Browsing by Subject "Competition Law"

Now showing 1 - 4 of 4
  • Thumbnail Image
    Item
    Open Access
    The Competition Commission's non-referral of exclusivity clauses in the shopping centre lease context: a monumental misjudgement - A Section 5(1) analysis of anticompetitiveness
    (2015) Blumenthal, Roxanne; Davis, Dennis
    This paper focuses on the common practice in commercial agreements of including exclusivity clauses in shopping centre lease agreements between a supermarket anchor tenant and the landlord of a shopping centre. It is the contention of this paper that such clause s are anticompetitive when considered specifically in light of section 5(1) of the South African Competition Act. In reaching this conclusion, relevant sect ions of the Act will be interpreted and analysed in the pertinent context, as will relevant case law and comparable foreign jurisprudence. The findings of South Africa's Competition Commission in 2013 with regard to the competitive nature of exclusivity clauses in the context of section 5(1), and the basis for their findings will be scrutinised. A conclusion , warranted and supported by the inferences drawn from an analysis of the aforementioned sources (legislation, case law and foreign jurisprudence), will be reached accordingly in support of a stance of resistance against exclusivity clauses in shopping centre leases between landlord and supermarkets . An argument in favour of a blanket prohibition of exclusivity clauses in shopping centre leases due to their anticompetitive nature that outweighs their efficiencies and justifications according to section 5(1) of the Act, is the predominant direction of this paper.
  • Thumbnail Image
    Item
    Open Access
    Competition law's inclusion of public interest considerations in mergers and beyond: a potential paradox?
    (2017) Meyer, Nicholas; Davis, Dennis
    The inclusion of public interest considerations in competition law legislation has been controversial, dividing policy makers and economists alike. Debate has focused on the practical application of these public interest concerns when a merger is proposed, or when prohibited conduct is implicated. The uncertainty involved has had to be addressed by the competition authorities in recent years when dealing with high profile mergers and excessive pricing cases. This has necessitated development in somewhat unchartered legal terrain: the incorporation into competition policy of traditionally non-competition objectives. The traditional purpose of competition law has primarily been protecting and enhancing consumer welfare. Attempting to reconcile this objective with public interest considerations, which are now statutorily enshrined, presents significant challenges. However, South Africa's pressing economic redistributive justice needs provided compelling motivation for the legislature including public interest considerations in competition law, and authorities must remain cognizant of this. This paper critically considers whether it is appropriate for competition authorities to address welfare and public interest concerns, by analysing significant merger and prohibited conduct cases involving public interest considerations. A comparison into international approaches and trends in including public interest factors in competition control serves to provide global context. Furthermore, this paper interrogates the legitimacy of intervening in the public interest, whilst examining the tension between efficiency and equity.
  • Thumbnail Image
    Item
    Open Access
    Price control and its effects on competition: a critical review of price control legislations and how they affect the competitiveness of the market
    (2015) Kigomo, Michael Kariuki; Davis, Dennis
    Pricing in the market is the most sensitive part of trade. It is through pricing where the buyers are able to acquire goods and it is through it also that the sellers get their profit. Pricing of commodities can be said to be the lifeline of trade and also the lifeline of competition. Competition law, in addition to other factors such as quality of goods and their availability, also deal with the issue of pricing of goods. It is touted that competition law has a strong inclination to supervise pricing of commodities and how the conduct of market players influence pricing of goods. Competition law does this by making the market as competitive as possible in order to prevent any firm from dictating prices. It short, it strives to make the firms in the market to be price takers and not price setters as a way of reigning in on high prices in the market. However, in certain circumstances the competition laws become unable to supervise the market. In times such as those, the governments have been forced to intervene through other laws and policies in order to protect the market from possible abuse. This study looked at government intervention in the market through price control legislation. Price control legislation is a legislation that gives the government powers to artificially set prices of commodities. This is done in those dire circumstances where the market out of unforeseeable circumstances, is unable to be competitive. Examples of such instances include national crises, innovations and legal huddles. Price control legislations unlike the traditional competition laws are not created to promote competition per se. They are created on the back of competitive conduct to provide a safety net to consumers from exploitative activities of producers in instances where the influence of competition laws is ineffective. Price control legislations are there to make sure that when all competition laws and interventions are unable to protect consumers from the condition of the market and the exploitative actions of the producers, then there are certain laws created as a safety net to the consumers. Price control is used to mitigate the circumstances that make it impossible for the market through competition to control pricing of commodities. Currently, price control is becoming a prevalent way oftarning prices in many jurisdictions. A policy used in the medieval times in simple markets, with little or no inclination towards the market, has now become more imposing even in the most sophisticated markets. Price controls in areas like Canada and the European Union are being used together with competition laws to cater for areas where the governments feel that the market is not competitive enough and competition laws are not effective. In other areas such as Zimbabwe, it is being abused for political purposes to influence prices against a competitive market and the competition laws. What is clear and true is that price control having both an immediate impact and being effective, is one mechanism that has far reaching and substantial effects on the competitiveness in the market. With its target being the most sensitive area of trade, this makes it a very important policy issue that competition lawyers should not ignore. Price control ability of superseding the market mechanism of supply and demand, to impose prices and the way it is implemented gives it the power to reduce and even kill competition in a particular market. That is why it is imperative to understand this safety net as competition lawyers in order to know whether it is needed and if so how we can limit its negative effects in the market.
  • Thumbnail Image
    Item
    Open Access
    Social and political goals of mergers in competition law: comparative analysis of the efficiency and public interest provisions in Kenya and South Africa
    (2015) Gitonga, Robert Kaniu; Davis, Dennis
    A principal goal of competition law is to promote fair distribution of wealth. Fair distribution of wealth is entrusted to competitive markets since they reward efficiency, innovation, spread wealth and decentralise economic power. While competition reflects the business conduct of enterprises, it cannot disassociate from the legal and regulatory framework, barriers to entry and prevailing conditions in markets for labour, infrastructure services and other production inputs. Redistribution of wealth acknowledges competition law as a tool that can be utilised to protect those at the lower end of income distribution by reducing prices allowing a larger basket of goods and services to be purchased. Competition law is a tool that preserves market competition to provide an environment that encourages responsive business, efficiency and serves the interests of consumers. In developing countries, competition law and policy receive particular emphasis as being crucial and key in the economic and structural reform and addressing concerns of distribution and power. Competition law in Kenya cannot ignore the wider industrial policy or socio-economic considerations in Kenya. These social and political goals of competition law are important in developing countries with poverty, great income inequality. There is need to choose a means of addressing the equitable allocation of resources that will produce the least amount of inefficiency and competition law is the right tool to achieve this. Kenya is a factor-driven economy where the level of productivity is determined by labour, institutions, infrastructure and the macro-economic environment. Enacting the Competition Act in Kenya was a response to economic and political reform to improve the welfare, well-being and economy in Kenya. Merger analysis in Kenya would require weighing gains and losses in efficiency in order to establish whether the merger will benefit other recipients other than market participants such as consumers and producers. South Africa has well established interpretation and implementation addressing the trade-off between public interest provisions and efficiency. Interpretation of the merger laws in South Africa illustrate engaging an exercise of proportionality required to determine how to balance the competing arguments between efficiency, welfare standards and public interest.