The neglected nexus between competition law and human rights: standard of proof for pecuniary penalties

Joshua Yeung,Alex Ch Yeung

doi:10.1017/lst.2021.8

Abstract

AbstractThis paper examines the standard of proof applicable in proceedings for imposing pecuniary penalties for violation of competition rules. Australia, New Zealand and the UK have chosen the civil standard. This unfortunately overlooks the safeguards required by the relevant human rights treaties in proceedings that involve the determination of a ‘criminal charge’. Conversely, Hong Kong has adopted the criminal standard, which may prove unworkable in these proceedings in which economic analysis is key. After analysing whether one may set this quagmire aside by asserting that these proceedings do not involve the determination of a criminal charge, it will be argued that the more plausible solution is to accept the criminal charge characterisation, limit the civil standard to the effects-based elements of the charge and apply the criminal standard to other elements. This will achieve a permissible proportionate derogation from the human rights safeguards. Similar bifurcated models have been adopted for charges such as public nuisance and harassment, and have successfully withstood human rights challenges.

Highlights

The applicable standard of proof for competition law penalties proceedings1 is a tricky question that has consistently plagued common law jurisdictions
This paper examines the standard of proof applicable in proceedings for imposing pecuniary penalties for violation of competition rules
This is often done without considering broader human rights obligations, which generally mandate a criminal standard of proof beyond reasonable doubt due to the presumption of innocence in proceedings involving the determination of a criminal charge

Summary

Introduction

The applicable standard of proof for competition law penalties proceedings is a tricky question that has consistently plagued common law jurisdictions. It follows that General Comment 32 and the requirement of criminal standard of proof would apply if it is found that competition law penalties proceedings involve the determination of a criminal charge. Having accepted that competition law penalties proceedings did involve the determination of a criminal charge, the HKCT followed the earlier decision of the Hong Kong Court of Final Appeal in Koon Wing Yee v Insider Dealing Tribunal, which applied the rule in General Comment 32 that the ‘beyond reasonable doubt’ standard must apply to all proceedings involving the determination of a criminal charge.32 This standard can be deviated from only by proportionate legislation, which sits uneasily with the competition authority’s suggestion that a civil standard of proof applies to all elements of liability.. Compatibility with human rights treaties must be examined before one standard of proof could be preferred over another

The correct characterisation of competition law penalties proceedings

Findings

Conclusion