Antitrust Working Groups and submissions
The Antitrust Section has formed a number of working groups to study major international competition policy issues and to submit comments to regulators on proposed new and reformed legislation. The working groups are: Unilateral Conduct and Behavioural Issues; Cartels; Antitrust Litigation; Mergers; Ad Hoc Digital Economy; and Ad Hoc Sustainability. Get more information about specific working group activities and download submissions on this page.
Working Groups
The IBA Unilateral Conduct and Behavioural Issues Working Group has 15 members representing a large number of jurisdictions covering Europe, Asia, Australia, Africa and the Americas. The Group is responsible for monitoring and commenting on a range of competition issues that arise, inter alia, from unilateral conduct and abuse of dominance or misuse of market power as well as cooperative/horizontal (non-cartel) and vertical agreements.
It aims to encourage best practice in the ongoing development of international laws in these areas by commenting on consultations on proposed new and reformed legislation. This includes reviewing and commenting on proposed new legislation and legislative changes; engaging in discussions about the nature of conduct that should be proscribed by competition law; reviewing and commenting on regulatory responses to anti-competitive conduct including investigations and prosecutions; and commenting on guidelines associated with compliance initiatives designed to raise awareness of competition issues in relation to unilateral conduct, cooperative agreements and vertical agreements.
The IBA Cartels Working Group has 15 members representing a large number of jurisdictions covering Europe, Asia, Australia, Africa and the Americas. The Group includes several former senior antitrust officials and a former competition commissioner, private practitioners in leading law firms, and in-house competition counsel.
The Group follows cartel developments around the world and provides input and comments on various consultations on proposed new and reformed legislation to which the IBA’s international perspective and the members' collective expertise and experience can bring significant added value. The Group is also active in other aspects of the IBA’s work including in cartel policy issues more generally, as well as in monitoring developments and assisting with organising conferences.
The IBA Antitrust Litigation Working Group has 15 members representing a large number of jurisdictions covering Europe, Asia, Australia, Africa and the Americas. The Group includes private practitioners in leading law firms who represent both claimants and defendants in antitrust litigation. The Group follows antitrust litigation developments in different jurisdictions across the world and provides input and comments on various consultations on proposed new and reformed legislation to which the IBA’s international perspective and the members' collective expertise and experience can bring significant added value. The Group is also active in monitoring developments and considering cross-border issues in antitrust litigation.
The IBA Mergers Working Group has 15 members representing a large number of jurisdictions covering Europe, Asia, Australia, Africa and the Americas. The Group includes private practitioners in leading law firms and in-house counsel. The Group follows merger control developments in different jurisdictions across the world covering procedural, jurisdictional and substantive issues. With the proliferation of merger control regimes around the world there is a large number of new jurisdictions establishing guidelines for merger control and established authorities continually try to improve their legislative framework and guidelines and issue calls for input to consultations. The Group provides input and comments on various consultations on proposed new and reformed legislation to which the IBA’s international perspective and the members' collective expertise and experience can bring significant added value.
Working Group members
Co-Chairs: Andrea Hamilton, McDermott Will & Emery, Belgium; Chris Charter, Cliffe Dekker Hofmeyr, South Africa; Hans Bousie, Bureau Brandeis, Netherlands
The Ad Hoc Sustainability Working Group has members in both private-practice and in-house roles in a range of jurisdictions. The Group draws on different disciplines of competition law and reflects on how competition laws and sustainability policies work together across the globe. Changing consumer attitudes and geo-political trends continue to push companies to adopt sustainability goals and build sustainability considerations into commercial decisions. The Group follows these developments around the world and provides input and comments on consultations and proposals relating to competition and sustainability laws, considering how existing competition frameworks might apply in the context of sustainability initiatives.
Working Group members
Co-Chairs: Joanna Goyder, Freshfields Bruckhaus Deringer, Brussels; Grant Murray, Baker McKenzie, London.
Daniel Oliveria Andreoil, Demarest, Sao Paulo; Logan Breed, Hogan Lovells, Washington DC; Susanne Bullock, Gibson Dunn, London; Neil Campbell, McMillan, Toronto; Johannes Hertfelder, Gleiss Lutz, Stuttgart; Gwyneth Hodson, Unilever, London; Nick Peristerakis, Linklaters, Brussels; Anna Wolf-Posch, Cerha Hempel, Austria
Working Group submissions
Australia: Comments on the Potential Changes to Australia’s Merger Rules and Processes
The submission covers some general observations regarding proposals for substantial change to the existing merger rules and processes, on the potential change to the substantive test and expanded discretion, and then on the potential changes to the role of the federal court.
The submission covers various issues concerning the draft including best practices in general and certain specific comments.
The submission covers various issues concerning the draft including the oral marker system, confidentiality and the right to be heard.
The submission prepared by the Mergers Working Group covered: (i) the potential to expand the scope of transactions that qualify for simplified review and streamlining the review of simplified cases; and (ii) several aspects of the review of non-simplified cases.
Consultation on the UK’s Phase 2 process in merger reviews.
The submission prepared by the Mergers Working Group covered various aspects of the Competition and Markets Authority’s Phase 2 process and made a number of recommendations regarding enhancing engagement with the decision market with reference to ICN Recommended Practices and experience from other regimes such as in the EU and Singapore.
Public consultation on draft amendments to the merger control regulations.
The submission prepared by the Mergers Working Group focused on: (i) recommendations to improve the proposed deal value threshold conditions; (ii) suggestions to reintroduce certain exemptions and the fast-track approval route for non-problematic transaction; and (iii) bolstering certain procedural aspects of the merger review process, among others.
In order to strengthen the submissions, reliance was placed on ICN Recommended Practices and the position in several other jurisdictions, including Austria, Europe, Germany, Japan and the US.
The submission prepared by the IBA Working Group focused on recommendations to improve the proposed settlement framework, including by: (i) making the process more consultative and balanced; (ii) providing the applicant with a comprehensive list of theories of harm to address; (iii) providing clarity on the process of calculating the settlement amount; (iv) extending the permissible time period for submitting a settlement application; and (v) improving several procedural aspects of the framework.
In order to strengthen the submissions, reliance was placed on ICN Recommended Practices and the position in several other jurisdictions, including Brazil, Bulgaria, the EU, South Africa and the UK.
The submission prepared by the IBA Working Group focused on recommendations to improve the proposed commitments framework, including by: (i) making the process more consultative and balanced; (ii) providing the applicant with a comprehensive list of theories of harm to address; (iii) extending the permissible time period for submitting a commitments application; (iv) prohibiting the use of information shared, if the commitment application is rejected; and (v) improving several procedural aspects of the framework.
In order to strengthen the submissions, reliance was placed on ICN Recommended Practices and the position in several other jurisdictions, including Brazil, Bulgaria, the EU, South Africa and the UK.
Public consultation on proposed reforms to the merger pre-notification filing form.
The submission prepared by the Mergers Working Group focused on areas where the proposed HSR changes could be refined by reference to practices in Brazil, Canada, China and the EU, covering areas such as: (i) treatment of more straight forward cases; and (ii) requirements on specific types of information to be provided (including labour market, foreign subsidies, prior acquisitions, director and officer information, and transaction-related documents).
The submission prepared by the Mergers Working Group and the Antitrust Litigation Working Group of the IBA Antitrust Section.
The submission prepared by the Sustainability Working Group of the IBA Antitrust Section, which draws on that combined experience.
Pubic consultation regarding the revised draft for the Market Definition Notice.
The submission, prepared jointly by the Unilateral Conduct and Behavioural Issues Working Group, the Cartels Working Group and the Mergers Working Group, covers comments to the public consultation issued by the European Commission concerning an update to its notice on market definition. The comments covered general issues; the concept of the relevant market and general methodology; the process of defining markets; various substantive issues about market definition; and the role of market shares.
The submission prepared by the Mergers Working Group covered general and specific comments on the CPDC’s public consultation regarding definitions related to the control of economic concentrations, pursuant Articles 7 to 9 of the Law 18.159.
The response and comments included the following: (i) considerations on possible definitions for control, which would affect the transactions that are subject to mandatory filing with the competition authorities; (ii) identification of business assets that would be relevant to merger filings; (iii) suggestions on items to be included/excluded in turnover calculation to assess the thresholds that would trigger a mandatory merger filing; and (iv) comments on the provision regarding the “sole company” definition.
Additionally, the Mergers Working Group provided comments to the Uruguayan authority with suggestions to provide an effective merger control system in which undertakings would be able to easily verify whether a transaction triggers a mandatory filing in Uruguay.
Suggestion for revision of the Swiss Cartel Act with a focus on clarifications regarding (i) the introduction of the SIEC merger control test, (ii) the introduction of an exemption for transactions with exclusively international markets, (iii) the possibilities to extend the statutory deadlines, as well as (iv) the risks of retroactive effects of the introduction of the changes.
The MWG suggested that the proposed introduction of the SIEC test in Switzerland should be aligned with the international practice and that guidance on the future application should be issued. With regards to a possible notification exemption for transactions that are notified to the European Commission, the MWG noted that there could be significant uncertainties in the procedure and recommended clarifications, as well as the establishment of a swift and binding pre-ruling mechanism on the exemption from the notification obligation.
Furthermore, the MWG pointed out that the suggested possibilities to extend merger control review deadlines should only be applied in specific and limited situations with an objective reason to coordinate international procedures.
Finally, the MWG noted that the entry into force of the new law could lead to problematic retroactive effects, which should be mitigated.
In 7 March 2022, suggestion for renewal of (i) the Group Definition Notification pursuant to which enterprises exercising less than 50% voting rights in another enterprise are exempt from the definition of “Group”; and (ii) the Small Target Exemption Notification pursuant to which certain transactions are exempt from the notification obligation to the Competition Commission of India (“CCI”).
Definition Notification maybe renewed (preferably with retroactive effect) so that only those enterprises which exercise at least 50% voting rights in another enterprise are considered part of the same “Group”. This was proposed to prevent a situation whereby an enterprise could be viewed as belonging to two or more unrelated and distinct groups, as well as to reduce the regulatory burden on the CCI by avoiding the review of non-problematic transactions.
The MWG proposed the renewal of the Small Target Exemption Notification (upon its expiry) in order to ensure that there remains a two or more” requirement under the Indian merger control regime, which automatically excludes non-problematic transactions from the requirement of notification based on objective criteria of asset and turnover thresholds of the target.
In February 2022, the Antitrust Section Unilateral Conduct Working Group submitted comments on draft guidance on information exchange in dual distribution, published by the European Commission and intended to be included in its revised Vertical Guidelines..
The Antitrust Section Unilateral Conduct Working Group submitted comments on draft new guidance on information exchange in dual distribution, published by the European Commission and intended to be included in its revised Vertical Guidelines (VGL). This sets out a framework for analysis and provides examples of types of exchange to be covered by the revised Vertical Block Exemption Regulation, and other types that will need case-by-case analysis.
The Working Group welcomed the draft guidance and commended the Commission for having responded constructively to earlier stakeholder feedback on dual distribution information exchange. In particular, given the Commission’s original stated intention to address this issue in the context of the ongoing review of the rules on horizontal collaboration, the Working Group welcomed the fact that guidance is to be provided in the revised VGL.
In September 2021, the Antitrust Section Unilateral Conduct Working Group, submitted comments on the draft revised Vertical Block Exemption Regulation (VBER) and Vertical Guidelines (VGL) published by the European Commission. These would maintain the same framework as in the existing regime, while adapting it in some aspects, in particular in order to reflect recent growth in importance of ecommerce and platforms.
The Working Group welcomed the draft VBER and VGL and the Commission’s aim of giving guidance to businesses. However, it voiced concern that some of the new provisions fail to provide the requisite guidance and certainty and might lead to some further complexity instead of clarifying the vertical rules to be applied across the EU.
While recognising the need to introduce more nuance to remove a risk of false negatives, the Working Group also observed that in certain respects the draft texts may have become too complex for many advisers (especially in relation to smaller businesses, to which the drafts appear intended to afford greater protection) easily to understand and apply. The unintended result may be to chill reliance on the VBER and thus undermine its value as a tool that allows businesses the confidence to develop innovative and efficient strategies within a clearly understood compliance framework.
In November 2021, the Antitrust Section Merger Working Group submitted comments on the proposed amendments to China’s Anti-Monopoly Law published for public consultation by by the Commission for Legislative Affairs of the National People’s Congress Standing Committee.
The comments focus on proposed amendments to the rules, procedures and operation of China’s merger control regime, including (a) the definition of “control”; (b) regular adjustments to notification turnover thresholds; (c) the review of non-notifiable transactions; (d) the exemption from the notification obligation under Article 22; (e) the proposed “stop the clock” mechanism; (f) the reinforcement of merger control review in specific fields; and (g) penalties for failure-to-file transactions.
The Working Group expressed that the proposed amendments would in some areas benefit from greater clarification and/or and/or separate guidelines on their application in practice in line with international standards.
The Antitrust Section Merger Working Group submitted comments on the proposed amendments to the Enforcement Decree of Monopoly Regulation and Fair Trade Law published by the Korea Fair Trade Commission.
In July 2021, the Antitrust Section Merger Working Group submitted comments on the proposed amendment to the Enforcement Decree of Monopoly Regulation and Fair Trade Law (the Proposal) published by the Korea Fair Trade Commission (Commission).
Under the proposal, the Commission, among others, introduces a new test for triggering a reporting obligation for business combinations (the Size of Transactions Test). Specifically, an acquiring company must notify an acquisition if (i) the transaction value meets KRW 600 billion and (ii) the target company or its affiliates is active in the Korean market at a “substantial level” (the Local Nexus Test).
The Working Group expressed certain reservations regarding the introduction of the Size of Transactions Test on the basis that it could negatively impact competition by dampening early-stage investments of start-ups, and evidence from other jurisdictions that similar tests have not been effective. On the proposed transaction value threshold, the Working Group suggested the Commission define the methodology for calculating the transaction value more clearly and issue accompanying guidance. On the Local Nexus Test, the Working Group suggested certain clarifications and the addition of a de minimis domestic turnover threshold.
The Antitrust Section Merger Working Group, submitted comments on the draft Amendment of the Small Merger Guidelines published by the South African Competition Commission.
In June 2021, the Antitrust Section Merger Working Group, submitted comments on the draft Amendment of the Small Merger Guidelines (the Guidelines) published by the South African Competition Commission (Commission).
The Guidelines propose that the Commission will require that it be informed of all small mergers where either the acquiring firm, the target firm, or both operate in one or more digital market(s) subject to criteria relating to consideration of the transaction, value of the target firm or pre and post-merger market shares being met.
The Merger Working Group made submissions relating to the criteria and procedure of the proposed informal notification of transactions in 'digital markets', and suggested that the Guidelines would benefit from greater certainty around concepts referred to in the proposed amendments. The Working Group also cautioned the Commission against using a criterion based on consideration value given the importance of having a material nexus in merger control, and the complexities surrounding consideration. The Working Group also cautioned against the criterion based on market share given the complexity in determining market share, particularly in digital markets.
Mergers Working Group questionnaire response and submission to the European Commission on simplifying its merger notification process
June 2021. The Mergers Working Group of the Antitrust Section submitted a response to the European Commission’s questionnaire together with an accompanying submission.
The materials advocate (i) expanding the scope of eligible cases for the simplified procedure; (ii) streamlining the review of simplified cases, for example by adopting a tick-the-box notification form; (iii) streamlining the review of normal cases and referral cases through making a number of amendments to the notification forms; and (iv) introducing electronic notifications.
Litigation Working Group and Cartels Working Group submission to the Competition Commission of India on the proposed amendments to the extant confidentiality regime
June 2021. The submission prepared by the Cartels Working Group and Litigation Working Group of the Antitrust Section provide comments on the amendments proposed by the Competition Commission of India to the extant confidentiality regime with respect to the antitrust enforcement and merger control, and the introduction of confidentiality rings.
The Antitrust Section provided recommendation on the following aspects: (a) disclosure of informant’s identity; and (b) penalty on parties legal representatives. Comments provided broadly address competing claims for confidentiality versus disclosure for reasons of natural justice.
The Antitrust Section welcomes the introduction of confidentiality rings to India’s antitrust enforcement.
Mergers Working Group submission to the Federal Competition and Consumer Protection Commission on the Nigerian merger control regime in light of the newly published Merger Review Regulations (2020)
March 2021. The submission prepared by the Mergers Working Group of the Antitrust Section is a voluntary submission to the Federal Competition and Consumer Protection Commission (the 'Commission') on the Nigerian merger control regime in light of the newly published Merger Review Regulations, 2020 (the 'Regulations'), under the Federal Competition and Consumer Protection Act.
The submission welcomed the legal certainty provided for in the Regulations in relation to when acquisitions of minority control would lead to the Commission’s review. Suggestions were made to improve certainty in relation to certain factors that the Regulations list would be considered in assessments of control or material influence in Nigeria, but are typically not considered to confer material influence in other jurisdictions absent a material shareholding and/or specific governance rights.
The submission considered filing fees in a number of other African and European Union jurisdictions and proposed a reconsideration of the calculation of the filing fee as the current fee framework proposed under the Regulations could result in excessive fees which do not correlate to reasonable costs for operating a merger regime. The submission also proposed increasing the filing thresholds in Nigeria, and requiring both parties, and at least the target undertaking, to generate a certain level of turnover in Nigeria to (i) ensure that only transactions with a material effect in Nigeria are considered by the Commission and (ii) strengthen the requirement for a material local nexus.
Antitrust Litigation Working Group submission to the New Zealand Law Commission on their Paper concerning the introduction of a class actions regime in New Zealand
March 2021. The submission prepared by the Antitrust Litigation Working Group of the Antitrust Section makes comments on particular, broad, issues raised by the Law Commission in its Consultation and Issues Paper that concern the underpinning of any regime introduced. Comments provided and issues raised include: support for the introduction of a class actions regime, including for the provision of litigation funding; commentary on essential features of such a funding to ensure balance and fairness between parties; whether the regime should be broad in scope or limited to some aspects of law; and the desirable features of class action representatives. Specific comments have also been made about litigation funding and whether it should be regulated or otherwise controlled as a threshold issue in proceedings. The Working Group is of the view that the advantages of litigation funding outweigh the risks associated with it, and that any perceived imbalances can be addressed and managed with court oversight and within the framework of a regime.
Ad Hoc Sustainability Working Group submission to the European Commission on how competition rules and sustainability policies work together
November 2020. The submission prepared by the Ad Hoc Sustainability Working Group of the Antitrust Section is a response to the European Commission’s call for contributions about how competition rules and sustainability policies work together. The submission responds to specific questions and provide insights on three antitrust pillars – State aid, antitrust rules, and merger control. In the State aid section, the submission considers that the current State aid framework could be revised to provide further support for initiatives that support the European Commission’s Green Deal. In response to questions on antitrust rules, the submission notes that the European Commission could consider providing detailed sustainability guidelines and may, in furtherance of green objectives, take a broader view of the consumer welfare standard and efficiencies under Article 101(3) TFEU. In the merger control section, it is noted that there are two potential ways to address sustainability objectives – a more expansive use of the efficiencies provisions in the EU Merger Regulation or an override process to consider environmentally-based considerations.
Antitrust Litigation Working Group submission to INDECOPI in response to its Draft Guidelines and the potential impact of what is proposed on the operation of Peru's Leniency Program
October 2020. The submission prepared by the Antitrust Litigation Working Group of the Antitrust Section makes specific comments on INDECOPI's Draft Guidelines on actions for damages to be brought by the Commission for the Defense of Free Competition on behalf of consumers as a consequence of anticompetitive conduct. Comments provided and issues raised include: suggesting guidance as to how non-economic damages might be quantified in cases included in the Draft Guidelines, as well as the potential inclusion of more precise criteria to be applied when determining a ‘class’ of consumers; suggesting that the timing of the period within which class members can opt-out, and the evidence that class members could be required to adduce in order to make a claim be clarified; and suggesting that INDECOPI consider the scope of the delegation of its authority to bring a damages action to a consumer association.
In relation to the leniency program, specific comments were made concerning the definition of, and requirement for, a 'final decision' prior to damages claims being commenced and whether those proposed elements could disproportionately impact leniency applicants; considerations about the proposed use of documents provided in the context of INDECOPI’s leniency program and the potential impact on that program in consequence; and whether a distinction in the treatment of Type A and Type B leniency applicants is warranted in the context of damages claims.
Unilateral Conduct and Behavioural Issues & Cartels Working Groups submission to the European Commission in response to the evaluation of its 1997 Notice on the definition of relevant market for the purposes of Community competition law
October 2020. The role of market definition as a relevant framework for further analysis is highly relevant. Updating the current Notice so as to provide guidance considering market developments since 1997 would make the Notice more use. As stated in the submission, the new notice should take into account the market developments in the past two decades, including the emergence of online sales and digital markets and globalisation. Additionally, techniques and methods of analysis related to market definition have become significantly more sophisticated. As a result, some concepts set out in the Notice have undergone changes to adapt traditional analyses to new business models and new markets. In this sense, a more in-depth economic analysis should be considered in the evaluation of the Notice.
Mergers Working Group submission to the European Commission regarding its White Paper on levelling the playing field as regards foreign subsidies
September 2020. A submission to the European Commission's Directorate General for Competition in response to requests for input to the White Paper. The comments focus solely on Module 2, which addresses foreign-subsidised acquisitions of EU companies.
Ad Hoc Digital Economy Working Group submission to the European Commission regarding its Consultation on an Ex Ante Regulatory Instrument for Large Online Platforms
September 2020. A submission in response to the European Commission’s Directorate General for Internal Market, Industry, Entrepreneurship and SMEs (DG Grow) and the Directorate General of Communication Networks, Content and Technology of the European Commission (DG Connect), regarding their Consultation on an Ex Ante Regulatory Instrument for Large Online Platforms. The submission draws on the experience of the IBA Antitrust Section members within the EU and other major jurisdictions that have experience with the types of issues raised by the Consultation.
Ad Hoc Digital Economy Working Group submission to the European Commission regarding its Consultation on a New Competition Tool
September 2020. The Ad Hoc Digital Economy Working Group sent this submission to the European Commission's Director General for Competition, regarding the Consultation on a New Competition Tool (NCT). The Working Group has considered the NCT proposals in a three-part analysis, in which it draws heavily on the experience of members of the IBA Antitrust Section.
Antitrust Litigation and Cartels Working Groups submission to Japan Fair Trade Commission (JFTC) on the proposed rules regarding JFTC’s Leniency Program and on legal professional privilege in antitrust proceedings
May 2020. A joint submission prepared by the Antitrust Litigation and Cartels Working Groups of the Antitrust Section. Comments provided regarding the Leniency Program include: provide for a leniency plus policy, reconsider the strict division between applications before/after the investigation start date, adopt a variable system instead of a partially fixed system when assessing the value of cooperation. Suggestions provided on legal professional privilege (LPP) include: apply attorney-client privilege to all proceedings, reconsider the exclusion of documents that state facts from the list of those which may be covered by LPP, do not grant benefit from LPP exclusively due to labels, storage or to whom it is addressed, reconsider limitations of LPP to foreign lawyers, reconsider the timeframe or the submission of privilege claims and provide more security to the documents provided in case of any disagreement about legal privilege, reconsider the transfer to the investigator in order to provide legal certainty, reassess the possibility of transferring objects to a case investigator when the applicability of the confidential treatment is unclear.
Mergers Working Group suggestions to the Ministry of Corporate Affairs (Competition Section), Government of India, regarding the Competition (Amendment) Bill 2020
March 2020. The Mergers Working Group made comments on the merger aspects of the Bill. It noted that the current Indian merger regime does not include deal-value thresholds, however, if it is to be included, utmost consideration should be given before implementing it and discussed some major concerns around deal-value thresholds.
Further, it praised the proposed reduction of the merger timeline from 210 days to 150 days while also suggesting that the Competition Commission of India be allowed some procedural flexibility to halt the review timetable in appropriate cases. It also highlighted the possibility of levying a double penalty under the Competition Act 2002, and noted that adopting the material influence standard rather than the decisive influence standard for control may lead to a large number of transactions being notified, which could increase the regulatory and commercial burdens.
Mergers Working Group comments to the State Administration for Market Regulation concerning proposed amendments to China’s Anti-Monopoly Law
February 2020. The comments relate to the Chinese competition regulator’s proposed amendments to China’s competition law, and focus on the proposed amendments in relation to merger control.
The comments focus on the proposed merger control-related amendments in relation to three areas:
- increased penalties for merger control procedural violations;
- the new definition of control; and
- the new “stop the clock” mechanism.
In relation to each of these areas, the Working Group respectfully submits that the amendments would benefit from greater clarification and/or separate guidelines on their application in practice.
Mergers Working Group suggestions to the Competition Commission of India regarding proposed amendments to the Combination Regulations
December 2019. The Mergers Working Group provided comments on the proposed amendments to provide dispensation to facilitate takeover bids and open market purchases of shares of publicly traded companies by allowing the Competition Commission of India (CCI) review process to be completed after, rather than before, such transactions are undertaken.
The Mergers Working Group lauded the proposal aimed at enhancing the ease of business in India and requested certain clarifications to make the proposal more effective. In particular, it pointed out that the proposed amendment does not address if the acquirer can reasonably restrict a target from diluting the value of its investment during the standstill period without otherwise contravening the no-influence restriction and if an upfront payment of consideration could be made. It also propounded that the CCI should be empowered to grant a derogation from standstill obligations in appropriate cases.
Cartels Working Group submission to INDECOPI on its draft guidelines on inspection visits
December 2019. The Cartels Working Group submitted comments to INDECOPI, in response to Draft Guidelines to the Inspection Visits (Dawn Raid) Guidelines. The guidelines set the authorization requirements relating to the Secretaría Técnica’s ability to carry out inspections, and refer to the possibility of either announced or unannounced inspections. Comments provided on parameters for inspection, namely: when one type of inspection will be used over another; clarify if inspections can be used in any type of conduct, not only cartels; circumstances when dawn raids will be authorized, namely what the standard is on 'suspicion' and mechanisms for controlling the entity. Operational issues, such as: if the authority will allow a period of time to allow for external counsel to arrive (guidelines provide for assistance by counsel); if law enforcement assistance allows for forced entry; access to documents, namely those that may be stored in 'clouds'; how the authority intends on guaranteeing that information not relevant to investigation is not gathered; if individuals that will be interviewed will be entitled to legal representation. Other issues are also addressed, such as: copy of documents gathered; minute of inspection; and others.
Unilateral Conduct and Behavioural Issues Working Group submission to Competition and Consumer Commission of Singapore on its draft guidelines on price transparency
October 2019. The Unilateral Conduct and Behavioural Issues Working Group submitted comments to the Competition and Consumer Commission of Singapore (CCCS), in response to its draft guidelines on price transparency. The CCCS is publishing guidelines in relation to price transparency, to guide suppliers in their display and advertisement of prices to avoid infringing the Consumer Protection (Fair Trading) Act. The guidelines provide information on CCCS’s approach, positions and recommendations on the display and advertisement of prices going forward. Although the Draft Guidelines were drafted with consumer protection in mind, the Working Group has sought to share its perspective specifically from a competition / antitrust angle.
Unilateral Conduct and Behavioural Issues Working Group submission to Competition Commission of India on e-commerce in India market study
October 2019. The Unilateral Conduct and Behavioural Issues Working Group submitted comments to the Competition Commission of India in response to the interim observations in the market study on e-commerce conducted by the Commission, and to develop a better understanding of the functioning of e-commerce in India. The interim findings of the market study provide a considerable insight into the various practices of the online platforms and the concerns being raised by the customers of such online platforms in India. In addition to the perspectives of the customers as well as the online platforms, the Working Group recommends that the market study should also focus on several critical issues which are necessary for dealing with competition cases pertaining to the digital sector, such as the market definition in the digital sector.
Cartels Working Group submission to INDECOPI on antitrust rewards programe
October 2019. The Cartels Working Group submitted comments to the Peruvian regulator, INDECOPI, on its draft guidelines on the leniency/whistleblower 'rewards' programme. Comments provided focused on six relevant issued: (1) Set forth reasonable deadlines for the authority to assess the evidence presented and to accept the application to the programme, and to assess consultations; (2) Make available a detailed procedure explaining the negotiation phases for granting the reward; (3) Establish which documents will be created as a result of the collaboration; (4) Provide objective criteria for calculating the amount and determining the payment of rewards; (5) Provide additional guidance on technical precautions applicants must take during the collection of evidence; and (6) Set forth detailed rules on confidentiality, especially when it comes to financial records of the paid reward.
Unilateral Conduct and Behavioural Issues Working Group submission to Japan Fair Trade Commission on its guidelines concerning abuse of a superior bargaining position in transactions between digital platform operators and consumers
September 2019. The Unilateral Conduct and Behavioural Issues Working Group submitted comments to the Japan Fair Trade Commission (JFTC), in response to its draft guidelines concerning abuse of a superior bargaining position in transactions between digital platform operators and consumers that provide personal information. At the outset, the Working Group respectfully submitted that an extension of the concept of Abuse of a Superior Bargaining Position to cover the use of personal data would not be the best way to address the personal data issues that the Draft Guidelines seek to address. The Working Group believes that sector-specific regulation dealing with privacy and consumer protection would be more appropriate in terms of establishing transparency, legal certainty and predictability for domestic and foreign digital platforms in Japan. Should the JFTC decide to proceed with the adoption of the Draft Guidelines, the Working Group would suggest the following:
- The notion of superior bargaining position should be aligned with the concept of dominance. This would ensure that the rules are only applied to platforms that are really indispensable for consumers.
- Should the JFTC decide to retain the concept of Superior Bargaining Position, at least item c should be rephrased so that a digital platform can only be found to have a Superior Bargaining Position in situations where they can “unilaterally impose” terms and conditions on the end consumers.
Mergers Working Group submission to Brazil's Administrative Council for Economic Defense (CADE) on administrative procedure to investigate transactions
June 2019. Submission in response to consultation on resolution concerning the administrative procedure to investigate transactions (APAC).
APAC proceedings investigate transactions that were not submitted to the authority as well as those whose submission, albeit not mandatory, was requested by the authority. The WG provided comments focused specifically on formal matter of the proceeding, namely the immediate notification of parties regarding its opening, in order to guarantee right to defense; as well as comments on how fines are calculated to provide legal certainty to parties on this issue.
Unilateral Conduct and Behavioural Issues Working Group submission to European Commission on EU competition rules on vertical agreements
May 2019. The Vertical Block Exemption Regulation, which exempts certain agreements and practices from the EU’s general competition rules, expires on 31 May 2022. This evaluation will check whether the Regulation is still effective, efficient, relevant, in line with other EU legislation and adds value. The Commission will use the evaluation to decide whether to let the Regulation lapse, to prolong or to revise it.
The Working Group highlighted that both the VBER and the VGL have proved to be useful instruments to facilitate self assessment of companies and should be prolonged. However, there are certain areas where more clarity would be preferable, especially given the developments and changes in the economic and legal context, such as: online restrictions; selective distribution schemes, combination of distribution models, strict application of RPM hardcore restriction. The Working Group also suggested that the Commission leave open the possibility of updating the VGL more frequently than the VBER in order to adapt to changing circumstances.
Unilateral Conduct and Behavioural Issues Working Group submission to New Zealand Ministry
April 2019. The Minister of Commerce and Consumer Affairs in New Zealand has released a discussion document for public consultation. The discussion document sets out proposed changes to section 36 to the Commerce Act to bring New Zealand’s law in line with Australia and other developed economies. The Commerce Act sets the rules of the game to ensure that businesses can compete on their merits. Section 36 of the Commerce Act seeks to prevent incumbent firms with market power from abusing that power to suppress competition. The review has been triggered inter alia by concerns that the courts have interpreted section 36 in such a way that it has tilted the playing field in favour of incumbent firms and distorted competition. Section 36 is difficult to enforce, and it may not be capturing a wide enough range of anti-competitive conduct.
The Unilateral Conduct and Behavioral Issues Working Group submits these comments regarding the New Zealand Ministry of Business, Innovation & Employment’s (“NZMBIE”) Discussion Paper entitled “Review of section 46 of the Commerce Act and other maters”, dated January 2019. The submission provides a high-level review of the Commerce Act 1986 issued by the NZMBIE in January 2019. As the Working Group consists of a number of practitioners and experts in various jurisdictions, the submission includes a commentary with regard to specific themes including, (i) purpose of competition policy, (ii) the Discussion Paper’s focus of prohibitions on misuse of market power, (iii) tradeoff of emphasis on effect rather than purpose of anticompetitive behavior, (iv) amendment to remove the “take advantage” limb, (v) the standard of “substantial market power”, (vi) subject of prohibition and (vii) inclusion of specific examples of prescribed conduct. The submission also includes certain references to comparative law in the European Union, Canada and South Africa.
Mergers Working Group submission to Argentina CNDC on merger notification
In March 2019, the Mergers Working Group submitted comments to the Argentinian antitrust authority 'Comisión Nacional de Defensa de la Competencia' (CNDC), on their draft guidelines for merger notification.
Cartels Working Group submission to Peru's National Institute for the Defense of Competition and Intellectual Property on Trade Associations and Free Competition
In March 2019, the Cartels Working Group submitted comments to Peru's National Institute for the Defense of Competition and Intellectual Property on their Guidelines on Trade Associations and Free Competition.
Cartels / Unilateral Conduct Working Groups submission to Chile's FNE on Guidelines on Fines
In March 2019, the Cartels and the Unilateral Conduct and Behavioural Issues Working Groups submitted comments to Chile's competition authority, Fiscalia Nacional Economica (FNE), on its draft guidelines on recommending fines.
In accordance with the Draft Guidelines, the FNE is legally authorized to propose a sanction in the form of a fine to the Honorable Competition Court (“TDLC”) through a legal action or complaint. The Working Group acknowledges the importance that the FNE discloses and regulates the steps that it will take to determine the quantum of the fine it will propose when facing various prospective scenarios, based on the particularities of the concrete case, and with that providing further clarity, predictability, and transparency. The Draft Guidelines may also be a useful reference to the TDLC and the Supreme Court regarding the justifications underlying fines proposed by the FNE.