Pecuniary Penalties for Anti-Competitive Conduct: Absolutely Deterrent?

(2020) 50(3) Hong Kong Law Journal (Forthcoming)

Posted: 9 Dec 2020

See all articles by Alex C.H. Yeung

Alex C.H. Yeung

University of Oxford - Harris Manchester College

Joshua Yeung

University of Cambridge, Faculty of Law, Students

Date Written: September 4, 2020

Abstract

In Competition Commission v W Hing Construction Co Ltd, the Competition Tribunal delivered its first decision on pecuniary penalties for breaches of competition rules. It held that a structured approach to penalties assessment should be adopted, and that the primary purpose of penalties is deterrence. This article considers two models of deterrence: absolute deterrence and optimal deterrence. It argues that absolute deterrence is more suitable for Hong Kong’s nascent competition regime. However, the model designed by the Tribunal does not conform to the objective of absolute deterrence, since it may fail to strip the violators of all expected gains. This lack of commitment to absolute deterrence makes one question if deterrence is the primary purpose of penalties or whether some other basis informs the inquiry.

Keywords: Competition Law, Pecuniary Penalties, Deterrence, Absolute Deterrence, Optimal Deterrence

Suggested Citation

Yeung, Alex C.H. and Yeung, Joshua, Pecuniary Penalties for Anti-Competitive Conduct: Absolutely Deterrent? (September 4, 2020). (2020) 50(3) Hong Kong Law Journal (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3725965

Alex C.H. Yeung (Contact Author)

University of Oxford - Harris Manchester College ( email )

Mansfield Road
Oxford, OX1 3TD
United Kingdom

Joshua Yeung

University of Cambridge, Faculty of Law, Students ( email )

Cambridge
United Kingdom

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