Competition law applies not just to formal agreements, but any form of informal or oral agreement or unspoken understanding between competitors. This Policy applies to all contacts between members, including:
- formal or informal, direct or indirect communications between members;
- communications within a specific committee, programme, meeting or other arrangement relating to the Association; and
- communications at informal meetings, social events or venues around an event or meeting of the Association.
Many competition laws (including the Hong Kong Competition Ordinance) operate extraterritorially. In other words, they look not at where the conduct took place or the agreement or arrangement was entered into, but at where it has an impact on competition.
The Association shall not enter into any agreements, arrangements or concerted practices between members which have as their object or effect to prevent, restrict or distort the competition in Hong Kong.
Agreements, arrangements or concerted practices that may breach the Hong Kong Competition Ordinance include (but are not limited to) those that:
- directly or indirectly fix prices or any other trading conditions;
- limit or control production, markets, technical developments or investment; or
- share markets or sources of supply.
Members must ensure that they and their staff do not discuss, communicate or exchange any commercially sensitive information (see "Matters which members will not discuss" below for examples), or reach any understandings or agreements with each other which aim to regulate prices, marketing and advertising strategy, costs and revenues, R&D plans and investments, trading terms and conditions with third parties, including purchasing strategy, terms of supply, trade programs or distribution strategy. This applies not only to discussions in formal meetings of the Association, but also to informal discussions before, during and after meetings of the Association.
- DO NOT create an environment which could create the impression of unethical and unlawful practices or inappropriate exchanges of certain types of sensitive commercial or confidential information.
- DO NOT discuss or exchange information related to commercial behavior, market position or strategy of a company that a company would not normally disclose to the public, as well as any specific or confidential information that is likely to give receiving parties a competitive advantage. Please refer to "Matters which members will not discuss" below for some examples of commercially sensitive information that shall not be discussed or exchanged in formal meetings or informal social occasions.
- DO NOT share commercially sensitive information by any means such as telephone discussion, faxes, letters, emails or other forms of electronic communications including (but not limited) text messages and communications through social media channels. DO terminate the conversation immediately if any commercially sensitive information or issues are raised.
- DO object if you have any doubt as to the legitimacy of a discussion, and ask for the discussion to stop until the appropriateness of the topic can be confirmed with legal counsel. All such discussions should also be reported to legal counsel for further direction.
- DO NOT disclose the Association or any its members' proprietary information to third parties.
- DO NOT engage in any "off-the-record" discussions regarding any topic or issue. Anything that cannot be discussed openly and on the record must automatically be treated as problematic or off-limits for the purposes of competition law compliance.
Members will NOT hold formal or informal discussions or meetings relating to:
- individual company or industry prices, including any matters affecting price such as discounts, rebates, surcharges, price changes, price differentials, profit margins, price mark-ups, credit or other terms of sale;
- individual company costs, including any cost components such as production or distribution costs, cost accounting formulas, methods of computing costs;
- matters relating to individual suppliers, customers (e.g. sales, bids, terms and conditions), territories or markets including any attempted collective action that might have the effect of excluding suppliers or customers from the market;
- individual company sales or production related information, including sales volumes, sales revenues, production volumes, production capacity, capacity utilisation, stock levels/inventory, supplies or sources of supply; and/or
- individual company's confidential future plans, including future plans relating to sales and marketing strategy, production, distribution, investments, design or technology.
Members may discuss:
- non-confidential, technical or legal issues relevant to the industry such as industry standards and health and safety matters, environmental concerns, matters related to corporate social responsibility;
- historic information that bears no relation to or could not give an indication of current or future commercial strategy, such as information relating to pricing, individual customers, transactions or any other commercial information;
- information on marketing in general, which contributes to the policy debate around advertising and marketing;
- issues relating to technology in general such as the characteristics and suitability to the industry and members' business operations of particular equipment or technology; and
- industry public relations or lobbying initiatives.
From time to time, members may wish to provide data to the Association to compile reports on matters of common interest or undertake benchmarking exercises; for example data such as sales, costs or production levels.
Members should observe the following rules in relation to such data exchanges, reports or benchmarking exercises:
- participants submitting their data must not disclose their individual information to other participants;
- precautions will be taken, if necessary, to ensure the data is disseminated in an aggregated form which does not expressly identify a particular participant and does not permit data applicable to any particular participant to be deduced;
- where benchmarking studies are undertaken, precautions will be taken, if necessary, to ensure each participating company is ranked anonymously in the report available to all companies, while confidentially informing each company individually of its actual performance;
- the Association will keep individual company data strictly confidential; and
- members may not discuss matters relating to individual company data before, after or at a meeting or any other meeting of the Association.
Where necessary, the Association and participating members will take legal advice in relation to the setting up and structure of such data exchanges, reports or benchmarking exercises.
- The Association will:
Members of the Association will promptly review agendas and minutes and inform the Secretary of the Association if they object to agenda items and provide corrections to minutes of meetings.
- circulate meeting or event agendas prior to the relevant event;
- ensure that any commercially sensitive information contained in the agenda or meeting materials is anonymised or aggregated to prevent identification if disclosure of such commercially sensitive information is essential; and
- circulate minutes that records the identity of the individuals participating in the meeting and discussions during the meeting after each meeting.
A written statement should be included on agendas & minutes of meetings of the Association and should state the following:
"The Association shall not enter into any discussion or conduct that may infringe, on its part or on the part of its members, any applicable competition law. By way of example: members shall not discuss, communicate or exchange any commercially sensitive information, including non-public information relating to prices, marketing and advertising strategy, costs and revenues, or other trading terms, conditions and strategies. This applies not only to discussions in formal meetings of the Association but also to informal discussions before, during and after meetings of the Association."
- Agendas of meetings of the Association should include a point which stipulates "Review of competition compliance policy". Under this point, the chair of the meeting should make an oral statement reminding participants about the Association's compliance policy.
- The chair's oral compliance policy statement should be recorded in the minutes of the meeting.
Competition law is a complex area and compliance will often depend on an individual member's circumstances. Compliance with this Policy is not a substitute for a member taking its own legal advice. The Association accepts no liability for the competition law compliance of an individual member and compliance with this Policy should not be relied upon by any member in relation to its individual liability.