Competition Law: an exception to human rights?

Abstract

Jurisdictions around the world are imposing increasingly large financial penalties for breach of competition law. This article considers the limitations human rights law places on the ability of governments, courts and regulators to impose financial penalties in competition law cases. Following principles established by Hong Kong's Court of Final Appeal in the securities and futures context, Hong Kong’s Competition Tribunal has held that competition proceedings seeking financial penalties constitute a criminal charge and that human rights law requires the competition regulator to prove its case beyond reasonable doubt. This raises the question whether other jurisdictions might reconsider their approach to cases involving financial penalties, both in competition law and other contexts. At the same time, the Tribunal has rejected other traditional criminal law safeguards and related human rights protections, raising the question whether they are separable when hearing cases involving a criminal charge. The issues discussed here are increasingly important as competition law (and other) regulators and courts in common law jurisdictions around the world are being given significant and increasing powers to impose financial penalties without traditional criminal law safeguards.