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Interview with Jindrich Kloub: Antitrust in Asia Conference

Concurrences Review

Friday, May 18, 2018 from 9:30 AM to 6:30 PM (HKT)

Interview with Jindrich Kloub: Antitrust in Asia...

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Academics/Enforcers/Students Registration*   more info May 1, 2018 Free HK$0.00
Super Early Bird Registration   more info Ended HK$3,900.00 HK$0.00
Early Bird Registration*   more info Ended HK$4,100.00 HK$0.00
Concurrences Registration*   more info May 3, 2018 HK$4,300.00 HK$0.00
Standard Registration*   more info May 3, 2018 HK$4,700.00 HK$0.00

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ANTITRUST IN ASIA: ONE SIZE FITS ALL?
ASEAN, CHINA, HONG KONG, INDIA...



 

Interview with Jindrich Kloub

Executive Director - Operations, Hong Kong Competition Commission

 


 

Jindrich Kloub (Executive Director - Operations, Hong Kong Competition Commission) has been interviewed by Thomas Cheng Kin-Hon (University of Hong Kong) in view of their panel "
Extraterritoriality Enforcement: A Rising Concern?".

They will join the Antitrust in Asia conference that will take place in Hong Kong on May 18, 2018 at The Chinese University of Hong Kong. 

 

To see the full program and register, please click here

 

You have had a wealth of enforcement experiences in Europe. What do you think HK can learn from Europe and where do you think Europe's lessons may not be so relevant for Hong Kong?


Having introduced competition law fairly recently, Hong Kong has the benefit of being able to draw on the lessons accumulated by many jurisdictions around the world. The Competition Ordinance shows a variety influences but given that its substantive provisions are based largely on EU competition law, I am of the view that that is where EU's lessons might be most relevant. Ultimately, it is up to the Competition Tribunal to interpret the Ordinance and the concepts contained therein but in doing so, it will be able to look to a vast body of the Court of Justice of the EU, which spans more than 50 years.

 

For example, concepts like 'concerted practice' or 'undertaking' as interpreted by the Court of Justice are instrumental in the effective enforcement of competition rules in Europe. The former allows to properly capture collusive conduct which is looser but no less harmful than an outright agreement while the latter increases deterrence and fosters compliance as it establishes liability of parent companies for their subsidiaries’ anti-competitive acts. The application of parental liability as a matter of general enforcement policy is certainly a lesson that I view as very relevant. In the area of unilateral conduct, there are a number of decisions by the European Commission and large body of jurisprudence by the Court of Justice applying and interpreting the concept of abuse to a variety of business conduct, which may serve as inspiration and reference to how a similarly framed concept may be applied and interpreted in Hong Kong. And I could go on with examples ranging from basic concepts like object, effect, efficiency justifications to specific types of conduct be it unilateral, horizontal, or vertical.

 

But of course, there are areas where the EU's approach may offer limited lessons because it has been influenced by other objectives pursued by the EU treaties, such as when it comes to certain territorial restrictions in vertical agreements. And last but not least, there are limited lessons on liability of individuals since EU competition rules address undertakings only.

 

On questions relating to procedure the EU’s lessons may be theoretically less relevant as well since Hong Kong relies on a prosecutorial enforcement regime. But even so there are perhaps more similarities than initially meet the eye given the strong emphasis on due process guarantees in both jurisdictions. The issues that come up in our enforcement in Hong Kong, be they related to the use of our investigative powers, disclosure, burden of proof, are largely similar in rationale and approach to those that I have come across in the EU. Similarly, lessons concerning the need for a well set out framework for cooperation, settlements and penalty calculation in order to ensure deterrence through efficient and effective enforcement, are very pertinent for Hong Kong. Of course there are differences when it comes to distinct areas such as legal professional privilege or a witness driven process before the Tribunal, but I would say that there are generally more similarities, which means that EU’s lessons can be quite informative.

 

As a new agency, obviously it is very important for HKCC to establish a successful enforcement record, which probably means that HKCC should focus on cartel cases, which are theoretically less challenging. However, to most people in HK, the most serious competition problems are probably not cartels, but dominance by the conglomerates. How do you think the HKCC should strike a balance between these two conflicting goals?

 

Combatting cartels is one of the Commission’s top priorities because of their singularly harmful nature and lack of any redeeming efficiencies. This focus is not only consistent with that of agencies in other jurisdictions as it is based on general considerations but it is also supported by the complaints and queries we receive from residents and businesses in Hong Kong, which predominantly feature concerns over conduct like price fixing, bid rigging and market sharing in a variety of economic sectors.

 

However, the fact that cartels are one of our priorities does not mean that we look the other way when we see credible indications of other types of anticompetitive conduct. We receive a fair amount of complaints or queries relating to vertical restrictions and exclusionary conduct by large market players and they are followed up vigorously. In fact about 15% of the cases we are currently pursuing concern allegations of abuse of substantial degree of market power.

 

So I am not sure whether there is necessarily a conflict between the goals of deterring cartel conduct and ensuring that large market players do not abuse their market power. Thanks to the government’s support we have sufficient resources to go after both in pursuit of the Commission’s mission to safeguard competition in Hong Kong for the benefit of its consumers and businesses.   

 

As a new agency, HKCC is understandably reliant on complaints as a source for cases. What do you think are the pros and cons of relying predominantly on complaints as a source for cases. Does the HKCC plan to branch out and more actively monitor the markets for possible violations? If so, how does it plan to do that?

 

The steady stream of generally well informed public complaints that the Commission receives is a testament to the quality of its active and creative public outreach and advocacy. I would be hard pressed to point to many competition agencies that do as great of a job as the Commission in reaching the general public with its educational campaigns. Thanks to these efforts we have reached over 25,000 people in direct engagement activities such as seminars or talks, which have brought together consumers, business and tendering organization representatives, government officials and others. Millions more were reached through our advertising campaigns on television, radio, billboards and in print media. All these people serve as the Commission’s antennae in detecting signals of anticompetitive activity, bringing to us a steady stream of promising cases. And this is one of the pros of relying on such a well-developed system of public complaints in that it exponentially multiplies our detection abilities. Also, short of leniency, complaints are the best way of obtaining information from sources close to the conduct. Of course we have to sift through them and separate the wheat from chaff as some complaints lack any evidentiary support, some reflect a misunderstanding of the competition law, and a very few others may be driven by ulterior motives that undermine their credibility. But overall, I see mainly pros in having a well-functioning complaints system.

That does not mean that we can rely on public complaints alone. In fact, the Commission has been very pro-active when it comes to identifying competition problems in Hong Kong and we aim to strengthen that further through various initiatives and measures.

For example, the Commission has carried out market studies in the sector for automotive fuel and building maintenance and the latter has identified issues of possible concern that had occurred prior to the Ordinance having come into full effect. So market studies can be a very useful tool for the Commission to identify competition issues that may merit an enforcement action. Another example are measures that we are taking in relation to combatting bid-rigging in building maintenance and other sectors, which is one of major concerns for the people of Hong Kong. Just before Christmas last year we have published model non-collusion clauses and certificate for use by procurement officials with the twin aim of helping procurers minimize the risk of collusion in their tenders and facilitating the Commission’s investigations. We are also planning to intensify our training of procurement officials or conducting active monitoring of selected tenders to ensure their integrity, in particular in the context of the Operation Building Bright 2.0 program.  

These examples show the Commission’s determination to be pro-active in identifying areas and issues of concern and pursuing them with the appropriate type of response.   

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When & Where


The Chinese University of Hong Kong, Graduate Law Centre
2/F, Bank Of America Tower, 12 Harcourt Road,
Central

Hong Kong SAR China

Friday, May 18, 2018 from 9:30 AM to 6:30 PM (HKT)


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Organizer

Concurrences Review

This fourth edition of the Antitrust in Asia Conference is organized by Concurrences Review in with the support of The Chinese University of Hong Kong and the Hong Kong Competition Association. 

This event is co-sponsored by legal and media partners. Photos will be taken at the event; attendees agree for the organizer to use these photos, unless otherwise required in writing. 

In case of over registration, attendance will be limited to two representatives per institution. There will be no refund after May 3, 2018. Cancellations must be received in writing; cancellation received in writing up to 2 weeks before the conference will receive a refund less 15%. Substitutes delegates are welcome at any time. 

CPD Information: Pending updates. 

NEWS & UPDATES

Other Interviews: 

Richard Rinkema (Senior Director, Competition and Innovation Law and Policy, Microsoft, Beijing) has been interviewed by François Renard (Partner, Allen & Overy, Hong Kong) in view of their panel "A Brand New Digital World: Price Parity, Big Data, Vertical Search... What Is the Asian Perspective?"

 

How different is your practice in Asia when compared to your past practice in the US? Do you focus on other types of antitrust issues that would not be of concern in the US?

 

I have found that the theoretical basis for analyzing antitrust questions is pretty similar across jurisdictions, which I think is a testament to the impact of efforts like this conference, and of stakeholders in academia, government, industry, and private practice across Asia and from outside Asia to share learnings over the years. So having a strong foundation in antitrust theory, whether it’s in the US or in Europe or homegrown here in Asia, seems more important to successful practice here than knowing the black-letter law of this jurisdiction or that. There are definitely some differences – I spend a lot more time counseling on avoiding resale price maintenance, which of course is more often a per se violation here, and there are some areas such as essential facilities, abuse of superior bargaining position, and some price-related issues where there are different approaches when comparing the US, EU, and various Asian countries (...)

Read the whole interview here

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