The Private Competition Enforcement Review: Hong Kong

Overview of recent private antitrust litigation activity

Hong Kong is in the early stages of the implementation of its Competition Ordinance (the Ordinance),2 which came into full effect on 14 December 2015. The key prohibitions take the form of two 'conduct rules' modelled on European competition law: the First Conduct Rule (FCR) prohibits anticompetitive agreements and concerted practices, and the Second Conduct Rule prohibits abuses of substantial market power. Although the private enforcement of competition law remains relatively nascent, there has been a number of important developments in the first years of the new cross-sectoral regime.

The first two proceedings involving competition claims raised as a defence in civil actions between private parties proceeded to trial in the summer of 2021. Judgments were handed down in October 2021.3 Although the Competition Tribunal (the Tribunal) rejected the allegation of a contravention of the FCR, the case provides useful insight and guidance on the availability of competition claims in private actions, as discussed below.

General introduction to the legislative framework for private antitrust enforcement

i The Ordinance

The competition regime in Hong Kong adopts a judicial model. The Tribunal is a specialist court within the Court of First Instance (CFI) of Hong Kong, set up to hear and determine cases under the Ordinance. It has a wide range of powers to impose sanctions and remedies for infringements.4

Under the Ordinance, proceedings that relate purely to a contravention of a conduct rule (including follow-on actions) may only be brought in the Tribunal.5 In contrast, composite claims involving both competition claims and non-competition claims may be brought before either the CFI or the Tribunal. If proceedings are commenced in the CFI, the CFI must transfer to the Tribunal 'so much of the proceedings that are within the jurisdiction of the Tribunal', subject to limited exceptions.6 Any part of the proceedings commenced in the Tribunal that are within the jurisdiction of the CFI shall correspondingly be transferred to the CFI.7

To prevent forum shopping, Section 115 of the Ordinance provides that proceedings transferred to the CFI from the Tribunal under Section 114 cannot be transferred back to the Tribunal by the CFI.

ii Private enforcement of competition law

Overview

Private competition actions are governed by Part 7 of the Ordinance.

Under Part 7, Sections 108 to 110 specify the key provisions governing the bringing of private actions involving competition claims.

Section 108 provides that no person may bring any proceedings independently of the Ordinance in any court of Hong Kong if: (1) the cause of action is the defendant's contravention, or involvement in the contravention, of a conduct rule; or (2) the proceedings are founded on more than one cause of action, any of which are the defendant's contravention, or involvement in the contravention, of a conduct rule.

Pursuant to Section 109, no person may bring any proceedings in the CFI under Part 7 if the cause of action is only the defendant's contravention, or involvement in the contravention, of a conduct rule.

Section 110 makes provision for follow-on right of action by providing, inter alia:

A person who has suffered loss or damage as a result of any act that has been determined to be a contravention of a conduct rule has a right of action under this section 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.

Stand-alone private actions

The original Competition Bill, which the Ordinance superseded, provided for an express stand-alone private right of action. However, during the Ordinance's legislative process, this provision was removed, mainly due to concerns expressed by small and medium-sized enterprises that larger companies could resort to or threaten private litigation as a means to drive out or affect the business of smaller competitors.8 The clear legislative intent, as was repeated in the legislative papers, was that (1) no stand-alone private action would be allowed and there should be no 'back-door' for such an action and (2) private claims for loss or damage as a result of a contravention of a conduct rule cannot be brought other than by way of a follow-on action.9

This legislative intent was achieved by removing the original provision for stand-alone rights of action. The general view is that the remaining provisions, namely Sections 108–110, make it clear that there can be no stand-alone private actions. In other words, a private litigant's right of action for loss or damage arises only after an act has been determined to be a contravention of a conduct rule; this finding is binding in any follow-on actions.10

The learned authors of Butterworths Hong Kong Competition Law Handbook (Butterworths Handbook) have, however, argued that the wording of Sections 94, 95, 108 and 142 of the Ordinance suggest that private parties do have rights to bring stand-alone actions and that it is only when those provisions are read in the light of the legislative history that they can be interpreted as barring stand-alone private actions.11

In Taching v. Meyer,12 the defendant, Meyer, tried to apply a similar argument relying on the views expressed in Butterworths Handbook. The Tribunal, however, rejected the argument and held that stand-alone private actions are not allowed under the current competition regime in Hong Kong (Sections 210–219). This was further confirmed by the Court of Appeal (CA) on Meyer's appeal against the Tribunal's decision.13

It should, therefore, be settled that no stand-alone private actions are allowed under the current competition regime in Hong Kong.

Competition claim as a defence in private actions

The bar against stand-alone private actions does not, however, prevent a party from raising allegations based on contravention of the conduct rules as a defence in a private action in the CFI.14 In Taching v. Meyer, Taching sued Meyer for the outstanding payment of industrial diesel sold and delivered. When Taching applied for summary judgment, Meyer raised as its sole defence the allegation that Taching and Shell (Meyer's other supplier) engaged in price collusion in contravention of the FCR.

The matter came before G Lam J (as the Justice of Appeal then was). Having found that, if Meyer's allegation of price collusion was established, there would be a triable issue in relation to whether Meyer had a defence of illegality, the court granted conditional leave to Meyer to defend the action and transferred the allegation of contravention of the FCR to the Tribunal.15

Notably, in addition to the illegality defence, Meyer also sought to rely on the defence of set-off against Taching's claim. As G Lam J observed in his decision on Taching's summary judgment application, the defence of set-off is premised on a finding of a contravention of the FCR. It is doubtful whether Meyer had a cause of action for damages under the Ordinance other than that enforceable by a follow-on action conferred by Section 110. Insofar as follow-on actions are concerned, the learned judge expressed the obiter view that the bar against stand-alone actions would also apply in the context of a defence in an action raising a contravention of a conduct rule.16

The issue subsequently came before the CA when Meyer appealed against the Tribunal's decision refusing leave for Meyer to adduce expert evidence on damages and quantum. The CA dismissed the appeal primarily on the grounds that Meyer's application was made in the wrong forum. In the context of a defence raising a contravention of a conduct rule, the proceedings in the Tribunal did not have a life of their own. The scope of the alleged collusion must be circumscribed by the defences filed in the High Court actions. Given that the court only transferred the allegation of a contravention of the FCR to the Tribunal, the Tribunal only had jurisdiction to determine whether that contravention took place. Whether the contravention, if established, could constitute a defence of set-off and if so, the quantum of such set-off, remained issues to be determined in the High Court actions by the CFI. As such, Meyer ought to have made the application for leave to adduce expert evidence in the High Court actions, rather than in the proceedings before the Tribunal.17

Having said that, the CA expressed the view that, when deciding whether the defence of set-off is available, the CFI has to consider the following issues:

  1. as there is no express provision for conferring private right other than follow-on action, whether a contravention of the conduct rule under the Ordinance can give rise to cross-claims by Meyer against Taching and Shell on the basis of common law principles concerning breach of statutory duty;
  2. whether there is an implied abrogation by the Ordinance of the common law cause of action by way of cross-claim as a defence;
  3. if a cross-claim for contravention of the conduct rule is sustainable in law, whether the common law criteria for equitable set-off can be satisfied in accordance with the test in Geldof Metaalconstructie NV v. Simon Carves Ltd;18 and
  4. the damages suffered by Meyer as a result of the contravention and the quantum thereof.19

At the trial of the matter, the Tribunal found that Meyer's allegation of price collusion was not established. As such, there was no need to consider whether the defence of illegality or set-off would have been available had the alleged contravention been proven.20 The above-mentioned issues therefore remain open and will have to be determined in an appropriate case in the future.

Common law claim where contravention of a conduct rule is not pleaded as a cause of action

The other exception to the bar against stand-alone private actions is where, even though the facts of the claim may support a finding of a contravention of a conduct rule, the contravention is not pleaded as a cause of action in the claim. It has been suggested that such a claim is not barred by Section 108.21

The Bills Committee on the Competition Bill referred to the following as an example of such a claim: if a claim by a private party against two or more defendants for their commission of conspiracy to injure is based on a set of facts that may support a finding of contravention of a conduct rule, but the contravention is not pleaded in the claim, Section 108 will not require the claim to be brought under the Ordinance. However, if it is pleaded in the claim that tortious liability has arisen because the defendants have conspired to act in contravention of a conduct rule, and this has resulted in loss to the plaintiff, Section 108 will require the action to be commenced pursuant to the Ordinance (i.e., by way of a follow-on action under Section 110).22

In Competition Commission v. Fungs E&M Engineering Co Ltd,23 the Competition Commission commenced enforcement proceedings against the respondents for contravention of the FCR, alleging allocation arrangement and price coordination in the provision of renovation services in a public housing estate.24

The first respondent sought, inter alia, to join a third party as a respondent. The first respondent claimed that it had an agreement with the third party that, inter alia, the latter would undertake the decoration works and that it would not engage in any price-fixing arrangement with other contractors.25

One of the reasons advanced for the joinder application was that the first respondent intended to seek contribution or indemnity, or both, from the third party, which should therefore be joined and bound by the Tribunal's judgment to avoid multiplicity of proceedings thereafter. It was argued that, otherwise, the first respondent would be left without redress against the third party.26

The Commission opposed the application and contended, inter alia, that the first respondent would not be left without recourse because the respondent could commence a common law action against the third party provided that contravention of the FCR was not pleaded as a cause of action.27

In particular, the Commission suggested, by way of example, that the first respondent could have a contract claim against the third party for breach of their agreement and seek a declaration that it was entitled to be indemnified by the third party. If the third party raises a defence that involves competition issues, the defence can be transferred to the Tribunal under Section 113.28

The Tribunal was not satisfied with this suggestion and made it clear that the phrase 'cause of action' 'denotes every material fact which R1 must prove to obtain from the Tribunal a remedy against another person'. To allege breach of the agreement, arguably, a material fact that the first respondent may have to plead is the third party's contravention of the FCR that gave rise to damage to the first respondent.29

Accordingly, the Tribunal found that the effects of Sections 108–111, 119(2) and 142 were arguably such that the first respondent would not have a cause of action for breach of the alleged agreement at common law unless a breach of the FCR is pleaded. That would be in the nature of a private action involving competition issues, which is not permitted under Section 108 of the Ordinance.30

Follow-on actions

A private party that has suffered loss or damage as a result of a contravention of a conduct rule can bring a follow-on action against the infringing party based on: (1) a determination by the Tribunal, the CFI or the higher courts that a conduct rule has been contravened; or (2) an admission of a contravention in a commitment.31

A follow-on action must be commenced within a period of three years from the date of the relevant decision by the Tribunal or from the disposal of an appeal or final appeal from the decision.32 (See Section X for more information on follow-on actions.)

Extraterritoriality

The conduct rules contained in the Ordinance have extraterritorial application to the extent that the anticompetitive conduct has the object or effect of preventing, restricting or distorting competition in Hong Kong.33

For private actions, if the intended defendant is located outside Hong Kong, the plaintiff must seek leave from the Tribunal to effect service of the originating process on the defendant outside the jurisdiction. Leave may be granted if each claim to which the originating notice relates falls within the jurisdiction of the Tribunal.34 As such, the usual requirement that the claim must fall within one or more of the gateways under Order 11, Rule 1(1) of the Rules of the High Court35 (RHC) does not apply.36

Subject to the above, the procedure for seeking leave to serve outside the jurisdiction under Order 11 applies to competition claims.37 The requirement that the case should be a proper one for service out of the jurisdiction under Order 11, Rule 4(2) of the RHC therefore continues to apply.38 In determining this issue, the Tribunal will apply the doctrine of forum conveniens.39

Standing

A follow-on action may be brought by a person who has suffered loss or damage as a result of any act that has been determined to be a contravention of a conduct rule.40 It remains to be seen whether this includes a person who suffered loss or damage as an indirect result of anticompetitive conduct.

The process of discovery

There is no automatic discovery in proceedings before the Tribunal. Parties may instead apply for general directions on discovery or apply for discovery of specific documents.41 The Tribunal, however, has indicated that it would manage discovery issues proactively.42 The Tribunal may make or refuse to make an order for discovery and production of a document having regard to all the circumstances of the case, including:

  1. the need to secure the furtherance of the purposes of the Ordinance as a whole;
  2. whether the information contained in the document sought to be discovered or produced is confidential;
  3. the balance between the interests of the parties and other persons; and
  4. the extent to which the document sought to be discovered or produced is necessary for the fair disposal of the proceedings.43

The Tribunal has power to order a protocol for a confidentiality ring to be set up, so that only members of the confidentiality ring can have access to the documents disclosed in the proceedings, unless otherwise agreed by the parties or permitted by the Tribunal. In Taching v. Meyer,44 the Tribunal summarised the principles on whether the confidentiality ring should be ordered at Sections 10–36. In that case, the Tribunal gave direction for a confidentiality ring to be set up, while making clear that the decision was merely a procedural one and would not affect the confidentiality of any specific document. The parties had liberty to apply for or contest the confidentiality treatment of a specific document if necessary.

Use of experts

The Tribunal may give leave, as in any civil case, to adduce expert evidence.45 The test for granting leave is whether the expert was relevant and necessary for the just resolution of the dispute.46

The Tribunal has emphasised that active and robust case management will form a central element of its procedures. The giving of expert directions is very much a matter of case management.47

Applying the aforesaid principles, in the case of Taching v. Meyer, the Tribunal excluded the expert evidence at trial, after having heard the evidence of the factual witnesses. In so holding, the Tribunal considered the expert reports filed by the parties and the nature of the parties' respective cases and found that the expert evidence was irrelevant to the core issues in the case. As such, the Tribunal exercised its case management discretion and excluded the expert evidence.48

Class actions

There is currently no class action regime in Hong Kong. The only avenue for multiparty proceedings is that of representative proceedings by or against a representative plaintiff or defendant on behalf of persons who share the same interest. The judgment in these proceedings is binding on all persons represented by the representative plaintiff or defendant, although it shall not be enforced against any person who was not a party to the proceedings except with the court's permission.49

For the representative action regime to be engaged, it is necessary to show that the intended class of persons to be represented have the 'same interest' in the proceedings. This requires that: (1) all the members of the intended class should have a common interest; (2) all members should have a common grievance; and (3) the relief should be, in its nature, beneficial to all. The fact that there may be a potential conflict of interest among the persons sought to be represented would mean that it is inappropriate to engage the representative proceeding regime.50

There is no suggestion in the Ordinance or the Competition Tribunal Rules (CTR) that the representative proceedings regime should not apply to competition claims. As such, pursuant to Rule 4 of the CTR, the representative proceedings regime should apply with any necessary modifications to follow-on actions under the Ordinance. At the time of writing, no attempt has been made to bring representative proceedings in the competition context in Hong Kong. It remains to be seen how the Tribunal will approach an application to commence a follow-on action by way of representative proceedings.

In May 2012, the Law Reform Commission of Hong Kong published a report on class actions recommending the phased introduction of a class action regime in Hong Kong (the LRC Report). Competition cases were among the 16 types of cases that the LRC Report identified as potentially suitable for class actions. In response to the LRC Report, the Department of Justice set up a Working Group on Class Actions (the Working Group) to study and consider the details of the proposed regime. On 31 December 2020, the Working Group announced its intention to commission a consultancy study on the economic and other related impacts on Hong Kong if a class action regime were to be introduced.51

It therefore remains to be seen whether, and if so, when, a class action regime will be introduced and whether it would cover follow-on actions in the competition context.

Calculating damages

There is no statutory limit on the level of damages that may be awarded in a follow-on action. The Tribunal may make an order requiring the defendant, inter alia, to: (1) take steps to restore the parties to any transaction to the position in which they were before the transaction was entered into; or (2) pay damages to any person who has suffered loss or damage as a result of the contravention.52 These provisions suggest a measure of damages similar to that for tort-based compensatory damages or restitutionary damages. It remains to be seen how the Tribunal would approach the issue of quantum when a follow-on action comes before it.

Under the civil procedure regime in Hong Kong, legal fees would be claimed as part of the costs of the proceedings. The issue of costs is at the discretion of the Tribunal but the general rule is that costs should follow the event, meaning that the losing party should pay the costs of the winning party.53

The Tribunal may order indemnity costs in appropriate circumstances. In that respect, the Tribunal can take into account the conduct of the losing party. The court's discretion in this regard is broad; inter alia, this order may be granted where the proceedings:

  1. are scandalous or vexatious;
  2. have been conducted maliciously, for an ulterior motive or in an oppressive or disproportionate manner; or
  3. involve an obviously unsustainable or fabricated claim.54

Pass-on defences

At the time of writing, the issue of pass-on defence is yet to be raised and considered in an appropriate follow-on action. It remains to be seen whether the pass-on defence will be available in Hong Kong.

Follow-on litigation

A private party that has suffered loss or damage as a result of a contravention of a conduct rule can bring a follow-on action against the infringing party based on: (1) a determination by the Tribunal, the CFI or the higher courts that a conduct rule has been contravened; or (2) an admission of a contravention in a commitment.55

A follow-on action must be commenced within a period of three years from the date of the relevant decision by the Tribunal or from the disposal of an appeal or final appeal from the decision.56

In a follow-on action, the Tribunal may make any one or more of the orders specified in Schedule 3 of the Ordinance,57 which include:

  1. orders restraining or prohibiting a person from engaging in any conduct that constitutes the contravention or the person's involvement in the contravention;
  2. orders requiring a person who has contravened a competition rule or been involved in the contravention to perform any act, including the taking of steps for the purpose of restoring the parties to any transaction to the position in which they were before the transaction was entered into;
  3. orders restraining or prohibiting a person from acquiring, disposing of or otherwise dealing with any property specified in the order;
  4. orders declaring any agreement (the making or giving effect to which constitutes the contravention of the competition rules) to be void or voidable to the extent specified in the order; and
  5. orders requiring a person to pay damages to any person who has suffered loss or damage as a result of the contravention.

A follow-on action may be commenced in the Tribunal by the filing of an originating notice of claim coupled with a statement of claim.58 The originating notice should set out the nature of the claim and the relief or remedy sought, as well as the estimated amount of damages claimed.59 The statement of claim must set out with full particulars the loss and damage suffered under each head of loss and the respective amounts of damages claimed as well as the aggregate amount included.60

At the time of writing, Hong Kong is yet to see a follow-on action pursuant to Section 110 of the Ordinance.

Privileges

Legal privilege is a constitutionally protected right in Hong Kong.61 In general, documents protected by legal privilege (including legal advice privilege and litigation privilege) will not be disclosable in legal proceedings, including proceedings before the Tribunal.

Hong Kong law recognises the concept of limited waiver. Thus, confidentiality of the documents may be preserved where the documents are provided to the authority (such as the Competition Commission) under a limited waiver, although the terms of the limited waiver should make it clear that the disclosure is only for inspection by specified personnel of the authority for specified purposes, on the strict understanding that those personnel would not use the knowledge acquired in the process for other purposes. In these cases, the person providing the documents may continue to claim privilege against third parties where the purpose of the disclosure is outside the limited waiver.62

Settlement procedures

Private claims can be settled both before and after legal proceedings are commenced.

Before the commencement of legal proceedings, the party intending to bring a claim may issue a demand letter setting out the intended claim and requesting the intended defendant to comply with the demand by a certain date. Parties to follow-on actions are particularly encouraged to explore settlement before commencing a follow-on action.63

After the commencement of legal proceedings, a party that wishes to settle the dispute may make a settlement offer to the other side. There are generally four types of settlement offers.

i Sanctioned offer or payment

Sanctioned offers or payments are made pursuant to the procedure under Order 22 of the RHC and are treated as 'without prejudice save as to costs' (i.e., they cannot be disclosed to the court until all questions of liability and the amount of money to be awarded have been decided).64 A sanctioned offer or payment may not be withdrawn or diminished before the expiry of 28 days from the date it is made except with the leave of the Tribunal.65 In other words, a sanctioned offer or payment should generally stay open for at least 28 days. If the sanctioned offer or payment relates to the whole of a claim and is accepted, the claim is stayed.66 If the sanctioned offer or payment only relates to part of the claim or an issue arising from the claim, the claim is stayed as to that part or issue.67 If the sanctioned offer or payment is not accepted, and the offerer 'beats' the offer (i.e., the outcome of the trial was more advantageous to the offerer than the proposal in his or her offer), the offeree may be liable for enhanced interest (up to 10 per cent above the judgment rate) or the offerer's costs on an indemnity basis, or both.68

ii Calderbank offer

Calderbank offers are also made on a 'without prejudice save as to costs' basis. They are protected by without prejudice privilege and are inadmissible until the final determination of the dispute. Thereafter, in taxation proceedings, the offer is admissible and can be taken into account at the discretion of the Taxing Master. Since the introduction of the sanctioned offer or payment regime in Hong Kong, however, the role of Calderbank offers has been relatively limited. The Tribunal may refuse to take any Calderbank offer into account, 'if, at the time it is made, the party making it could have protected his positions as to costs by means of a sanctioned payment or a sanctioned offer'.69

iii Open offer

Open offers are not protected by the without prejudice privilege and are admissible in evidence. As such, they are rarely used in practice. However, the CA has confirmed that an open offer can be made as an alternative to a Calderbank offer and can be taken into account by the court or the Tribunal in determining the appropriate costs award.70

iv Without prejudice offer

Without prejudice offers are inadmissible, even on issues of costs, and hence do not offer the protection over costs under (1) a sanctioned offer or sanctioned payment or (2) a Calderbank offer. They are still commonly used, especially in mediation where parties try to engage in settlement discussions on a without prejudice basis.

Arbitration

As at the time of writing, there have been no Hong Kong decisions on the arbitrability of a competition claim. There is, however, strong international jurisprudence in support of the view that competition issues are arbitrable.71 This is also supported by the Report of the Bills Committee on Arbitration (Amendment) Bill 2016, in which the Hong Kong government took the position that an arbitrator may, in the course of an arbitration, take competition law into consideration as part of the substantive law to be applied in determining the dispute.72

Where the applicable law is Hong Kong competition law, however, the position is more nuanced. As discussed in Section II, the competition regime in Hong Kong does not allow stand-alone private actions based on competition claims; a follow-on action can only be brought in the Tribunal pursuant to Section 110 of the Ordinance. As such, a claim for loss or damage based on the contravention of a conduct rule would not be arbitrable in Hong Kong.

On the other hand, where the claim is based on facts that may involve the contravention of a conduct rule, but does not rely on the contravention as a cause of action, the claim may be arbitrable (see Section II).

Mediation

In Competition Tribunal Practice Direction No. 1, the Tribunal expressly encourages parties to consider and, where appropriate, adopt alternative methods of dispute resolution, such as mediation.73 In follow-on actions, the Tribunal has adopted the practice as stated in Practice Direction 31 (Mediation) of the High Court (PD 31) such that, in particular, where all the parties are legally represented, solicitors acting respectively for the parties shall file a mediation certificate with the Tribunal at the same time as the timetabling questionnaire for the hearing of the case management summons.74

In exercising its discretion on costs, the Tribunal may take into account any unreasonable failure of a party to engage in mediation where this can be established by admissible material.75

The mediation process is protected by without prejudice privilege. The information exchanged and the discussion during mediation cannot be admissible. This has been reinforced by Section 6 of PD 31and Section 8 of the Mediation Ordinance.76

Indemnification and contribution

Under the general civil procedure rules in Hong Kong, a defendant's claim for indemnification or contribution against a third party is governed by Order 16 of the RHC. Where a defendant claims any contribution or indemnity against a person who is already a party to the action, he or she may issue and serve them with a contribution notice stating his or her claim to that effect.77 Where a defendant wishes to claim contribution or indemnity against a person who is not already a party to the action, he or she may do so by issuing and serving a third-party notice.78 A defendant may not issue a third-party notice without the leave of the court unless the action was begun by writ and he or she issues the third-party notice before serving his or her defence on the plaintiff.79

In proceedings before the Tribunal, a party may not issue a third-party notice or a contribution notice without the leave of the Tribunal.80 As mentioned above, the Tribunal has considered the issue of joinder of third parties in the context of enforcement proceedings in Fungs E&M Engineering. It remains to be seen, however, how the Tribunal will approach the issue of contribution or third-party notice in follow-on actions.

Future developments and outlook

According to the 2011 Bills Committee report on the Competition Bill, the Hong Kong government will conduct a review of the 'operational experience and effectiveness' of the Ordinance within a few years of implementation. In particular, the government has expressly indicated that stand-alone rights of action may be introduced to the Hong Kong competition regime as the business community acquires more experience with, and understanding of, the competition regime. It remains to be seen what (if any) changes will be introduced to the area of private enforcement of competition law in the coming years.

Footnotes

1 Catrina Lam and Cherry Xu are barristers at Des Voeux Chambers.

2 Cap 619.

3 Taching Petroleum Company Limited v. Meyer Aluminium Limited (Taching v. Meyer) [2021] HKCT 2; Taching v. Meyer [2021] HKCFI 3028.

4 Sections 134–135, 142–143, the Ordinance.

5 id., Section 119.

6 id., Section 113.

7 id., Section 114.

8 Report of the Bills Committee on Competition Bill (Ref: CB1/BC/12/09), LC Paper No. CB(1)1919/11-12, Paragraphs 75–77.

9 Bills Committee Report dated 23 May 2012 (LC Paper No. CB(1)1919/11-12), Paragraphs 75–77, 151–155; Bills Committee Paper, March 2012 (CB(1)1450/11-12(03)), Paragraphs 4–5 and Annex A; Bills Committee Response, April 2012 (CB(1)1573/11-12(02)), Paragraphs 2–5; Bills Committee Paper, May 2012 (CB(1)1770/11-12(03)), Annex A, pp. 2–6.

10 Section 119(2), the Ordinance.

11 Butterworths Hong Kong Competition Law Handbook, Second edition (LexisNexis, 2020), Paragraph 108.03.

12 [2020] HKCT 2.

13 Taching v. Meyer, [2021] HKCA 294, Paragraphs 22–25.

14 Section 142(1)(d), the Ordinance.

15 Taching v. Meyer [2018] HKCFI 1074, Paragraphs 1, 37–38, 44–45.

16 id., Paragraphs 39–41.

17 Taching v. Meyer [2021] HKCA 294, Paragraphs 8, 26–31, 56.

18 [2010] EWCV Civ 667; [2010] 4 All ER 847.

19 Taching v. Meyer [2021] HKCA 294, Paragraph 58.

20 Taching v. Meyer [2021] HKCFI 3028, Paragraphs 8–15.

21 Butterworths Handbook (footnote 11), Paragraph 108.02, citing Report of the Bills Committee on Competition Bill of 23 May 2012, Paragraphs 154, 155.

22 Bills Committee on Competition Bill, Responses to outstanding issues arising from previous meetings, for discussion on 17 April 2012, CB(1)1573/11-12(02), Paragraph 5.

23 [2020] HKCT 4.

24 id., Paragraph 1.

25 id., Paragraph 3.

26 id., Paragraph 7.

27 id., Paragraphs 8, 53.

28 id., Paragraph 54.

29 id., Paragraph 56.

30 id., Paragraph 57.

31 Section 110, the Ordinance.

32 id., Section 111.

33 Sections 8 and 23, the Ordinance.

34 Rule 16, Competition Tribunal Rules (Cap 619D) (CTR).

35 Cap 4A.

36 Paragraph 11/1/23, Hong Kong Civil Procedure (2022) (HKCP).

37 Rule 16(3), CTR.

38 Paragraph 11/1/23, HKCP.

39 id., Paragraph 11/4/21.

40 Section 110, the Ordinance.

41 Rule 24, CTR.

42 Section 58, Competition Tribunal Practice Direction No. 1 (CTPD 1).

43 Rule 24(3), CTR.

44 [2019] HKCT 1.

45 Order 38, Rule 6, Rules of the High Court (RHC); Section 25(i), CTPD 1.

46 Taching v. Meyer [2020] HKCA 1005, Section 13; Shenzhen Futaihong Precision Industry Co Ltd v. BYD Co Ltd [2018] HKCA 408, Paragraphs 3–13.

47 Section 9, CTPD 1; Taching v. Meyer [2021] HKCT 2, Paragraphs 113–114.

48 Taching v. Meyer [2021] HKCT 2, Paragraphs 112–133.

49 Order 15, Rule 12, RHC.

50 Paragraph 15/12/2, HKCP; Calm Ocean Shiping SA v. Win Goal Trading Ltd [2020] HKCFI 801, at Paragraph 34.

52 Section 112 and Schedule 3, Section 1(c) and (k), the Ordinance.

53 Order 62, Rule 3(2), RHC.

54 Taching v. Meyer [2021] HKCT 2, Paragraph 222.

55 Section 110, the Ordinance.

56 id., Section 111.

57 id., Section 112.

58 Paragraph 95, CTPD 1; Rule 93, CTR.

59 Paragraphs 96–97, CTPD 1.

60 id., Paragraph 99.

61 Article 35, Basic Law of Hong Kong.

62 Citic Pacific Ltd v. Secretary for Justice & Anor [2016] 1 HKC 157, Paragraph 75; Secretary for Justice v. Florence Tsaing Chiu Wing (2014) 17 HKCFAR 739, Paragraphs 25–34.

63 The Judiciary, Guide to proceedings in the Competition Tribunal: Follow-on action (December 2015), Paragraph 1.3.

64 Order 22, Rule 25, RHC.

65 id., Rule 10.

66 id., Rule 22(1).

67 id., Rule 22(3).

68 id., Rules 23–24.

69 Order 65, Rule 5(1)(d), RHC; Ming An Insurance Co (HK) Ltd v. Ritz-Carlton Ltd (No.2) (2009) 12 HKCFAR 745.

70 Montrio Ltd v. Tse Ping Shun David [2012] 2 HKC 392, upheld by the Court of Appeal in [2013] 4 HKC 505, Paragraphs 68–69.

71 See, for example, Mitsubishi Motors Corp v. Soler Chrysler-Plymouth Inc (1984) 473 US 614, 105 S Ct 3346 (1985); C-126/97 Eco Swiss China Time Ltd v. Benetton International NV [1999] ECR I-3055, [2000] ECML 816; G SA v. V SpA and Arbitration Tribunal [1996] ECC 1 (28 April 1992); Eurotunnel Plus SA v. Welter [2006] 1 Lloyd's Rep 251; Microsoft Mobile OY (Ltd) v. Sony Europe Ltd [2017] EWHC 374 (Ch).

72 Paragraph 56, Legislative Council Paper No. CB(4)1160/16-17.

73 Paragraph 107, CTPD 1.

74 id., Paragraph 108.

75 Paragraph 4, Practice Direction 31 (Mediation) of the High Court.

76 Cap 620.

77 Order 16, Rule 8(1)(a), RHC.

78 id., Rule 1(1)(a).

79 id., Rule 1(2).

80 Rule 23(1), CTR.

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