Hong Kong publishes policy on commitments under the Competition Ordinance

Mohammed Talib of Pinsent Masons, the law firm behind Out-Law, said: “It is very encouraging to see that the Competition Commission has formalised its commitment policy. The use of commitments is an effective tool to ensure compliance with the Competition Ordinance in a way that is mutually beneficial. It allows businesses which have cooperated with the commission in good faith an effective way of drawing a line and moving on from any contravention of the Ordinance.”

“At the same time, it provides an effective and enforceable mechanism for the Competition Commission to protect the public interest. This is especially important in Hong Kong, where businesses are still familiarising themselves with the requirements of the Competition Ordinance and changing future behaviour is as important as policing past misconduct,” he said.

The commitments policy (20-page / 500KB PDF) lists the key steps in the commitment process including the commencement of the process by the Commission or the parties, consultation on a proposed commitment and issues following the acceptance of the commitment.

The policy also lists six factors which the Commission should take into account when deciding whether a commitment is appropriate. The factors include the seriousness of the behaviour and the case, the ability to settle competition issues, whether a commitment can be implemented and monitored effectively, timing considerations, and whether an involved party is offering a commitment in good faith.

Under the Competition Ordinance, the Commission can seek to address its concerns about a possible violation of the competition rules through remedies such as accepting commitments. The commission can also accept commitments from a party to stop or continue any investigation or proceedings going before the competition tribunal.

The policy also identifies that there are a range of remedies which the Commission can seek to address its concerns about possible violations of the competition rules. They include accepting commitments, issuing warning notices and bringing proceedings before the tribunal to seek appropriate orders and sanctions.