The global anti-trust and competition law landscape, over the last decade, has been marked by amplified enforcement. Prohibited practices, particularly collusive activities, have been a key area of focus for competition regulators in Africa. Prohibited practices generally relate to collusion between competitors, anti-competitive arrangements between suppliers and purchasers, and strategic behaviour which seeks to exclude competitors or prevent competition in a particular market.
The commercial activities which are carefully scrutinised by competition regulators are concerned with conduct relating to an organisation's:
- interaction with its competitors (horizontal relationship);
- interaction with its customers and suppliers (vertical relationship); and
- unilateral conduct by a dominant firm (abuse of dominance).
We assist clients with proceedings before competition regulators in countries throughout Africa and act for clients in settlement matters across a range of industries. We are also leading the way in private enforcement actions and have, recently, represented a damages claimant in what was only the second successful follow-on damages claim brought under a breach of the Competition Act in South Africa.
In some jurisdictions, companies may apply for an exemption of agreements and practices that would otherwise constitute a prohibited practice. For instance; in South Africa, a party wishing to apply for an exemption may do so if it can show that the practice or agreement is essential to achieve certain socio-economic and political objectives, is necessary for the exercise of intellectual property rights, or relates to the activities of a professional association.
We are able to:
- assist throughout the investigation process (ie responding to subpoenas, responding to requests for information, meetings and appearances before the regulator);
- provide legal advice in respect of the preparation and prosecution of prohibited practice matters;
provide legal advice in respect of the preparation and negotiation of settlement agreements with competition regulators in relation to anti-competitive contraventions;
- assist with class actions and damages before the civil courts following anti-competitive conduct; and
- provide advice in relation to exemption applications and preparing these applications.