Competition Compliance Programs

Recent Legal News

On September 12, 2019, the Supreme Court of Canada denied Sobeys Incorporated’s (“Sobeys”) and Metro Incorporated’s (“Metro”) leave to appeal from a judgement of the Ontario Superior Court of Justice (“ONSC”) – (“Sobeys v. Commissioner”) – dismissing their applications for disclosure of the identities

The Competition authorities of the G7 countries (Canada, France, Germany, Italy, Japan, the U.K. and the U.S.) and the European Commission have reached a common agreement on the opportunities and challenges arising from the growing digital economy. The agreement was reached on June 5, and adopted by the Finance Ministers and the Bank of Governors

Introduction

In a digital economy, there has been an increasing amount of scrutiny regarding technology’s impact on consumers and competition. One key question is whether privacy should be considered a dimension of competition? That is to say, is privacy relevant to the analysis of competitive effects?

Competition law incorporates many non-price dimensions of competition, including

In his remarks at the New York University School of Law on July 11, 2019, Assistant Attorney General Makan Delrahim announced a significant policy shift at the US Department of Justice (DOJ) that would incentivize the adoption of adequate and effective corporate compliance programs.

Going forward, in deciding on how to resolve criminal charges against

This article considers the potential for changes in the treatment of vertical agreements under South African competition law as a result of recent amendments to the Competition Act, as well as current policy views within the law-makers and regulators.

Section 5(1) of the South African Competition Act prohibits vertical agreements that substantially prevent or lessen

The Competition Bureau announced the 2019 transaction-size pre-merger notification threshold under the Competition Act increased to C$96 million from C$92 million, effective February 2, 2019. Innovation, Science and Economic Development Canada also announced new foreign investment review thresholds under the Investment Canada Act, effective January 1, 2019.

Competition Act

In general terms, certain transactions that

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 continuing development and application of South Africa’s competition policy.

Now in its 19th year, the South African authorities (that includes the Competition Commission, Tribunal and Appeal Court) have enjoyed a leading status amongst developing competition law jurisdictions. The authorities have been recognized by peers in other jurisdictions, global bodies and practitioners for their pioneering role in development of a comprehensive body of competition law and policy, often punching above their weight category, particularly in relation to the role of competition law in socio- and development economics. Some have taken fright at the suggestions advanced which appear to promote the well-being of local businesses and the public interest above consumer welfare as the true-north of anti-trust.

This development of law and policy as well as the well-earned status does not come about simply by practicing in one’s back garden. Far from that, South Africa has gone out in the international arena participating and joining allegiance with others, perhaps sometimes as a more junior partner and in other cases as a more experienced adopter of the competition global wave. There are MOU’s enshrining cooperation with the EC, Brazil, Russia, India, China, Mauritius, Kenya and Namibia. In addition, South Africa has membership of the SADC, African Competition and BRICS fora. The authorities have also benefitted greatly from their active participation in ICN and UNCTAD networks and their staff continue to receive extensive training from leading world authorities and experts. The authorities learn from others and take an active lead in passing on their experience and challenging orthodox views.


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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 economic concentration might be tackled:

It seems to me to be better that it be done through the trusted and predictable processes of competition regulation and its sound institutions than that it be left to laws that simply mandate the breakup of companies irrespective of the economic logic…”.

Market inquiries are seen as one of the five priorities in addressing this objective.  The Background Note published with the Amendment Bill states –

The package of amendments… envisage that market inquiries will become the chief mechanism for analysing and tackling the structural problems in a market, thereby advancing the purposes of the Act. The proposed amendments to the chapter relating to market inquiries will enhance the market inquiry process and will ensure that its outcomes include measures to address concentration and the transformation of ownership.


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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 of Antitrust Law. These comments and concerns are discussed below.

According to the press release, the program is being updated to increase transparency and predictability in light of legal and policy developments.

The Bureau has advised that the changes are prompted partly by the outcome of recent unsuccessful prosecutions and include the following:

  • Interim Grant of Immunity: Documentary and testimonial evidence will be provided under an interim grant of immunity (IGI). Final immunity will be provided when the applicant’s cooperation and assistance is no longer required.
  • End of Automatic Corporate Immunity for Directors, Officers and Employees: Automatic coverage under a corporate immunity agreement for all directors, officers and employees will no longer be provided. Instead, individuals that require immunity will need to demonstrate their knowledge of the conduct in question and their willingness to cooperate with the Bureau’s investigation.
  • Greater Use of Recordings: Witness interviews may be conducted under oath and may be video or audio recorded. Proffers, statements made by an applicant (usually through counsel) to the Bureau where the applicant is expected to reveal its identity and describe in detail the anti-competitive activity, may also be audio recorded.
  • Privileged Documents: Non-privileged records from companies’ internal investigations will be treated as presumptively disclosable facts in the possession of cooperating parties. And while privileged records will continue to be protected from disclosure, applicants will now be required to justify their claims of privilege.


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