision, determination or order of the Registrar to a member of the Tribunal as of right. The appeal must be brought by filing a notice in Form 6 in the Schedule within 14 days after the day on which the interlocutory decision, determination or order is made. (The form can be downloaded from the Tribunal website and is also available at the Registry). A copy of the notice must be served on every other party within 5 days after the day on which the notice is filed.

An appeal lies to the Court of Appeal against any decision, determination or order (other than an interlocutory decision, determination or order) of the Registrar given or made—

1. (a) on the hearing or determination of any cause, matter, question or issue tried before the Registrar under Order 14, rule 6(2) and Order 36, rule 1 of the RHC;
2. (b) on an assessment of damages under Order 37 of the RHC or otherwise;
3. (c) on the hearing or determination of an application under Order 49B of the RHC: or
4. (d) on the hearing or determination of a disqualification application mentioned in rule 78(2)(b) or an application under rule 83 or 84.

Rules of evidence

In proceedings under the CO, other than proceedings in which an order for a pecuniary penalty or a financial penalty is being sought, the Tribunal is not bound by the rules of evidence and may receive and take into account any relevant evidence or information, whether or not it would be otherwise admissible in a court of law.

Use of Language

The Tribunal may use either or both of the official languages in any proceedings or part of any proceedings.

Execution of Judgment

If a party has obtained a judgment but the judgment debtor fails to obey the order, the judgment creditor may apply to the Tribunal to enforce the judgment. The bailiff will levy execution on the property of the defendant in order to recover judgment. For further details, please refer to the “Bailiff Section” booklet available from the Registry or the Bailiff Section.

Competition Tribunal Registry

Address: Room LG343, LG3, High Court Building, 38 Queensway, Hong Kong

Telephone: 2825 0426

Facsimile: 2487 5509

E-mail: enquiry@comptribunal.hk

Accounts Office

Address: LG2, High Court Building, 38 Queensway, Hong Kong

Telephone: 2825 4275

Facsimile: 2596 0512

No Legal Advice

In order to maintain the impartial role of the Judiciary, our staff members at the Registry or the Integrated Mediation Office will not provide any legal advice or offer any comment on the conduct or merits of specific cases and proceedings.

Please consult a lawyer or approach free legal advisory bodies for assistance if you require legal advice or assistance.

Business Hours

(Closed on Saturdays, Sundays and Public Holidays)

What are the arrangements of the Tribunal in case of bad weather?

Please refer to Typhoon and Rainstorm Warning Arrangements in the Tribunal website www.comptribunal.hk/ or radio/television announcements of the same.