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      A Commentary on the Jurisdictional Challenges in the Rand-Dollar Exchange Manipulation "Cartel": Competition Commission of South Africa v Bank of America Merrill Lynch international Designated Activity Company [2023] ZACT 26 (30 March 2023)

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          Abstract

          Cartels are the most egregious of competition law transgressions, because they entail a concerted effort on the part of cartel members to deliberately distort the market through price fixing, bid rigging, market allocation and constraining the supply of goods and services. Despite efforts by national competition authorities in various countries to combat cartelism, cartels have proved to have long tentacles, often extending beyond borders and morphing into "cross-border cartels". This contribution discusses one of the major challenges that cross-border cartels poses to competition authorities, that of prosecutorial and penal jurisdiction. The note focusses on the "banking cartel" that has been and still is the subject of contentious litigation. In March 2023 the Competition Tribunal (the Tribunal) handed down judgment in the matter of the Competition Commission of South Africa v Bank of America Merrill Lynch International Designated Activity Company [2023] ZACT 26 (30 March 2023). There were several questions in the matter, including the jurisdiction of the South African competition authorities to investigate and prosecute firms not incorporated or operating in South Africa (pure peregrini). The Competition Commission (the Commission) had initiated proceedings in the Tribunal against a host of banks for alleged cartel conduct, and some of the respondent banks raised objections and exceptions relating to the jurisdiction of the South African competition authorities. The note observes that while national competition authorities may have prosecutorial jurisdiction against cross-border cartels, there is still a challenge in enforcing an order where cartels are non-resident in the country. The contribution also notes potential challenges to cartel enforcement on the African continent in light of the establishment of the African Continental Free Trade Area (AfCFTA). Due to the removal of various trade barriers, there is likely to be a rise in cross-border competition issues, including cross-border mergers and cross-border cartels. The note therefore discusses a pertinent issue, that of jurisdiction, which may well be a challenge within the AfCFTA.

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          Most cited references17

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          Competition Policy: Theory and Practice

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            Competition Law

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              A Practical Guide to the South African Competition Act

              M Neuhoff (2017)
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                Author and article information

                Journal
                pelj
                Potchefstroom Electronic Law Journal (PELJ)
                PER
                North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
                1727-3781
                2024
                : 27
                : 1
                : 1-17
                Affiliations
                [01] orgnameUniversity of Free State South Africa TavuyanagoS@ 123456ufs.ac.za
                Article
                S1727-37812024000100062 S1727-3781(24)02700100062
                10.17159/1727-3781/2024/v27i0a17142
                58515815-5a5b-475d-949e-977209061ba4

                This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

                History
                : 31 October 2023
                : 13 May 2024
                : 13 May 2024
                Page count
                Figures: 0, Tables: 0, Equations: 0, References: 17, Pages: 17
                Product

                SciELO South Africa

                Categories
                Special Edition: Banking, Competition & Corporate Law

                Cartels,competition law,competition authorities,cooperation,cross-border cartels,African Continental Free Trade Area,jurisdiction

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