Hong Kong Competition Law Series: Part 8

Author:Ms Hannah Ha and John M. Hickin
Profession:Mayer Brown JSM
 
FREE EXCERPT

Keywords: competition, Hong Kong, Collective boycott,

Collective Boycott

Don't Gang Up!

A collective boycott, or a collective refusal to deal, occurs where two or more businesses collectively refuse to deal with a third party. While businesses are free to choose their business partners, ganging up to exclude an actual or potential competitor can be considered anti-competitive.

WHY BOYCOTT?

A boycott is an effective way of inflicting targeted harm on other players in a relevant market. There can be various reasons for effecting a boycott, including (1) to prevent market entry or to drive a player out of the market, (2) to enforce the terms of a cartel against a 'rogue' member (e.g., to punish discounting in violation of a price fixing arrangement), or (3) to prevent or delay innovation or new business models.

WHO IS USUALLY INVOLVED?

Collective boycotts may have a horizontal or vertical aspect, or both, or it may be driven by a trade association or consortium of businesses. Examples of the different forms a collective boycott can take include: (1) refusal of a trade or industry association to admit a new member; (2) an agreement among suppliers that impact customers; (3) an agreement among customers that impact a supplier; or (4) an agreement between competitor and a common supplier, or suppliers, to deny you access to an important resource or facility.

HOW DOES A BOYCOTT WORK?

Any form of conduct that involves ganging up to exclude an actual or potential competitor from the market without objective business justification may amount to a boycott, for example:

Terminating business relationships with a third party in a coordinated manner; Setting exclusionary membership requirements to prevent a competitor from joining as a member; or Refusing to supply an important resource or facility1, or only supplying it on unreasonable terms. IS A BOYCOTT EVER JUSTIFIABLE?

A collective boycott may, depending on the circumstances, be justifiable on the following grounds:

Efficiency considerations such as establishing more efficient...

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