Enforcing the Competition Law in Namibia A Toolkit - cuts ccier

CROSS-BORDER ISSUESThe Competition Act of Namibia does not explicitly deal with the crossborderissues mentioned above. However, it important to stress that the Actapplies to all economic activity within Namibia or having effect in Namibia(Section 3 sub. 1 of the Act). Thus, the Act opens up to cross-border issues,as the “effects doctrine” is embodied in this provision.Nevertheless, it is advisable that Namibia go slow on extra-territorialjurisdiction for the present as the Act is new and the NaCC has to gainexperience. At the fledgling stage of the competition regime the extraterritorialauthority should not become priority. In this respect, collaborationwith other competition authorities, in particular, the South African CompetitionAuthority can play an important role in building the capacity of theCompetition Commission and enhancing the quality of regulatory oversight.According to the effects doctrine, domestic competition laws are applicableto foreign firms - but also to domestic firms located outside the state’s territory,when their behaviour or transactions produce an “effect” within the domesticterritory. The “nationality” of firms is irrelevant for the purposes of antitrustenforcement and the effects doctrine covers all firms irrespective of theirnationality. The “effects doctrine” was embraced by the Court of First Instance(EU) in Gencor case when stating that the application of the Merger Regulationto a merger between companies located outside EU territory “is justified underpublic international law when it is foreseeable that a proposed concentrationwill have an immediate and substantial effect in the Community”. 68With the physical bordersincreasingly tumbling down due toglobalisation and internationalintegration, business transactionsare no longer bound within theterritory of a certain country.Numerous global and regional dealsare being concluded everywhere. Inthis context, not only the foreigncounterparts can count on theirnational or regional (for instance,in the case of EU) competitionauthorities, but also Namibianenterprises will not be left withoutshelter in any antitrust case, if thedeal or transaction is concludedIn global competition cases,which have seriousconsequences on trade,economies, and consumersall over the globe (such asthose of internationalcartels, or cross-borderM&As etc), Namibia as acountry and Namibianconsumers will be able toassert their legitimate rightsand interests and redeemany damage done on them.outside the territory of Namibia, or if their counterpart does not have a physicalpresence in the country. Moreover, in global competition cases, which haveserious consequences on trade, economies, and consumers all over the globe(such as those of international cartels, or cross-border M&As etc), Namibiaas a country and Namibian consumers will be able to assert their legitimaterights and interests and redeem any damage done on them.84 Enforcing the Competition Law in Namibia: A Toolkit