Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Monday, March 18, 2019

Should companies be allowed to recover their regulatory fines against directors and employees? Wed, 20 March 2019 13:00 – 14:00 GMT

Should companies be allowed to recover their regulatory fines against directors and employees?

A lunchtime seminar organized by UCL Centre for Law, Economics & Society


SpeakerKelvin HF Kwok (University of Hong Kong)
Discussant/ChairDr. Deni Mantzari (UCL Laws)

20 March 2019, 13:00 - 14:00
at UCL Faculty of Laws, Bentham House (Seminar Room G20)
Book your place


Companies are subject to different types of regulatory requirements under statues, such as those concerning competition, communications, utilities, and financial markets. As artificial entities, companies could only act through its agent such as its directors or employees. Therefore, it is not uncommon for companies to be held liable and penalised for breaching statutory requirements as a result of the illegal activities of its insiders. Where a company infringes regulatory statutes in such a way, could it recoup its losses by suing its delinquent agents for breach of duties? Should the court prevent such recovery based on the illegality defence? It is argued, based on a refined concept of optimal deterrence and the limits of judicial law-making, the court should not deprive the company of its right to sue. This is because in applying the ‘range of factors’ approach to the illegality defence, there is no conflict between the first and second stages of the approach: clear public policies underlying company and agency law militate against denying the company’s claim, whereas the court lacks the competence to determine whether denying the claim would enhance the deterrence policy in light of optimal deterrence – a complex, polycentric question that is beyond the court’s expertise and informational capabilities.

The talk is based on a paper coauthored with Ernest Lim (NUS) which is forthcoming in the European Business Organization Law Review.

About the Author:

Kelvin HF Kwok specialises in comparative competition law, with a focus on Hong Kong/China issues. He is Deputy Director of the Asian Institute of International Financial Law and Assistant Professor of Law at the University of Hong Kong (HKU), and a graduate of HKU and the University of Chicago. He has articles published or forthcoming in journals such as Asian Journal of Comparative Law, European Business Organization Law Review, European Law Review, Journal of Antitrust Enforcement, Journal of Competition Law & Economics, World Competition, and Yale Journal of Law & Technology; and book chapters published by Cambridge University Press and Oxford University Press. He serves as Articles Editor of the Hong Kong Law Journal, Associate Editor of the China Antitrust Law Journal, Non-Governmental Advisor to the International Competition Network (ICN), and Co-opted Member of the Hong Kong Consumer Council’s Competition Policy Committee. He is a Hong Kong barrister and a member of Des Voeux Chambers.

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