Merger control in Hong Kong: Towards a global convergence of telecom merger remedies?

Merger control has been part of the Hong Kong’s legal landscape for the past ten years, although it only concerns mergers in the telecom sector. The new Competition Ordinance, which will fully enter into force in 2015, does not contain provisions for a cross-sector merger control mechanism. It only provides that the new Hong Kong Competition Commission will ultimately be in charge of merger control in the telecom sector after a transitional period. The first part of this paper explores the merger control rules in Hong Kong, in order to understand what are the implications of the recent competition law reforms on the current system. The second part of this paper offers views on the recent evolution of the merger control practice in Hong Kong, and compares the remedies in the recent HKT/CSL merger decision with the H3G/Orange Austria remedies at the European Commission. The findings are that the remedies are very similar and could signal the emergence of a global telecom merger remedies practice. This has implications for Hong Kong as well as for the consolidation of telecom markets across jurisdictions.

1. While competition law is fast developing in Asia, with competition authorities appearing in several jurisdictions and enforcement grabbing the headlines in China and elsewhere, merger control has been comparatively slower to take off. Compared, for instance, with the fight against cartels and against abuses of dominance, competition authorities in Asia only scantly hardly? act on mergers. In Hong Kong, the Competition Ordinance passed in 2012 [1] (thereafter the “CO”) includes limited provisions for the control of mergers by the Competition Commission. In the People’s Republic of China, commentators increasingly point at procedural unfairness for foreign companies in the merger control process, [2] while government policy considerations often take over competition concerns. In

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Knut Fournier, Merger control in Hong Kong: Towards a global convergence of telecom merger remedies?, January 2015, Concurrences N° 1-2015, Art. N° 69264, pp. 240-246

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