Enabling and Incentivizing Standalone Private Antitrust Actions in Hong Kong - Lessons from the United States

Abstract

In 2012, Hong Kong passed its Competition Ordinance which provides a right of follow-on action, but no right of standalone action to private parties. Through reviewing the legislative history, this article found that such right is absent primarily because small and medium-sized enterprises (SMEs) worried that large companies would strategically file excessive, or even baseless, suits against them. The U.S., which has many private antitrust suits, is cited as an example to support this concerns. This article attempts to shed light on this matter by (1) identifying why there are so many private antitrust suits in the U.S., (2) rethinking whether the U.S. model is one that Hong Kong should avoid and (3) highlighting how the U.S. regime prevents baseless suits. After addressing these matters, this article articulates (1) why enabling a standalone right of action to private parties itself would not open the floodgates of antitrust litigations in Hong Kong, (2) why it might be harmful to Hong Kong if there are insufficient private antitrust suits, especially when baseless suits are expected and (3) whether Hong Kong is prepared to enable a standalone right of action while expecting frivolous and baseless suits.