SHELL HONG KONG LTD v. MEYER ALUMINIUM LTD

SHELL HONG KONG LTD v. MEYER ALUMINIUM LTD

Meyer failed to prove the alleged agreement or concerted practice to fix prices; the 118 pairs of identical notices did not make collusion the only plausible explanation in the absence of communications and given credible, independent non-collusive explanations from Taching (following Sinopec) and Shell (internal independent pricing policy); expert reports were excluded as irrelevant; on that basis the Alleged Contravention under the First Conduct Rule is not established and Meyer must pay costs to Taching and Shell with post-pleadings costs on indemnity basis.

Citation
[2021] HKCT 2
Parties
Plaintiff (cta 1/2018): Taching Petroleum Company Limited; Plaintiff (cta 2/2018): Shell Hong Kong Limited; Defendant (both Actions): Meyer Aluminium Limited
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
12 October 2021
Case Number
CTA2/2018
Procedural Posture
Competition Tribunal Action (trial of Defence Transferred From Court of First Instance Under S113(3) of the Competition Ordinance, Cap 619) / Trial and Judgment (judgment Delivered 12 October 2021)
Outcome
Alleged contravention under the First Conduct Rule not established; Meyer to pay costs to Taching and Shell
Legal Topics
First Conduct Rule, Price Fixing, Concerted Practice, Object Restriction, Burden and Standard of Proof, Parallel Conduct, Admissibility of Expert Evidence, Costs
Source Language
EN
Competition Law Antitrust Civil Litigation Commercial Law First Conduct Rule Price Fixing Concerted Practice Object Restriction +4 more

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Parties

Taching Petroleum Company Limited

Plaintiff (cta 1/2018)

Shell Hong Kong Limited

Plaintiff (cta 2/2018)

Meyer Aluminium Limited

Defendant (both Actions)

Procedural Posture

Competition Tribunal Action (trial of Defence Transferred From Court of First Instance Under S113(3) of the Competition Ordinance, Cap 619) / Trial and Judgment (judgment Delivered 12 October 2021)

Legal Issues

  1. 1 Whether Taching and Shell entered into an agreement or engaged in a concerted practice to fix, maintain or control Net Prices to Meyer by manipulating List Prices during the Relevant Period
  2. 2 Whether parallel conduct (118 pairs of identical List Price Adjustment Notices) in absence of communications establishes collusion
  3. 3 Whether the alleged conduct, if established, is a restriction of competition by object

Ratio Decidendi

Meyer failed to prove the alleged agreement or concerted practice to fix prices; the 118 pairs of identical notices did not make collusion the only plausible explanation in the absence of communications and given credible, independent non-collusive explanations from Taching (following Sinopec) and Shell (internal independent pricing policy); expert reports were excluded as irrelevant; on that basis the Alleged Contravention under the First Conduct Rule is not established and Meyer must pay costs to Taching and Shell with post-pleadings costs on indemnity basis.

Court Disposition

Alleged contravention under the First Conduct Rule not established; Meyer to pay costs to Taching and Shell

Orders

  • Alleged Contravention dismissed: no finding of agreement or concertation between Taching and Shell
  • On a nisi basis Meyer ordered to bear the costs of Taching and Shell; costs after close of pleadings to be on indemnity basis