PART III | Division 1 — Hearing of appeals |
25. The hearing of any appeal shall be in public except as to any part where the Board is satisfied that it will be considering —| (a) | information the disclosure of which would, in its opinion, be contrary to the public interest; | | (b) | commercial information the disclosure of which, in its opinion, would or may significantly harm the legitimate business interests of the undertaking to which it relates; or | | (c) | information relating to the private affairs of an individual the disclosure of which, in its opinion, would or may significantly harm the interests of the individual. |
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| Procedure at hearing of appeals |
26.—(1) Appeal proceedings shall be opened and directed by the Presiding Board Member, who shall be responsible for the proper conduct of the hearing of any appeal.| (2) The Board shall, so far as it appears to it to be appropriate, seek to avoid undue formality in its proceedings and shall conduct the hearing of an appeal in such manner as it considers to be appropriate for the clarification of the issues before it and generally for the just, expeditious and economical conduct of the proceedings. |
| (3) Unless the Board otherwise directs, no expert or witness of fact shall be heard unless the relevant expert report or witness statement has been submitted before the hearing of an appeal and in accordance with any direction of the Board. |
| (4) The Board may limit the cross-examination of witnesses to any extent or in any manner it considers appropriate. |
| (5) If, at the time appointed for the hearing of an appeal, any party to the proceedings does not appear, the Board may, if it is satisfied that the party has been duly notified of the hearing, proceed with the hearing and make such order as it thinks fit. |
| (6) The record of the proceedings of any appeal shall be signed by the Presiding Board Member. |
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27.—(1) The Board may, in its discretion, adjourn any hearing on any ground and may fix a date for a further hearing.| (2) The Board may, on the conclusion of a hearing, adjourn for any period of time for the purpose of considering its decision. |
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| Division 2 — Confidentiality |
| Requests for confidential treatment |
28.—(1) A request for the confidential treatment of a document or part of a document filed in connection with any appeal proceedings before the Board —| (a) | shall be made in writing by the person who submitted the document no later than 14 days after the filing of such a document; | | (b) | shall, where the request relates to part of a document, state the relevant words, figures or passages for which confidentiality is claimed; and | | (c) | shall contain the reasons for the request, and where the request relates to part of a document, the reasons specific to each part thereof. |
| (2) The person making the request shall provide to the Board a non-confidential version of the document if so directed by the Secretary. |
| (3) The Board shall not consider any request for confidential treatment that does not comply with paragraph (1), unless the Board considers that the circumstances are exceptional. |
| (4) The Board may grant confidential treatment in relation to any document or part thereof on such terms and conditions as it thinks fit. |
| (5) In the event of a dispute as to whether confidential treatment should be granted, the Board shall decide the matter after hearing the parties, taking into account the matters referred to in regulation 25(a), (b) and (c). |
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| Division 3 — Decision of Board |
29.—(1) The Board may, in its discretion, direct that its decision in any appeal be notified to the parties concerned in the following manner:| (a) | by the Secretary giving a copy of the written decision to the parties which is duly signed by all the members of the Board who heard the appeal, including the Presiding Board Member; or | | (b) | orally before the parties by —| (i) | the Presiding Board Member; or | | (ii) | in the absence of the Presiding Board Member, any other member of the Board who heard the appeal, |
| and it shall not be necessary for all the members of the Board who heard the appeal to reassemble merely for the purpose of notifying the parties of the decision. |
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| (2) Where the decision of the Board is the decision of a majority, that fact shall be stated. |
| (3) The Secretary shall enter the decision of the Board in the register. |
| (4) The Chairman shall arrange for the decision of the Board to be published in such manner as he considers appropriate. |
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30.—(1) The Board may, in relation to any appeal proceedings, award costs in its discretion.| (2) The power to award costs under paragraph (1) includes the power to direct any party to pay to the Board such sum as may be appropriate in reimbursement of any costs incurred by the Board in connection with the summoning of witnesses. |
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31.—(1) If the Board imposes, confirms or varies any financial penalty, the Board may, in addition, order that interest be paid on the amount of any such penalty from such date, not being a date earlier than the date upon which the notice of appeal was lodged in accordance with regulations 7 and 8, and at such rate as the Board considers appropriate.| (2) Unless the Board otherwise directs, the rate of interest shall not exceed the rate prescribed in the Rules of Court (Cap. 322, R 5) in respect of judgment debts. |
| (3) Any interest ordered to be paid under paragraph (1) shall form part of the penalty payable and be enforced according to section 85 of the Act. |
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32.—(1) If all the parties to an appeal agree on the terms on which to settle all or any part of the proceedings, they may request the Board to make a consent order.(2) A request for a consent order shall be made by sending to the Secretary —| (a) | a draft consent order; | | (b) | a consent order impact statement which is in accordance with paragraph (3); and | | (c) | a statement signed by all the parties to the proceedings, or their authorised representatives or legal representatives, requesting that an order be made in the terms of the draft consent order. |
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(3) A consent order impact statement shall provide an explanation of the draft consent order, including —| (a) | an explanation of the circumstances giving rise to the draft consent order; | | (b) | the relief to be obtained if the order is made; and | | (c) | the anticipated effects on competition of that relief. |
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(4) In respect of any request for a consent order, the Board may, as it thinks fit, after hearing the parties —| (a) | make the order in the terms requested; | | (b) | invite the parties to vary the terms and make the order in the terms as varied; or | | (c) | refuse to make any order. |
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| Division 4 — Interim orders and measures |
| Power to make interim orders and directions |
33.—(1) The Board may, on the application of a party or of its own initiative, make an order on an interim basis —| (a) | suspending in whole or part the effect of any decision which is the subject matter of the appeal proceedings before it; or | | (b) | granting any remedy which the Board would have the power to grant in its final decision. |
(2) Without prejudice to the generality of paragraph (1), if the Board considers that it is necessary as a matter of urgency for the purpose of —| (a) | preventing serious, irreparable damage to a particular person or class of persons; or | | (b) | protecting the public interest, |
| the Board may give such directions as it considers appropriate for that purpose. |
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(3) The Board shall exercise its power under this regulation taking into account all the relevant circumstances, including —| (a) | the urgency of the matter; | | (b) | the effect on the party making the request if the relief sought is not granted; and | | (c) | the effect on competition if the relief is granted. |
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| (4) Any order or direction under this regulation is subject to the Board’s further order, direction or final decision. |
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| Application for interim relief |
34.—(1) A party shall apply for an order under regulation 33(1) or a direction under regulation 33(2) by lodging an application for interim relief in the form which is in accordance with paragraph (2) with the Board together with the appropriate fee specified in the Schedule.(2) An application for interim relief shall state —| (a) | the subject matter of the relevant proceedings; | | (b) | in the case of a request for a direction pursuant to regulation 33(2), the circumstances giving rise to the urgency; | | (c) | the factual and legal grounds establishing a preliminary case for the grant of interim relief by the Board; and | | (d) | the relief sought. |
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| (3) On receiving an application for interim relief, the Secretary shall send a copy thereof to each of the other parties to the proceedings and inform them of the date by which they may submit written or oral submissions to the Board. |
| (4) The Board shall fix a date for the hearing of the application for interim relief and give the parties such directions as may be necessary for dealing with the application for interim relief. |
| (5) The Board may, for the purposes of this regulation, join any third party to the proceedings. |
| (6) Subject to paragraph (7), the Board shall, before making an order or direction for interim relief against a person who is not a party to the proceedings, invite that person to make his submissions thereon. |
| (7) If the urgency of the case so requires, the Board may grant the application for interim relief before receiving the submissions of all the parties concerned, including the person referred to in paragraph (6). |
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