Competition Ordinance/Part 7
PART 7
Private Actions
Division 1—General
106. Interpretation
In this Part—
“follow-on action” (後續訴訟) means an action brought by a person who has a right to bring the action under section 110(1).
107. Persons involved in contravention of conduct rule
A reference in this Part to a person being involved in a contravention of a conduct rule means a person who—
- (a) attempts to contravene the rule;
- (b) aids, abets, counsels or procures any other person to contravene the rule;
- (c) induces or attempts to induce any other person, whether by threats or promises or otherwise, to contravene the rule;
- (d) is in any way, directly or indirectly, knowingly concerned in or a party to the contravention of the rule; or
- (e) conspires with any person to contravene the rule.
108. No proceedings independent of this Ordinance
No person may bring any proceedings independently of this Ordinance, whether under any rule of law or any enactment, in any court in Hong Kong, if—
- (a) the cause of action is the defendant’s contravention, or involvement in a contravention, of a conduct rule; or
- (b) the proceedings are founded on more than one cause of action and any of the causes of action is the defendant’s contravention,
or involvement in a contravention, of a conduct rule.
109. Pure competition proceedings not to be brought in Court of First Instance
No person may bring any proceedings in the Court of First Instance under this Part if the cause of action is only the defendant’s contravention, or involvement in a contravention, of a conduct rule.
Division 2—Follow-on Action
110. Follow-on right of action
(1) A person who has suffered loss or damage as a result of any act that has been determined to be a contravention of a conduct rule has a right of action under this section against—
- (a) any person who has contravened or is contravening the rule; and
- (b) any person who is, or has been, involved in that contravention.
(2) Subject to section 113, a claim to which this section applies may only be made in proceedings brought in the Tribunal, whether or not the cause of action is solely the defendant’s contravention, or involvement in a contravention, of a conduct rule.
(3) For the purpose of subsection (1), an act is taken to have been determined to be a contravention of a conduct rule if—
- (a) the Tribunal has made a decision that the act is a contravention of a conduct rule;
- (b) the Court of First Instance has decided, in any proceedings transferred to it by the Tribunal under section 114(3), that the act is a contravention of a conduct rule;
- (c) the Court of Appeal has decided, on an appeal from a decision of the Tribunal or the Court of First Instance, that the act is a contravention of a conduct rule;
- (d) the Court of Final Appeal has decided, on an appeal from a decision of the Court of Appeal, that the act is a contravention of a conduct rule; or
- (e) a person has made an admission, in a commitment that has been accepted by the Commission, that the person has contravened a conduct rule.
111. Commencement of follow-on actions
(1) The periods during which proceedings for a follow-on action may not be brought are—
- (a) in the case of a decision of the Tribunal, the period during which an appeal may be made to the Court of Appeal under section 154;
- (b) in the case of a decision of the Court of First Instance, the period during which an appeal may be made to the Court of Appeal; and
- (c) in the case of a decision of the Court of Appeal, the period during which a further appeal may be made to the Court of Final Appeal,
and, where any such appeal or further appeal is made, the period specified in paragraph (a), (b) or (c) includes the period before the appeal is determined.
(2) Despite subsection (1), the Court of First Instance or the Tribunal may, on the application of the party seeking to bring the proceedings, permit proceedings for a follow-on action to be brought within any period specified in subsection (1).
(3) Proceedings for a follow-on action may not be brought more than 3 years after the earliest date on which the action could have been commenced following the expiry of a relevant period specified in subsection (1).
112. Tribunal orders in follow-on actions
The Tribunal in a follow-on action may make any one or more of the orders specified in Schedule 3.
Division 3—Procedure
113. Transfer of proceedings from Court of First Instance to Tribunal
(1) Subject to subsection (2), the Court of First Instance must transfer to the Tribunal so much of the proceedings before the Court that are within the jurisdiction of the Tribunal.
(2) Subsection (1) does not apply to any proceedings that—
- (a) are within the jurisdiction of the Tribunal under section 142(1)(g); and
- (b) the Court of First Instance considers should not, in the interests of justice, be transferred to the Tribunal.
(3) Without limiting subsection (1) but subject to section 115(2), if, in any proceedings before the Court of First Instance, a contravention, or involvement in a contravention, of a conduct rule is alleged as a defence, the Court must, in respect of the allegation, transfer to the Tribunal so much of those proceedings that are within the jurisdiction of the Tribunal.
(4) The practice and procedure of the Tribunal apply to the proceedings transferred by the Court of First Instance under subsection (1) or (3).
114. Transfer of proceedings from Tribunal to Court of First Instance
(1) The Tribunal must transfer to the Court of First Instance so much of the proceedings brought in the Tribunal that are within the jurisdiction of the Court but are not within the jurisdiction of the Tribunal.
(2) Subject to subsection (1), the Tribunal may transfer to the Court of First Instance any proceedings brought in the Tribunal but only if—
- (a) those proceedings are within the jurisdiction of the Tribunal under section 142(1)(g); and
- (b) the Tribunal considers that those proceedings should, in the interests of justice, be transferred to the Court.
(3) If the Court of First Instance transfers any proceedings to the Tribunal under section 113(3), the Tribunal may transfer back to the Court so much of those proceedings that the Tribunal considers should, in the interests of justice, be transferred back to the Court.
(4) The practice and procedure of the Court of First Instance apply to the proceedings transferred by the Tribunal under subsection (1), (2) or (3).
115. No further transfer of proceedings from Court of First Instance to Tribunal
(1) If the Tribunal transfers any proceedings to the Court of First Instance under section 114(2), the Court must not transfer back those proceedings to the Tribunal.
(2) If the Tribunal transfers any proceedings to the Court of First Instance under section 114(3)—
- (a) section 113(3) does not apply to those proceedings; and
- (b) the Court must not transfer back those proceedings to the Tribunal.
116. No further transfer of proceedings from Tribunal to Court of First Instance
If the Court of First Instance transfers any proceedings to the Tribunal under section 113(1), the Tribunal must not transfer back those proceedings to the Court.
117. Costs in transferred proceedings
(1) If the Court of First Instance makes an order transferring proceedings to the Tribunal under section 113, it may make an order for costs prior to the transfer and of the transfer.
(2) If the Tribunal makes an order transferring proceedings to the Court of First Instance under section 114, it may make an order for costs prior to the transfer and of the transfer.
118. Reference by Court of First Instance or Tribunal to Commission for investigation
(1) In any proceedings before the Court of First Instance or the Tribunal in which a contravention, or involvement in a contravention, of a conduct rule is alleged, the Court or the Tribunal may, either of its own motion or on application by a party to the proceedings, refer the alleged contravention or alleged involvement to the Commission for investigation under this Ordinance.
(2) Where the Court of First Instance or the Tribunal has referred an alleged contravention, or alleged involvement in a contravention, of a conduct rule to the Commission for investigation, it may stay the proceedings before it pending—
- (a) in the case of a referral by the Tribunal, the completion of the Commission’s investigation; or
- (b) in the case of a referral by the Court, the completion of the Commission’s investigation and any subsequent proceedings in the Tribunal brought as a result of the investigation.
119. Findings of contravention of conduct rules
(1) This section applies to proceedings under this Part before the Court of First Instance or the Tribunal in which a contravention, or involvement in a contravention, of a conduct rule is alleged in relation to a particular act.
(2) Subject to subsection (3), in such proceedings the Court of First Instance or the Tribunal (as the case requires) is bound by an earlier decision of the Court or Tribunal that the act in question is a contravention, or involvement in a contravention, of the conduct rule.
(3) Subsection (2) does not apply in relation to a decision of the Court of First Instance or the Tribunal until the period specified in subsection (4) has expired.
(4) The period mentioned in subsection (3) is—
- (a) the period during which an appeal may be made to the Court of Appeal under section 154; and
- (b) where an appeal has been made to the Court of Appeal, the period during which a further appeal may be made to the Court of Final Appeal,
and, where such an appeal or further appeal is made, the period specified in paragraph (a) or (b) includes the period before the appeal is determined.
120. Intervention by Commission
(1) This section applies to proceedings involving an alleged contravention, or alleged involvement in a contravention, of a conduct rule, before the specified Court or the Tribunal, that are brought by a person other than the Commission.
(2) The Commission may, with the leave of the specified Court or the Tribunal, and subject to any conditions imposed by the specified Court or the Tribunal, intervene in any such proceedings.
(3) An application for leave under this section must be made in the prescribed form and must be served by the Commission on each party to the proceedings.
(4) If the Commission intervenes in proceedings under this section, the Commission becomes, as from the date of the grant of leave, a party to the proceedings and has all the rights, duties and liabilities of a party to the proceedings.
(5) In this section—
“specified Court” (指明法院) means—
- (a) the Court of Final Appeal;
- (b) the Court of Appeal; or
- (c) the Court of First Instance.
121. Commission may participate in proceedings
(1) The Commission may, with the leave of or at the invitation of the specified Court or the Tribunal (as the case requires), participate in proceedings before the specified Court or the Tribunal involving an alleged contravention, or alleged involvement in a contravention, of a conduct rule that have been brought by another person and, in particular may—
- (a) make written submissions to the specified Court or the Tribunal; or
- (b) apply for, or join an application for, the adjournment of the proceedings pending the completion of the Commission’s investigation into the alleged contravention or involvement that is in issue in the proceedings.
(2) In this section—
“specified Court” (指明法院) means—
- (a) the Court of Final Appeal;
- (b) the Court of Appeal; or
- (c) the Court of First Instance.