The Hong Kong Competition Commission (the "Commission") may exercise its discretion to settle alleged breaches of the Competition Ordinance (the "Ordinance") by accepting a 'Commitment' from the parties under investigation.
A Commitment requires that the parties concerned take, or refrain from taking, any action that the Commission considers appropriate to address its concerns about a possible contravention of the Ordinance and/or offer appropriate redress to third parties affected by the conduct. The Commission has yet to provide further guidance on the types of commitments it would be prepared to accept.
A Commitment can be offered to, and accepted by, the Commission at any stage of the investigative process, even if proceedings have already commenced. If the Commission accepts a Commitment, it may agree to terminate its investigation or to withdraw proceedings in the Competition Tribunal (the "Tribunal").
Acceptance of a Commitment
If the Commission accepts a Commitment, it will notify in writing the person who made the Commitment of its decision, together with a copy of the Commitment in question.
The Commission will then proceed to register the Commitment on the Register of commitments, where the Commission will also keep track of any variations or withdrawal of the Commitment.
Importantly, the Register of commitments is made publicly available on the Commission's website and as such Commitments are not confidential. The Commission may, however, omit confidential information to preserve the legitimate interests of the parties (you can refer to our previous update on Confidentiality for more information in that respect).
Withdrawal of a Commitment
Where there is a material change of circumstances, the Commission may withdraw its acceptance of a Commitment. The Commission may also withdraw its acceptance if it has reasonable grounds to suspect that the person who made that Commitment has failed to comply with the Commitment or that the information on which it based its decision was incomplete, false or misleading.
In such cases, the Commitments are no longer binding on the parties and the Commission may decide to conduct a new investigation or commence proceedings before the Tribunal.
Similarly, the Commission can release the Commitment if it has reasonable grounds to believe the alleged contravention no longer arises. Commitments can also be varied or substituted upon request by the parties as long as the Commission is...