a tripartite report - Unctad

182 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
The ZCA does not provide level of market share
that a person must attain to be considered dominant.
While several competition laws contain a
nance,
this is not compulsory and has also attracted
some criticism, despite their inherent ability
of creating legal certainty. They are criticized
for being rigid and not allowing for the required
economic assessment of the question whether or
not a company enjoys substantial market power.
A rebuttable presumption of dominance triggered
by the achievement of certain market share
thresholds appears to accommodate the concerns
of both views186 .
In absence of a market share threshold which
triggers a rebuttable presumption, CTC may consider
a possibility of adopting guidelines on how
it assesses market power, i.e. what type of factors
it takes into consideration (not what constitutes
public interest as the current ZCA wording provides)
in addition to market shares, but as earlier
asserted, given the low level of competition expertise
in the developing world, this should be considered
for future development of the ZCA or used
in alternative with market share provided that it
wont confuse users of the law.
The CTC considers administratively, that a person
cannot have substantial market control if mar-
market shares of over 50 per cent are assumed
established that there is another assertion that 40
per cent of market share is considered for dominance
test. It is not clear as why the practice has
not been given legal force under Section 50 of the
ZCA that provide for the Minister to make regulations
to give effect to the ZCA in consultation with
the Commission.
The unfair business practices listed in the First
Schedule of the ZCA contain certain conducts that
position, Section 31(2) ZCA allows the CTC to pro-
is contrary to the public interest. Contradictorily,
Section 32 (5) ZCA appears to bear a presumption
that all monopoly situations are against public
interest unless, certain conditions are met.
Therefore, the ZCA is ambiguous as to whether a
dominant position as such or only its abuse is against
public interest and can therefore be prohibited. It is
recommended that the ZCA clearly prohibits the
abuse of a dominant position as a general rule. This
general rule can then be followed by a non-exhaustive
list of examples for abusive behaviors that are
universally agreeable based on best practices such
as those provided in Section 16 (2) of the Zambian
abuse of dominance issues under Per Se prohibition
in Schedule One is faulty. By the absence of provi-
dominance, pursuit of abuse cases has been substantially
mired from the enactment of the ZCA.
2.3 Mergers and Acquisitions
rect
or indirect acquisition or establishment of a
controlling interest by one or more persons in the
whole or part of the business of a competitor, supplier,
customer or other person whether that controlling
interest is achieved as a result of:
(a) the purchase or lease of the shares or assets
of a competitor, supplier, customer or other
person;
(b) the amalgamation or combination with
a competitor, supplier, customer or other
person; or
paragraphs (a) and (b).
The Competition Amendment Act of 2001 im-
tion
of not only horizontal and vertical mergers as
well as covering other possible business combinations.
The underlying principle was that such joint
ventures and strategic alliances have the same
effect as pure mergers and should therefore be
examined for possible anticompetitive effects.
tively
covers both horizontal and vertical mergers.
It however does not include pure conglomerate
mergers, unless they have horizontal or vertical
elements. Although there are no decided court
Zimbabwe, the Commission, and also the legal
to the Commission, have invariably interpreted
the term merger not to include pure conglomerate
mergers.