Category: personnel

Panel bestows cum laude Ph.D. on AAT contributing author

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Ranchordas, Sofia: Tilburg University doctoral dissertation defense

Tilburg University bestows doctorate cum laude  on AAT author Ranchordás

AfricanAntitrust.com contributing writer, assistant professor of law at Tilburg Univ., and lead author of our #InnovationAntitrust series Sofia Ranchordás was honoured yesterday by a distinguished panel of academics at Tilburg University (Netherlands) with a Ph.D. marked cum laude — a distinction granted only to approximately 2% of Dutch doctoral degrees.

She defended her dissertation on experimental legislation, sunset clauses, innovation, of which we publish a short “layman’s terminology” summary extract here.

Congratulations, doctor!

Sofia Ranchordas, Ass't Professor, Tilburg University

Sofia Ranchordás, Ph.D. cum laude, Ass’t Professor, Tilburg University (Law School)

10-Minute Presentation of Ranchordás Ph.D.
Dissertation in Layman’s Terms

Good afternoon ladies and gentlemen,

Thank you for being here today.

I especially welcome my front row guests, in particular my mother, and my sister who managed to convince her boss that it is possible do a PhD in Law, and two young guests that even had to ask permission to skip classes today:

Hallo Tim en Indy, fijn dat jullie er zijn en dat jullie vrij van school konden krijgen.

(Last week one of my students asked me why I had written yet another book to obtain a PhD degree. My straightforward answer was: because no one else has even written about it and the world needs to know more about sunset clauses, experimental legislation and innovation. My student wasn’t totally convinced by my answer, but at the end of these 10/9 minutes I hope you will be.

Experimental legislation, sunset clauses, innovation: three enigmatic words, 3 Pandora boxes to lawmakers, 3 years and 3 months to write one book. [And as you can see, it is a thick one, but not thick enough to ask all the questions that should have been asked or to provide all the answers]. This book tells the story of two legislative instruments which have been overlooked by legislators. Two instruments that seem to have much to offer to that one reality we all seek these days: innovation.‘

1. ‘Sunset clauses’ are dispositions that impose the termination of a law after a determined period, which means that a law or some of its dispositions might only last for 5 years.

2. ‘Experimental legislation’ submits new rules to a test, trying them out in the real world, testing their effectiveness. The new rules are tried in a part of the territory, while the ‘old ones’ remain applicable to the other. At the end of a certain period, results are compared and, in principle, the legislator ‘should allow the best law to win. However, in the lawmaking process the legislative winner does always not take it all. Politics very often does.

3. ‘Innovation’ is a broad concept that cannot be reduced to a brilliant idea: it is more and less than this common perception of the innovative wheel, a light bulb or a pair of Google glasses. Innovation is instead the first successful commercialization of a new idea, brilliant or not, that can improve the existing state of technology of society.

4. Innovation is ‘a kind of magic’: it is our hope in difficult times, the promise for long-term sustainable growth. Innovation is also ‘a crazy little thing’: it is all around us, but it is impossible to grasp and to generate through a simple formula. Instead, it is a very complex process that can be stimulated or impeded by a number of elements, including outdated regulation.

5. It is a difficult mission to regulate innovation but I know two perfect candidates for the job: sunset clauses and experimental legislation. They provide the flexibility and adaptability that regulators need to regulate under uncertain conditions, allow legislators to revise rules as more information about innovative products becomes available, and terminate obsolete dispositions.

6. However, as always, friends get the best jobs, strangers do not. And that is the case of sunset clauses and experimental legislation: they are total strangers to most lawyers and lawmakers. Before I started doing my research, how many of you had ever heard about sunset clauses and experimental regulations? And even now how many would be able to recognize you?

7 In my research, I looked into the reasons why sunset clauses and experimental legislation have not been more often used to regulate innovative fields and there are legal and non-legal reasons underlying this general resistance to these instruments. An apparently simple research question, you might say. However, as life often teaches us, appearances are misleading and this question allowed me to rethink the meaning of different principles of law in a changing world, the meeting of minds between innovators and regulators and the non-legal elements influencing the lawmaking process.

8. There appears to be a widespread belief that these instruments ‘are bad’ because they violate a number of principles of law we hold dear. That is the case of the principle of legal certainty that is often connected with the idea of predictability, stability and continuity of law. However, some laws cannot live forever because they regulate phenomena that evolve rapidly or problems that might be temporary. Sunset clauses and experimental legislation can provide in these cases more temporary certainty, because they do not expose laws to the erosion of time. In my dissertation, I also argue that experimental laws do not endanger the principle of equal treatment. While it is true that not all citizens will be equal before the law, this differentiation will be temporary, objectively justified and it is intrinsic to the main objective of experimental legislation: gather more information about the effects of a new law.

10. The scarce use of sunset clauses and experimental legislation can be attributed to a number of non-legal elements, such as lack of information or expertise, a certain intellectual reluctance towards termination of laws or the experimental method, high costs, fear of being confronted with unpleasant facts, or political rationality. While law is for a great deal about politics, there must be a way to ensure that some legislative decisions are rendered more transparent.

11. The real Achilles heel of experimental legislation and sunset clauses is the lack of a clear legal and methodological framework. Legislators do not know when they should choose temporary laws in detriment of lasting ones, how to enact them and for how long. The main contribution of my dissertation lies in the design of a framework, where guidelines are provided to lawmakers: go for sunset clauses when you expect a technology to evolve rapidly, experiment with new rules when you do not know enough about their effectiveness; make sure experiments are meaningful and truly convert the lawmaking process into a learning one, set transparent evaluation criteria and ask regulators to justify their decisions to follow or reject the results of an experiment. Educate lawmakers and citizens with the truth of the facts and not the power of opinions.

12. Are sunset clauses and experimental legislation a blessing or a curse to innovation? I leave you, ladies and gentlemen, with this question. It results from my research that they are not a curse for a law that keeps up with reality, for a law that lives along the paths of innovation. Instead, they bless the courageous legislators that try new laws to see if they work, allow laws to expire when they are no longer necessary, removing unnecessary burdens from the shoulders and pockets of innovators. However, sunset clauses and experimental legislation will only be blessings for innovation, if they are drafted along the lines of law. However, and excuse me for citing a lawyer in a speech supposed to be to laymen: as Felix Frankfurter affirmed: ‘science and technology cannot reshape society while law maintains its Blackstonian essence’, i.e., in layman’s terms this means: while lawyers try to confer their own interpretation to every single phenomenon, lagging behind reality.

New Competition Commissioner not so new: Bonakele retains top job

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Interim South African Acting Competition Commissioner Tembinkosi Bonakele confirmed in permanent post by minister who unceremoniously fired predecessor Ramburuth

Plus ça change, plus c’est la même chose…

This morning, economic-development minister Ebrahim Patel announced the retention of the 38 year-old Mr. Bonakele as the top antitrust enforcer in the South African republic, making permanent for a five-year term the interim appointment of the man who said the following in an interview regarding the independence of the competition authorities in South Africa:

“While competition authorities should not be beholden to the government neither can they be loose cannons who claim independence without accountability.”

In prolonging Mr. Bonakele’s interim appointment for another five years, Minister Patel thus assured that the important position of Competition Commissioner did not go to a “loose cannon”…

Legislative basis

The appointment is made pursuant to Part A, Art. 22 of the South African Competition Act of 1999, as amended, which also provides (in sub section 4) for the flexible salary and benefits determination to be made by the minister himself: “The Minister must, in consultation with the Minister of Finance, determine the Commissioner’s remuneration, allowances, benefits, and other terms and conditions of employment”

Minister Patel
Commissioner Bonakele
Public announcement and emphasis on enforcement

In the duo’s official tweets announcing the decision (see graphic extract below), Patel congratulated Mr. Bonakele, reaffirming his and the SA cabinet’s support of the “eminently suitable” candidate, and emphasizing the importance of (1) the Competition Commission‘s ongoing and hotly debated private health-care inquiry as well as (2) the “social-justice” elements of merger conditions imposed by the SACC on mergers in the past 5 years, purportedly “protecting” 4,900 jobs.

The agency had come under considerable flak in the past year due to its high staff and executive-level turnover and a work environment that has been described as “toxic” by insiders.

The official release by the Ministry of Economic Development quotes Patel as follows:

“I am pleased to have someone of Bonakele’s calibre at the helm of the Competition Commission. He is taking leadership of the Commission at a time when the South African economy needs to become more competitive and create many more decent work opportunities by combatting market abuse such as cartels and pervasive monopolies and ensure competitive pricing of products. In particular, the key jobs drivers identified in our policy frameworks require coordinated and concerted efforts improve economic performance and development outcomes.
“The Competition Commission has been one of a number of successful economic agencies and regulators that are together beginning to transform the South African economy. Mr Bonakele possesses the skills and experience to build on the successes of the Competition Commission.”

The agency’s official “Structure” page had not yet been updated as of the day of the announcement, listing Mr. Bonakele as “Acting” head and still showing the long-departed Ms. Makhaya as a Commission official.

Official S.A. government tweets announcing SACC personnel decision of permanent Bonakele appointment

Competition authority issues sectoral warning, threatens criminal sanctions

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kenya

Wake-up call to would-be cartelists and monopolists in Kenya

The Standard reports that the Competition Authority of Kenya (“CAK”) (AAT archive on CAK issues here) is threatening cartelists with prison terms of up to 5 years and fines up to 10 million Shilling ($115,000).

According to the report, CAK Director General Francis Wang’ombe Kariuki said that “investigations are already being conducted in [the] transport, insurance, shipping, milling, banking, cement, sugar, health care and tea” sectors, pursuant to purported consumer complaints.

CAK Director General Kariuki

The CAK has actively pursued antitrust matters, using novel approaches of late, as AAT recently reported on a seemingly hybrid unilateral/collusion case (“Kenya: Lafarge faces possible price-fixing penalties due to cross-shareholding“).  The CAK is also the sole COMESA member enforcement authority that has, to our knowledge, challenged the fledgling and issues-plagued COMESA Competition Authority’s jurisdiction in various merger cases.

COMESA old flag color

Malicious COMESA web site attack: Competition Commission hacked 3rd time

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For the third time in a month, the fledgling pan-African antitrust enforcer’s web site has been disabled by hackers

As competition-law attorneys counseling clients on the necessity of notifying mergers in the COMESA jurisdiction, we view these developments with – put mildly – shock.  This is especially true as confidential party data and documents would appear to be at risk of involuntary and malicious disclosure to third, unauthorized parties.  As reported at AfricanAntitrust.com, the COMESA enforcement agency’s web site has previously been hacked and later simply disabled.

COMESA leadership non-responsive

On both prior occasions, AAT’s editors wrote to the COMESA Competition Commission‘s webmaster, as well as the agency’s leadership (Messrs. George Lipimile and Willard Mwemba), to seek an explanation of the attacks.  We also asked them about the safety of data and other confidential party information submitted to the CCC via its extranet & online document repository.

Not only have we not received any response to date.  What’s more, in a – perhaps unsurprising, at this stage – turn of events, the Commission has now been subjected to its third hacking attack.

Hackers boast of achieving successful attack

This latest episode also embodies the most disconcerting hack, as it appears visually and substantively more malicious than the prior attacks (one of which featured an Indonesian love poem, whilst the second rendered the CCC’s page simply blank).  A visual example of the latest attack can be found below.  The hackers (identified as “Kinal Undetected” from SerdaduPerangCrew and SPCSO) [note: prior and subsequent links open hacker-related pages] acknowledge – for the first time – that it is an intentional event and not merely an accidental outage or otherwise unintended gaffe of the CCC’s webmaster.  Moreover, the perpetrators even submitted a screenshot of the intrusion to “Zone H“, a clearing-house of hackers, as evidence of the attack on Monday.  This means that the CCC’s site has been disabled for at least two full days (through 14 May — UPDATE: the regular COMESA site is back up and running at 16:00 CET, 14th May).  On the prior occasions, the site likewise remained compromised for several days in a row.

Logo of the successful COMESA hackers displayed on CCC’s web site (May 12-13, 2014)

High risk of data security breach & next steps

We are in the process of sending yet another follow-up e-mail to the CCC’s executives to obtain further information about this unsettling and embarrassing security breach/failure, including: (1) risks to confidential corporate information, (2) the impact on the private deliberative process of the Commission, as well as (3) steps the CCC intends to take to prevent future replication of these embarrassing and dangerous attacks, including (we propose) the retention of a professional data-security firm for advice and potentially management of the web interface.

COMESA hack no3

 

Call for parties to CCC proceedings to take action

Especially in light of COMESA staff’s unsettling silence in response to alerts to these attacks, and as we have done before, we are notifying our readership (and particularly current or potential future parties to CCC merger reviews) regarding the deficiencies in the competition enforcer’s electronic systems. These may impact the timetable and resulting deadlines of pending merger investigations, and it is advisable that all such interested parties enquire with the Competition Commission about the procedural effect of the outage.

COMESA Competition Commission: first hacked, now out-of-service

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COMESA out of service

The COMESA Competition Commission’s web site (http://www.comesacompetition.org/) has suffered yet another setback, only a month after AAT’s prior investigation into the apparent hacking of its online resources — it has been out of service as of 23-April-2014 (through at least the 25th), showing up as a mere white blank page.

Subordinate pages, such as the extranet page containing sensitive party information from ongoing investigations or merger reviews (http://www.comesacompetition.org/documents/private), are likewise blank.

As before, where we pointed out that the Commission’s hacking event constituted “evidence of a real risk that highly confidential party information (stemming from COMESA merger reviews or other competition investigations) may be vulnerable to accidental or intentional disclosure to unauthorized third parties,” we are alerting current or potential future parties to CCC merger reviews regarding the deficiencies in the competition enforcer’s electronic systems.  These may impact the timetable and resulting deadlines of pending merger investigations, and we advise all such interested parties to enquire with the Competition Commission about the procedural effect of the outage.

AAT’s LinkedIn presence

Posted on by andreasstargard

AAT header

AfricanAntitrust, the preeminent competition-law resource in Africa, now has a corporate presence on LinkedIn.

If you are a LinkedIn member, please follow our new AfricanAntitrust.com page on LinkedIn here, also to receive unique updates and information.

Commissioner calls agency’s work “reactive”, will appeal SABMiller case, counters “toothless dog” moniker

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South Africa Flag

Revelations from Bonakele’s interview with CNBC Africa

South African interim Competition Commissioner Tembinkosi Bonakele called his agency, the Competition Commission (“Commission”), a “kind of reactive” enforcement body, aiming primarily to uncover cartel conduct.  In an interview with CNBC Africa‘s “Beyond Markets” segment, journalist Nozipho Mbanjwa asked the acting Commissioner tough questions on the Commission’s enforcement tactics, legislative mandate, fines imposed, the adequacy of the Commission’s capitalization, and whether the South African antitrust watchdog was, in fact, a “toothless dog.”

Bonakele held his ground, referring multiple times to the Commission’s recent successes, including the construction cartel, the bread case, cooking oils, and other “basic products” matters on which he said his agency would place the largest focus going forward.

The Acting Commissioner

The Acting Commissioner

Some of the highlights from the interview:

  • Bonakele is “quite satisfied” with the agency’s funding and performance of its 180 staff, but may ask for “more funding” specifically for the Commission’s sectoral health-care inquiry.
  • The Commission will focus its cartel-busting efforts on sectors in the basic products category such as foods and health-care.
  • The Commission will “definitely appeal” its loss of the SABMiller abuse-of-dominance matter, a “very tricky kind of offence in terms of competition law” according to Bonakele.  He said he did “not like” the 7-year long duration of the SABMiller saga, but felt compelled to extend the matter by bringing the case before the Competition Appeal Court.
  • “No comment” on the “classic” Unilever investigation.
  • On the much-maligned MultiChoice broadcaster, Bonakele called the company a “monopoly created by legislation” in a regulated market, and deferred to parliament to rectify the situation.
  • The Commission receives approximately 30% of its funds from revenues that are the result of merger filing fees.

SA Commission appoints mergers head; claims roster of “core” positions now filled

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New head of mergers fills final “core” position according to Bonakele; replaces Ramburuth-appointed predecessor

Source: LinkedIn
New head of mergers at SA Competition Commission (Source: LinkedIn)

Following the by now fairly predictable fault lines of the Ramburuth-vs.-[others] staffing game at the Competition Commission, the agency’s crucial Mergers & Acquisitions division now also has a new head.  As of March 1, Hardin Ratshisusu is filling the post of Divisional Manager, after his predecessor Ibrahim Bah‘s departure in December last year created a three-month hiatus.

Bah, having worked at the Irish antitrust regulator for a while*, had been with the South African authority on-and-off since 2008, but had been Divisional Manager only for less than a year, holding the post since January 2013.  His successor Ratshisusu is likewise a former M&A veteran of the agency, having begun his career at the Commission as early as 2004 and with the division since December 2007 as a Senior Merger Analyst.  He also has recent private-practice experience outside government, which we view as a welcome feature on his C.V., in addition to his historical M&A expertise.

Mr. Ratshisusu’s self-description on his LinkedIn profile (with 22 endorsements from others as to M&A) is as follows:

“In the formative years, I started off as an enumerator for SA’s 2001 Census and then a research assistant at the University of Venda, whilst doing my post-graduate studies. I have since worked in the regulatory environment having held various positions at the Competition Commission of South Africa including being Senior Merger Analyst, Acting Divisional Manager of the Mergers and Acquisitions Division and Technical Consultant/Adviser to the Deputy Commissioner. I also had a stint in the economic regulatory division of Neotel (Pty) Ltd. This has given me exposure to a number of industries, including, construction, telecommunications, broadcasting, mining, chemicals, retailing and property. I now have expertise, garnered at both operation and strategic levels, in competition and regulatory economics, strategy, and governance.”

Mr. Ratshisusu’s appointment comes at a time of staffing difficulties at the authority, including most recently the departure of a senior Deputy Commissioner.   In its official release, the Commission’s Acting Commissioner Tembinkosi Bonakele is quoted as emphasizing the agency’s focus on getting past its recent personnel woes:

“I am pleased that we have now completed the task of filling all vacancies for the heads of the Commission’s core divisions. This will allow us to focus on fulfilling our strategic priorities”

We take it that any remaining open seats on the Commission’s org chart are, by logical inference, to be deemed “non-core” to the functioning of the agency.

The Acting Commissioner: Focusing on
The Acting Commissioner: Focusing on “strategic priorities”, such as the healthcare inquiry and other enforcement

* Mr. Bah co-authored an amusingly-titled mergers paper while at the Irish Competition Authority: “The Curious Tale of Pigs, Papers and Peru: Media Mergers in Ireland“.  It should not come as a surprise that AfricanAntitrust.com’s editors have a faible for anything that contains alliterations…

south_africa

S. African antitrust watchdog described as “toxic” by insider

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south_africa

Trade union NEHAWU’s influence over agency staff cited as reason for departure

According to an excellent piece in the ZA Financial Mail – written by Andile Makholwa* and entitled “Competition Commission Bleeds Staff” – departing Acting Deputy Commissioner Trudi Makhaya has explained in detail her recent decision to leave the antitrust authority, describing a “toxic” work environment there since at least October 2013.  On the staffing front, Acting Commissioner Bonakele is quoted as regretting her departure, saying that “one of his priorities is to repair the fractured relations with senior managers and contain the staff exodus.” In the article, Makhaya is cited as bemoaning the increasing influence of NEHAWU (a powerful trade union) over the agency and its staff.

Ms. Makhaya (photo credit: Financial Mail)

While Ms. Makhaya has had her fair share of agit-prop P.R. published under her name (see, eg., her piece published this piece in the Daily Maverick, entitled “The temptations of neo-volkskapitalisme“), her insider revelations of NEHAWU’s unduly high influence over the Commission are particularly interesting.

Many ZA commentators have lamented the increasingly pervasive sway that trade unions have in merger-control talks with the enforcer.  This is especially important in light of South Africa’s merger-control regime having express “public interest criteria” embedded in its legislation.

Two ZA antitrust lessons

  1. The legislation’s social agenda element, combined with the now confirmed unions’ influence over agency staff, may have resulted (and will likely result in the future, if unchecked) in extensive so-called “public-interest” conditions imposed on otherwise unproblematic transactions that pose no pure antitrust issues.
  2. The ZA Competition Commission has received extensive bad press of late.  Now, even insiders speak out about the (personnel, rather than structural) problems that have befallen the agency.  Specialist publications (such as Global Competition Review, which publishes a dedicated review and ranking of government antitrust enforcement agencies, in which the Commission used to fare rather well), as well as practitioners and the courts, may perceive these developments as significant steps backward for an institution that once was lauded as a shining example of developing competition-law authorities.  Even Acting Commissioner Bonakele admits that the authority is “in a rebuilding phase. All I can say is that the commission is losing a key staff member. It’s a setback. When you’re rebuilding an institution you need all hands on deck,” and the minister in chage (Patel) believes the Commission too independent.

 

* The author also wrote an interesting piece on the Competition Commission‘s sectoral health-care inquiry (we reported here and elsewhere) in last week’s FM.

South Africa: another senior Commission member resigns

Posted on by oxenhamjmj

south_africa

It has recently been reported that Ms Trudi Makhaya, the Deputy Competition Commissioner, has resigned. There has been no indication yet on a replacement but it signals a continuation of the worrying trend of senior experienced Commission staff departing the authority.

For further information see the attached link.  Her twitter and LinkedIn accounts remain unaffected by her resignation as of Feb. 11, as both still show her job title as Competition Commission executive.  She is likewise still listed on the Commission’s web site as active.  We previously reported on one of her opinion pieces here.  She also recently published this piece in the Daily Maverick, entitled “The temptations of neo-volkskapitalisme“.