Hong Kong, China, and the Disruption of Antitrust

Under the “One Country, Two Systems” rule, Hong Kong and China maintain different legal systems. This dichotomy also applies in the antitrust context. China adopted its Anti-Monopoly Law in 2007, while Hong Kong waited until 2012 to introduce its Competition Ordinance (and another three years to fully implement it). This article compares the antitrust laws of these two jurisdictions and their enforcement in light of a turning point: the disruption caused by Big Tech. Interestingly, while the competition laws of Hong Kong and China are substantively similar to each other and to legal precedent in other jurisdictions, Hong Kong has adopted an adversarial system of enforcement, and China an administrative system. Through an analysis of recent antitrust developments in the two jurisdictions, this article shows the importance of agency independence, due process, and robust judicial scrutiny for the proper functioning of an administrative system of enforcement. This article also demonstrates that judicial scrutiny in an adversarial system needs the certainty of legal rules, particularly to clarify the burden of proof to be met by the competition authorities. In light of these findings, this article proposes a three-pronged competition and regulation approach for the scrutiny of Big Tech that does not water down the two principles of due process and robust judicial scrutiny. This is significant. The frustration with market concentration should not lead policymakers to propose changes to antitrust enforcement that could weaken these two principles and attribute a higher value to the speed of decision-making over the importance of a thorough analysis.