2015 - The year of competition in Hong Kong
Margin squeeze is a form of exclusionary abuse where a (fully or partially) vertically integrated business controlling a key input or facility in the upstream market sells that input to its downstream rivals at substantially less favourable terms, to strengthen its own market power in the downstream market and hamper the ability of downstream rivals to compete effectively.
When is margin squeeze harmful to competition?
Although businesses generally have no duty to deal, or deal fairly, with its competitors, under certain circumstances a margin squeeze may cause undue foreclosure in the downstream market to equally efficient competitors.
Margin squeeze is a common practice in Hong Kong, and will only contravene competition law in very narrow circumstances. When assessing whether a margin squeeze may amount to abuse, the Competition Commission will consider:
1. The nature of the upstream input or facility.
- The more important the input or facility and the more substantial it is as a proportion of overall production cost in the downstream market, the greater the potential negative impact on competition in the downstream market.
- Supplying a key input or facility at unreasonable terms is akin to a constructive refusal to deal, which is unlikely to be problematic unless the business has a duty to deal in the first place.
2. The size of the margin squeeze.
- Competition in the downstream market may be restricted where
the business with substantial market power in the upstream
- Sells an input to its downstream rivals at a price which exceeds the price at which it sells the end-product in the downstream market.
- Uses profits from inflated prices charged to downstream rivals to subsidise its own cost of production, in order to sell the end-product at a below-cost price in the downstream market. We hope you enjoyed the series!
This article marks the end of our Hong Kong Competition Law Series. We hope you found the articles useful and informative. Should you wish to revisit previous articles from the series, please click here.
The Competition Ordinance (Cap.619) is currently set to come into force on 14 December 2015. For inquiries related to the Hong Kong Competition Law Series, please contact the following persons or your usual contacts at our firm.
Originally published 29 July 2015
Visit us at www.mayerbrownjsm.com
Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2015. The Mayer Brown Practices. All rights reserved.
This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.