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Reflections on Competition Law in Hong Kong and the UK and EU-brought to you by DVC’s Catrina Lam, Paul Harris QC (Monckton Chambers) & David Chu (Proskauer Rose)

3 Apr 2018

In a trio of Competition events, DVC’s Catrina Lam joined forces with Paul Harris QC of Monckton Chambers and David Chu of Proskauer Rose to deliver industry driven presentations before an audience consisting of in-house counsel, practitioners from the finance sector and lastly delegates from the construction industry.

The first event was held in collaboration with the HKCCA on Tuesday 13th March at the Bankers Club, (“Know your Competition Risks & Protect your Goals”) the second took place at the Landmark Mandarin on Wednesday 14th March (“Competition Red Flags to look out for in the Finance sector”) and the final consecutive event (“Capstones of the Competition Ordinance within the Construction Industry”) was held with the support of the Society of Construction Law Hong Kong at the HKIAC on the evening of 15th March.

Catrina took the audience through a number of significant developments that had unfolded since the inception of the Competition Ordinance in 2015. This included a maiden case before the Tribunal (Competition Commission v Nutanix) which involved collusion between a software company and BT, whereby IT friends were invited to submit dummy bids to the YWCA. Various judgements were handed down, Catrina explained –  the first of which related to s42 notices. The Competition Commission clarified the scope of the protection against self incrimination in the context of compulsory interviews and as Catrina elucidated – this only extended to the employee/ the person to whom the notice had been served. The employee could not refuse to answer a question on the ground that it might incriminate his/her employer or a company of which he/she was a director.

At the Construction seminar, Catrina walked the audience through the nuts and bolts of cartel agreements, bid-rigging, illustrating her points with helpful case law and scanning the horizon to conclude her presentation with takeaways for the audience. The session was peppered with fascinating and complex questions from guest for all the panellists, and this included questions which related variously to class actions and joint tendering.

Interested in hearing more about what’s coming in 2018, and the reason why the construction industry has become a major target for Competition authorities around the world?

Click below to listen to Catrina’s podcast from “Capstones of the HK Competition Ordinance within the Construction Industry”

Paul drew on his experience of litigating for and against regulators, and in multinational competition damages litigation, to address the audiences on some tips for handling competition investigations, such as how to use leniency (and complementary whistle-blowing policies) both as a shield and as a sword. In the world of finance, Paul identified some different types of infringement that have interested both regulators and follow-on claimants, ranging from straightforward information exchange and price-fixing cartels (e.g. LIBOR and FX), to complicated institutional rules (credit card interchange fees) to wide-ranging market investigations (UK retail banking). In the field of construction, the discussion had a focus on the benefits and pitfalls of trade associations. Overall, the presentations identified plenty of lessons for likely forthcoming developments under the Competition Ordinance by drawing upon UK, EU and other multinational experience.

David shared strategies, with specific examples on how to respond to a dawn raid, including how to preserve legal professional privilege over relevant documents and procedures to adopt during the search to protect the rights of both the company whose premises are searched and the employees whose conduct may be described in company documents. He also addressed the subject of the investigatory powers of the Competition Commission, particularly as they are used by the Commission during compulsory interviews and with mandatory documents production notices. David also discussed Leniency agreements, and how to take full advantage of them to secure immunity from prosecution by the Commission.