‘Hub-and-spoke’ bid-rigging and corporate attribution under Hong Kong Competition Law

Extract

I. INTRODUCTION

Nutanix¹ is the very first case brought and decided under the Hong Kong Competition Ordinance (HKCO) (Cap 619), which came into full effect back in 2015 as the first piece of cross-sector competition legislation in Hong Kong. Under the HKCO’s ‘judicial enforcement’ model, the case was brought by the Hong Kong Competition Commission (HKCC) and decided by the Hong Kong Competition Tribunal (HKCT).² The decision addressed a number of substantive issues concerning the elements of the First Conduct Rule (FCR) in the HKCO³ (which is modelled upon Article 101(1) of the Treaty on the Functioning of the European Union (TFEU)), as well as procedural issues such as the standard of proof. For the purpose of this article, I will focus on two particular issues about the ‘agreement’ element under the FCR. The other substantive issues, including the finding of an anti-competitive object, are relatively less controversial as the case is about bid-rigging.