a tripartite report - Unctad

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or less; or none of the parties to the agreement
are competitors.
As already mentioned, as regards vertical agreements,
Section 8 (3) (b) of the Act provides for the
rebuttable presumption that they are not anticompetitive
if none of the parties to the agreement
holds a dominant position.
As for horizontal agreements, the following two
sumption
to apply: (i) none of the parties to the
agreement holds a dominant position and (ii) their
combined market share in each of the markets affected
by the agreement is 35 per cent or less.
There is some form of “administrative jurisprudence”
given by the FCC on the 35 per cent market
shareholding in Serengeti Breweries Limited v
Tanzanian Breweries Limited 48 , as follows:
It is clear that the combined market shares of TBL
ket.
In holding the parties to the agreement liable
the Commission considered the combined market
shares of the parties in agreement, against other
Against this background it has been established
that the arrangements and understanding between
had the effect of restricting, preventing and distorting
competition in the Tanzanian beer market. The
SBL have infringed section 8(1) of the FCA, 2003
and, should be held liable.
For a rule of reason approach, the law may not
analysis results to demonstrate whether a conduct
does, or would likely, appreciably affect competition.
For instance, under the European Union, a
on competition 49 .
Section 8(4) FCA states that in determining
whether the effect or likely effect of an agreement
is to appreciably prevent, restrict or distort
competition, the fact that similar agreements are
widespread in a market affected by the agreement
shall be taken into account. The provision
should not be interpreted in a way that a conduct
-
49
ing competition if the conduct is widespread in
the industry. Indeed, the anticompetitive effects
of certain agreements can even be more pronounced
if they are widespread in an industry
as opposed to a single agreement. Therefore,
the fact that similar agreements are widespread
should be considered as an indication for the
seriousness of the competitive concern. On the
other hand, if there is a certain industry usage
of the type of agreement under scrutiny, parties
to the agreement may lack the consciousness of
wrongdoing. In this way, the fact that the conduct
is widespread might be treated as a mitigating
factor to reduce any possible penalties. The FCC
is yet to establish case law on this matter.
Section 8(5) which states that “this section does
not apply to an agreement to the extent it provides
for a merger” provides an interesting twist
to Section 8(1). Can a merger be formed and allowed
to stand if it does appreciably prevent or
distort competition? The answer is actually yes as
would be shown later under merger review. The
Act does provide for exemptions as well as approval
of mergers using the public interest.
Section 9 prohibits per se, the following:
(1) A person shall not make or give effect to an
agreement if the object, effect or likely effect of the
agreement is:
(b) a collective boycott by competitors; or
(c) collusive bidding or tendering.
(4) Any person who intentionally or negligently acts
in contravention
of the provisions of this section, commits an offence,
under this
Act.
It is not clear from the application of this provision
whether a person who unintentionally engages in
the conduct would not be found to have violated
the law. Only three hard core cartel provisions exist
tive
refusal to deal) and bid-rigging. Perhaps crucial
omissions are market or customer allocation,
and production quota allocation. Under the Act,
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