After its 2017 administration change, the Republic of Angola is eager to join other African nations with nascent competition-law enforcement regimes: Having been approved by a unanimous majority of 183 votes in parliament, the new Angolan competition act is expected to be enforced by the also newly-established “Competition Regulatory Authority” (“ARC”) in short order, before year’s end, according to experts.
According to reports, the Angolan law (comprising 56 articles across 8 chapters) prominently includes principles such as the public-interest criterion and “rules of sound competition in morality and ethics.”
Says Andreas Stargard, an antitrust/competition and white-collar attorney with Primerio Ltd.: “These are concepts often deemed non-traditional in the antitrust laws in the Western hemisphere. Yet, public-interest considerations are increasingly common in African competition-law legislation and indeed often form the basis for otherwise difficult to justify pragmatic enforcement decisions we now encounter more frequently across the continent, both in merger and non-merger cases.”
Angola is a member of the African Union and the SADC (Southern African Development Community), whose most prominent member, the Republic of South Africa, has a comparatively long history of including public-interest considerations in its two decades of antitrust enforcement. As to the general concept of Angola finally adopting a competition-law regime, it appears that a key driver was the anticipated diversification of the domestic economy:
“A functioning Angolan competition regime (meaning not only the statute but also including an effective enforcement agency) is long overdue, as recognised by the recently elected Angolan president, João Lourenço,” says attorney Stargard. “By supporting enactment of the Competition Bill, Mr. Lourenço has made good on his campaign promise from 2017 to incentivise foreign direct investment, increase domestic business growth, and — importantly for the population — encourage price competition in local consumer goods markets, as the cost of living in Angola is among the highest on the African continent”.
One of the drivers of the new government’s push for FDI and organic GDP growth is the desire to de-link the Angolan economic dependence from oil prices and production, and possibly also from China (which remains the country’s largest trading partner by far). Angolan fossil fuel and diamond exports — together by far the largest sectors of the economy, and as commodity industries, quite naturally subject to collusion risk and/or monopolistic practices, according to Mr. Stargard — have yielded at best inconsistent benefits to the country’s population at-large, and President Lourenço’s pro-competition intitiative appears to support the diversification of his country’s lopsided economy historically focused on mining and resource extraction.
Lipimile Advocates for Foreign Direct Investment, Encouraging Acquisition-Hungry Multi-Nationals in Recent COMESA Trade Remarks
In a comment on the COMESA Simplified Trade Regime (STR) regional programme, recently being implemented locally in the border region between Rwanda and the DRC, George Lipimilie, the Chief Executive Officer of the COMESA Competition Commission, stated that the regional body’s “focus on free movement of goods has generally paid dividends resulting in  a lot of cross-border mergers and acquisitions,” according to an article in the Rwanda New Times.
George Lipimile of the COMESA Competition Commission
It appears that the CCC chief is expressly favouring foreign direct investment into the region by way of mergers (or perhaps more accurately, acquisitions). “This is particularly so where the ‘foreign’ (presumably implying non-COMESA) multi-national entity brings with it novel technologies or R&D to improve the market position of the local competitor,” according to Andreas Stargard, a Pr1merio Ltd. competition-law practitioner.
Of interest to M&A practitioners, Mr. Lipimile is quoted as saying: “There are situations when foreign companies use acquisitions to enter the market where you find a multinational company buying a local company which is good because it comes with a lot of technology.” (Emphasis added).
Mr. Lipimile was also rather specific about encouraging FDI in the region’s raw-materials sector from nation states other than the PRC: said Lipimile, “[w]e have seen China taking advantage of our raw materials and we hope more countries can follow suit.”
We note that the domain of international trade — specifically tariffs as barriers to trade — has historically not been within the jurisdictional purview of the COMESA Competition Commission, which was designed to be a competition-law enforcement body. Technically, there exists the post of COMESA Director for Trade, Customs & Monetary Affairs, held by Dr. Francis Mang’eni and not by Mr. Lipimile. The CCC, however, “has recently emerged to take a more active role within the COMESA architecture of regional enforcement institutions,” Mr. Stargard says. He notes that Article 4 of the COMESA Treaty expressly provides that “[i]n the field of trade liberalisation and customs co-operation [the Member States shall] (a) establish a customs union, abolish all non-tariff barriers to trade among themselves”, and that the regional Competition Regulations expressly bestow the CCC with the authority to investigate and abolish all “anti-competitive practices affecting COMESA regional and international trade.”
South African Competition Commissioner quoted as preferring legislative action rather than Commission action
In a BD Live article from today (“Competition policy ‘not best way to plug industrial loopholes’”), Linda Ensor reports on a presentation Tembinkosi Bonakele made to Parliament’s trade and industry portfolio committee. In it, the head of the Competition Commission (“Commission”) remarked, according to the article, that “the application of competition law by the competition authorities was a slow process that should not be used to address loopholes in the implementation of industrial policy.” Mr. Bonakele is quoted as noting that the “litigious nature of using competition policy as a mechanism to reduce prices was a ‘delayed remedy to the market’.”
At issue, in part, are the price levels of South Africa’s natural-resource sector, including a reference by Mr. Bonakele to “a loophole” in industrial policy and regulation, i.e., the Commission’s long-running investigation of alleged excessive pricing by Sasol Chemical Industries, which lasted about seven years prior to a ruling by the Competition Tribunal, in which Sasol was found guilty of excessive pricing of propylene and polypropylene products, fining it R534m.
Mr. Bonakele’s key suggestion was that there are alternative means for the government to intervene, e.g., through regulation.
The Western Australian government has signed a Memorandum of Understanding with COMESA.
Colin Barnett signed the papers yesterday, January 31, 2014. COMESA dutifully posted a news release on its web site, albeit misspelling the W. Australian premier’s name (“Colin Barnnet“).
Setting aside the embarrassing PR SNAFU, we expect the MoU to have little to no effect on competition enforcement by the COMESA Competition Commission. The MoU appears to us to be primarily minerals-focussed (we note that this should come as no surprise, given the mineral-rich COMESA members and the fact that Western Australia is the world’s second-largest iron ore producer). The six so-called “thematic areas” of the MoU are: fiscal frameworks and mineral policy, strengthening human and institutional capacities, collection and management of geo-scientific information, research and development, environmental and social issues; and linkages, diversification and cluster development. Antitrust/competition is nowhere to be found.
That said, Western Australian companies may choose to invest more in the region and therefore somewhat increase the merger notification statistics, which have been lackluster to date.