Concurrences in partnership with Fordham Competition Law Institute will hold the inaugural Antitrust in Life Sciences on Monday, 23 March, 2020 from 1:30 to 6:30 pm at Fordham Law School in New York
Confirmed keynote speakers are: (1) FTC Commissioner Noah Joshua Phillips, (2) Paul Csiszár, European Commission – DG COMP’s Head of Antitrust Unit for Pharma and Health Services, (3) Gail Levine, FTC Deputy Director, Bureau of Competition in charge of Healthcare cases, and (4) Scott Hemphill, NYU Professor and former NY AG Antitrust Chief.
There will be three panels:
Panel 1: Generics Exclusion: What Conduct Crosses the Lines? – Product Hoping, Patent Settlement, Class Certification…
Panel 2: Do Pharmaceutical Mergers Harm Consumers?
Panel 3: The Counsel’s Perspective: How to ensure Antitrust Compliance?
You can see all confirmed speakers, and register for free on the dedicated website:
The above topics were among those discussed at this year’s #AfricaFinanceForum, hosted by the Corporate Council on Africa. The annual event featured high-level speakers, such as Rhoda Weeks-Brown, IMF General Counsel, who pointed to increased expected economic growth rates of 3.5% in 2019 (half a point higher than in 2018) and a faster per-capita income rise in Africa than in rest of the world. “Also up for debate was the dichotomy of investment vs. development assistance as the key driver of economic development on the continent,” notes Andreas Stargard, who attended on behalf of Primerio Ltd.
Ms. Weeks-Brown noted the rise of pan-African (vs. purely domestic) banks, observing the added benefit of improved competition, as well as the steady rise of fintech on the continent. The latter is especially important as the continent is still under-banked and relies heavily on the informal sector (less than 20% of sub-Saharan Africa’s population has a bank account). Yet Africa leads the world in mobile money. Mr. Stargard noted that “[s]he and many other speakers on subsequent panels agreed that there was a delicate balance to be struck by regulators and legislators of weighing innovation against the proper level of FinTech regulation and its integration benefits against anti-competitive effects thereof. The IMF attorney was careful to point out that banking & financial integration must grow in conjunction with, and to support, economic and trade integration, as financial stability is a public good. Africa requires strong sector regulators that must remain free from undue political or industry interference.”
Kalidou Gadio, a lawyer at Manatt, provided a sanguine assessment of the state of banking in Africa, noting that it is not up to par globally, but better than it was a decade ago, before and during the financial crisis. He also pointed to the net positive effect of banks facing increasing competition from newcomers to the space, such as Orange, M-Pesa and other telecom firms.
Dr. Maxwell Opoku-Afari, First Deputy Governor of the national Bank of Ghana observed the difficulties in setting proper licensing rules for fintech companies by central banks, and commented on the concentration risk in banking.
Phumzile Langeni, special investment envoy of the RSA, gave an objective speech on the investment opportunities in South Africa, including the President’s FDI incentive programme. She answered difficult questions with aplomb — for example those about the country’s land reforms, infrastructure troubles, and unemployment — and spoke of the enormous growth potential and the “youth dividend” in South Africa and the continent in general.
The half-day event was rounded out by a panel focussed on central banks’ handling of the unique foreign-exchange problems faced by certain African nations, notably Mozambique and Angola, whose central banks had representatives on the panel, including the issues of ForEx reserve allocation and pegged rates.
Concurrences, in partnership with NYU Stern, will hold the fourth annual Global Antitrust Economics Conference on Friday, May 31 2019 from 8:30 am to 5:00 pm at NYU Stern School of Business.
There will be four panels:
- Panel 1: Antitrust in Sports
- Panel 2: Telecom Mergers
- Panel 3: Pricing Issues in Pharma: Pay-For-Delay, Product Hopping…
- Panel 4: In-House Counsel Session: Platforms
You can see confirmed speakers, and register for free at http://globalantitrusteconomics.eventbrite.com
Primerio’s Merger Team First to Obtain Clearances on Bayer’s $66 Billion Monsanto Acquisition
The Global Competition Review 2019 GCR Awards honoured the companies and their in-house and outside counsel responsible for shepherding the massive agriculture transaction through the multi-jurisdictional merger-control processes around the globe. The Bayer/Monsanto (with divestitures to BASF) merger garnered overall “Matter of the Year” as well as “Merger Control Matter of the Year” in Europe. The ceremony took place in Washington, D.C., during the annual ABA Spring Meeting antitrust conference.
The legal team advising St. Louis-based Monsanto on all African competition approvals was led by John Oxenham and Andreas Stargard, ably assisted by attorneys in 4 African jurisdictions — South Africa, COMESA, Tanzania, and Kenya. The Primerio lawyers had the unique distinction of obtaining the first out of dozens of required clearances.
Nominations for the 2019 Antitrust Writing Awards are open
We are pleased to announce that nominations for the 2019 Antitrust Writing Awards are now open. For the 8th consecutive year, our friends over at Concurrences Review has brought together an impressive jury panel consisting of antitrust enforcers, professors, and in-house counsels to select the Best Articles and Best Soft Laws published and released in the past year.
The deadline for submission is December 2, 2018.
The present Call for Nominations concerns 3 types of publications:
Best Articles: Articles published or accepted for publication in 2018, in both academic journals and professional magazines.
Best Soft Law: Most innovative non-enforcement tools issued by competition agencies in 2018, such as guidelines, market studies, white books, etc.
Best Newsletters: Leading antitrust newsletters published by law firms that stand out for coverage, contents, readership or innovation.
To nominate an Article, Soft Law or Newsletter, and read full eligibility rules, see here: http://awards.concurrences.com
Articles must be submitted before December 2nd.
The Editorial Committee will select 100 Articles, 30 Soft Law and 30 Newsletters.
Winners will be invited to attend the Gala Dinner on March 26, 2019 in Washington, DC in the presence of the Board and Steering Committee Members. To see the full list of Jury Members, click here.
The Antitrust Writing Awards is a joint initiative between Concurrences Review and the George Washington University Law School. Learn more about the Jury, the Awards categories and Rules on the dedicated website here.
Our friends at W@Competition invite you to submit nominations by 25 November:
You know or you have worked with – either within your organisation or otherwise – notable women competition professional in their 40s in Africa? The survey will feature 40 outstanding professionals aged between 40 and 49 in the competition field in: Competition Law – Private Practice, Bar & Academia
Filling in this simple online nomination form will only take a minute. There is no limit to the number of women you may nominate.
All eligible nominees will be invited to participate in the second round. An initial list will be drawn up by an independent jury on the basis of anonymised submissions by nominees and input from referees will be sought as appropriate.
Pro rem publicam
At the Concurrences “Antitrust & Developing and Emerging Economies” conference held at NYU Law last Friday — and aptly sub-titled “Coping with nationalism, building inclusive growth” — the audience was treated to a (rather iconoclastic, yet fascinating) keynote speech by Nobel laureate economics professor Joe Stiglitz, which highlighted what would become a theme woven throughout the four panels of the day: One size does not fit all when it comes to competition-law regimes, according to a majority of the speakers; imposing a pure U.S. or EU-derived methodology without regard to local economic and/or political differences is doomed to fail. However, as we outline further below, there were also countervailing voices…
In the words of Professor Stiglitz, his advice to developing nations was (perhaps to the chagrin of U.S. government representatives, such as the FTC’s international director, Randy Tritell): “don’t copy the US antitrust laws and presumptions!” Smaller markets in developing countries are even more susceptible to market power by few large firms. Competition law can be used in developing countries to advance the public interest, as there are fewer “tools in the toolkit” in those nations, and in his view, all available tools should thus be used. He referred to the WalMart/Massmart transaction in South Africa in this regard, noting the public-interest conditions imposed there.
On the day’s Mega Mergers panel, SACC Commissioner Tembinkosi Bonakele noted how the outcomes of truly global “mega mergers” all having been positive, “there has been no outright prohibition, there really is no problem that’s too big which could not be remedied by the authorities and the parties.”
Observes Andreas Stargard: “Commissioner Bonakele also pointed to the importance of international merger enforcers cooperating on remedies, in order to allow these positive outcomes to be maintained. Taking up Professor Harry First’s hypothetical of a joint or ‘merged’ antitrust enforcement agency, Mr. Bonakele considered a combined merger authority for the African continent a possibility, especially in light of the many small jurisdictions which individually lack resources to police cross-border M&A activity.” Mr. Bonakele expressed the concern that “the smaller, national enforcers certainly feel as if they cannot block a mega deal on their own, so they largely defer” to the established agencies, such as the EC and DOJ / FTC.
In response to Frederic Jenny’s critical introduction of the South African Competition Amendment Act, Commissioner Bonakele commented that the current legal regime lacked the ability to tackle concentration as a market feature in itself, whilst the SACC had a comparatively positive track record on unilateral enforcement issues. Overall, he disagreed with the moderator that most of the Bill’s changes were drastic, stating simply that it would in fact bring South Africa more in line with other international regimes.
As to the ministerial intervention powers, he identified two concerns, namely the use of the agency’s resources as well as the possible risk of abuse by a minister who could employ the new law to pursue ulterior motives against a firm or a sector.
Counterpoint: public interest or politicization?
Prof. Ioannis Lianos characterized the “slightly fuzzy public interest test” as largely a scheme to enhance the bargaining power of the competition agencies that do apply such a test.
Canadian attorney and former enforcer Lawson Hunter pointed out that the trend of growing political interference in the merger approval process has spread globally, not only in developing nations but also in well-established regimes — often under the guise of national security reviews, which are “obscure, opaque in process, fundamentally political, and without any ‘there there’.” Merger review has “simply become very broad and less doctrinal.” “I found it interesting that Mr. Hunter recommended that other antitrust agencies should give more frank input into their sister agencies, if and when those stray from the right path,” said Stargard, who focuses his practice on competition matters across the continent. “Hunter also pointed to the tendency in emerging antitrust jurisdictions to abuse the remedy process in merger control to address economic issues that lie well outside the actual competition concerns that may have been found — an issue we have also come across, sadly.”
Commissioner Bonakele closed the final panel of the day by addressing the recently ratified South African Competition Amendment Bill: he admitted that there were some “radical” provisions in the law, such as the power to break up companies, as well as the existence of a risk of government using the law’s new national security provision in a protectionist manner. He concluded by stating his personal worry that the law had possibly too much ambition, which could be difficult to implement in reality by the SACC.
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.
Registration & Breakfast
Opening Keynote Speech
Nobel Prize-Winning Economist | Professor, Columbia University, New York
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
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
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
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
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
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.
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, 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.
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.
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.