a tripartite report - Unctad

14 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
In the United Republic of Tanzania judicial review of
competition cases is performed by the Fair Competition
Tribunal, a quasi-judicial body with appellate
responsibilities on cases from the Authority.
Members are nominated by the President and can
be removed by the President for reasons of mental
at least three consecutive meetings of the Tribunal.
Although the Court is highly specialized, it takes
the reason being lack of staff necessary for assisting
judges in writing the judgments after the
because in antitrust enforcement the rapidity of
judgments is very important. Furthermore judges
should be trained on antitrust enforcement; while
most judges have not received proper training on
these issues during their university studies or in
preparation for the bench. What remains unclear
is the extent of the review the Tribunal is entitled to
perform, and whether the Tribunal has the power
to re-investigate the case, which would be an excessive
duplication. In this respect review judges
should base their judgments on the decision of the
Authority, the evidence the Authority had collected
(that should be made available to the judge) and
the grievances of those affected by the decision.
In Zambia, the new Competition and Consumer
Protection Act of 2010 provides for the setting up
of a Competition and Consumer Protection Tribunal
to hear appeals against the decisions of the
Authority. Any aggrieved person or enterprise has
thirty days to appeal after having received the Authority’s
decision. Appeals against the decisions
of the Tribunal can be made to the High Court.
While the law allows the Tribunal to order the parties
or either of them to produce to the Tribunal
such information as the Tribunal considers necessary
for the purposes of the proceedings”, the law
is not clear under which standard the Tribunal is
supposed to act and, more importantly, whether
it is constrained by the evidence collected by the
Authority. This aspect should be clearly ruled in the
law. The Tribunal, which was established in 2011
but is still not operational, does not have powers
of reviewing the imposition of criminal sanctions
on breach of the country’s competition law.
strongly reduce the independence of the Tribunal.
lines of the rules that exist in the United Republic
of Tanzania.
In Zimbabwe there is a double jurisdiction of the
Administrative Court and of the High Court, while
the relationship between the two is not clearly de-
without a clear system of case allocation. In the past
a few cases were appealed in front of the Administrative
Court while others with the High Court.
None of these cases was decided on substance, but
mainly on procedural or jurisdictional grounds. In
any case in Zimbabwe the level of expertise of these
courts on competition issue is considered quite
weak, but this has mainly to do with the fact that
there are very few competition cases to be heard. If
all cases would always go to the same section of a
Court then there is no need to create a specialized
tribunal, since judges (of that section) could well be
trained on competition issues, while maintaining
also the possibility of ruling on other matters. Such
an arrangement (concentrate the cases in a section
of a larger Court) would be preferable also for the
United Republic of Tanzania and Zambia (where
specialized Courts have been created) where judges
do not have many cases over which to build their
expertise, while they would still be working as judges
if integrated in a larger court.
As for the timing of judicial review it is very important
that reviews are quickly made. Otherwise,
especially if the decision of the Authority is sus-
the law would become irrelevant. Efforts should
example in Italy, although the general procedure
of appeals is very slow, the 2005 reform of administrative
proceedings gave precedence to antitrust
around a year after the decision of the Authority.
5. Merger Control
Markets differ according to the number and the
size of buyers and sellers. Indeed there is a continuum
of market structures starting from perfect
competition characterized by many competing
individually, to oligopolistic competition, where