Merger control in Hong Kong: overview

A Q&A guide to merger control in Hong Kong.

The Q&A gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in Hong Kong. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.

For information on restraints of trade, monopolies and abuses of market power in Hong Kong, visit Restraints of trade and dominance in Hong Kong: overview.

This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-guide. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-guide.

For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-guide.

Contents

Regulatory framework

1. What (if any) merger control rules apply to mergers and acquisitions in your jurisdiction? What is the regulatory authority?

Regulatory framework

The Competition Ordinance was implemented in full on 14 December 2015. The Ordinance, which was originally passed on 14 June 2012, introduces a cross-sector competition law regime in Hong Kong.

Currently, only the telecommunications sector is subject to merger control in Hong Kong. As of 14 December 2015, the applicable merger control rules are contained in Schedule 7 of the Competition Ordinance. Under the Merger Rule, "an undertaking must not, directly or indirectly, carry out a merger that has, or is likely to have, the effect of substantially lessening competition in Hong Kong" (section 3(1), Schedule 7, Competition Ordinance).

The merger control rules were formerly contained in section 7P of the Telecommunications Ordinance, but this provision (together with other competition-related provisions) has been repealed by the Competition Ordinance. On 27 July 2015, the Competition Commission and the Communications Authority (CA) jointly issued a Guideline on how the authorities propose interpreting and giving effect to the merger rule (Guideline on the Merger Rule).

Under the Competition Ordinance, the CA and the Competition Commission will exercise concurrent jurisdiction in relation to mergers in the telecommunications sector, and to competition law infringements in the telecommunications and broadcasting sectors. On 14 December 2015, the Commission and the CA signed a memorandum of understanding regarding the sharing of this jurisdiction.

Regulatory authority

Before the implementation of the Competition Ordinance, the CA conducted merger investigations under the Telecommunications Ordinance. The CA's opinion, direction and decisions were subject to appeal to the Telecommunications (Competition Provisions) Appeal Board.

From 14 December 2015, the CA and the Competition Commission have concurrent jurisdiction in relation to:

  • The regulation of mergers involving an undertaking that directly or indirectly holds or controls a "carrier licence" within the meaning of the Telecommunications Ordinance.

  • Potential competition law infringements in the telecommunications and broadcasting sectors.

References to the Commission in the Ordinance and in this chapter must be read as including the CA for these sectors. The newly set up Competition Tribunal, comprising judges of the Hong Kong's Court of First Instance, will act as the adjudicative body for a number of applications, including applications by the Commission on alleged contraventions of the merger rule.

See box, The regulatory authorities.

 

Triggering events/thresholds

2. What are the relevant jurisdictional triggering events/thresholds?

Triggering events

Currently, the Competition Ordinance only applies to mergers involving carrier licensees in the telecommunications sector (that is, persons licensed to establish or maintain telecommunications networks under the Telecommunications Ordinance) (see Question 1, Regulatory framework).

Under the Competition Ordinance, a merger takes place if:

  • Two or more undertakings previously independent of each other cease to be independent of each other (one or more undertakings must hold or control a carrier licence).

  • One or more persons or undertakings acquire direct or indirect control of the whole or part of one or more other undertaking (one or more undertakings must hold or control a carrier licence). This includes the creation of a joint venture to perform, on a lasting basis, all the functions of an autonomous economic entity.

  • An asset (including goodwill) is acquired, leading to the acquiring undertaking replacing or substantially replacing the target in the business in which the target was engaged immediately before the acquisition (one or more undertakings must hold or control a carrier licence, and the relevant business conducted by the acquired undertaking immediately before the acquisition must have been conducted under a carrier licence).

    The regulator must commence an investigation of a merger within 30 days after it first became aware, or should have become aware, that the merger has taken place.

    Thresholds

    The Competition Ordinance does not specify any numeric filing thresholds, but mergers that substantially lessen competition in Hong Kong are prohibited (see Question 7, on factors to be considered when determining whether there is a substantial lessening of competition). This test is similar to the earlier regime under the Telecommunications Ordinance, but the thresholds that were previously used to identify when a change in relation to a carrier licensee occurred have been replaced by a control test similar to that set out under Council Regulation (EC) 139/2004 on the control of concentrations between undertakings.

    The Competition Commission has identified two indicative safe harbour measures at sections 3.13 to 3.20 of the Guideline on the Merger Rule. The first involves a test based on a four-firm concentration ratio, and the second is based on the Herfindahl-Hirschman Index. The Commission has stated that, generally, a horizontal merger where the post-merger combined market share of the parties to the transaction is 40% or more is likely to raise competition concerns.

     

    Notification

    3. What are the notification requirements for mergers?

    Mandatory or voluntary

    Formal notification involves applying for a decision that the merger is excluded from the merger rule. Notification is voluntary.

    Licensees should note that their licence conditions may impose an obligation to inform the Communications Authority (CA) of changes in ownership/control before implementing the change.

    Timing

    The Competition Ordinance does not specify any filing deadline. However, as a merger can be subject to investigation by the Competition Commission, and proceedings in the Competition Tribunal (which has the power to effectively unwind a completed merger or stop the merger process in the case of an anticipated merger), the Guideline on the Merger Rule encourages and advises parties to contact the regulator at an early stage to discuss a proposed merger that falls within the merger rule.

    Pre-notification formal/informal guidance

    Informal guidance. The Competition Commission has stated that it is prepared to provide non-binding and confidential informal advice to parties (paragraphs 5.4 to 5.8, Guideline on the Merger Rule). Advice provided under this procedure is confidential.

    If the Commission considers that the proposed merger is likely give rise to concerns under the merger rule, the parties can assess whether:

    • Appropriate commitments can be offered to the Commission in return for the Commission not taking enforcement action (section 60, Competition Ordinance).

    • An application for a decision from the Commission that the merger is excluded from the merger rule can be justified (see below).

    Formal guidance. Undertakings can apply to the Competition Commission for a decision that the merger is excluded from the merger rule (Part 5, Schedule 7, Competition Ordinance). The application must be made using Form M (see below, Form of notification) and the procedure involves a public 30-day consultation. The application can be made on the basis that either the:

    • Economic efficiencies of the merger outweigh the adverse effects caused by any lessening of competition (paragraphs 4.2 to 4.11, Guideline on the Merger Rule).

    • Statutory bodies or specified persons/activities exclusions apply (sections 3 and 4, Competition Ordinance).

    However, the Competition Commission is only required to consider an application if it meets all the following requirements:

    • The application poses novel or unresolved questions of wider importance or public interest.

    • The application raises a question of any exclusion under the Competition Ordinance for which there is no clarification in existing case law or decisions of the Competition Commission.

    • It is possible to make a decision on the basis of the information provided.

    Responsibility for notification

    The undertaking that has carried out, is carrying out, or proposes to carry out the merger can make an application that the merger be excluded.

    Relevant authority

    The Competition Commission and the CA have concurrent jurisdiction in respect of competition matters relating to certain undertakings operating in the telecommunications and broadcasting sectors. Under the memorandum of understanding signed between the Commission and the CA, the CA will take the role of lead authority in relation to matters that fall within their concurrent jurisdiction. Therefore, merger notifications must be made directly to the CA.

    Form of notification

    The Commission and the CA have jointly published Form M for applications for formal guidance from the Commission. The finalised Form M can be viewed here: www.coms-auth.hk/filemanager/en/content_923/comp_guide4_en.pdf.

    There is no compulsory form for seeking informal guidance from the Commission. However, the Guideline on the Merger Rule suggests that the party seeking informal guidance should refer to the information required in Form M, to the extent applicable.

    Filing fee

    The filing fee for applying to the Commission for a decision that the merger should be excluded from the merger rule is currently HK$500,000.

    Obligation to suspend

    There is no obligation to suspend the transaction. However, the Competition Tribunal has wide-ranging powers in relation to anticipated mergers. For example, the Tribunal can order a person not to proceed with the merger or a part of it if it is satisfied that the arrangements in progress or in contemplation would result in a merger that is likely to contravene the Merger Rule.

     

    Procedure and timetable

    4. What are the applicable procedures and timetable?

    The Competition Commission must commence an investigation within 30 days after it becomes, or should have become, aware that a merger has taken place.

    In the case of a completed merger that the Commission has reasonable cause to believe contravenes or is likely to contravene the Merger Rule, proceedings must be brought before the Competition Tribunal within six months after the later of the (section 99(2), Competition Ordinance):

    • Day on which the merger was completed.

    • Day the Commission became aware of the merger.

    This time limit can be extended by the Competition Tribunal on application by the Commission if the Tribunal considers it reasonable to do so (section 99(3), Competition Ordinance).

     

    Publicity and confidentiality

    5. How much information is made publicly available concerning merger inquiries? Is any information made automatically confidential and is confidentiality available on request?

    Publicity

    When considering applications for a decision to exclude a merger from the Merger Rule, or before varying or rescinding such a decision, the Competition Commission must publish a notice of the application online and consider any comments for at least 30 days. Therefore, both a confidential and non-confidential version of the application for a decision must be provided to the Commission.

    According to the Guideline on the Merger Rule, where an application relates to a proposed merger that is not yet publicly known, the applicant must give consent to the Commission to publicise the proposed merger.

    Regarding the acceptance (or withdrawal, variation, release or substitution) of commitments, the Competition Commission must give notice in any manner it considers appropriate to those that are likely to be affected by the merger and the proposed commitment (or its withdrawal, variation or substitution), and allow at least a period of 15 days for representations to be submitted. As soon as practicable after accepting or otherwise varying a commitment, the Commission must publicise the commitment or variation online.

    The Commission must also maintain registers for all decisions to exclude conduct from the Merger Rule and commitments accepted (and rescissions, variations or revocations of those decisions) relating to the Merger Rule. The registers must be available for inspection by the public. If confidential information has been omitted from the register, the register must state that fact.

    Automatic confidentiality

    The Competition Commission has a duty to maintain adequate procedural safeguards to prevent unauthorised disclosure of confidential information. Confidential information is defined as (Competition Ordinance):

    • Information provided to or obtained by the Commission in the course of, or in connection with, the performance of its functions, which relates to the:

      • private affairs of a natural person;

      • commercial activities of any person that are of a confidential nature; or

      • identity of any person who has given information to the Commission.

    • Information that has been given to the Commission on terms or in circumstances that require it to be held in confidence.

    • Information identified as confidential (see below, Confidentiality on request).

    However, there are several circumstances where disclosure of confidential information can be regarded as being made with lawful authority, including when disclosure is made (section 126, Competition Ordinance):

    • With the required consent (that is, consent from certain parties specified in the Competition Ordinance).

    • In the performance of any function of the Commission (subject to certain considerations specified in the Ordinance).

    • In accordance with a judicial order.

    Confidentiality on request

    A person that gives information to the Competition Commission can request confidentiality by identifying the information as confidential and providing a statement in writing setting out the reasons why, in that person's opinion, the information is confidential (section 123(1)(c), Competition Ordinance). The same exceptions as described above apply.

     

    Rights of third parties

    6. What rights (if any) do third parties have to make representations, access documents or be heard during the course of an investigation?

    Representations

    The Competition Ordinance is silent on whether third parties can make representations, access documents or be heard during the course of an investigation. However, the Competition Commission must:

    • Consult the public and consider representations on an application for a decision to exclude a merger from the application of the Merger Rule.

    • Consult those that are likely to be affected by commitments (if any).

    Document access

    The Competition Ordinance contains provisions for maintaining the confidentiality of certain information obtained from an investigation (see Question 5). Therefore, a third party's access to documents can be limited by these provisions.

    Be heard

    See above, Representations.

     

    Substantive test

    7. What is the substantive test?

    Under the Merger Rule in the Competition Ordinance, an undertaking must not, directly or indirectly, carry out a merger that has, or is likely to have, the effect of substantially lessening competition in Hong Kong.

    In its Guideline on the Merger Rule, the Competition Commission has stated that it will generally interpret a substantial lessening of competition by reference to the creation or enhancement of market power. This is not solely determined by market share or concentration, and the Commission will consider whether the reduced competition is likely to encourage one or more firms to raise prices, reduce output, limit innovation, or otherwise harm consumers.

    The following matters can be taken into consideration in determining whether the Merger Rule is applicable (section 6, Schedule 7, Competition Ordinance):

    • The extent of competition from competitors outside Hong Kong.

    • Whether the acquired undertaking, or part of it, has failed or is likely to fail in the near future.

    • The extent to which substitutes are available, or are likely to be available, in the market.

    • The existence and extent of any barriers to entry.

    • Whether the merger would result in the removal of an effective and vigorous competitor.

    • The degree of countervailing power in the market.

    • The nature and extent of change and innovation in the market.

    Additionally, in its Guideline on the Merger Rule, the Competition Commission has identified two indicative safe harbours (see Question 2, Thresholds).

     
    8. What, if any, arguments can be used to counter competition issues (efficiencies, customer benefits)?

    Undertakings can apply to the Competition Commission for a decision that the merger should be excluded from the Merger Rule on the basis that the economic efficiencies of the merger outweigh the adverse effects caused by any lessening of competition. The Competition Ordinance does not state the factors that will be considered.

    In its Guideline on the Merger Rule, the Commission has set out three types of economic efficiency that will generally be considered:

    • Productive efficiency, which relates to the cost of production.

    • Allocative efficiency, which relates to deriving the greatest benefit out of resources.

    • Dynamic efficiency, which relates to the continued development of technology in response to changes in the market's demands and in production techniques.

    The undertaking seeking an exemption bears the burden to show that the efficiency gains:

    • Are clearly identified and verified.

    • Occur as a direct result of the merger.

    • Would be unlikely to be achieved without the merger, or any other means that may have less anti-competitive effects (the Competition Commission will consider whether there are any practical alternatives, and not merely a theoretical possibility).

     
    9. Is it possible for the merging parties to raise a failing/exiting firm defence?

    Under the Competition Ordinance, the merging parties can raise a failing firm defence.

    The Competition Commission has stated that the acquisition of a failing or failed firm is unlikely to substantially lessen competition if the following conditions are met:

    • The firm is likely to experience, or has already experienced, commercial failure.

    • In the absence of an acquisition, the assets of the failing firm will exit the market.

    • The firm has made genuine but unsuccessful efforts to elicit reasonable alternative offers from sources that would pose less threat to competition.

    However, and particularly in cases where the failing firm's customer base is significant in terms of market share, the Competition Commission notes, in its Guideline on the Merger Rule, that there remains a concern that the existing customer base of the failing firm would be allocated directly to the acquirer, as opposed to being distributed by market forces if the firm were allowed to fail.

     

    Remedies, penalties and appeal

    10. What remedies (commitments or undertakings) can be imposed as conditions of clearance to address competition concerns? At what stage of the procedure can they be offered and accepted?

    Parties can offer commitments in return for the Competition Commission's agreement to (section 60, Competition Ordinance):

    • Not commence an investigation.

    • Not bring proceedings before the Competition Tribunal.

    • Terminate any investigation or proceedings that have been commenced.

    Therefore, there is some flexibility as to when commitments can be offered by the parties.

    Where appropriate commitments cannot be offered, and where the Commission, after conducting an investigation, has reasonable cause to believe that arrangements are in progress or in contemplation which, if carried out, will result in a merger that is likely to contravene the Merger Rule, it can apply to the Competition Tribunal for an order. This order can direct a person not to proceed with a merger or a part of it, or prohibit a person from doing anything that will result in a merger.

    The order can contain anything permitted by Schedule 4 to the Competition Ordinance, and in particular, can provide for the division of any business, undertaking or association of undertakings. The order can contain any provisions the Competition Tribunal considers appropriate, including provisions relating to:

    • Transferring property, rights, liabilities or obligations.

    • Adjusting contracts.

    • Forming or winding-up companies.

    In relation to anticipated mergers, the Tribunal can, either on its own motion or on application by the Commission, make interim orders for the purpose of preventing pre-emptive action (for example, orders imposing on persons obligations as to the carrying on of any activities or the safeguarding of assets).

     
    11. What are the penalties for failing to comply with the merger control rules?

    Failure to notify correctly

    The Competition Ordinance does not impose a duty to notify mergers to the competition authorities, so there are no penalties for a failure to notify (correctly or otherwise).

    Implementation before approval or after prohibition

    As notification is voluntary, there is no approval requirement.

    If a merger is implemented after it has been prohibited and if, after carrying out an investigation, the Competition Commission considers it appropriate to do so, it can apply to the Competition Tribunal for a pecuniary penalty to be imposed on any person it has reasonable cause to believe has contravened the Merger Rule or has been involved in a contravention of the Merger Rule. In addition to fines, the Tribunal can, on its own motion or on application (the Competition Ordinance does not specify who can make such an application), make a wide range of orders against a person contravening the Merger Rule. An application cannot be made more than six months after the day on which the merger was completed or the Commission became aware of the merger, whichever is later.

    The Competition Tribunal can also make orders in relation to potentially infringing anticipated mergers (see Question 10).

    Failure to observe

    The Competition Tribunal has the same jurisdiction, powers and duties as the Hong Kong's Court of First Instance for the punishment of a person guilty of contempt. Civil contempt of court is punishable by committal or sequestration. As an alternative to committal or sequestration, the court can impose a fine for civil contempt.

     
    12. Is there a right of appeal against the regulator's decision and what is the applicable procedure? Are rights of appeal available to third parties or only the parties to the decision?

    Rights of appeal

    Competition Commission. Reviewable determinations (RDs), as defined in section 83 of the Competition Ordinance, are reviewable by the Competition Tribunal. RDs include Commission decisions or rescission of decisions to exclude a merger from the Merger Rule, and decisions varying or releasing commitments relating to any competition rule (which comprises the two conduct rules and the Merger Rule).

    Specified parties (generally, these are parties directly related to the RD, that is, the undertaking that applied for the relevant decision, or the undertaking that made the relevant commitment) can apply to the Competition Tribunal for leave to review a RD.

    Leave cannot be granted unless the Competition Tribunal is satisfied that either:

    • The review has a reasonable chance of success.

    • There is some reason in the interests of justice as to why the review should be heard.

    An application for review must be made within 30 days after the day on which the RD was made, which can be extended by the Tribunal to no more than three years after the day on which the RD was made (section 88, Competition Ordinance).

    An application for review does not automatically stay the execution of the determination to which it relates. The party must apply separately to the Competition Tribunal for a stay of execution (section 89, Competition Ordinance).

    Competition Tribunal. Decisions, determinations or orders of the Competition Tribunal on issues such as the amount of the pecuniary penalty or compensatory sanction can be appealed as of right to the Court of Appeal (section 154, Competition Ordinance).

    Appeals against an interlocutory decision, determination or order of the Competition Tribunal require leave of the Court of Appeal or Tribunal (section 155, Competition Ordinance). Applications for leave 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 directly to the Court of Appeal.

    Procedure

    See above, Rights of Appeal.

    Third party rights of appeal

    Third parties do not have the right to request the review of RDs relating to a merger or a proposed merger (section 85(2), Competition Ordinance).

    Third parties can apply to the Competition Tribunal for the review of other RDs if the Tribunal is satisfied that the person has a sufficient interest in the RD.

     

    Automatic clearance of restrictive provisions

    13. If a merger is cleared, are any restrictive provisions in the agreements automatically cleared? If they are not automatically cleared, how are they regulated?

    The Guideline on the Merger Rule provides that restrictions that are directly related and necessary to the implementation of the merger agreement will be treated as ancillary restrictions, and will be assessed as part of the merger transaction under the Merger Rule. Where restrictions are not directly related and necessary, they will be assessed under the First and/or Second Conduct Rules, which prohibit anti-competitive agreements and practices, and abuse of market power.

     

    Regulation of specific industries

    14. What industries (if any) are specifically regulated?

    The Competition Ordinance only regulates mergers involving holders of carrier licences in the telecommunications sector.

     
    15. Has the regulatory authority in your jurisdiction issued guidelines or policy on its approach in analysing mergers in a specific industry?

    The Merger Rule under the Competition Ordinance currently applies only to the telecommunications industry. Relevant policies or guidelines include the:

    • Guideline on the Merger Rule.

    • Guideline on the First Conduct Rule.

    • Memorandum of understanding executed by the Competition Commission and the Communications Authority.

     

    Joint ventures

    16. How are joint ventures analysed under competition law?

    The creation of a joint venture to perform, on a lasting basis, all the functions of an autonomous economic entity constitutes a merger, which is subject to the Merger Rule (currently restricted to the telecommunications sector).

    All other types of joint ventures that do not result in a merger can fall within the scope of the conduct rules.

     

    Inter-agency co-operation

    17. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities in other jurisdictions in relation to merger investigations? If so, what is the legal basis for and extent of co-operation (in particular, in relation to the exchange of information, remedies/settlements)?

    The Competition Ordinance does not contain express provisions on co-operation with regulatory authorities in other jurisdictions in relation to merger control. It remains to be seen how the Competition Commission will co-operate with regulators in other jurisdictions in relation to merger investigations. The Competition Commission is a member of the International Competition Network.

     

    Recent mergers

    18. What notable recent mergers or proposed mergers have been reviewed by the regulatory authority in your jurisdiction and why is it notable?

    To date, no mergers have been reviewed under the Competition Ordinance.

    In April 2014, the Communications Authority (CA) reached its final decision to conditionally approve HKT Limited's proposed acquisition of CSL New World Mobility Limited (CSL) under section 7P(7)(b)(ii) of the Telecommunications Ordinance (now repealed).

    The CA concluded that the proposed transaction would have, or would be likely to have, anti-competitive effects in two relevant telecommunications markets. It accepted that appropriate remedies were available. Accordingly, the CA imposed remedies on HKT and CSL, which included the divestment of certain 3G spectrum to eliminate or avoid the anti-competitive effect identified. Further details can be found in the CA's decision published at www.coms-auth.hk/filemanager/statement/en/upload/270/decision_20140502_e.pdf.

    The CA and the Competition Commission have concurrent jurisdiction to enforce the Competition Ordinance in the telecommunications and broadcasting sectors. Therefore, this decision may serve as a reference for future cases.

     

    Proposals for reform

    19. Are there any proposals for reform concerning merger control?

    Latest developments

    The Competition Ordinance entered into force on 14 December 2015, and the memorandum of understanding between the Competition Commission and the Communications Authority was executed on the same day. The Competition Commission published the finalised Guideline on the Merger Rule on 27 July 2015.

    Potential areas of reform

    According to the 2012 Bills Committee Report on the Competition Bill, the government will conduct a review of the operational experience and effectiveness of the Competition Ordinance within a few years of implementation. The exact timing of the review is currently unknown.

    The Competition Ordinance currently only regulates the mergers of carrier licensees in the telecommunications sector. The Bills Committee Report notes that the government, as it builds up more experience and expertise under the new regime, will revisit the issue as to whether cross-sector merger provisions are suitable for, and needed in, Hong Kong.

     

    Online resources

    Department of Justice Bilingual Laws Information System

    W www.legislation.gov.hk

    Description. This is an electronic database containing English and Chinese versions of all current ordinances, subsidiary legislation, constitutional documents, treaties and agreements in force in Hong Kong. Legislation is up-to-date unless otherwise indicated, and the English and Chinese versions of legislation have equal force. Historical versions of ordinances from 30 June 1997 onwards are also available.

    Legislative Council of Hong Kong

    W www.legco.gov.hk

    Description. The website of the Legislative Council (Hong Kong legislative body) contains current and past meeting records, official minutes of meetings of the Legislative Council as a whole and committees within the Council (from the 1995-1996 session onwards), and bills that were introduced and read.



    The regulatory authorities

    Competition Commission

    Head Ms Anna Wu Hung Yuk, GBS, JP (Chairperson)
    Contact Details Room 3601, 3607-3610
    36/F, Wu Chung House
    197-213 Queen's Road East
    Wanchai, Hong Kong
    T +852 3462 2118
    F +852 2522 4997
    E enquiry@compcomm.hk
    W http://compcomm.hk/en

    Outline structure. The Competition Commission consists of the Chairperson, Commission members and the members of various committees, and various executive officers and directors. The Commission is an independent statutory body established under the Competition Ordinance.

    Members of the Commission are appointed by the Chief Executive of Hong Kong. The current appointments were made on 1 May 2016 for a period of two years.

    Responsibilities. The Commission's responsibilities are to enforce the provisions of the Competition Ordinance, promote the public understanding of the value of competition and how the Ordinance promotes competition, and advise the Hong Kong Government on competition matters.

    The Commission will actively monitor the market for mergers falling under the merger rule and other anti-competitive conduct and will initiate investigations on its own initiative. The Commission will also accept complaints from the public.

    Procedure for obtaining documents. Information on the Commission is available on its website.

    Communications Authority (CA)

    Head. Mr Ambrose Ho, SC, JP (Chairman) Miss Susie HO Shuk-yee, JP (Vice-Chairperson)

    Contact details. 20/F, Wu Chung House
    213 Queen's Road East
    Wan Chai
    Hong Kong
    (for broadcasting matters)
    29/F, Wu Chung House
    213 Queen's Road East
    Wanchai
    Hong Kong
    (for telecommunications matters)
    T +852 2961 6333
    F +852 2507 2219 (for broadcasting matters)
    +852 2803 5110 (for telecommunications matters)
    E webmaster@ofca.gov.hk
    W www.coms-auth.hk
    www.ofca.gov.hk

    Outline structure. The CA comprises the Chairman and the vice-Chairman, and the members of a number of committees.

    The Office of the CA (OFCA) is the executive arm of the CA responsible for its regulation. It was established by a merger of the former telecommunications and broadcasting authorities on 1 April 2012. The OFCA is headed by a director-general and two deputy directors-general, one for broadcasting and one for telecommunications matters. The OFCA is divided into several branches, each led by an assistant director.

    Responsibilities. The role of the CA, a statutory body, is to regulate the broadcasting and telecommunications industries.

    The committees of the CA consider complaints, make disciplinary rulings, provide guidance, and issue codes of conduct in relation to broadcasting and telecommunications matters.

    The OFCA is responsible for regulating the telecommunications and broadcasting industry, including issuing licences and investigating consumer complaints. It also provides secretarial support to the CA's committees. Matters relating to anti-competitive behaviour are investigated by the market and competition branch of the OFCA.

    Procedure for obtaining documents. Information on the CA and OFCA is available on their websites. The OFCA's website also contains a policy on access to information (see www.ofca.gov.hk/en/access_to_info/index.html).



    Contributor profiles

    Mark Jephcott, Head of Competition – Asia

    Herbert Smith Freehills

    T +852 2101 4027
    F +852 2845 9099
    E mark.jephcott@hsf.com
    W www.herbertsmithfreehills.com

    Professional qualifications. Solicitor, England and Wales; Solicitor, Hong Kong

    Areas of practice. Competition.

    Non-professional qualifications. LLB, Cambridge University (Trinity College) (highest First Class in the European Community law paper); Masters Degree in European Community Law, Université Libre de Bruxelles; worked for both the UK Competition Appeal Tribunal (the dedicated appeal court for decisions taken by the UK's competition authorities) and the European Commission's Directorate-General for Competition; appointed in 2015 by the Competition Commission of Hong Kong to become one of its non-governmental advisers to the International Competition Network, the global body representing the world's competition authorities.

    Recent transactions

    • Advising two multi-national companies on cartel investigations before the Competition Commission of Singapore.
    • Advising a multinational company on an abuse of dominance investigation before the Competition Commission of Singapore.
    • Advising several Asian sovereign wealth funds on the EU and Asian merger control aspects of multiple transactions.
    • Advising a major global chemical company on a China MOFCOM filing.
    • Advising a leading Australian telecommunications company on transaction structure.
    • Advising a major international household name conglomerate in the hospitality industry on internal pan-Asia-Pacific competition law audits for identifying potential breach of anti-trust laws in multiple jurisdictions and preparing in-house practical guidance and training materials.
    • Advising Cable & Wireless Worldwide on the Singapore merger control aspects of its proposed merger with Vodafone.
    • Advising Nalco on obtaining EU merger clearance of its US$5.4 billion acquisition by Ecolab.

    Languages. English (native), French (fluent), German (fluent), Mandarin (basic)

    Publications

    • Hong Kong Chapter of Global Legal Insights on Cartels, 1st Edition (Hong Kong Chapter) 2012.
    • Law of Cartels, 2011 (2nd Edition) and 2003 (1st Edition).
    • Horizontal Agreements and EU Competition Law, 2004.
    • Asia-Pacific Multi-jurisdictional Competition Law Guide and several articles on the Asian competition regimes and Chinese merger control and anti-trust regimes, and the extra-territorial application of the EU Merger Regulation in relation to Chinese companies.
    • Practical Law Competition Law Global Guide: Hong Kong Competition and Cartel Leniency, 2013.

    Adelaide Luke, Registered Foreign Lawyer (England and Wales)

    Herbert Smith Freehills

    T +852 2101 4135
    F +852 2845 9099
    E adelaide.luke@hsf.com
    W www.herbertsmithfreehills.com

    Professional qualifications. Solicitor, Australia; Solicitor, England and Wales

    Areas of practice. Competition.

    Non-professional qualifications. BSc/LLB, University of Queensland; Masters of Arts in Competition Law, King's College London

    Recent transactions

    • Advising a Japanese conglomerate in relation to joint venture arrangements in the nuclear sector.
    • Representing a major Chinese state-owned oil and gas enterprise before the European Commission in relation to its acquisition of business and infrastructure in the North Sea, and providing subsequent advice regarding joint marketing.
    • Advising a confidential client in relation to a potential Article 102 TFEU complaint to the European Commission and a national competition authority of a member state alleging abuse of a dominant position.
    • Advising two multinational corporations in relation to the European Commission's cartel investigations into automotive parts (bearings) and power cables.
    • Advising an Asian sovereign wealth fund on the EU and Asian merger control aspects of various transactions.

    Languages. English (native)


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