HKCOHong Kong Chinese Orchestra
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There were no important developments on this front under the sector-specific competition provisions of the Telecommunications Ordinance (187) or the Broadcasting Ordinance (188)--the only antitrust regulations that existed before the HKCO.
As is traditional in competition regimes, leniency applies only in the presence of cartel conduct that contravenes the HKCO's First Conduct Rule (FCR), (203) which is a prohibition of anticompetitive joint conduct that clearly echoes that of Article 101(1) of the TFEU.
Such practices are deemed "serious anti-competitive conduct" under the HKCO (208) and are contrary to the FCR.
In the introduction, it is made clear that the conditions of the Leniency Policy "[do] not apply to leniency agreements between the Commission and persons who are not undertakings"; yet, the HKCC may "exercise its enforcement discretion towards such persons." In addition, the benefit of leniency extends to current (and, under certain circumstances, even former) employees and officers of undertakings that are granted leniency, as long as they "provide complete, truthful and continuous cooperation with the Commission throughout its investigation and any ensuing proceedings." (213) This is important given that the HKCO contains not only corporate but also individual sanctions, including director disqualification.
(215) Compared to the corporate financial penalties that may be imposed in other jurisdictions, those provided for in the HKCO seem rather modest.
It develops the general confidentiality requirements of section 125 of the HKCO. According to the HKCC, the applicant is obliged to "keep confidential the fact of the investigation, its application for leniency...
Once the agreement is finalized, the grantee is obliged to "provide the Commission with all non-privileged information and evidence in respect of the cartel conduct without delay." (244) Any breach of the agreement could lead to the termination of the agreement on the part of the HKCC, which has the right to revoke leniency under section 81 of the HKCO. (245)
(248) Regimes that only contemplate limited financial penalties, such as the ones available under the HKCO, call into question the attractiveness of the "carrot." These low fines, coupled with the fact that, in young regimes, cartels tend to be entrenched in local culture (249) and that there is more fear of potential reprisal against those who report, (250) indicate that it may well take time and effort for leniency programs to bear fruit where there is no supplementary incentive of positive rewards.