a tripartite report - Unctad

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Where the FCC issues a summons, such document
shall specify the required time and manner
of compliance. The Commission may require
that any evidence referred to under this section
pose,
the Chairman, the Director-General or any
member of the FCC may administer the oath or
from complying with a summons under this section
on the grounds that compliance may tend to
incriminate the person or make the person liable
to a penalty, save that information, documents
and evidence provided in answers to a summons
will not be admissible in any proceedings against
the person other than proceedings under this Act.
Where the FCC has reason to believe that a person
is in possession or control of any documents
that may assist it in the performance of any of its
functions, the Chairman, the Director-General or
any member of the FCC, may apply to the Tribunal
who, acting through the Chairman, shall issue a
nied
by staff of the Commission duly authorized
by the Chairman of the FCC to enter premises to
conduct a search and make copies or take extracts
of documents therein.
Under Section 71, the FCC has a power to summon
a person or information vested in the Director-General.
The Director-General or any member
of the FCC may apply to the Tribunal for a war-
FCC staff (authorized by the Chairman) to search
premises.
Furthermore, under Section 70, at anytime,
whether or not a hearing into an alleged prohibited
practice, has commenced the complainant may
apply to the FCC for an interim order in respect of
the alleged practice. The FCC -
(a) shall give the respondent a reasonable
opportunity to be heard, having regard to the
urgency of the proceedings; and
(b) may grant an interim order if it is reasonable
and just to do so, having regard to –
(i) the evidence relating to the alleged
prohibited practice;
(ii) the need to prevent serious or irreparable
damage to the applicant; and
(iii) the balance of convenience.
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In its “Guidance on Competition Law” of July 2006,
the FCC has advised as follows:
It is hardly necessary to add that it will be in the interest
of companies to be alert to opportunities to
apply to the Commission for interim orders or compensatory
orders… when they think that they have
been harmed by the practices of other companies
those practices to be in breach of the law.
2.5 Sanctions
The sanctions imposed for infringing the Fair
Competition Act range from “compliance orders”,
ized
under PART X of the Act. Under Section 57 of
the Act, a person shall not: (a) aid, abet, counsel
or procure; (b) conspire with others to commit; (c)
be directly or indirectly knowingly concerned in;
an offence against this Act by another person (in
this section referred to as the ‘’primary offence’).
In this context, a person who commits an offence
against subsection (1) is ‘’involved’’ in the primary
offence.
Compliance orders are an extension of what in
other jurisdictions are referred to as “cease and
desist”. The context in which they are used under
the Fair Competition Act does not end with “cease
and desist” orders but with a directive to perform
a certain act. On the other hand, the “compensatory”
order appears to be instances where either
a complainant/injured party has demonstrated
certain injury/damage caused and the Commission
metes out such compensation. These are explained
in detail below.
2.5.1 Compliance Orders and
Compliance Agreements
mitted
or is likely to commit an offence against this
Act (other than Parts VI or VII of the FCA which deal
with “implied conditions in consumer contracts”
and “manufacturer’s obligations” respectively), it
may make a compliance order under this section
against that person and any person involved in the
offence. Further, a person against whom a compliance
order is made commits an offence if that
person fails to comply with the order. A compliance
order may require a person to refrain from
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