a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
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50 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE<br />
Conduct <br />
Price Fixing <br />
terms or conditions upon which, a party to an agreement supplies or acquires, or offers to supply or acquire, goods or<br />
services, in competition with any other party to the agreement<br />
Collective Boycott ‘’collective boycott by competitors’’ means: (i) to prevent a party to an agreement from supplying goods or services to<br />
particular persons, or acquiring goods or services from particular persons, in competition with any other party to the<br />
agreement; or (ii) to restrict or control the terms and conditions on which, or the circumstances in which, a party to an<br />
agreement supplies goods or services to particular persons, or acquires goods or services from particular persons, in<br />
competition with any other party to the agreement;<br />
(c) ‘’output restrictions between competitors’’ means to prevent, restrict or control the production by a party to an agreement<br />
of goods or services to be supplied in competition with any other party to the agreement;<br />
Collusive Tendering <br />
bid or tender by any of the parties to an agreement at an auction or in any tender or other form of bidding, in competition<br />
with any other party to the agreement; or (ii) to prevent a party to an agreement from making a bid or tender at an auction<br />
or in any tender or other form of bidding, in competition with any other party to the agreement.<br />
Source: Section 9(2) of the FCA.<br />
<br />
as matters that are per se anticompetitive, as expressed<br />
by the title “Prohibition of certain agreements<br />
irrespective of their effect on competition”.<br />
<br />
this interpretation were voiced given that Section<br />
9 refers to “the object, effect or likely effect of the<br />
agreement” which generally is an indication for the<br />
use of the rule of reason. However, it should be<br />
highlighted that while the general prohibition of<br />
Section 8 applies to an agreement “if the object,<br />
effect or likely effect of the agreement is to appreciably<br />
prevent, restrict or distort competition” Section<br />
9 does not include the criterion of an appreciable<br />
<br />
types of hard core cartels. In this way, the formulation<br />
of Section 8 and Section 9 differ distinctively,<br />
which together with the title of Section 9 appears<br />
to justify the interpretation of Section 9 as a per se<br />
prohibition of the listed types of agreements.<br />
Furthermore, the FCC will have to demonstrate<br />
that the agreement was done intentionally or negligently.<br />
This process for horizontal agreements of<br />
proving intention and negligence may have to be<br />
reviewed as it provides an unnecessary analytical<br />
process in proving a Section 8 case.<br />
tween<br />
5 per cent and 10 per cent of turnover of an<br />
enterprises 50 . There is need to expand the scope<br />
of the hardcore cartels. UNCTAD Model Law on<br />
Competition (2004) has proposed a list that the<br />
United Republic of Tanzania may borrow from, as<br />
follows:<br />
<br />
(b) Collusive Tendering<br />
(c) Market or customer allocation<br />
(d) Restraints on production and sale, including<br />
by quota<br />
(e) Concerted refusals to purchase<br />
(f) Concerted refusals to sale<br />
(g) Collective denial of access to an arrangement<br />
which is crucial to competition.<br />
<br />
that it does not state 5–10 per cent rather be in a<br />
<br />
up to a maximum of 10 per cent” in order to ac-<br />
ency<br />
or other corroborating evidence.<br />
Exemption Applications<br />
Exemptions and exceptions are common in most<br />
competition legislations. Exceptions according to<br />
Section 14 have already been treated with under the<br />
scope of application of the FCA. As to exemptions,<br />
the FCA provides that the Commission may, upon<br />
the application of a party to an agreement, grant an<br />
exemption for that agreement, either unconditionally<br />
or subject to such conditions as the Commission<br />
cumstances<br />
that both paragraph (a) and (b) apply:<br />
(a) the agreement either contravenes section<br />
9 or has, or is likely to have, the effect