Kelvin Kwok on Rethinking the Antitrust-Securities Interface (American Business Law Journal)

"Rethinking the antitrust-securities interface"
Kelvin Kwok
American Business Law Journal, Summer 2026, pp. 151-175
Published online: May 2026

Abstract: This article proposes a new theoretical framework for resolving conflicts between antitrust law and securities regulation, which is distinctive in four respects. First, it eschews the traditional approach of resolving antitrust-securities conflicts through implied antitrust immunity, which unjustifiably prioritizes securities regulation above antitrust law. Second, it argues for a narrow definition of conflict, encompassing only conduct presently authorized or required by the securities regime that also has likely and significant anticompetitive effects; practices that are illegal under both antitrust law and securities regulation are thereby excluded. Third, this article builds on the literature on the antitrust-intellectual property interface to recommend a structured, rule-of-reason framework for resolving conflicts at the antitrust-securities interface. Unlike implied antitrust immunity, which automatically allows securities regulation concerns to trump antitrust concerns, the rule of reason seeks to strike a proper balance. The analysis begins by asking whether the securities practice has likely and significant anticompetitive effects. It then inquires into the securities regulation concerns behind the conduct and whether there is a less restrictive means of addressing those concerns. Fourth, a two-stage procedure is proposed for implementing the rule of reason to resolve antitrust-securities conflicts in rulemaking and adjudication, involving the collaboration of the Securities and Exchange Commission, the Department of Justice, and the courts.

Please click here to read the full article on SSRN.

HKU Law Champion in HSF Competition Law Moot 2024

The oral rounds of the 2024 Herbert Smith Freehills Competition Law Moot were held at King’s College London on 14-15 June 2024. The HKU Team consisted of Chan King Hei (BBA (Law) & LLB 3), Connor Gregory (LLM (CFL)), Lee Zee Faith (LLB 4), and Wong Ching Ho (PCLL). Based on EU competition law, the moot problem raised several issues concerning potentially abusive practices under Article 102 of the TFEU, the scope of the single economic entity doctrine under Article 101 TFEU, and the applicable standard of proof in EU competition law proceedings.

After surviving the preliminary rounds and two elimination rounds, the HKU Team advanced to the final round against Utrecht University from the Netherlands. There, the Team defended its case against a series of challenging questions from the judging panel, chaired by The Right Hon Lady Rose of Colmworth, Justice of the UK Supreme Court. The HKU Team ultimately emerged as the Champion, marking the fourth time HKU has won the competition since its inauguration in 2015. 

The HKU Team with the judges of the final round.
(Left to right): Ronan Flanagan (judge), Connor Gregory, Chan King Hei, Lee Zee Faith, Wong Ching Ho, The Right Hon Lady Rose of Colmworth (judge), Professor Alison Jones (judge),  William Kovacic (judge), Stephen Wisking (judge) 

In addition, the Team took home 3 individual awards in recognition of their advocacy skills, including Best Advocate for Connor Gregory and honourable mentions for Lee Zee Faith and Wong Ching Ho. The team’s written pleadings were also ranked 2nd out of 49 participating teams.

The Team would like to express their sincerest gratitude to Professor Thomas Cheng, Professor Kelvin Kwok, and Ms Allison Wong for their support and guidance. The Team would also like to thank the practice moot judges, Mr Byron Chiu, Mr Peter Dong, Mr Alex Yeung, Ms Clara Wong, Mr Martin Lau, and Mr Zixin Jiang, for their kind assistance and constructive feedback.

(Left to right): Professor Thomas Cheng, Chan King Hei, Connor Gregory, Lee Zee Faith, Wong Ching Ho, Ms Allison Wong

Kelvin Kwok on An Autonomy Theory of Consumer Protection Law (Antitrust Law Journal)

"An Autonomy Theory of Consumer Protection Law"
Kelvin Kwok
Antitrust Law Journal, Volume 86, Issue 2 (2024) pp. 411-472
Published online: December 2024

Abstract: This article sets forth a new autonomy theory of consumer protection law (CPL), drawing on Joseph Raz’s framework on personal autonomy and explicating the relationship between CPL interventions and the independence, rationality, and opportunity dimensions of autonomy. It seeks to contrast the autonomy perspective on freedom of choice and the corresponding role of CPL with the prevailing welfarist perspective, arguing that the autonomy perspective should be preferred because it better fits the function of CPL than the welfarist perspective, apart from resting firmly on the value of personal autonomy. It proceeds to explore the autonomy-based functions of CPL with regard to choice facilitation, choice enhancement, and choice limitation. The article argues that, as compared to the welfarist perspective, the autonomy perspective can more persuasively explain the need for a holistic approach to choice enhancement and the value of eco-friendly options, as well as the regulatory preference for choice facilitation over choice limitation in choice overload and complexity situations.

Please click here to read the full article on Antitrust Law Journal.

Please click here to read the full article on SSRN.

Kelvin Kwok on Abuse of Dominance in the Hong Kong Television Sector (World Competition: Law and Economics Review)

"Abuse of Dominance in the Hong Kong Television Sector"
Kelvin Kwok
World Competition: Law and Economics Review, Volume 45, Issue 4 (Dec 2022) pp. 445–472
Available on SSRN: November 2023

Abstract: This article critically evaluates legal developments in relation to the regulation of abuse of dominance in the Hong Kong television sector, focusing on the milestone case of Television Broadcasts Ltd (TVB). The TVB case was decided under the previous sectoral competition regime under the Broadcasting Ordinance (BO) and has since 2015 been replaced by the crosssector Competition Ordinance (CO). Nevertheless, the decisions of the Communications Authority (CA) and the Court of First Instance (CFI) in 2013 and 2016 respectively provided important insights on the application of the small but significant and non-transitory decrease in quality (SSNDQ) test in two-sided markets and the ‘purpose/object’ and ‘effect’ tests to exclusivity practices, and more generally, the analysis of abuse of buyer power in a labour market setting. Hong Kong competition authorities are likely to be confronted with similar issues as they gradually expand their enforcement activities into digital markets and abuse of market power scenarios beyond the broadcasting sector. The purpose of this article is to subject the TVB decisions, in respect of their analysis of market definition, market power, the abusive conduct, and the remedial aspect, to in-depth critique. It situates the issues in the broader context of the crosssector CO under which future cases of abuse of dominance in Hong Kong will be scrutinized. (Click here to view full article on SSRN.)

Kelvin Kwok, Eric Ip and Shing Fung Lee on The Conundrums of the Reasonable Patient Standard in English Medical Law (BMC Medical Ethics)

"The conundrums of the reasonable patient standard in English medical law"
Kelvin Hiu Fai Kwok, Eric C. Ip & Shing Fung Lee
BMC Medical Ethics
Published on 23 February 2023
Abstract:

Background

In its 2015 decision in Montgomery v. Lanarkshire Health Board, the Supreme Court of the United Kingdom overruled the long-standing, paternalistic prudent doctor standard of care in favour of a new reasonable patient standard which obligates doctors to make their patients aware of all material risks of the recommended treatment and of any reasonable alternative treatment. This landmark judgment has been of interest to the rest of the common law world. A judicial trend of invoking Montgomery to impose more stringent requirements on doctors is discernible in subsequent decisions since then.

Main body

In this narrative review, without questioning the idea that properly informed patients should play a more active role in procedures affecting their own health in furtherance of their autonomy, safety, and consumer rights, we identify and analyse, with the aid of realistic clinical thought experiments, three practical conundrums that the Montgomery standard may inflict on the daily work of doctors, unfairly exposing them to arbitrary legal risks.

Conclusions

These conundrums pertain to the ascertainment of the risks that must be disclosed to the patient under the test of ‘materiality’; the legal uncertainty as to the scope of the exceptions; and the actual ability of doctors to cope with the pressures of time. These conundrums offer ripe opportunities to rethink the proper role of judicially developed medical law in modern health care practice.

New Issue: HKU Law's SSRN Legal Studies Research Paper Series (Jan 2022)

            

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 12, No. 1: Jan 10, 2022

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents 

A Principles-based Approach tothe Governance of BigFintechs

Douglas W. Arner, The University of Hong Kong - Faculty of Law, University of Hong Kong

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Kuzi Charamba, University of Hong Kong

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC), European Banking Institute

Artem Sergeev, The University of Hong Kong - Faculty of Law

Land-related Restrictive Covenants in Restraint of Trade

Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

National Security Law in Hong Kong: One Year On

Johannes M M Chan, The University of Hong Kong - Faculty of Law

From Datafication to Data State: Making Sense of China’s Social Credit System and Its Implications

Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law

Yongxi Chen, The University of Hong Kong - Faculty of Law

New Book by Thomas Cheng & Kelvin Kwok: Hong Kong Competition Law: Comparative and Theoretical Perspectives (Cambridge University Press)

Hong Kong Competition Law: Comparative and Theoretical Perspectives

Thomas Cheng & Kelvin Kwok
Cambridge University Press

Published in October 2021

Book Description: This is the first academic monograph on the new competition law in Hong Kong. It provides an overview of the historical background of the Competition Ordinance, highlighting the debate and the process that led to the adoption of the Ordinance. It offers detailed comparative and theoretical analysis of the key provisions of the Ordinance, focusing on the First Conduct Rule, the Second Conduct Rule, the exclusions and exemptions, and the procedural provisions. It draws on overseas legislation and jurisprudence that inspired the provisions in the Ordinance and incorporates a detailed examination of the latest cases decided by the Competition Tribunal. It engages in relevant academic debates and theoretical analysis of how competition law in Hong Kong should develop in light of its unique economic and political contexts. It concludes by setting forth of a set of recommendations for further reform.

Kelvin Kwok on Land-related Restrictive Covenants in Restraint of Trade (Law Quarterly Review)

"Land-related Restrictive Covenants in Restraint of Trade"
Kelvin Kwok
Law Quarterly Review

2021, Vol 134, p 193

Abstract: Does a land-related restrictive covenant fall within the restraint of trade (RoT) doctrine such that the restrictions under the covenant must be justified as reasonable? This important question, which impacts upon a wide variety of land-related transactions, had long been answered according to the “pre-existing freedom” test prescribed by Lord Reid in the English House of Lords decision in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd (1968). The question regarding the applicability of the RoT doctrine to land-related restrictive covenants came before the English Supreme Court most recently in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd (2020). The Supreme Court took the monumental step of abolishing the long-established “pre-existing freedom” test, and preferred an alternative approach based on Lord Wilberforce’s “trading society” test in Esso.  The purpose of this article is to critically examine the conflicting approaches under the "pre-existing freedom" and "trading society" tests. The article argues that neither of these tests constitutes the proper approach to the assessment of land-related restrictive covenants under the RoT doctrine. The test of applicability should instead consist of the simple question of whether the covenant restricts a person’s liberty to trade, a broad approach advocated by J.D. Heydon many years ago. This all-encompassing approach would represent a major policy improvement in the common law, albeit purchased at the expense of legal certainty.

AIIFL Newsletter Issue 4 (May 2021)

In AIIFL News this month, we highlight a range of publications and online appearances from the AIIFL team.

Douglas Arner

AIIFL Director | Email
 

HIGHLIGHTS

Looking Back, Looking Forward: Building Better Payment System

In the episode 3 of Looking Back Looking Forward, Douglas Arner discusses the progression of electronic payments, since its acceleration towards social development from the last hundred years, and recently towards the impact COVID-19 on global economies. The use of such payments co-developed throughout human history, from the telegraph to the automated teller machine (ATM) and, most notably, to the establishment of decentralised ledger technology (blockchain, bitcoin, etc.). Such innovative steps have encouraged the competition to raise the bar, such as DCEP, the world's first major currency central-bank digital currency in response to a more decentralised payment system.

 Watch it HERE

“Looking Back, Looking Forward” is a regular video segment launched in January 2020. For more information on the University of Hong Kong's financial technology programme and all the episodes of Looking Back Looking Forward, visit the FinTech Videos page and discover the transformation of information technology's ever-growing impact on finance.

PUBLICATIONS AND REPORTS

Selected articles, books and reports from the AIIFL team

Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific

Shahla Ali

AFI Innovative Regulatory Approaches Toolkit

Douglas W.Arner, Ross P. Buckley, Dirk A. Zetzsche, Eriks Selga, Ghiyazuddin Mohammad, Jaheed Parvez, Roberta Consiglio

China and the Global Economic Architecture: Approaching the Challenges of the 2020s

Uzma Ashraf Barton and Douglas W. Arner

Sovereign Digital Currencies: Reshaping the Design of Money and Payments Systems

Ross P. Buckley, Douglas W. Arner, Dirk A. Zetzsche, Anton N, Didenko, Lucien van Romburg

Regulating Artificial Intelligence in Finance: Putting the Human in the Loop

Ross P. Buckley, Dirk A. Zetzsche, Douglas W. Arner, Brian Tang

Commercial Law Intersections

Giuliano G.Castellano and Andrea Tosato

‘Hub-and-Spoke’ Bid-rigging and Corporate Attribution under Hong Kong Competition Law

Kelvin Kwok

Applying ‘Deep ESG’ to Asian Private Equity

Frederick J. Long, Syren Johnstone

The Case for a Best Execution Principle in Cross-Border Payments

Dirk A. Zetzsche, Ross P. Buckley, Douglas W. Arner

SELECTED MEDIA

Bloomberg Documentary

Red Lines: China & Big Tech

China Talk

China's Anti-Monopoly Moment

Angela Zhang

Central Bank Digital Currency (CBDC)

Part 1 

Interviews with HKMA Chief Executive Eddie Yue, HKU Professor Douglas Arner, and PWC's Gary Ng.

Alliance for Innovative Regulation (AIR)

Barefoot Innovation Podcast

Around the World: HKU's Douglas Arner

EVENTS AND ACTIVITIES

30 June 2021

James Merralls Visiting Fellowship in Law Lecture

Digital Finance, COVID-19 and Existential Sustainability Crises: Building Better Financial Systems

hosted by Melbourne Law School at the University of Melbourne

Presenter: Douglas Arner, Kerry Holdings Professor in Law & AIIFL Director, HKU

Details and Registration

 

Oriol Caudevilla presented Digital Assets in Hong Kong: What are They and How are They Taxed at the AIIFL’s Taxation Law Research Programme (TLRP) (31 May 2021)

Details

Giuliano Castellano shared his research on Commercial Law Intersections at the 59th Forum Financial Market Regulation - The Fragmentation of Commercial Law: Challenges and Normative Approaches at the University of Zurich within the University Research Priority Program (URPP) on Financial Market Regulation (11 May 2021)

Details

Peterson Institute for International Economics (PIIE) Virtual Discussion

Hong Kong as an International Financial Center

Douglas Arner

Syren Johnstone on Smart Regulation: Regulatory Framework for DLT-based Projects at the GBA Blockchain Week Virtual Summit (30-31 March 2021)

Watch HERE

 

Syren Johnstone on Perspectives on Blockchain and Cryptocurrency Regulation at the University of Hawaii (22 March 2021)

Watch HERE

 

A team of five students from across different Law, Innovation, Technology and Entrepreneurship Lab (LITE Lab) courses won the HKU’s Faculty of Engineering Innovation Academy InnoSpark with VR Mock Court Pitch for Access to Justice (23 February 2021)

Details

JOIN US!

We are seeking to expand our world leading team in the area of FinTech, RegTech and Digital Finance.

 

Post-Doctoral Fellow in Finance, Technology and Regulation

Applications close: 31 July 2021, HK Time

 

More details and online application are available HERE.

 

Research Assistant Professor in FinTech / RegTech

Applications close: 30 June 2021, HK Time

 

The HKU-Standard Chartered Foundation FinTech Academy, with the aim to cultivate interdisciplinary research in FinTech, has established a Research Assistant Professor Scheme. 

 

More details and online application are available HERE.

New Issue: HKU Law's SSRN Legal Studies Research Paper Series (May and June 2021)

                                                                     

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 11, No. 3: May 24, 2021

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Digital Finance, COVID-19 and Existential Sustainability Crises: Setting the Agenda for the 2020s

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Andrew M. Dahdal, Qatar University - College of Law

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC), European Banking Institute

Can Hong Kong Remain a Liberal Enclave within China? Analysis of the Hong Kong National Security Law

Cora Chan, The University of Hong Kong - Faculty of Law

Dispute Resolution in China: Litigation, Arbitration, Mediation and their Interactions

Weixia Gu, University of Hong Kong - Faculty of Law

‘Hub-and-Spoke’ Bid-Rigging and Corporate Attribution Under Hong Kong Competition Law

Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 11, No. 4: June 21, 2021

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

AFI Innovative Regulatory Approaches Toolkit

Douglas W. Arner, The University of Hong Kong - Faculty of Law
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC), European Banking Institute
Eriks Selga, The University of Hong Kong, Faculty of Law, Students
Ghiyazuddin MohammadJaheed Parvez, Independent
Roberta Consiglio, University of Luxembourg, ADA Chair in Financial Law (inclusive finance)

Regulating Artificial Intelligence in Finance: Putting the Human in the Loop

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC), European Banking Institute
Douglas W. Arner, The University of Hong Kong - Faculty of Law
Brian Tang, The University of Hong Kong - Faculty of Law

Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying

Johannes M M Chan, The University of Hong Kong - Faculty of Law

Patent Responsibility

Haochen Sun, The University of Hong Kong - Faculty of Law

HKU Law Research Output Prize Winners 2019-20

Congratulations to the following University and Faculty of Law Research Output Prize Winners 2019-2020:

• Dr Eric Ip has been awarded the University’s Research Output Prize 2020 (Faculty of Law) for his book “Hybrid Constitutionalism: The Politics of Constitutional Review in the Chinese Special Administrative Regions” (Cambridge University Press, pp. 1-288, 2019).
• Dr Gu Weixia has been awarded the Faculty’s Research Output Prize 2020 for her work Hybrid Dispute Resolution Beyond the Belt and Road: Towards A New Design of Chinese Arb-Med(-Arb) and Its Global Implications (Washington International Law Journal, 29 (1), pp. 117-172, 2019) .
• Mr. Kelvin Kwok and Dr Ernest Lim have been awarded the Faculty’s Research Output Prize 2020 for their work Optimal Deterrence, the Illegality Defence, and Corporate Attribution (European Business Organization Law Review, pp. 1-24, 2019).
• Dr Haochen Sun has been awarded the Faculty’s Research Output Prize 2020 for his work Copyright Law as an Engine of Public Interest Protection (Northwestern Journal of Technology and Intellectual Property, 16 (3), pp. 123-188, 2019).

The Selection Panel, comprised of the members of the Faculty Research Committee, was deeply impressed with the quality of the research that went into each of these outputs.

RGC funded Collaborative Research Project on Insolvency Law Implications of Covid-19 in Hong Kong

Congratulations to the research team recently awarded a RGC Collaborative Research Fund (CRF) Grant of $3.11 million for the project "Hong Kong Insolvency and Restructuring Law and Policy in Times of COVID-19 and Beyond".  The project collects data on the impact of the pandemic on businesses in Hong Kong and considers whether reforms to Hong Kong's laws of insolvency and business restructuring are needed.  It is led by Professor Wai Yee Wan of City University of Hong Kong School of Law and includes Co-Principal Investigators from HKU Law (Mr Alwin Chan and Mr Kelvin Kwok) and City University of Hong Kong, and other collaborators from Oxford University and Leeds University.  This is yet another good example of a collaborative research project between HKU Law and CityU Law.  There are very few law-related projects supported by the CRF fund, so well done to the team and hopefully we will see more CRF collaborations between legal academics in Hong Kong.

Congratulations to HKU Law Scholars Awarded Tenure in 2020

Congratulations to Kelvin Kwok, Dr Peter Chau and Dr Shitong Qiao on being awarded tenure and the title of Associate Professor at HKU's Faculty of Law.

     The Faculty of Law is the longest established law school in Hong Kong. It adopts a rigorous process of external review for all tenure and promotion applications. The award of tenure is a recognition of the all-round excellence in research, teaching, service and knowledge exchange demonstrated by these individuals in their years as tenure-track assistant professors.

     Kelvin Kwok researches in the areas of competition law and consumer protection. He has been the principal investigator of two General Research Fund (GRF) grants awarded by the Hong Kong Research Grants Council. He was awarded the Faculty Research Output Prize 2015 and the King’s/HKU Fellowship Award 2018-19. He has served as an editor of the Oxford University Commonwealth Law Journal, Hong Kong Law Journal, and China Antitrust Law Journal. 

     Dr Peter Chau researches in the area of legal theory, initially on the topic of criminal punishment and now increasingly on private law areas such as tort law. He  received two GRF grants. From 2015 to 2017, his funded project was on “Proportionality in Criminal Punishment”. In 2018, he obtained a grant on “Examining Non-Instrumental Justifications for Tort Compensation”.

      Dr Shitong Qiao is well-known for doing research in  Chinese property law and theory.  He was the Ken Young-Gak Yun & Jinah Park Yun Visiting Assistant Professor of Law at Duke University in Spring 2019 and the inaugural Jerome A. Cohen Visiting Professor of Law at NYU in Spring 2020. His monograph, Chinese Small Property: The Co-Evolution of Law and Social Norms, was published in 2017 by Cambridge University Press and won the inaugural Masahiko Aoki Award for Economic Paper from Tsinghua University. In dissertation form, it won the Judge Ralph K. Winter Prize (awarded annually to the best student paper written in law and economics at Yale Law School).  All the very best to our three colleagues as they move on to the next phase of their academic careers.

HKU Celebrates (Another) Victory in the HSF Competition Law Moot 2020

Congratulations to the HKU Law team, consisting of Jason Louie (LLB IV), Adrian Mak (PCLL), Clara Wong (PCLL), and Alex Yeung (PCLL), for winning the Herbert Smith Freehills Competition Law Moot 2020 hosted by King's College London! This is the third time HKU has won the championship in the Moot since its inauguration in 2014, and the first time that the oral rounds were held virtually via Microsoft Teams. The team was coached by Associate Professor Thomas Cheng, Assistant Professor Kelvin Kwok, and alumnus Allison Wong. We are particularly grateful to the practice moot judges, most of whom are mooting alumni representing HKU in past competitions, for their generous time and support.

Kelvin Kwok on Hub-and-Spoke’ Bid-Rigging and Corporate Attribution under Hong Kong Competition Law (J of Antitrust Enforcement)

"Hub-and-spoke’ bid-rigging and corporate attribution under Hong Kong Competition Law"

Kelvin Kwok

Journal of Antitrust Enforcement

Volume 8, Issue 1, pp. 223-231, https://doi.org/10.1093/jaenfo/jnaa005

Published on 17 March 2020 

Abstract: Nutanix is the very first case brought and decided under the Hong Kong Competition Ordinance (HKCO) (Cap 619), which came into full effect back in 2015 as the first piece of cross-sector competition legislation in Hong Kong. Under the HKCO’s ‘judicial enforcement’ model, the case was brought by the Hong Kong Competition Commission (HKCC) and decided by the Hong Kong Competition Tribunal (HKCT).2 The decision addressed a number of substantive issues concerning the elements of the First Conduct Rule (FCR) in the HKCO3 (which is modelled upon Article 101(1) of the Treaty on the Functioning of the European Union (TFEU)), as well as procedural issues such as the standard...

Kelvin Kwok on the Meaning of Anticompetitive Object under Article 101 TFEU (Common Law World Review)

"Object and intention under Article 101 TFEU: Lessons from Australia, New Zealand and analytical jurisprudence"
Kelvin Kwok
Common Law World Review
First published on 20 September 2019

Abstract: What does it mean for an agreement to have an anticompetitive ‘object’ under Article 101(1) of the Treaty on the Functioning of the European Union? Can the European Commission support an ‘object’ case by reference to the agreement parties’ subjective intention, and if so, how? What exactly is the relationship between an agreement’s object and the parties’ subjective intention under competition law? This article is the first to bring insights from Australian and New Zealand cases, as well as analytical jurisprudence, to bear on these underexplored yet important questions affecting the European Union and common law jurisdictions around the world. Using Ronald Dworkin’s theory of legal interpretation as the analytical basis, this article argues for a ‘mixed’ conception of the ‘object’ concept which enables an anticompetitive object to be proven either objectively or subjectively. Anticompetitive subjective intention accordingly provides an independent, alternative basis for competition law liability for agreements; the lack of such intention, meanwhile, does not help exculpate parties who are liable based on their objective purpose to restrict competition. This article also argues that voluntariness and evidentiary limits ought to be imposed on the use of anticompetitive subjective intention in the ‘object’ analysis of agreements.

HKU Law's SSRN Legal Studies Research Paper Series (May - Dec 2019)

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 9, No. 7: December 10, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Building Fin Tech Ecosystems:Regulatory Sandboxes, Innovation Hubs and Beyond

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Robin Veidt, University of Luxembourg - Faculty of Law, Economics and Finance

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

UNCITRAL Model Law on International Commercial Arbitration: A Commentary

Ilias Bantekas, Brunel University London - Brunel Law School

Pietro Ortolani, Radboud University

Shahla F. Ali, The University of Hong Kong - Faculty of Law

Manuel A. Gomez, Florida International University College of Law

Michael Polkinghorne, White & Case LLP

Maintaining Institutional Strength: The Court, the Act of State and the Rule of Law

Johannes M M Chan, The University of Hong Kong - Faculty of Law

An Agent-Based Model of Judicial Power

Alex Schwartz, The University of Hong Kong - Faculty of Law

The U.S.-China Trade Negotiation: A Contract Theory Perspective

Angela Huyue Zhang, The University of Hong Kong - Faculty of Law

Constitutional Finance: The Roleof the Hong Kong Basic Law During the Global Financial Crisis

Eric C. Ip, The University of Hong Kong

Transnational Law and GlobalDispute Resolution

Shahla F. Ali, The University of Hong Kong - Faculty of Law

A Perfect Storm: Hong Kong -Mainland China Rendition of Fugitive Offenders 2019

Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 9, No. 6: Oct 31, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Expropriation in the Name of Rights: Transferable Development Rights (TDRs), the Bundle of Sticks and Chinese Politics

Shitong Qiao, The University of Hong Kong - Faculty of Law

Non-Positivist Legal Pluralismand Crises of Legitimacy in Settler-States

Alex Green, Faculty of Law, University of Hong Kong

Jennifer Hendry, School of Law, University of Leeds

Successful Secession and theValue of International Recognition
Alex Green, Faculty of Law, University of Hong Kong

Remedial Discretion and Dilemmasin Asia
Po Jen Yap, The University of Hong Kong - Faculty of Law

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 9, No. 5: Oct 17, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Constitutional Implementation for Sustainable Peace

Anna Dziedzic, The University of Hong Kong - Faculty of Law, University of Melbourne - Melbourne Law School

Cheryl Saunders, University of Melbourne - Law School

Individual Income Taxation Reform in China: What Is the Real Change?

Jingyi Wang, Peking University - Peking University School of Transnational Law

Wilson Chow, The University of Hong Kong - Faculty of Law

Ten Days that Shocked the World: The Rendition Proposal in Hong Kong

Johannes M M Chan, The University of Hong Kong - Faculty of Law

Twenty Years of the Basic Law: Continuity and Changes in the Geoffrey Ma Court

Po Jen Yap, The University of Hong Kong - Faculty of Law

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 9, No. 4: September 19, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Requisites for Development of a Regulated Secondary Market in Digital Assets

Syren Johnstone, Department of Law, University of Hong Kong, Asian Institute of International Financial Law

Sustainability, FinTech and Financial Inclusion

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

Blockchain and Public Companies:A Revolution in Share Ownership Transparency, Proxy-Voting and Corporate Governance?

Federico Panisi, University of Brescia

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Distributed Ledger Technology and Digital Assets - Policy and Regulatory Challenges in Asia

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Anton Didenko, University of New South Wales (UNSW) - Faculty of Law

Cyn-Young Park, Asian Development Bank

Emilija Pashoska, Universite du Luxembourg - Faculty of Law, Economics and Finance

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

Bo Zhao, University of Hong Kong - Faculty of Business and Economics, Asian Development Bank - Economic Research and Regional Cooperation Department (ERCD)

Three Major Financial Crises: What Have We Learned

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Emilios Avgouleas, University of Edinburgh - School of Law

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Regulating LIBRA: The Transformative Potential of Facebook’s Cryptocurrency and Possible Regulatory Responses

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Douglas W. Arner, The University of Hong Kong - Faculty of Law

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 9, No. 3: June 11, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Beijing’s 'Rule of Law' Strategy for Governing Hong Kong: Legalization without Democratization

Han Zhu, Centre for Chinese Law, The University of Hong Kong Faculty of Law

Optimal Deterrence, the Illegality Defence, and Corporate Attribution

Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

Ernest Lim, National University of Singapore (NUS) - Faculty of Law

The Oath-Taking Cases and the NPCSC Interpretation of 2016: Interface of Common Law and Chinese Law

Han Zhu, Centre for Chinese Law, The University of Hong Kong Faculty of Law 

Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

The Concept of 'Agreement' Under Article 101 TFEU: A Question of EU Treaty Interpretation

Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

The Identity Challenge in Finance: From Analogue Identity to Digitized Identification to Digital KYC Utilities

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Janos Nathan Barberis, The University of Hong Kong - Faculty of Law

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 9, No. 2: May 10, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

The Future of Data-Driven Finance and RegTech: Lessons from EU Big Bang IIDirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)
Douglas W. Arner, The University of Hong Kong - Faculty of Law
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Rolf H. Weber, University of Zurich - Faculty of Law

A Network Theory of PatentabilityLaura G. Pedraza-Farina, Northwestern University School of Law
Ryan Whalen, The University of Hong Kong - Faculty of Law

The Age of Remix and Copyright Law ReformYahong Li, The University of Hong Kong - Faculty of Law

Re-Conceptualizing ‘Object’ Analysis Under Article 101 TFEU: Theoretical and Comparative Perspectives
Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

What are Law Courses for? Striking a Balance between Professional and Liberal Education GoalsDanny Gittings, University of Hong Kong, College of Humanities and Law, School of Professional and Continuing Education, The University of Hong Kong, Faculty of Law

From Global to Anthropocenic Assemblages: Re-Thinking Territory, Authority and Rights in the New Climatic RegimeDaniel Matthews, The University of Hong Kong - Faculty of Law