Book Review: “Making Markets Work for Africa: Markets, Developments and Competition Law in Sub-Saharan Africa” by Eleanor M. Fox and Mor Bakhoum

Thanks to the diverse and on-going commitments by our contributors, AfricanAntitrust is considered the leading resource tracking competition law developments across the continent. AfricanAntitrust has, over the past number of years published numerous articles, updates and expression pieces by numerous contributors both in an effort to ensure our readership remains up to date on all regulatory developments in Africa, and also to stimulate robust debate on competition policy and enforcement across the continent.

Developing countries have unique socio-economic issues and market dynamics which many have argued justify a unique approach to the role competition law policy should play.

The editors at AfricanAntitrust were, therefore, particularly interested in the book authored by well-known Professor, Eleanor Fox and co-author Mor Bakhoum . AAT is honoured to have been requested to provide a book review and indebited to John Oxenham, Andreas Stargard and Michael-James Currie for their commentary below.

The book’s title Making Markets Work for Africa: Markets, Developments and Competition Law in Sub-Saharan Africa provides significant insight into its subject matter and the topics covered. As an introductory remark, the content provides a concise but necessary introduction to the social, political and economic challenges which underpin most sub-Saharan jurisdictions. Readers who may not be familiar with the jurisdictions covered in the book will find this useful for purposes of contextualising the competition policy debate and the nuances which underpin this debate.

After sketching an overview of the economic and political background, the authors go on to detail the relevant competition laws and the application thereof across the sub-Saharan jurisdictions.

The authors have, usefully, selected certain key enforcement activities in each of the jurisdictions covered in an effort to demonstrate the robustness of the respective agencies’ enforcement activities.

The authors then do a neat job of teeing up the crux of the debate, should competition law in developing countries converge towards a ‘global standard’ (which in this context refers primarily to US and EU precedent) or rather, do market and socio-political challenges which are often unique to most sub-Saharan countries, require a different set of rules, benchmarks or policy outlooks to competition policy and enforcement. In this regard, the authors provide a useful platform for debate among competition lawyers, economists, academics and law makers alike.

The book was not intended to provide a complete and robust assessment of the multitude of policy options available when developing competition law. Further, the authors have elected not to engage in a highly technical critique or assessment of the key decisions which have shaped competition policy across the African continent. Rather, the authors highlight the need to consider and debate different policies.

The authors correctly highlight South Africa as the “golden standard” insofar as competition law enforcement in developing countries is concerned – particularly in relation to the role of public interest enforcement in merger reviews. The authors discuss the seminal case in this regard, namely the Walmart/Massmart merger, as the foundation from which numerous subsequent mergers have been approved subject to public interest related conditions.

While the Walmart/Massmart merger was finally approved in 2013, the authors may consider, in subsequent editions, whether the substantial litigation and interventionist risks which are inherent in assessing public interest factors in competition law enforcement (particularly merger control) can be quantified. A departure from traditional competition law standards and precedent, particularly with the introduction of subjective considerations, is likely to increase the scope for litigation and interventionist strategies which may hinder the very objectives sought to be advanced.

The authors do, however, recognise that when assessing competition policy, one must consider the objectives of the policy against its practical enforcement – particularly in light of the principle of rule of law and sound economic analysis. The book certainly does not profess to ignore these and at numerous instances expressly or implicitly acknowledges that a transparent and objective competition enforcement regime is critical.

With the “hipster antitrust” movement ostensibly gaining traction in the US and EU, South Africa (and indirectly Africa more generally) it would appear there is a more mainstream deviation from traditional competition law enforcement. It certainly suggests a uniform standard in competition policy may become even more difficult to sustain. Alternatively, it may be the inherent complexity and trade-offs which are always at play in developing competition policy which may in fact necessitate a form of convergence. The authors give some insight into these trade-offs and the various factors which legislators and practitioners should take into account.

The authors also raise a number of issues which are often left out of the policy debate, yet play a crucial role in the efficacy of competition law enforcement in developing countries.

Factors such as political interference, corruption (as an overarching concern) and the limited resources available to many African competition agencies contribute to certain markets remaining inaccessible to new entrants and preclude efficiencies from materialising to the benefit of consumers. The authors point out, quite correctly, that judgments or decisions by agencies are often entirely devoid of substantive reasons let alone robust economic analysis.

The above recognition further reinforces the need for objectivity and transparency in developing competition enforcement regime.

Finally, readers will find the authors’ discussion on the regional blocs in Africa (COMESA, SADC, EAC) and explore the level of harmonisation between these regional blocs and their respective members states.

The timing of the book in this regard could not be more apposite in light of the current negotiations regarding a uniform African competition policy as contemplated by the African Continental Free Trade Agreement.

We congratulate the authors on this important and well researched text.

 

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Beyond Pure Competition Law – Is Africa Leading the Way Forward in Antitrust Enforcement?

To all our Africanantitrust followers, please take note of the upcoming American Bar Association webinar on 2 July 2019 (11amET/4pmUK/5pm CET) titled:

“Beyond Pure Competition Law – Is Africa Leading the Way Forward in Antitrust Enforcement?”

In what promises to be a highly topical (telecon) panel discussion, Eleanor Fox, Andreas Stargard, John Oxenham, Amira Abdel Ghaffar and Anthony Idigbe will:

  • provide critical commentary of the most recent developments in antitrust policy across the African continent;
  • highlight the most significant legislative amendments and enforcement activities in Africa; and
  • analyze some of the key enforcement decisions.

South Africa, Nigeria, Egypt, COMESA and Kenya are among the key jurisdictions under the microscope.

Practitioners, agency representatives, academics and anyone who is an antitrust enthusiast will find this webinar to be of great interest. Not to mention companies actually active or looking to enter the African market place.

For details on how to participate, please follow this Link

 

 

 

 

 

 

Minister Ebrahim Patel will no longer be a Member of Parliament: What does this mean for Competition Policy in South Africa?

According to recent reports, Minister of the Department of Economic Development, Ebrahim Patel, will not be sworn in as a member of Parliament despite initially being listed on the African National Congress’ (ANC) Members of Parliament list.

[see https://www.businesslive.co.za/bd/politics/2019-05-15-ebrahim-patel-and-senzeni-zokwana-fail-to-make-it-back-to-parliament/%5D

Since Cyril Ramaphosa was voted as the ANC’s President, and hence South Africa’s President, there had been increasing speculation regarding where Minister Patel would complement Ramaphosa’s economic policies. With many political commentators initially expected Ramaphosa to relieve Patel of his position as the Minister of Economic Development soon after taking over the presidency reins, it appeared that Patel had convinced Ramaphosa that he was an integral part of the team. Patel even accompanied Ramaphosa as part of the “special economic envoy” on a series of international road shows promoting and encouraging foreign investment in South Africa.

At this stage it is not clear what the reasons are for Patel not forming part of the ANC’s list of Members of Parliament (a prerequisite to serving as a Cabinet Minister unless Patel serves as one of the two non-MP’s allowed to serve in Cabinet) ). Following the national elections on 8 May 2019, however, Ramaphosa has indicated that he is intent on reducing the size of the Cabinet which would necessarily require various government departments and portfolios to be consolidated. It may be that the Department of Economic Development (EDD) is consolidated with the Department of Trade and Industry (DTI). If this were the case, the South African competition authorities would then also fall under the auspices of the DTI and no longer under the EDD. Many of our readers may recall that the competition authorities previously fell under the policy stewardship of the DTI.

While it may be too early to speculate what the ramifications of Patel’s departure could mean for competition policy and enforcement in South Africa, John Oxenham, director at Primerio, says that “Minister Patel was one of the key proponents behind elevating the role of public interest considerations in merger control. The minister’s intervention in numerous transactions, particularly international deals has resulted in public interest conditions, the scope and nature of which, pushed the outer most limits of what is appropriate in competition policy when assessed against international standards”.

Minister Patel’s reputation for engaging in robust opposition to mergers prompted Ab-Inbev directors to engage directly with Patel rather than the Competition Commission in order to secure public interest related conditions which would placate the Minister – all in the hope of ensuring that the transaction sales through the merger control process unchallenged. Which it largely did.

Fellow competition lawyer, Michael-James Currie, says that another key element of Patel’s departure relates to the Competition Amendment Act which was signed into law by President Ramaphosa in February 2019. Currie says that “although the Act has been signed into law, the enforcement of a number of the provisions of the Amendment Act remains unclear. For example, there are draft guidelines published in relation to the “price discrimination” and “buyer power” provisions of the Amendment Act which completely do away with any standard of “adverse effect on competition” and even the “consumer welfare” standard is of no relevance when small, medium or historically disadvantaged persons may be affected. Currie says Patel’s departure may spark a fresh round of debate and submissions in relation to the draft regulations. Submissions which previously appeared to largely be ignored by Patel.”

Oxenham echoes Currie’s sentiments and is of the view that the Amendment Act, which was largely driven by Patel, may ultimately be interpreted and enforced by the competition agencies in a manner which is more consistent with international best practice. Of course, this would depend on who replaces Patel and whether there is a different policy view as to the role of competition law in South Africa by Patel’s successor.

A key concern raised by numerous commentators is that the subjectivity of public interest assessments together with the increasing intervention by the executive to extract non-merger specific public interest related conditions, particularly in foreign transactions, does little to boost South Africa’s image as being open to foreign investment.

While the on-going debate of the role of public interest considerations in merger control will continue well beyond Patel’s tenure as Minister of the EDD, the entire South African competition community will be watching closely Ramaphosa’s final Cabinet announcement as this would likely be the clearest indication of whether we could expect a material policy direction change fin South Africa insofar as competition law enforcement is concerned.

 

 

 

 

 

 

 

Antitrust Overhaul: South Africa to amend Competition Act today

South African President Cyril Ramaphosa is expected to sign the Competition Amendment Bill into law today, February 13, 2019, continuing a busy seven-day streak for major legislative antitrust developments on the continent (see here). The new law will be amending the venerable Competition Act, one of the preëminent antitrust statutes of the continent.  The amendment has been pushed for by Minister for Economic Development, Ebrahim Patel.  The official Presidential commentary on today’s signing notes the novel fights against “concentration and economic exclusion as core challenges” to the country’s growth, as well as the perceived dangers of economic exclusion from major markets of small and black-owned businesses.

As a trio of competition attorneys write in a recent article in the Journal of European Competition Law & Practice, the Amendment Bill alters key provisions of the South African Competition Act focusing specifically on the redistribution of wealth and transformation of ownership in lieu of pursuing traditional antitrust goals.

The Bill provides for greater ministerial intervention at the initial stage of a merger (based on national security), during the merger investigation (based on public-interest grounds) and broadens the right of appeals to parties outside the merger control review.

The Bill lowers the standard that the South African Competition Commission must meet to prosecute cases and foreshadows a risk of increased third-party interventionism more generally.

The departure from a traditional substantial lessening of competition (SLC) test to an adverse effects-based test, which takes public interests considerations into account, is likely to result in the injection of greater subjectivity into the decision-making process and parties’ increased difficulty in self-assessment of conduct particularly in relation to dominant firms.

AAT has published further articles on the topic here, here, and here.

Minister Patel speaks

Minister Patel speaks

Botswana Competition Authority: Exception Application Backfires for Choppies-Payless Buying Group

The Competition Authority of Botswana (CA) rejected an exemption application brought by two FMCG players. The applicants, Choppies Distribution Centre and Payless Supermarkets, sought to justify their application by demonstrating that by increasing their buyer power the applicants would be able to ensure lower prices and better quality products for consumers and that these pro-competitive outcomes outweigh any anti-competitive effects.

After evaluating the exemption application, the CA found that the agreement between Choppies and Payless would result in a substantial lessening of competition. In particular, the CA held that:

  • There is no competition between Choppies and Payless, the duo had monthly promotions wherein they had the same goods on promotion at identical or similar prices and the pamphlets were an exact replica of each other.  
  • The two stores had alleged that Choppies would not benefit from the arrangement. It however emerged that Choppies was benefiting, particularly given, the quantity of Choppies in house brands found in Payless stores. Payless did not have any in house brands, but instead sold a variety of Choppies goods in large volumes.
  • Further, the Authority finds that the granting of an exemption to the applicants would be in effect granting the Choppies and Payless the leeway to continue with their price fixing and distortion of competition.

The CA was also not convinced that there were any other public interest benefits which would outweigh the anti-competitive effects referred to above.

This exemption application followed a similar application in 2014 which was also rejected.

Primerio Director, John Oxenham, says that this application demonstrates the importance of ensuring that objective and credible economic evidence accompanies an exemption application in order to prove the likely economic benefits to the public.

When asked to comment, Michael-James Currie, a competition lawyer practising across sub-Saharan Africa, says that buyer power in the context of FMCG retailers is a particularly topical issue not only in Botswana but also in South Africa where buyer power has specifically been included in the Competition Amendment Bill (which is soon to be brought into effect) as well as Kenya (who have also specifically included abuse of buyer power as a standalone provision). The motivation behind these legislative amendments, says Currie, follow largely as a result of concerns raised by the respective competition agencies of South Africa and Kenya regarding the buyer power which large retailers exert on small suppliers.

It is not yet clear whether Choppies-Payless proceed to appeal the CA’s decision or whether they will seek to pursue a fresh exemption application bolstered with more compelling economic evidence.  To the extent that the applicants abide by the CA’s decision, they will be required to dissolve their “buying group agreement” within three months.

 

SA Competition Act officially amended – serious consequences for businesses

South Africa has amended its antitrust laws, first introduced to the country in 1998 via its Competition Act.  Parliament ratified the amendments (which still have to be rubber-stamped by the National Council of Provinces, a mere formality) yesterday over the serious objections of the opposition parties.  The new law will give significant interventionist powers to the Minister for Economic Development, Ebrahim Patel, as well as introduce lower (or even reversed) burdens of proof for the Competition Commission (SACC) to make its case, after a long-running string of court losses and appellate defeats has seen the SACC’s track record weakened, observers say.

As reported on AAT Monday, a panel of Africa-focussed competition specialists had just recently convened in Johannesburg, warning the South African business community about the high probability of the Bill’s passage, as well as addressing the adverse effects the Bill will have on doing business in South Africa as a medium to large size market player (measured in market share, not merely revenue) or simply as a foreign-owned corporate.

Minister Patel speaks

Minister Patel

Interviewed yesterday in Cape Town, where the Amendment Act was ratified by South Africa’s Parliament, Primerio competition practitioner Andreas Stargard commented: “As we foreshadowed at our conference less than a week ago, the likelihood of the Bill passing was high.  Political, populist pressure was simply too strong for this amendment — which had been introduced as a so-called ‘prioritised bill’ that could be fast-tracked — not to pass.  We view the likely effects of it as a serious departure from commonly accepted best practices in the international world of antitrust law, as we outlined to our clients at the Johannesburg conference.  I will be curious to hear what Commissioner Bonakele’s comments on these critiques will be at Friday’s conference at New York University“, referring to an event sponsored by NYU and Concurrences, at which the SACC Commissioner is expected to deliver a panel speech later this week.

Commenting on the purported social transformational goals, South African competition partner John Oxenham adds: “There is a relentless push from government (not only Mr. Patel) to use the Competition Act as a tool to speed up its broader social and transformation goals.  The underlying reasons for this Amendment are rather straightforwardly conceded by the current, and arguably presently fluctuating, administration: the Bill was ostensibly designed not to enhance competitiveness in the traditional antitrust sense, but rather to address so-called market concentration and perceived unequal ownership patterns in the SA economy.”

Breaking: South African Competition Amendment Bill passed by Parliament

AAT has closely monitored the progress of the Competition Amendment Bill and provided commentary to the Bill from leading local and international competition practitioners.

This is to update our readers that the Amendment Bill was passed in the National Assembly on 23 October 2018. The Bill still requires the National Council of Provinces to approve the Bill, following that the President’s consent – both of these procedural steps are likely to be mere formalities in light of the National Assembly’s decision to approve the Bill.

AAT expects that the Bill will be brought into effect imminently and likely without any material grace period for parties to assure compliance with its onerous provisions.

The Bill passed by the National Assembly has been amend mended from the draft Bill which was placed before Parliament’s Portfolio Committee.  The key contentious provisions of the Bill, however, remain largely unchanged.

To access a copy of the Bill passed by Parliament, click here.

Panel highlights SA Competition Amendment Bill’s pitfalls

As AAT has reported on extensively, the South African Competition Amendment Bill, currently pending in Parliament, is likely to be adopted in short order in its current draft form.

It carries with it significant, and in our view, adverse, effects that will burden companies trying to conduct business or invest in South Africa. These burdens will be particularly onerous on foreign entities wishing to enter the market by acquisitions, as well as any firm having a market share approaching the presumptive threshold of dominance, namely 35%

On Wednesday, 17 October 2018, the law firms of Primerio and Norton Incorporated held an in-depth seminar and round-table discussion on the ramifications of the Competition Amendment Bill. The setting was an intimate “fireside chat“ with business and in-house legal representatives from leading companies, active across a variety of sectors in the South African economy.

Moderated and given an international pan-African perspective by Primerio partner Andreas Stargard, the panel included colleagues John Oxenham and Michael-James Currie, who delved into the details of the proposed amendments to the existing Competition Act, covered extensively by AAT here.

As of today, 18 October 2018, the Bill appears set to be promulgated.  The SA Parliament’s committee on economic development has rubber-stamped the proposed amendments after a prior committee walk-out staged by the opposition Democratic Alliance (DA), in opposition to the Bill. DA MP and economic development spokesperson Michael Cardo states:

The ANC rammed the Competition Amendment Bill through the committee on economic development, and adopted a report agreeing to various amendments. To make sure they had the numbers for a quorum, the ANC bussed in two never-seen-before members to act as pliant yes men and women. Questions from the DA to the minister… This bill is going to have far-reaching consequences for the economy. It gives both the minister and the competition authorities a great deal of power to try and reshape the economy. It is unfortunate that the ANC, and the committee chair in particular, have suspended their critical faculties to force through this controversial bill and behaved like puppets on a string pulled by the minister of economic development.”

The Amendment Bill introduces significant powers for ministerial intervention and bestows greater powers on the Competition Commission, the investigatory body of the competition authorities in South Africa.

The panel discussion provided invaluable insights into the driving forces behind the Bill and ultimately what this means for companies in South Africa as it certainly won’t be business as usual if the Amendment Bill is brought into effect – particularly not for dominant entities.

[If you attended the panel discussion and would like to provide feedback to the panelists or would generally like to get in touch with the panelists, please send an email to editor@africanantitrust.com and we will put you in touch with the relevant individuals]

 

South Africa Competition Tribunal: Merging Parties Penalised for Failure to Comply with Public Interest Conditions

By Michael-James Currie

On 29 June 2018, the South African Competition Tribunal (Tribunal) penalised the RTO Group R75 000 for failing to comply with the Tribunal’s conditional merger approval in respect of two companies now within the RTI stable, Warehouseit and Courierit. The Tribunal approved the large merger in August 2015.

In terms of the Tribunal’s merger approval, a moratorium on merger specific retrenchments for a two year period was imposed – now a frequently imposed public interest related condition by the competition agencies in South Africa.

RTI, however, was penalised not for retrenching any employees during this window but for failure to adhere to the monitoring obligations as set out in the Tribunal’s conditional approval certificate.

In this regard, the merging parties were obliged to notify their employees (and Courierit’s subcontractors) of the conditions to the merger approval within five days of the merger approval date. The merging parties were also obliged to provide the Competition Commission with an affidavit confirming that the obligations in terms of the conditions had been complied with.

By way of a consent order, RTI admitted that it failed to comply with its monitoring obligations and agreed to pay an administrative penalty for breaching the Tribunal’s conditional merger approval.

Although there have been a limited number of cases in respect of which an administrative penalty has been imposed for a breach of the merger conditions, this case demonstrates the importance of fully complying with the terms set out by way of a conditional merger approval.

Furthermore, although notifying the employees of the relevant conditions may not have been a particularly onus obligation, merging parties should take particular cognisance of monitoring and reporting obligations when negotiating conditions with the Competition Commission. Merging parties understandably place greater emphasis on the substantive aspects of the conditions and may underestimate the reporting obligations related thereto – particularly if conditions are being negotiated at the eleventh hour (which is not uncommon).

While there are mechanism’s available to merging parties to remedy any patently unworkable aspects contained in merger approval conditions, it is advisable to ensure that the conditions are practical and capable of being adhered to in full prior to being finalised – assuming the merging parties have that luxury.

[Michael-James Currie is a South African based competition lawyer and practices across Sub-Saharan Africa]

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.