Enforcement-of-Transnational-Competition-Law-S7.

Report
Enforcement of Transnational Competition Law
Between fiction and reality?
Sunjida Devi Bundhun
Investigator
Competition Commission
22nd November 2013
The Highlights…
Introduction: International Competition Law (ICL) in a Globalised World
The Rationale for a Transnational Competition Law
Cooperation on Competition Law: The Interests of States
Transnational Competition Law: The EU Model
Economic Integration within Africa
The Regional Competition Policy of COMESA
Enforcement of the COMESA Competition Regulations
Concluding Remarks
Introduction…
ICL and the
Globalisation
Phenomenon
Collision of National
Interests /
Fragmented
Enforcement
Multilateral
‘Jurisdictionalism’
Highly integrated
Economies: Trade
and Commerce
Exclusive Territorial
Jurisdiction
Introduction
Wave of Transnational Mergers: 80%
involved US and EU firms
Mega-mergers in overseas
telecommunications and financial services
industries
1998: Travelers-Citicorp, WorldCom/MCI,
NationsBank/BankAmerica, etc
1999: Vodafone/Mannesmann, Sprint/MCI
WorldCom, Olivetti/Telecom Italia
‘Mushrooming’ of national competition laws:
1980s/1990s : significant growth in the number
of countries adopting antitrust law statutes
Today : 100 countries currently have antitrust
rules in place, and the process has not ended
yet.
E.g. 1 August , 2008, China's Anti-Monopoly Law
("AML") entered into force
The Rationale of a Transnational Competition
Law
“(…) in anti-trust matters the policy of one state may be to defend
what it is the policy of another state to attack”.
Lord Wilberforce
Cross Border Arrangements:
Circumvent / Exploit Differences between
domestic CLs
Extraterritorial application of competition
law: inevitable and mandatory
Existing instruments for
cooperation are inadequate
Remedies
Conflicting
Decisions
Famous/Infamous
Boeing /
McDonnell
Douglas Merger
Increasing Welfare of all
countries
Substantive
content
Duplication of Resources
Differing National
Competition Laws
Cooperation in Competition Law:
The Interests of States
Local consumers
Local producers
Export
Promotion
Transnational Competition Law: The EU
Model
Enforcement of Competition Law in
the EU …
National CL Infringement
EU CL Infringement
Exclusive jurisdiction
for the relevant NCA
Both the European
Commission and any
NCA whose territory has
been affected can
prosecute and punish
Simplification / Avoidance of
contradictory Rulings
1. Potential INV by several
states: Best placed in charge
Policy
2. European Commission
decides to formally open a
case: NCAs are discharged
of the same case if they
were investigating at their
level
Enforcement of Competition Law in the
EU
Merger
Control
in the
EU
Concentrations having an EU dimension (Article 1 of the EC Merger Regulations)
* Notification to EU which has exclusive jurisdiction to review
* National merger regulations of the Member States do not apply to such mergers
Single notification to the Commission
The principle: No conflicting jurisdiction
Concentrations not having an EU dimension
* National Merger Regulations applicable
* Notification to relevant NCA depending on each national merger regulation
Economic Integration within Africa
COMESA Region
* Trade liberalisation
and the elimination
of TBTs and NBTs
The regional Competition policy of
COMESA
The COMESA Competition Regulations …
Coverage of
all basic anticompetitive
practices and
conducts
CCR
Scope of
Application
Consumer
Protection
Provisions
The COMESA Competition
Regulations
Enforcement of the COMESA
Competition Regulations
Next Steps
Thank you for your attention….

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