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.

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Exclusive AAT interview: Bonakele on antitrust conferences

meet the enforcers

In our latest instalment of our Meet the Enforcers series, we speak with South African Competition Commissioner Tembinkosi Bonakele on the topic of hosting a series of academic & practitioner platforms to discuss cases and developments in competition-law enforcement.

This week, the South African Competition Commission and the Competition Tribunal successfully organised the 9th Annual Conference on Competition Law, Economics & Policy (as part of the 4th BRICS International Competition Conference), taking place in Durban, South Africa.

Commissioner Bonakele, the head of the SACC, discussed hosting the conference with AAT’s contributing author, Njeri Mugure, Esq.  According to his biography, Mr. Bonakele has been with the Commission for the past ten years. He briefly left the Commission in March 2013 and came back in October 2013 as Acting Commissioner. He has been in this position until his appointment as the Commissioner. Bonakele has occupied various positions in the Commission’s core divisions. He was appointed Deputy Commissioner in 2008, and prior to that worked as head of mergers, head of compliance and senior legal counsel respectively.

The AAT-exclusive interview follows:

Tembinkosi-Bonakele-Profile-Pic

AfricanAntitrust.com: South Africa has been participating in the BRICS International Competition Conference (“BRICS ICC”) since 2011, a year after she officially became a member of BRICS. This November the country will host the 4th of this biennial meeting in Durban. What are your goals for this year’s conference?

Tembinkosi Bonakele:

The theme for the BRICS International Competition Conference 2015 is “Competition and Inclusive”. This theme will enable the conference to explore the relationship between competition and growth, competition and employment, competition and inequality and competition and poverty. As with the previous conferences, the aim of the conference is to strengthen cooperation amongst BRICS countries in the area of competition regulation by creating a platform for sharing experiences. We also aim to use the conference to discuss a proposed Memorandum of Understanding between BRICS competition agencies. Finally, the conference is also a platform for both developed and developing countries to discuss competition policy and enforcement issues.

AfricanAntitrust.com: Speaking of Durban, some might have expected for the 9th Annual Competition Law, Economics and Policy Conference (“Annual Competition Conference”) and/or the BRICS ICC to be held in Pretoria, the capital city of South Africa.  Could you tell us why you chose to hold the two conferences in Durban?

Tembinkosi Bonakele:

We wanted a venue that would provide world class facilities for the conference as well as enjoyment for the delegates, and Durban ticks both boxes. The Kwazulu-Natal province, where Durban is situated, is home to rich natural resources, including Africa’s Big Five game and beautiful mountainous landscapes.

Durban itself is a diverse African city providing cultural diversity as well as a natural paradise known for its beautiful coastline beaches and subtropical climate. The City is also host to the largest and busiest harbor in Africa. The Inkosi Albert Luthuli International Convention Centre (Durban ICC), where the two conferences will be held, is the largest indoor conference facility in Africa.

The Commission has previously partnered with the KwaZulu-Natal Provincial Government, eThekwini (Durban) Municipality and the University KwaZulu-Natal on various activities.

AfricanAntitrust.com: In addition to hosting the Annual and the BRICS competition conferences, the South African Competition Commission (“the Commission”) along with Cresse and the University of Kwazulu-Natal will hold a joint workshop exploring areas such as collusions and cartels, unilateral and coordinated effects in mergers, the economics of exclusionary conducts, and use of economic evidence, among others. What do you hope this workshop will achieve?

Tembinkosi Bonakele:

The economic understanding of competition policy is constantly evolving. In the last two decades economists have developed new theories of harm and traditional views have changed significantly. The workshop will bring top quality instruction on the economics of competition to agency officials in South Africa and more broadly Africa, competition practitioners, academics and policy makers. I hope that everyone attending the workshop will walk away having learned something new about the economics of competition.

AfricanAntitrust.com: Speaking of the this year’s events, planning the joint workshop, the Annual Competition Conference and the BRICS ICC was a great undertaking, could you tell us why you decided to have the three events back to back and what audience each event is tailored to suit?

Tembinkosi Bonakele:

With the BRICS conference coming into South Africa was a great opportunity as so many people were interested to come. So many opinion makers, academics and practitioners were going to be in the country, so we organized all these events to take advantage of their presence, and the response was very positive. We also thought logistically it makes sense to have our annual conference organized back to back with BRICS, so we don’t get conference fatigued. In the end, all the events flow into each other.

The Joint Workshop is a technical training and knowledge sharing platform, looking at the latest thinking on various aspects of competition enforcement.

The conference is an annual academic platform to discuss cases and developments in competition law enforcement.

AfricanAntitrust.com: Turning to the BRICS International Competition Conference, in what way has this year’s agenda been informed by the previous three conferences? What impact do you think the previous conferences have had on antitrust discourse in BRICS and non-BRICS countries?

Tembinkosi Bonakele:

The previous conferences, hosted by the Federal Antimonopoly Services of Russia in 2009, the State Administration for Industry and Commerce of the People’s Republic of China in 2011 and Competition Commission of India in 2013, created a solid platform on which we can deepen our relations in the fi­eld of competition regulation.

South Africa has focused the conference on the relationship between growth and inclusivity. Furthermore, this year’s conference aims to institutionalize BRICS cooperation on competition matters, and move it beyond conferences. There is a proposed Memorandum and Understanding, as well as a joint research initiative.

AfricanAntitrust.com: There’s been a lot of debate surrounding public interest factors in merger review. What do you hope to achieve by including the topic to this year’s conference agenda?

Tembinkosi Bonakele:

It is important that BRICS countries weigh-in on this important debate. There is a divergence of views amongst many antitrust practitioners on the compatibility of antitrust issues with public interest issues, but everyone accept that there are public interest issues. The conference will deepen and broaden perspectives on the matter.

AfricanAntitrust.com: How do these engagements such as the BRICS conference and competition law enforcement in general benefit the ordinary South African?

Tembinkosi Bonakele:

The South African competition authorities were established as a package of reforms to transform the unequal South African economy to make it economy inclusive and ensuring that those who participate in it are competitive.

Through engagements such as the BRICS conference we’re able to discuss with our BRICS counterparts how to make our economies, which are similar, more efficient, competitive and inclusive.

The Commission has, in the past 16 years investigated and dismantled cartels from different sectors including construction, bread – a staple food for many South Africans, and cement. In the cement cartel, for instance, the Commission conducted a study post the cartel and discovered that we have saved consumers about R6 billion.

AfricanAntitrust.com: Mr. Bonakele, are there other topics you would have liked to address or comments you would like to add?

Tembinkosi Bonakele:

We see BRICS as an important and strategic platform where we advance arguments about the relationships between competition and other policy instruments that are very relevant in our developing countries.

As a collective, BRICS competition authorities are able to provide leadership in the international antitrust community on what it means to create and enforce competition law and policy in developing economies which come with their own particular challenges and opportunities. These perspectives will serve to enrich the global knowledge base in competition enforcement.

AfricanAntitrust.com: Thank you for taking the time to speak with me, Commissioner!

The interview was conducted by Ms. Mugure for AfricanAntitrust.com on 8 November 2015.

south_africa

ACF in the spotlight: African Competition Forum promotes policy enhancements

Putting African antitrust enforcement in the spotlight: the work of the African Competition Forum

AAT is often right and sometimes wrong — and we acknowledge the latter whenever that happens.  Today is one such occasion, as we have been entirely remiss in our coverage of the African Competition Forum (“ACF”).

The ACF (FAQ here) is a 3+ year-old organisation comprising several anglophone and francophone countries with and without competition enforcement agencies across the African continent (with apparently ongoing efforts to recruit Portuguese-language entities as well, e.g., Mozambique, Angola).  It undertakes various research, capacity-building, and advocacy/integration projects, all related to competition policy and enforcement.

The ACF notably spans across the entire continent, having a self-reported 41 countries as members, and its membership scope is larger than that of regional bodies, such as COMESA or SADC.

We look forward to providing more in-depth coverage of the ACF in the future, including interviews with the group’s senior leaders.  For the time being, in the organisation’s own words, its history and mission are as follows:

The African Competition Forum (ACF) was formally launched in March 2011 as a network of competition authorities in African countries. The network is comprised of 41 out of 54 African countries. It was tasked with enhancing the adoption of competition laws, building the capacity of new authorities and assisting in advocating for the implementation of competition reforms that benefit African economies. In countries where there is no authority, the network would assist in paving the way for the development of a competition law. An Interim Steering Group (ISG) was initially tasked with overseeing the setting up of the ACF.

A major task the ISG and then SC had to perform, foremost, was the development of a needs assessment which would be used to develop the ACF’s plan of action and would also help prioritise the key issues for which countries who are members of the network would require assistance. In coming up with the needs assessment a broad questionnaire was administered and sent to the four regional competition authorities of Southern African Development Community (SADC), West African Economic Monetary Union (WAEMU), Common Market for East and Southern Africa (COMESA) and Economic Community of West African States (ECOWAS) and to forty-one countries, twenty-seven of which responded.

Overall, the key elements that were identified as priorities for African authorities within the questionnaire fell into three main categories:

1. Capacity building on strategic planning and management, practical aspects of competition law enforcement such as investigative and litigation skills and techniques; and foundational training on the basics of competition law and economics;
2. Technical assistance in drafting and revising competition policy, laws and regulations and in designing agency procedures, guidelines, and operational manuals; and,
3. Support with advocacy and engaging other relevant stakeholders.

The questionnaire incorporated the above elements in five sections, namely:

1. The status of competition policy and law in the responding country
2. The responsible agency’s powers, jurisdiction and functions (if one exists)
3. The resources and workload of the competition agency
4. The capacity building and technical support required by the responding country
5. The nature of relationships with regional and multinational and other competition bodies.

Respondents’ contact details were drawn from the International Development Research Centre (IDRC) databases on competition authorities worldwide; information supplied by Department for International Development (DFID); SADC; United Nations Conference on Trade and Development (UNCTAD); personal contact between the ACF Co-ordinating Team; and, regional and national authorities. A meeting about the needs assessment questionnaire with African countries attending an UNCTAD conference in Geneva in November 2010 also served to provide contacts details of key competition personnel.

The ACF was recently spotlighted in an article in the Tanzanian Daily News, which reported on the ACF’s workshop entitled “Agency Effectiveness.”  The article is worth a read, we believe, as it explains the history of the ACF’s founding as well as some background to African economies’ slower and later adoption of competition regulation, due to previously centrally-planned economics and broadly government-sanctioned monopolies operating lawfully:

Dr Kigoda noted that African economies have co-existed with a number of well-known cartels and anti-competitive conducts such as price fixing, bid-ridding, restrictions of output, allocation of markets and other unwarranted agreements.

Due to that African competition agencies must be vigilant to investigate and prosecute all these in order to ease the burden on their taxpayers.

Deputy Chairman of Fair Competition Commission (FCC) Col. (Rtd) Abihudi Nalingigwa said competition authorities seek to ensure that there are no anti-competitive agreements, abuse of market power and unjustified monopolistic market concentrations are put on check.

“We thought it would be worthwhile this time around concentrating on ‘Agency Effectiveness” because we believed the topic falls directly within the expectations of our stakeholders including the consumer, business community and the government who should see value for financing agency operations.

This can best be realized through translation into more effective competition and regulatory authorities which are capable of quick dispensation of justice that provide relief to their lives. On other hand, investor-confidence through better market regulation will increase investment inflow as investors will be assured that no anti-competitive will go unchecked or unaddressed.

Many African countries introduced their competition law in the mid 1990s prompted by a process of privatization and liberalization of their respective economies that started in late 1980s….