October Antitrust Conference Shines Spotlight on Africa

New York Concurrences conference: Focus on emerging economies, “coping with nationalism and building inclusive growth”

AAT invites its readers to sign up for what promises to be a timely and topical conference in NYC this October 26, 2018, at NYU Law School.  Program below, sign-up with Eventbrite here.  The event features the SACC’s Commissioner Tembinkosi Bonakele as well as professor Simon Roberts from the Univ. of Johannesburg.


08.15 am

Registration & Breakfast

 8:45am

Opening Keynote Speech

Joseph STIGLITZ  

Nobel Prize-Winning Economist | Professor, Columbia University, New York  

9:30am

Competition, Industrial Policy and Developing Countries

Noah BRUMFIELD | Partner, White & Case, Washington DC

Dennis DAVIS | President, Competition Appeal Court of South Africa, Cape Town

Kirti GUPTA | Senior Director, Economic Strategy Qualcomm, San Diego

Frédéric JENNY | Chairman, OECD Competition Committee, Paris

Simon ROBERTS | Professor, University of Johannesburg, Johannesburg

Moderator: Eleanor FOX | Professor, NYU School of Law, New York

 11:00am

Coffee Break

11:15am

Mega Mergers and Developing Countries

Tembinkosi BONAKELE | Commissioner, South Africa Competition Commission, Pretoria

Marcio DE OLIVEIRA JR | Senior Consultant, Charles River Associates, São Paulo

Gönenç GÜRKAYNAK | Partner, ELIG Gürkaynak Attorneys-at-Law, Istanbul

Nicholas LEVY | Partner, Cleary Gottlieb Steen & Hamilton, London

Ioannis LIANOS | Professor, University College London

Moderator: Harry FIRST | Professor, NYU School of Law, New York

 12:45pm

Lunch

1:45pm

BRICS: A Competition Agenda? 

Alexey IVANOV | Director, HSE-Skolkovo Institute for Law and Development, Moscow

Ruchit PATEL | Partner, Ropes & Gray, London

Cristiane SCHMIDT| Commissioner, CADE, Brasília

Xianlin WANG | Professor, Shanghai Jiao Tong University, Shanghai

Moderator: Daniel RUBINFELD | Professor, NYU School of Law

 3:15pm

Coffee Break

3:30pm

Enforcer’s Roundtable: What’s Under the Radar?

Roger ALFORD|Deputy Assistant Attorney General, US DOJ, Washington DC

Tembinkosi BONAKELE | Commissioner, South Africa Competition Commission, Pretoria

Randolph TRITELL | Director, Office of International Affairs, US FTC, Washington DC

Joseph WILSON | Adjunct Professor, McGill University, Montreal | Former Chairman, Competition Commission of Pakistan

Moderator: Frédéric JENNY| Chairman, OECD Competition Committee, Paris

5:00pm

Closing Wrap-up: New York Minute

Eleanor M. FOX | Professor, New York University School of Law

Harry FIRST | Professor, New York University School of Law

5:15pm

Cocktail Reception 

 

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Business community embraces COMESA competition law: First-ever #CCCworkshop at full capacity

The first-ever COMESA-sponsored competition law workshop focussed solely on the business community, currently underway in Nairobi, Kenya, stretches the capacity of the Hilton conference room where it is being held.

The event’s tag line is “Benefits to Business.” Especially now, with the African continent sporting over 400 companies with over $500m in annual revenues, the topic of antitrust regulation in Africa is more pertinent than ever, according to the COMESA Competition Commission (CCC).

The head of the Zambian competition regulator (CCPC), Dr. Chilufya Sampa, introduced the first panel and guest of honour. He identified the threats of anticompetitive last behaviour as grounds for he need to understand and support the work of he CCC and its sister agencies in the member states.

With COMESA trade liberalisation, the markets at issue are much larger than kenya or other national markets. The effects of anticompetitive conduct are thus often magnified accordingly.

The one-stop shop nature of the CCC’s merger notification system simplifies and renders more cost-effective the transactional work of companies doing business in COMESA.

The Keynote speaker, Mr. Mohammed Nyaoga Muigai, highlighted the exciting future of the more and more integrated African markets, offering new challenges and opportunities. He challenged the audience to imagine a single market of over 750 million consumers. Companies will have to think creatively and “outside the box” in these enlarged common markets.

His perspective is twofold: for one, as a businessman and lawyer, but also as a regulator and board chairman and member of the Kenyan Central Bank. Effective competition policy (and access to the legal system) allows to prepare the ground for the successful carrying out of business in the common market. Yet, businesses must know what the regulatory regime actually is. Therefore, the duty of lawyers is to educate their clients about the strictures and requirements of all applicable competition law, across all COMESA member states.

After a group photo, the event continued with an informative presentation by Mr. Willard Mwemba on key facts that “companies should know” on merger control in the (soon enlarged to 21 member states, with the imminent addition of Tunisia and Somalia) COMESA region, starting with its historical roots in COMESA Treaty Article 55 and continuing through the current era since 2013 of the CCC’s regulatory oversight.

Willard Mwemba, Head of M&A at the CCC

He provided relevant merger statistics, jointly with Director of Trade affairs, Dr. Francis Mangeni, which were of great interest to the audience, followed by a discussion of substantive merger review analysis as it is undertaken by the Commission. The benefits of the “one-stop-shop” characteristic of CCC notification versus multiple individual filings were extolled and individual past M&A cases discussed.

AAT will live-update the blog as the event progresses.

Dr. Sampa, CCPC executive

Dr. Sampa, as head of the Zambian CCPC and a former CCC Board member, emphasized the importance for companies to have functioning and well-implemented antitrust compliance programmes in place.

A spirited discussion was had relating to the 30% market share threshold the Commission utilises to evaluate triggers for launching antitrust conduct investigations. Primerio’s Andreas Stargard argued for COMESA’s consideration of an increase in this trigger threshold to 40%, proposing that:

“Especially in an already concentrated market (where players possess majority shares anyway), a low initial share threshold is of little to no additional enforcement value. On the contrary, a low threshold may hamper vigorous competition by smaller to midsize competitors or newer entrants, who wish to grow their (previously innocuous) smaller share of the market but are simultaneously held back in their growth efforts by trying not to cross the 30% barrier so as not to attract the attention of the Commission.”

There was also an issue raised regarding private equity and non-profit / “impact investors” and the like having to bear the burden of notifications and ancillary fees in cases that are otherwise unobjectionable almost by definition (since the investors are not present on the market of the acquired entities in which they invest). Dr. Mangeni indicated that the CCC will investigate and consider whether a proposed change in the applicable Rules to account for this problem may be advisable in the future.

Mary Gurure, head of legal (CCC)

The CCC’s chief legal advisor, Ms. Mary Gurure, presented on conflict of laws issues within the COMESA regime, harmonisation of laws, and CCC engagements with individual member states on these issues.

Crucially, she also mentioned a novel initiative to replicate a COMESA-focused competition enforcer network, akin to the ECN and ICN groupings of international antitrust agencies.

Business panel #CCCworkshop 2018

The conference concluded with a business lawyer panel, in which outside counsel and in-house business representatives voiced their perspectives, largely focusing on the issue of merger notifications. These topics included the (1) burdens of having to submit certified copies of documents, (2) high filing fees (particularly in light of relatively low-value deals being made in the region), (3) comparatively low notification thresholds (e.g., the $10m 2-party turnover limit), (4) remaining, if minimal, confusion over multiple filing obligations, (5) questions surrounding the true nature of the “public interest” criterion in the CCC’s merger evaluation, which could benefit from further clarification via a Guideline or the like, and (6) the importance of predictability and consistency in rulings.

Panellists also commented on the positive, countervailing benefits of the one-stop-shop nature of the CCC, as well as highlighting the friendly nature of the COMESA staff, which permits consensus-building and diplomatic resolutions of potential conflicts.

Mr. Mwemba concluded the event by responding to each of the panel members’ points, noting that forum-shopping based on the costs of filing fees reflected a misguided approach, that the CCC may consider increasing filing thresholds, and that the CCC’s average time to reach merger decisions has been 72 (calendar) days.

COMESA competition workshops underway (#CCCworkshop)

CCC workshop participants

Events focus on media & business community’s understanding of competition rules and practical workload of CCC

Media

For two days this week, COMESA will hold its 5th annual “Regional Sensitization Workshop for Business Reporters“, focussed on provisions and application of the COMESA competition regulations and trade developments within the 19-country common market.

Over 30 journalists from close to a dozen countries are expected to participate in the event, held in Narobi, Kenya, from Monday – Tuesday.

AfricanAntitrust.com will cover all pertinent news emerging from the conference.  We will update this post as the conference progresses.

Speakers include a crème de la crème of East African government antitrust enforcement, including the CCC’s own Willard Mwemba (head of M&A), the CCC’s Director Dr. George Lipimile, and the Director and CEO of the Competition Authority of Kenya, Francis Wang’ombe Kariuki.  Topics will include news on the rather well-developed area of of mergerenforcement, regional integration & competition policy, as well as the concept of antitrust enforcement by the CCC as to restrictive business practices, an area that has been thus far less developed by the Commission in terms of visibility and actual enforcement, especially when compared to M&A.  We previously quoted Director Lipimile’s statement at a 2014 conference that, since the CCC’s commencement of operations “in January, 2013, the most active provisions of the Regulations have been the merger control provisions.”

Andreas Stargard, a competition practitioner, notes:

“We have been impressed with the Commission’s progress to-date, but remain surprised that no cartel cases have emerged from the CCC’s activities.  We believe that the CCC has sufficient capacity and experience now, in its sixth year of existence, to pursue both collusion and unilateral-conduct competition cases.

Personally, I remain cautiously optimistic that the CCC will, going forward, take up the full spectrum of antitrust enforcement activities — beyond pure merger review — including monopolisation/abuse of dominance cases, as well as the inevitable cartel investigations and prosecutions that must follow.”

The media conference will conclude tomorrow evening, June 26th.

Business Community

COMESA Competition Commission logoThe second event, also held in Nairobi, will shift its focus both in terms of attendees and messaging: It is the CCC’s first-ever competition-law sensitization workshop for the Business Community, to take place on Wednesday.  It is, arguably, even more topical than the former, given that the target audience of this workshop are the corporate actors at whom the competition legislation is aimed — invited are not only practicing attorneys, but also Managing Directors, CEOs, company secretaries, and board members of corporations.  It is this audience that, in essence, conducts the type of Mergers & Acquisitions and (in some instances) restrictive, anti-competitive business conduct that falls under the jurisdiction of Messrs. Lipimile, Mwemba, and Kariuki as well as their other domestic African counterparts in the region.

The inter-regional trade component will also be emphasized; as the CCC’s materials note, “we are at a historical moment in time where the Tripartite and Continental Free Trade Area agreements are underway. The objective of these agreements is to realize a single market. Competition law plays a vital role in the realization of this objective, therefore its imperative that journalists have an understanding of how competition law contributes to the Agenda.”

#LiveUpdates from the #CCCworkshop

Kenya perspective

Boniface Kamiti, the CAK representative replacing Mr. Kariuki at the event, noted that Africa in general and including the COMESA region “has a weak competition culture amongst businesses — which is why cartels are continuing in Africa, and the level of M&A is not at the level one would expect.”  This is why media “reporting on competition advocacy is very important, to articulate the benefits of competition policy and how enforcement activities further its goals, so the COMESA countries may be able to compete with other countries, including even the EU members, at a high level.”

He also highlighted — although without further explanation — the “interplay between the COMESA competition laws and those of the member countries; most people are not aware of that!”  This comment is of particular interest in light of the prior jurisdictional tension that had existed between national agencies and the CCC in the past regarding where and when to file M&A deals.  These “teething issues are now fully resolved”, according to Dr. Lipimile, and there are neither de iure nor any de facto merger notification requirements in individual COMESA member states other than the “one-stop shop” CCC filing (which has, according to Mr. Mwemba, reduced parties’ M&A transaction costs by 66%).

On the issue of restrictive trade practices (RTP), the CAK reminded participants that trade associations often serve to facilitate RTP such as price-fixing cartels, which are subject to (historically not yet imposed, nor likely to be) criminal sanctions in Kenya. It also observed that (1) manufacturers’ resale price maintenance (RPM) would almost always be prosecuted under the Kenyan Competition Act, and that (2) since a 2016 legislative amendment, monopsony conduct (abuse of buyer power) is also subject to the Act’s prohibitions.

Concluding, the CAK’s Barnabas Andiva spoke of its “fruitful” collaboration with the CCC on ongoing RTP matters, noting the existing inter-agency Cooperation Agreement. Added Mr. Mwemba, “we have approximately 19 pending RTP cases.”

CCC leadership perspective:  Nudging Uganda and Nigeria towards competition enforcement

CCC_Director

George Lipimile, CEO, COMESA Competition Commission

Dr. Lipimile took up Mr. Kamiti’s “weak African competition culture” point, noting the peculiar regional issue that “between poverty and development lies competition” to enhance consumer welfare.

He took the audience through a brief history of antitrust laws globally, and encouraged journalists to explain the practical benefits of “creating competitive markets” for the population of the COMESA region at large.

He called on Uganda and Nigeria to — finally — enact a competition law.  (AAT has independently reported on Uganda and also the EAC’s emphasis on its member nations having operational antitrust regimes.  We observe that Uganda does have a draft Competition Bill pending for review; a fellow Ugandan journalist at the conference mentioned that there has been some, undefined, progress made on advancing it in the Ugandan legislature.)  Dangote — the vast Nigerian cement conglomerate (see our prior article here) — and Lafarge played exemplary roles in Lipimile’s discourse, in which he commented that “they do not need protecting, they are large”, instead “we need more players” to compete.

Importantly, Dr. Lipimile emphasized that protectionism is anti-competitive, that “competition law must not discriminate,” and that its goal of ensuring competitive market behaviour must not be confused with the objectives of other laws that are more specifically geared to developing certain societal groups or bestow benefits on disadvantaged populations, as these are not the objectives of competition legislation.

The CCC also called on the press to play a more active role in the actual investigation of anti-competitive behaviour, by reporting on bid rigging, unreported M&A activity, suspected cartels (e.g., based on unexplained, joint price hikes in an industry), and the like.  These types of media reports may indeed prompt CCC investigations, Lipimile said.  Current “market partitioning” investigations mentioned by him include Coca Cola, SABMiller, and Unilever.

He concluded with the — intriguing, yet extremely challenging, in our view — idea of expanding and replicating the COMESA competition model on a full-fledged African scale, possibly involving the African Union as a vehicle.

CCC workshop participants

2018 CCC workshop participants

COMESA Trade perspective

The organisation’s Director of Trade & Commerce, Francis Mangeni, presented the ‘competition-counterpart’ perspective on trade, using the timely example of Kenyan sugar imports, the cartel-like structure supporting them, and the resulting artificially high prices, noting the politically-influenced protectionist importation limitations imposed in Kenya.

Dr. Mangeni opined that the CCC “can and should scale up its operations vigorously” to address all competition-related impediments to free trade in the area.

CCC Mergers

Director of M&A, Mr. Mwemba, updated the conference on the agency’s merger-review developments. He pointed to the agency’s best-of-breed electronic merger filing mechanism (reducing party costs), and the importance of the CCC’s staying abreast of all new antitrust economics tools as well as commercial technologies in order to be able to evaluate new markets and their competitiveness (e.g., online payments).

As Mr. Mwemba rightly pointed out, most transactions “do not raise competition concerns” and those that do can be and often are resolved via constructive discussions and, in some cases, undertakings by the affected companies. In addition, the CCC follows international best practices such as engaging in pre-merger notification talks with the parties, as well as follow-ups with stakeholders in the affected jurisdictions.

Key Statistics

Year-to-date (2018), the 24 notified mergers account for approximately $18 billion in COMESA turnover alone. Leading M&A sectors are banking, finance, energy, construction, and agriculture.

In terms of geographic origination, Kenya, Zambia, and Mauritius are the leading source nations of deal-making parties, with Zimbabwe and Uganda closely following and rounding out the Top-5 country list.

The total number of deals reviewed by the CCC since 2013 amounts to 175 with a total transaction value of US $92 billion, accounting for approximately $73.7 billion in COMESA market revenues alone. (The filing fees derived by the Commission have totaled $27.9 million, of which half is shared with the affected member states.)

All notified deals have received approval thus far. Over 90% of transactions were approved unconditionally. In 15 merger cases, the CCC decided to impose conditions on the approval.

Concurrences: Interview with Commissioner Bonakele

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Antitrust in Developing Countries: Competition Policy in a Politicised World

Our friends at Concurrences Review are hosting the fourth edition of the joint conference co-organized by Concurrences & New York University School of Law, in New York City on October 27, 2017.

Tickets and more information can be obtained here.

Below is the interview of Tembinkosi Bonakele (Commissioner, South African Competition Commission) by Ioannis Lianos (Professor, University College London). The two will participate in the conference panel “Impact of the New Nationalism on Competition and Economic Development in Developing Countries.”

Interview between Prof. Lianos and Commissioner Bonakele

© Concurrences

Competition authorities are increasingly interested in assessing the effects of mergers or other conduct on innovation. How is this concern over the promotion of innovation affecting the substance of competition law enforcement, and in particular the extraterritorial application of competition law, as innovation is often taking place in the context of global value chains? How should one resolve conflicts over competing visions over the impact of competition on innovation, as it seems to be, for instance, the case between the EU and the US, and possibly BRICS countries?

One of the aims of competition law is to encourage innovation. Firms and individuals are incentivised to innovate due to the protection conferred on their innovations by intellectual property laws (IP). Therefore, at least theoretically, competition and IP laws ought to be complementary. However, the conflicts between competition law and innovation/IP laws are increasingly coming into sharp focus within the context of global value chains. One such example is the recent global mega-mergers in the seeds and agro-chemicals sectors. These mergers illustrate how multinationals can leverage their significant innovation and research resources by extending their IP protections through ‘ever-greening’ of patents, reciprocal IP cross licensing arrangements with close rivals, joint ventures and collaborative research and development. This level of collaboration suggests that the seed/agro-processing markets are likely more concentrated than is currently understood. From a policy perspective, competition authorities in both the EU and US seem supportive of this level of concentration based on the theory that such concentration increases innovation, notwithstanding their (unintended) global unilateral effects to which developing countries are especially vulnerable, given the centrality of agriculture for the sustenance of communities in their economies. The vulnerability of developing countries is further exacerbated by the fact that they are trying to regulate multinationals which have access to resources that dwarf the GDPs of many developing countries, and are able to lobby hard politically, against any interventions aimed at their activities.

Against this backdrop, the way forward for BRICS and other developing countries is to continue efforts to establish their own research platforms to enable the true impacts of the trade-off between innovation and competition law to be better understood from a developing country perspective. Furthermore, there is scope for greater global co-ordination amongst competition law agencies to ensure that global transactions are investigated and remedied in a co-ordinated manner.

Broader public policy concerns, than consumer welfare narrowly defined, are increasingly taken into account by various competition law systems around the world, in both developing and developed countries when assessing mergers and, in some instances, anticompetitive conduct. There is also increasing demand for a broader canvas of principles and values in order to assess business conduct, as this is demonstrated by the development of the concepts of “social” and “green” capitalism. Should competition law authorities explore more systematically this trend and eventually move to a public interest standard in assessing anticompetitive conduct, at least in some economic sectors (for instance involving primary goods, such as food, shelter, or with considerable environmental impact etc.)? What would be the implications for the global governance of antitrust?

Many countries already apply tests beyond the typical competition law tests in merger assessments, but they do not declare those tests in an open and transparent way. In contrast, South Africa’s merger regulation explicitly includes a public interest test and guidelines have been issued setting out how the test will be applied during merger assessment.

Should public interest cover some old and emerging social issues such as green issues or the environmental impact on food security, shelter and so on? I think there is scope for these to be part of an assessment of merger transactions, but their location need not necessarily be with a competition agency and they can be properly assessed through a different regulatory agency in a transparent manner. Countries should be allowed to structure their agencies the way they deem fit.

Within South Africa’s context, in order to address historical inequalities and economic and political imbalances, competition legislation specifically provides for both competition law and public interest standards in the merger assessment process. It bears specific mention that the courts have recently confirmed that both the competition law and public interest tests are of equal prominence in any merger determination process. In a developmental context, economic exclusion exacerbates inequality, poverty and unemployment and competition policy in conjunction with industrial policy (introduced through public interest) can break down barriers to entry and unleash innovation and new entry, which are pivotal to the unleashing of economic growth and development.

Although public interest considerations in merger assessment would appear, largely, the preserve of developing countries, developed countries and most notably, the European Union, seem to be re-considering their stance towards public interest considerations in merger assessment. Moreover, the impact of globalisation appears to be giving rise to a new wave of ‘new nationalism’ in developed countries (and the United States is no exception). This has ushered in more inward looking perspectives to international trade and ironically, may give rise to the use of public interest considerations in ‘tit for tat’ exchanges in transactions taking place within an increasingly geopolitical context. Thus, the implications for the global governance of anti-trust may be convergence.

In recent years the competition authorities of BRICS countries and other large emergent economies have been increasingly active in competition law enforcement, adjudicating high profile cases of global importance. The experience gained may be a source of inspiration for competition authorities in other emergent and developing countries, and could also be an important source of learning and wisdom for the competition authorities in developed countries. Do you consider that BRICS and other larger emergent competition authorities should strive to ensure global convergence with the EU and/or US models of competition law, as this is put forward by some, or should they opt for different models, experimentation being an important source of collective learning for both developing and developed countries? Should convergence, or experimentation, be the main/driving principle for the global governance of competition law? 

In the developed world, competition law is applied within a context in which it is presumed that markets are naturally competitive, self-correcting and don’t require policy interventions to address failures. However, that presumption cannot hold true in a developing country context where markets are undeveloped, highly concentrated, non-inclusive and unemployment and inequality are high. In this ‘developmental context’ competition law is applied within a context in which it is presumed that firms with market power exploit it. Therefore, in developmental context, competition law more than just efficiency, but human and socio-economic development as well.

Rather than seeking convergence with developed country perspectives on competition law, developing countries need to play a more prominent role in understanding how competition law policy can be used to address poverty, inequality and unemployment. This will require developing countries through the auspices of representative regional platforms such as BRICS, to enhance co-operation, share experiences and develop legal and competition law expertise from a developmental perspective.

Thus, it is important to appreciate that approaches to competition law in the developed and developing worlds are diverse and that divergence should be tolerated and informed by context. This does not take away the need for global co-operation and sharing best practices. There are also instances where harmonisation may be desirable, like in regions with or striving for common markets.

Book release exclusive: “Class Action Litigation in South Africa”

As foreshadowed over the past 4 years, since the inception of this blog, the topic of class action litigation (aka collective action) has gained momentum in Africa’s southern-most jurisdiction.

For our readers’ consideration, we invite you to purchase our editor John Oxenham‘s new authoritative (and first of its kind) book, entitled “Class Action Litigation in South Africa”.  If interested, please use the form below or e-mail us (editor@africanantitrust.com) for ordering information from JUTA Law publishers.

If you are in Johannesburg, S.A., on Wednesday, 2 August 2017, we would also be delighted if you could attend the book launch event — please be sure to R.S.V.P. to bdev@primerio.international if you plan to do so, however, as it is a private guest-list event only and requires your name for access to the venue.

We are most excited about the volume, which is the first of its kind and deals with a novel area of the law.  It contains chapters written by current and former firm members, including Andreas Stargard, Njeri Mugure, and of course the editor, John Oxenham.

New Frontiers of Antitrust – Paris conference

Concurrences Review will hold the 8th edition of its annual conference “New Frontiers of Antitrust” on Monday 26 June, from 8:30am to 7:00pm, at the Maison du Barreau, Rue de Harlay, Paris, France.

Marc van der Woude, Judge, Vice-President, General Court of the European Union, Luxembourg, will deliver the opening keynote speech.

AAT readers can use the following promotional code to sign up: NFA2017PartnersBlogs at the following site: https://newfrontiersofantitrust2017.eventbrite.fr


 Speakers include:

– Eric Barbier de La Serre, Partner, Jones Day

– Cristina Caffarra, Vice President, Head of European Competition Practice

– Andrea Coscelli, Acting Chief Executive, Competition & Markets Authority

– Isabelle de Silva, Chairperson, Autorité de la concurrence

– Kaarli Eichhorn, Global Executive Counsel – Competition Law & Policy, General Electric

– Carles Esteva Mosso, Deputy Director-General for mergers, DG COMP

– Justus Haucap, Director, Institute for Competition Economics

– Mathew Heim, Vice President and Counsel, Qualcomm

– Laurence Idot, Professor, University Paris II Panthéon-Assas

– Gert-Jan Koopman, Deputy Director-General State aid, DG COMP

– Frédéric Jenny, Chairman, OECD Competition Committee

– Cecilio Madero, Deputy Director-General Antitrust, DG COMP

–  Franck Maier-Rigaud, Professor, IÉSEG School of Management, Paris | Head of Competition Economics Europe, NERA,

– Robert McLeod, Co-Founder & Chief Executive Officer, MLex

– Damien Neven, Senior Consultant, Compass Lexecon

– Mélanie Thill-Tayara, Partner, Dechert

– Wouter Wils, Hearing Officer, European Commission, Visiting Professor, King’s College London

The conference will focus on 4 topics:

– Competition authorities: Towards more independence and prioritisation?
– Mergers and innovation: Do mergers foster innovation?
– State aid and tax ruling: Is there really a competition issue?
– Exploring the politics of competition regulation: How political is competition law?

 

Cameroon: Opportunities & Challenges

This past Saturday, 11 March 2017, the Cameroonian Embassy in Paris, France, hosted a conference entitled “Cameroun, Destination d’Opportunités: Potentiel et défis” in conjunction with the Association of Cameroonian Attorneys in France.  The full programme is made available to AAT readers here.

1425573796In its afternoon panel on investment in Cameroons, Primerio Ltd. legal counsel, Dr. Patricia Kipiani spoke at length about the country’s high-growth sectors.  Her co-panellists included the Paris bar’s Lynda Amadagana as moderator, and William Nkontchou (ECP Director) and Hilaire Dongmo (Investment Principal at Actis).

Antitrust Writing Awards 2017

The 2017 Concurrences Antitrust Writing Awards received nominations for more than 600 papers. The Awards Editorial Committee has selected:

  • 66 academic articles
  • 91 business articles
  • 21 soft laws

Readers can vote online until February 1 for their favorite papers on the Awards website.

Free access to all these articles is temporarily being provided on the Awards website.

Results will be announced by former FTC Commissioner and renowned antitrust scholar Bill Kovacic and the Board members at the Gala Dinner on March 28, in Washington, D.C., the night before the ABA Spring Meeting.

Tickets for the Gala Dinner are available here.

Competition and Globalization in Developing Economies

Our Partner, Concurrences Review, has partnered with NYU Law, is hosting an à propos antitrust conference on Competition and Globalization in Developing Economies in New York

Topics & Panels:

  • Globalization and the Rise of Regionalism: TPP, ASEAN, COMESA, MINT and Coherence in the World

  • Pricing and Development Issues: Exploitation and Collusion

  • Mergers: Anatomy of a Clearance in Younger Jurisdictions

  • Innovation and Development: Licensing and Antitrust/IP Rules and Guidelines

  • Enforcers’ Roundtable: What’s under the Radar?

Speakers include:Charbit.jpeg

ENFORCERS

  • Tembinkosi Bonakele | Commissioner, South Africa Competition Commission, Pretoria

  • Dennis Davis | President, South African Competition Appeal Court, Cape Town

  • Jonathan Fried | Ambassador and Permanent Representative of Canada, WTO, Geneva

  • Frédéric Jenny | Chairman, OECD Competition Committee, Paris

  • William Kovacic | Non-Executive Director, Competition and Markets Authority, London

  • George Lipimile | Director, COMESA Competition Commission, Lusaka

  • Alejandro Sabido | Commissioner COFECE, Mexico City

  • Randolph W. Tritell | Director, Office of International Affairs, US FTC, Washington, DC

ACADEMIA

  • Harry First | Professor, NYU School of Law

  • Eleanor Fox | Professor, NYU School of Law

  • Daniel Rubinfeld | Professor, NYU School of Law

IN-HOUSE COUNSEL

  • Alvaro Ramos | Head Global Antitrust, Qualcomm, San Diego
  • Sabine Chalmers | Chief Legal & Corporate Affairs Officer, Anheuser-Busch InBev, New York

  • Dina Kallay | Director, Intellectual Property & Competition, Ericsson, Washington, DC

  • Christopher Meyers | Associate General Counsel, Microsoft, Remond

This event will take place on Friday, October 28, 2016 from 8:30 AM to 6:30 PM at New York University School of Law.

You can see the full agenda and register online here.

Kipiani and Tchapga: advancing competition law & economics in Cameroon

Competition Law conference provides most in-depth look at the state of Cameroonian antitrust law

Event organised by Dr. Patricia Kipiani and Prof. Tchapga of Primerio & CEMAC, the Cameroon school of business and its competition law section

What follows is an article that appeared in French in the Le Droit journal, written by Stéphane Ngoh, reprinted here with permission.  An English translation is below.  An interview with Dr. Kipiani related to the conference can be found here.  In it, she discusses the planned creation of a “Competition Observatory” for the country.

Le cabinet Primerio International a organisé un séminaire de sensibilisation aux enjeux du droit et de la politique de la concurrence au Cameroun et dans l’espace de la CEMAC. L’évènement lancé par le ministre du Commerce, M. Luc Magloire Mbarga Atangana s’est déroulé le 7 juillet 2016 au siège du GICAM à Douala.

Présenter la concurrence comme « un bien commun » à la collectivité et « renforcer la pédagogie de la concurrence dans ses dimensions juridiques et politiques» tels peuvent être les maitres mots du premier « rendez-vous de la concurrence» au Cameroun et en CEMAC impulsé par le cabinet d’expertise Primerio International et placé sous le thème «Du droit et de la politique de la concurrence au Cameroun et dans l’espace CEMAC ».  Comme pour en souligner toute l’importance, le ministre du Commerce du Cameroun, Luc Magloire Mbarga Atangana, a fait le déplacement de la capitale économique dans l’optique d’en présider le lancement officiel. Le Docteur en droit et avocate au barreau de Bruxelles, Mme Patricia Kipiani, qui représentait le cabinet Primerio International pour l’occasion a expliqué combien cette première édition des « rendez-vous de la concurrence », se voulait sérieuse. Toute chose ayant justifié l’association aussi bien des universitaires de tous bords, du groupement inter-patronal du Cameroun (Gicam) que des autorités publiques camerounaises. Les Chercheurs de l’Université de Paris 1 Panthéon-Sorbonne en France et les spécialistes du droit de la concurrence, le Professeur des universités Martine Behar-Touchais et l’enseignant-chercheur Laurent Vidal ont fait le déplacement du Gicam.

1425573796Le ministre du Commerce, qui intervient comme l’autorité publique de tutelle du secteur de la concurrence, a tenu à préciser que les rendez-vous de la concurrence ne pouvaient mieux tomber dans un contexte communautaire et camerounais situé à « la veille de l’entrée en vigueur des Accords de partenariat économique « APE », entre les pays ACP et l’UE dont le Cameroun est partie », ces accords qui impliquent une ouverture de l’économie imposent donc qu’un certain accent soit mis sur le droit et la politique de la concurrence. Au demeurant, le représentant de l’Etat du Cameroun à ce rendez-vous a tenu à réaffirmer la place reservée jusqu’ici à la concurrence, « notre conviction, a –t-il expliqué, est que le commerce a besoin d’un environnement sain et c’est la raison pour laquelle un arsenal des textes législatives ou règlementaires existe au Cameroun et cela témoigne de la volonté de l’état de réguler le secteur ». A l’appui de son affirmation, M. Luc Magloire Mbarga Atangana a soutenu que la volonté et la détermination du Cameroun à faire du droit de la concurrence un enjeu de poids, se traduit depuis des années. Pour s’en féliciter, il souligne que les premières velléités d’encadrement de la concurrence remontent aux années1990 et qu’autant les lois ont créé la Commission nationale de la concurrence (Cnc) autant des décrets  en ont fixés les contours organisationnels et structurels. Le président de ladite Commission Léopold Boumsong, qui était dans la suite du Mincommerce, a été appelé à présenter les aspects nationaux de la concurrence et précisément le rôle de la Commission nationale de la concurrence. Ce rôle, comme l’a martelé le ministre, doit s’attacher à « poursuivre et sanctionner les pratiques anticoncurrentielles, en s’appuyant sur des textes datant et nouveau à l’instar de la loi cadre protection sur la consommation, de la nouvelle loi portant organisation des activités commerciales ainsi que la loi sur commerce extérieur ».

TROIS GRANDES PRATIQUES ANTICONCURRENTIELLES

cameroonLe président de la Cnc a précisé à l’égard des chefs d’entreprises qui emplissaient la salle du Gicam qu’il existe sommairement 3 types de pratiques qui ont « pour effet d’empêcher, de fausser ou de restreindre de manière sensible, l’exercice de la concurrence au niveau du marché intérieur » au sens de la loi n°98/013 du 14 juillet 1998 relative à la concurrence. Il s’agit des abus d’une entreprise ou d’un groupe d’entreprises en position dominante sur le marché, des fusions et acquisitions d’entreprises et aussi des accords anticoncurrentiels. L’un dans l’autre, il est apparu que les pratiques anticoncurrentielles au Cameroun sont constatées par procès-verbal dressé par les membres de la Commission suite aux enquêtes consécutives à une plainte d’une personne physique ou morale ou à celles initiées par eux-mêmes.

Par la suite, les aspects multilatéraux de la concurrence ont été évoqués au travers de la présentation du rôle de la Conférence des Nations Unies sur le Commerce et le Développement (CNUCED) en matière l’accompagnement des politiques de concurrence. L’économiste de la CNUCED, Yves Kenfack a découvert le code CNUCED de la concurrence dont il a salué la pertinence tout en regrettant que celui-ci ne soit pas contraignant pour les Etats signataires.

Un autre moment des échanges a porté sur les aspects croisés entre le point de vue de l’économiste et celui du juriste quant à la concurrence. C’est M. Flavien Tchapga, économiste, consultant lui aussi à Primerio International et professeur associé à l’Université Senghor d’Alexandrie, qui s’y est attelé face à l’auditoire de la salle des conférences du Gicam. L’intervention de ce dernier peut se ramener à une suggestion forte faisant suite à l’interrogation suivante : « peut-on réussir la sensibilisation sur la concurrence si l’on ne tient pas compte des spécificités de l’environnement local ? ». Réponse, en effet, dans un contexte où 9 entreprises sur 10 sont individuelles, il faut se méfier des formules des juristes qui sont souvent larges et complexifiées pour les économistes plus proches du terrain.

Au cours du rendez-vous de la concurrence, une table-ronde a été ouverte pour asseoir la dimension didactique de la rencontre. Les débats et les questions étaient placés sous la houlette de M. Martin Abega, administrateur de sociétés, ancien membre de la Commission nationale de la concurrence et Consul honoraire du Royaume des Pays-Bas au Cameroun.

En dernière analyse, les expériences pratiques de règlementations et de politiques de la concurrence en Europe et au Cameroun ont clairement été croisées par le biais de Martine Behar-Touchais et Laurent Vidal d’une part et de Me Abdoul Bagui d’autre part. Etant entendu qu’au Cameroun, la régulation est émiettée par secteur d’activités.

Ce sont concrètement toutes les difficultés liées au libre exercice de la concurrence qui ont été passées au crible. La contrebande, la persistance des monopoles dans certains domaines ou encore la contrefaçon relèvent de ces écueils épluchés par les soins des experts internationaux et locaux à l’instar des représentants du CNUCED, de CEMAC, de l’OHADA et surtout des entreprises camerounaises. Le Dr. Patricia Kipiani a expliqué qu’il était important que « les réflexions et les échanges reviennent sur les difficultés auxquelles se heurtent les entreprises, sur les difficultés liées à la concurrence déloyale, à leur impact sur le secteur informel et autres activités informelles des entreprises formelles. Et aussi qu’ un accent soit mis sur la réglementation et sur les politiques économiques susceptibles de promouvoir notre espace économique ».

Stéphane Ngoh


For our English readers, below is a Google Translate version in English of the article:

The international  firm Primerio organized an awareness seminar on issues of law and competition policy in Cameroon and in the CEMAC zone. The event launched by the Minister of Trade, Luc Magloire Mbarga Atangana Mr. took place July 7, 2016 at the headquarters of GICAM in Douala.

Introduce competition as a “common good” to the community and “strengthen the teaching of competition in its legal and political dimensions” — such are the watchwords of the first “meeting competition” in Cameroon and driven CEMAC by the consultancy firm Primerio International and under the theme “from the law and competition policy in Cameroon and in the CEMAC.” As if to emphasize the importance, the trade minister of Cameroon, Luc Magloire Atangana Mbarga, made the trip from the economic capital with a view to chair the official launch. The Doctor of Law and lawyer at the Brussels Bar, Patricia Kipiani, who represented the firm Primerio International for the occasion explained how this first edition of “appointments of competition”, was meant seriously. Anything that justified the association both academics of all stripes, the inter-group employers of Cameroon (Gicam) that the Cameroonian public authorities. The researchers from the University of Paris 1 Panthéon-Sorbonne in France and specialists from the competition law, the University Professor Martine Behar-Touchais and Laurent Vidal teacher-researcher made the trip from Gicam.

Minister of Commerce, which acts as a public authority supervising the sector to competition, has insisted that the appointment of the competition could not get better in a community and Cameroonian context located “on the eve of the entry into force of the economic partnership agreements ‘EPAs’, between the ACP countries and the EU which Cameroon is a party “, these agreements which involve opening up the economy therefore require that a certain emphasis on law and the competition policy. Moreover, the representative of the State of Cameroon to this appointment held to reaffirm the place reserved far in the competition, “our conviction has -t he explained, is that the trade needs a healthy environment and that is why an arsenal of legislative and regulatory texts exist in Cameroon and it demonstrates the willingness of the state to regulate the sector. “ In support of its contention, Luc Magloire Atangana Mbarga argued that the will and determination of Cameroon to the competition law of a weight issue, resulting in years. To be welcomed, he stressed that the first framework for competition ambitions date back to the 1990’s and that so many laws created the National Competition Commission (CNC) as decrees have laid the organizational and structural contours. The president said Leopold Commission Boumsong, who was later in the MINCOMMERCE, was called to present the national aspects of competition and specifically the role of the National Competition Commission. This role, as insisted the minister, must strive to “prosecute and punish anti-competitive practices, based on texts dating and new like the law under protection on consumption, the new law on the organization of business and the foreign trade Act. “

THREE MAJOR ANTI-COMPETITIVE PRACTICES

The president of the CNC said against business leaders who filled the room Gicam there summarily 3 types of practices which have “the effect of preventing, distorting or restricting significantly, the year of competition in the internal market “under law No. 98/013 of 14 July 1998 on competition. This is abuse of a company or group of companies in a dominant market position, mergers and acquisitions as well as anti-competitive agreements. One the other, it appeared that anti-competitive practices in Cameroon are recorded in minutes drawn up by the Commission of the members following the investigations following a complaint from a natural or legal person or those initiated by them -Same.

Thereafter, the multilateral aspects of competition were discussed through the presentation of the role of the United Nations Conference on Trade and Development (UNCTAD) in support for competition policy. The economist of UNCTAD, Yves Kenfack discovered the UNCTAD code of competition which he praised the relevance while regretting that it was not binding on the signatory states.

Another moment of trade covered the Crusaders aspects between the views of the economist and that of the lawyer about the competition. It was Mr. Flavien Tchapga, economist, consultant also to Primerio International and associate professor at the Senghor University of Alexandria, which it is harnessed facing the audience of the Gicam conference room. The intervention of the latter can be reduced to a strong suggestion in response to the following question: “can we succeed awareness on competition if it does not take into account the specificities of the local environment? “. Response, in fact, in a context where 9 out of 10 companies are individual, beware formulas lawyers who are often larger and more complex to the nearest economists ground.

During the appointment of the competition, a panel discussion was opened to establish the educational dimension of the encounter. The debates and issues were under the leadership of Mr. Martin Abega, corporate director, former member of the National Competition Commission and Honorary Consul of the Kingdom of the Netherlands in Cameroon.

Ultimately, the practical experiences of regulations and competition policies in Europe and Cameroon have clearly been crossed through Martine Behar-Touchais and Laurent Vidal one hand and Mr. Abdul Bagui other. It being understood that in Cameroon, regulation is broken by sector.

These are all practical difficulties related to the free exercise of competition that were screened. Smuggling, the persistence of monopolies in certain areas or counterfeiting within these pitfalls peeled for the service of international and local experts like the representatives of UNCTAD, CEMAC, OHADA and especially Cameroonian companies. Dr. Patricia Kipiani said it was important that “the reflections and exchanges back on the difficulties firms face, the difficulties related to unfair competition, their impact on the informal sector and other informal activities formal businesses. And also that an emphasis on regulation and economic policies that promote our economic space. “