15 May 2020
Introduction
On 28 April 2020, the Competition Commission entered into a Memorandum of Understanding (MoU) with the Securities and Futures Commission (SFC) to enhance their cooperation and exchange of information, so as to allow each regulator to perform their respective functions more effectively. This is the second MoU entered into by the Competition Commission with a Hong Kong regulator[1], and is the first MoU the Competition Commission entered into with a financial regulator.
Under the MoU, each party agrees to notify and consult the other party of any issue that it believes may have a significant implication for the other party. This includes, for example, the development and publication of policies and guidelines.
One particular provision of the MoU that is noteworthy is the parties’ express intention to share with each other information regarding relevant market participants in the securities and futures sector, thereby enabling the parties to more effectively exercise their respective powers and perform their functions.
For example, the parties agree to share information with each other, as and when they consider it appropriate and necessary, regarding issues arising from specific investigations, proceedings and processes relating to a relevant market participant. The parties also agree to exchange their respective views on policy issues regarding relevant market participants, as and when it is appropriate and necessary. Further, the SFC may seek from the Competition Commission any views or concerns the Competition Commission may have on any competition related issues.
Under the MoU, each party may make a formal request for information to the other with a statement explaining the purpose of such a request. Upon receiving such a request, if the other party does not intend to respond to the request, it must notify the requesting party and provide reasons for its intention (e.g., the provision of information may undermine the efficacy of a leniency policy through the disclosure of information provided by a leniency applicant or related to a leniency application). For more details, please see our client alert: ‘Competition Commission revises Leniency Policy for Undertakings and introduces new Leniency Policy for Individuals’.
One important implication brought about by the information sharing approach under the MoU is that: if the SFC comes across an issue which it thinks may be relevant to competition enforcement, it may share such information with the Competition Commission (and vice versa). As such, by enabling information sharing between the SFC and the Competition Commission, the chances of detection of breaches of competition rules and/or securities and futures regulations may potentially be heightened, making compliance an even more important priority for companies operating in the securities and futures industry.
Representatives of the SFC and the Competition Commission will meet on a regular basis to discuss issues of mutual interest, including the implementation of the MoU, further opportunities for collaboration and cooperation, and any proposed legislative or policy changes that may affect the performance of their respective functions.
The MoU with the SFC signifies the Competition Commission’s attention at competition issues in the financial service and asset management sectors. It also shows that the Competition Commission is keen to cooperate with other regulators in Hong Kong to enhance the effectiveness of its investigative and enforcement functions.
For further information, please contact:
Machiuanna Chu, Partner, Deacons
machiuanna.chu@deacons.com.hk
[1] The first MoU between the Competition Commission and another regulator in Hong Kong was made with the Communications Authority, which was entered into on 14 December 2015, the day on which the Competition Ordinance came into full effect.
