Notices, enforcement and the making of the Hong Kong competition ordinance

Abstract

Created by the Hong Kong competition ordinance 2012 (Ordinance), the infringement notice and the warning notice are novel tools of competition law enforcement. Their use, however, involves serious tradeoffs. On the one hand, the notices promote a speedier, more flexible and cheaper resolution of investigations in competition law cases. On the other hand, they may curtail deterrent effects while injecting greater discretion and uncertainty into the enforcement process. This article investigates the extent to which such tradeoffs were identified and weighed by the designers of the notices in the lawmaking process. Written records of the legislative debates on the Ordinance were collected and their content analysed systematically. The findings suggest that although the participating actors largely agreed upon and fluently articulated the benefits of the notices, they either ignored or neglected their potential risks. The development of competitive markets in Hong Kong requires that those risks be well understood and managed.