Browsing by Author "Kelly, Luke"

Now showing 1 - 9 of 9
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    Anti -dumping or protection: an analysis of competition issues in dumping investigations
    (2016) Mastara, Shupikile; Kelly, Luke
    'J. Michael Finger once portrayed the anti-dumping regime as a "witches' brew of the worst of policy making: power politics, bad economics, and shameful public administration.'' The thesis looks at the role of competition in anti-dumping investigations. With the growth in the initiation of anti-dumping investigations, there is concern that the limitations in the anti-dumping regulation open the system up to abuse. Article VI of the General Agreement on Tariffs and Trade (GATT) 1994 describes dumping as the act of selling goods in an export market at a lower price than the country of origin. This act is comparable to that of price discrimination or predation in competition law. However, the imprecise definition of key terms in anti-dumping law such as 'normal value', and 'material injury' permits industries to take advantage of these loopholes to gain protection from foreign competitors. This challenge has been reflected in the South African poultry industry where anti-dumping measures have been used as a way of protecting the market. This is reflected in the comment from ITAC who stated that it was important to 'give consideration to a country being able to produce a strategic protein source but at affordable prices… [And] A balance between the viability of domestic producers of a strategic industry with the affordability of food for the lower income group is critical for food security.' Recommendations have been put forward to deal with the limitations in the anti-dumping regulation with some calling for the removal of the anti-dumping legislation to be replaced with an international competition network. However the political nature of anti-dumping suggests that the best way to safeguard competition in dumping investigations is to incorporate competition principles in anti-dumping regulation. These include redefining key terms which are ambiguous, as well as increased cooperation between the trade and competition regulators to ensure the promotion of trade and competition.
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    The application of the single economic entity doctrine in South Africa and Europe
    (2013) Maillet-Contoz, Pierre-Arthur; Kelly, Luke
    As will be discussed in the course of this paper, there are similarities between the South African and the European notions of the SEE. It seems that the European notion of 'undertakings' and the South-African one of 'firm' do not have the same role when these entities form part of a single economic entity; the South African notion of the single economic entity seems to be an exception to the application of the Act whereas the European one seems to enlarge the application of the regulation.
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    An assessment of the suitability of the criminal cartel offence in South African competition law
    (2013) Ramalohlanye, Zandile; Kelly, Luke
    Section 73A of the Competition Amendment Act 1 of 2009 which will be inserted into the Competition Act 89 of 1998, will hold directors/executives criminally liable for infringing s4(1)(b) of the Competition Act. Section 4(1)(b) specifically prohibits firms from engaging in price-fixing, collusive tendering, market allocation which are regarded as egregious forms of activity. The underlying justification for the cartel offence is the protection of consumer welfare and on the other hand to address the under-deterrent nature of monetary administrative penalties in the fight against cartels. In its current form, s73A has several weaknesses which will negatively impact competition enforcement; particularly the leniency policy which is the Commission’s most effective weapon against cartelisation. The emergence of follow-on damages litigation as a legal remedy and class actions as a procedural mechanism in the bread class action, have paved the way for private competition enforcement as a more effective deterrent. The lack of a statutory regulatory framework compelled the courts to develop the common law regarding follow-on damages litigation and class actions. Although the exercise has highlighted the challenges associated with the lack of judicial guidance in developing directives, it has indicated that private competition enforcement is a pragmatic solution for cartelisation.
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    Competition class action damages and the corporate leniency policy
    (2014) Van Eden, Matt; Bradfield, Graham; Kelly, Luke
    Cartel conduct constitutes one of the most serious threats to the maintenance of competition in markets. Due to the secretive nature of cartels, and their conduct, they are extremely difficult for the Competition Commission1 (‘the Commission’) to detect, investigate and prosecute.2 Cartels therefore pose a grave threat to the maintenance of competition in markets. Section 4(1)(b) of the Act imposes a per se prohibition on such conduct. Consequently, cartel conduct is treated as one of the most serious breaches of the Act.
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    The criminalisation of cartel conduct in South Africa and the United Kingdom
    (2013) Merdian, Markus; Kelly, Luke; Davis, Dennis
    Preventing cartels from forming or detecting and punishing existing cartels should therefore be an important task in every country. This paper shows how South Africa and the United Kingdom deal with this task by introducing criminal sanctions into their competition law for individuals engaging in cartel conduct. As the criminal law is the ultima ratio of a constitutional state, its introduction into competition law needs some justification. In the context of competition law, criminal law is not designed to punish the offender retrospectively but to deter people from cartel conduct according to the utilitarian approach.
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    A critique on the investigation and adjudication powers of the Fair Competition Commission and finality clause of the Fair Competition Tribunal in Tanzania: a reflection from Jamaican and South African competition law
    (2014) Prosper, Edward Kisioki; Kelly, Luke; Davis, Dennis
    In 2003, Tanzania enacted the new Fair Competition Act which aimed at improving competition in the market. The Fair Competition Act, No 8 of 2003 (FCA) regulates agreements which lessen or weaken competition, cartel conduct, abuse of dominant position, and it also controls the merging of firms. The Act established two regulatory bodies, namely the Fair Competition Commission (FCC) and the Fair Competition Tribunal (FCT). It vested the FCC with multiple powers (investigation, prosecution and adjudication) and the FCT with a final appellate jurisdiction. While concentration of power in the FCC may be cost-saving to government, it is associated with problems on the side of stakeholders particularly on the question of impartiality, since the FCC is likely to be a judge of its own cause. Likewise, the Constitution of Tanzania provides that the judiciary be the final appellate body in administration of justice, but the FCA vested this power in the quasi-judicial body. The dissertation criticises the powers of the FCC and FCT. It comprises five chapters. Chapter one introduces the dissertation by giving the background of competition law in Tanzania, the statement of the problem, research questions, reason for selection of the topic and research methodology.
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    The interface between the WTO and Competition Law - one size does not fit all-
    (2013) Parmentier, Jan; Kelly, Luke; Davis, Dennis
    With liberalization opening markets, the world is fast growing towards one global village. The downside of this trend is that cross-border practices have also been developed and unregulated sectors are causing damages, especially to the less developed victims that have yet to establish stronger domestic, economic and legal regimes¹
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    Less is more: Senwes and the concept of 'margin squeeze' in South African competition law
    (2009) Kelly, Luke; Van der Vijver, Tjarda
    On 3 February 2009 the South African Competition Tribunal (CT) handed down a judgment in Competition Commission v Senwes Ltd Case No 110/CR/Dec06 (Senwes). In its decision the CT recognized the notion of a 'margin squeeze' as a distinct abuse in terms of s 8(c) of the Competition Act 89 of 1998 (the Act). By doing so, the CT chose to follow the prevailing academic and judicial opinion in the United Kingdom and Europe with regard to margin squeeze. In contrast to this convergence of opinion, the United States Supreme Court recently delivered judgment in Pacific Bell v linkLine Communications Inc No 07-512 [2009] (linkLine) in which it unanimously rejected the idea that a margin squeeze is an abuse of a dominant position under s 2 of the Sherman Act (formally known as the Act of July 2, 1890, ch 647, 26 Stat 209, codified as amended at 15 USC § 1 through 15 USC § 7). Our aim is to explore the controversial concept of a margin squeeze. The initial part of this note will examine the theoretical underpinnings of this abuse. Thereafter, the article will focus on the Senwes decision and will compare its findings with the position in the United Kingdom, the European Union and the United States.
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    Margin squeeze in the South African context
    (2014) Kituri, Peter Maganga; Kelly, Luke
    Following the introduction of the margin squeeze cause of action into South African competition law jurisprudence, the question arises whether the Senwes decisions, have definitively clarified the criteria against which future margin squeeze abuse cases will be dealt with and whether these criteria have evolved into a standalone cause of action. This dissertation will demonstrate the absurdity of the Constitutional Court decision, to delete all references to margin squeeze in the decision of the Competition Tribunal which it upheld while retaining the underlying criteria against which future margins queeze cases will be adjudicated. This dissertation will additionally demonstrate that the Senwes cases, in particular the Tribunal decision read with the Constitutional Court decision, have on the one hand only marginally delineated and elaborated on the elements necessary to establish a margin squeeze abuse, but have on the other hand established margin squeeze as a standalone cause of action in terms of which offending firms can be prosecuted in South African competition jurisprudence.