Tribunal forces Hong Kong Competition Commission to disclose more documents in first competition lawsuit

On 14 March 2018, the Competition Tribunal ("Tribunal") handed down its latest decision in Hong Kong's first "bid-rigging" proceedings under its new comprehensive competition regime, in force since December 2015.

The decision provides the first insight into how the Tribunal addresses disclosure issues in competition claims, covering new ground, as the usual court rules of disclosure do not automatically apply. The Tribunal rejected the regulator's attempt to simply assert privilege wholesale over vast quantities of documents without justifying the legal basis for doing so. Instead, the Tribunal undertook a robust and rigorous analysis of the issues surrounding orders for disclosure.

In particular, the Tribunal's ruling protecting the regulator's communications with the other respondents in relation to its leniency policy, on the grounds of informer privilege and without prejudice privilege, should be reassuring to those considering self-reporting and making use of the leniency policy. On the other hand, by requiring the regulator to submit detailed justifications for its other claims for public interest immunity, the Tribunal has shown that it will fairly scrutinize the regulator's conduct.

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