Competition Chronicle

Competition & Antitrust | Foreign Investment

The Competition Act (‘Act’) is first and foremost national in its focus. This is clear from its objects set out in the Act’s Preamble and Purpose. Although the Act makes reference to international law obligations, participation in world markets and the role of foreign competition in the Republic, to look at the role of South Africa in competition law’s global village, the key is not to be found in that language, but rather in the…
This post was originally published as a bulletin on Fasken.com under the title “Unpacking the Competition Amendment Bill: Market Inquiries“. The Competition Amendment Bill seeks to address two key structural challenges in the South African economy: concentration, and the racially-skewed spread of ownership of firms in the economy. At the 11th Annual Competition Law, Economics and Policy Conference in September 2017, the Minister of Economic Development, Ebrahim Patel, made the following comment when explaining how…
On October 26, 2017, the Canadian Competition Bureau (“Bureau”) released for public comment a revised version of its Immunity Program, under which a party may receive immunity from criminal prosecution if the party is the first to disclose an offence and agrees to cooperate with the Bureau’s investigation and prosecution of others. The revisions, discussed below, has led to comments and concerns from, among others, the CBA National Competition Law Section and the ABA Section…
Tying occurs when a consumer buys one product (the “tying product”) and is required to either purchase an additional product that exists in a separate market (the “tied product”), or agrees not to purchase the additional tied product from any other seller.  Tied selling is only problematic where the practice is likely to have an anti-competitive effect. A fundamental requirement of tying is the existence of two products, the tying product and the tied product…
The joining of bid rigging and conspiracy charges has questionable utility. Offences Defined The definitions of the offence of bid rigging in s. 47(1)(b) of the Competition Act is defined in part as the submission of a bid or tender which is arrived at by arrangement or agreement. A criminal conspiracy in s. 465(3) of the Criminal Code consists of an agreement to commit an indictable offence. Coupling Charges The Competition Bureau routinely joins a…
The South African Competition Commission has since the beginning of 2017 prohibited eleven intermediate mergers and has recommended that four large mergers be prohibited.  This number is substantially higher than 2016, when the Commission prohibited three intermediate mergers and recommended that one large merger be prohibited.  For the period end of September to October 2017, the Commission prohibited five mergers. This note will briefly look at two important and interesting trends that followed from the…
On October 27, 2017, Cardinal Ventilation Inc. was fined $375,000.00 after pleading guilty to one count of bid rigging related to three condominium development projects in Montreal. The contracts in question related to the supply and installation of ventilation and/or air conditioning systems in residential high-rise construction projects in the greater Montreal region. Cardinal Ventilation Inc. admitted that it conspired with competing Montreal-area companies to obtain a ventilation contract by ensuring it offered the lowest…
One might think that competition law would applaud a firm that submits an independent and competitive bid, in response to a tender aimed at lowering prices.  Recent experience in South Africa suggests that this is not always the case, and that such a firm may face investigation by the competition authorities precisely because it won the competitive tender. In October 2017, the South African Competition Commission announced that it has initiated, and is investigating, a…
Merger clearance in South Africa is not easy, nor quick. That may be a take-away from observing the recent clearance by the South African authorities of the DowDuPont global merger of equals covering markets for agricultural products, material sciences and chemicals as well as specialized health and electrical products. The merger was cleared some 15 months from the date of filing and then subject to detailed conditions. We know that each merger will present its…
(The full version of this bulletin was originally published on Fasken.com – “The Competition Commission’s Market Inquiry into Data Services” – September 12th, 2017.) On 18 September 2017, the Competition Commission is expected to commence a market inquiry into data services in South Africa. This is the sixth market inquiry to be initiated by the Commission. The inquiry comes after public submissions to Parliament that South Africa’s data costs are high relative to…