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COMESA Competition Commission Unveils Draft Guidelines

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COMESA Competition Commission

By Lerisha Naidu and Zareenah Rasool

The COMESA Competition Commission published draft guidelines to the COMESA Competition Regulations, 2004 (Regulations) for public comment on October 19, 2021.

The guidelines aim to provide clarity on the commission’s policies and procedures and to foster transparency and certainty in the administration and enforcement of the Regulations.

These draft guidelines are based on international best practices and policy approaches of key regulators, including the European Commission.

They address three fundamental areas of regulatory enforcement – the determination of fines and administrative penalties, settlement procedures and hearing procedures.

The determination of fines and administrative penalties

To ensure proportionality and fairness in imposing sanctions for antitrust violations, the commission has devised a two-step methodology for calculating penalties under the Regulations. The two-step methodology will entail computing a “base amount” and increasing or decreasing it according to aggravating or mitigating considerations, on a case-by-case basis.

Base Amount: The commission will set the base amount for a fine based on the undertaking’s turnover within the common market in the financial year preceding the infringement.

The proposed starting point for determining the base amount for specific infringements is a proportion of the infringing entity’s revenue. By way of example, the base proportion of turnover would be 5% for cartel conduct, 3% for abuse of dominance, and 2% for gun-jumping. To compute the final base amount, the commission will consider the nature, gravity, and duration of the infringement, as well as the number of affected consumers.

Adjustments: The base amount may be adjusted upward based on aggravating factors such as repeat offences, refusal to cooperate and/or being characterized as an “initiator” of the conduct concerned.

Conversely, the base amount may be adjusted downward based on mitigating factors such as full cooperation, efficiency justifications for the conduct, extent of involvement, and even negligence in engaging in the alleged conduct.

Ultimately, the fine imposed shall not be in excess of 10% of the infringing entity’s annual turnover. To establish a sufficiently deterrent effect, the Commission may increase the fine by up to 1% of the total turnover, subject to the 10% cap. Importantly, fines imposed may exceed the infringement‑related gains.

The commission may also levy a “symbolic fine” in specific instances. The draft guidelines do not define a “symbolic fine”, the manner in which it will be computed, or under what circumstances it may be imposed.

It appears that such a fine would not be computed in accordance with the above two-step methodology. This will involve the exercise of the authority’s discretion and may result in a lack of certainty and clarity, for which additional guidance may be necessary.

Settlement procedures

Procuring settlements is crucial to effective antitrust enforcement, and increases procedural efficiency, thus reducing time and financial resources spent on proceedings. To that end, the draft guidelines are intended to provide direction on the Commission’s approach to settlement proceedings in relation to antitrust infringements.

The guidelines state that no admission of infringement or culpability is required for authorisation proceedings under Article 20 of the Regulations (in terms of which the commission may grant authorization to an entity to enter and/or give effect to an agreement if its public benefits outweigh any anticompetitive effects), which is in line with the Regulations. However, certain settlement proceedings require an admission of liability – these settlement proceedings are those relating to Article 19 abuse of dominance, Article 21 determination of anticompetitive conduct on request (by any person who believes that activity by a firm located in a Member State has the effect, or is likely to have the effect, of restricting competition in the Common Market), and Article 22 determination of anticompetitive conduct at the Commission’s own initiative (where the Commission has reason to believe that business conduct by an undertaking restrains competition in the Common Market). Many jurisdictions take a similar approach. The non-imposition of admissions of guilt clauses may go some way towards fostering parties’ willingness to enter into settlement agreements.

The draft guidelines further state that joint representatives must be appointed by the parties when the Commission commences settlement proceedings against two or more parties within a single economic unit. The appointment of joint representatives is simply to ease the settlement discussions.

According to the guidelines, the committee responsible for initial determinations would be vested with the power to confirm or withhold its confirmation of a settlement reached between the Commission and infringing parties. Withholding confirmation would occur in circumstances of “blatant and unfair settlement terms”.

It is unclear whether the committee would have the discretion to either refer the settlement agreement back to the Commission for renegotiation or with proposed changes, or the Committee would have the legal power to make the appropriate changes prior to confirmation of the settlement agreement. Arguably, the former would be a sensible approach to allow the parties to comment on any proposed changes.

Hearing procedures

These rules provide broad guidance on the elements of any hearing, including notice timelines, when hearings may be held, evidence testing, and the conduct of proceedings. The Regulations allow hearings in three situations – during the investigative process, before the publication of notice of compulsory recall of defective goods, and before the Committee for initial determination of cases.

Hearings may also be requested by a party under investigation. A COVID-friendly inclusion into the guidelines states that hearings can be conducted in private or in public, either via video conference, physical attendance, or both.

The rules specify that if the Committee issues a breach order, it may direct parties to discuss a remedy. If the parties cannot agree on a remedy, the Committee would issue an order without further consultation. Parties would still be able to review and/or appeal the order on the merits.

Lastly, the guidelines note that the determination of the Committee for initial determinations would be published in its official publication. However, parties would be allowed to object to such publication based on legitimate business interests.

Interested parties have been invited to submit their comments on these draft guidelines by no later than Friday, November 12, 2021, by emailing the Registrar of the Commission, Meti Demissie Disasa at mdisasa@comesa.int or compcom@comesa.int.

Lerisha Naidu is a Partner at Sphesihle Nxumalo, Associate, while Zareenah Rasool is a Candidate Attorney, Competition & Antitrust Practice at Baker McKenzie Johannesburg

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World Bank Gives $300m Budget Support to Mozambique

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Mozambique

By Kestér Kenn Klomegâh

By June, the World Bank plans to provide $300 million to support the national budget of the Republic of Mozambique, according to the World Bank country director for Mozambique, Idah Pswarayi-Riddihough.

After a meeting with the Mozambican Minister of Economy and Finance, Max Tonela, the global lender’s country director said that priority sectors would include health, education, energy and agriculture. The budget support proposal will be presented to the World Bank board by June.

“We are talking about the first instalment of 300 million dollars, which we hope to take to our administration for approval by 30 June this year. Then we can consider other windows of financing for 2023 and 2024”, said Pswarayi-Riddihough.

International organizations and financial institutions have returned after the Government of Mozambique started to undertake necessary reforms.

In April, the International Monetary Fund (IMF) also returned with a set of new funded programmes to Mozambique, six years after the lender halted its previous deals in the wake of a financial scandal involving three fraudulent security-linked companies, and two banks – Credit Suisse and VTB of Russia, on the basis of illicit loan guarantees issued by the government under former President Armando Guebuza.

Popularly referred to as the “Hidden Debts” scandal involving $2.7 billion (€2.3 million), the financial scandal happened in 2013, and the case has since left an image of a corrupt country and brought high-level government officials to testify as witnesses in the controversial judicial trial. It prompted 14 foreign donors, including IMF, to cut off aid and simultaneously sparked a currency collapse and debt crisis.

The IMF said in a report that its funds would be used to support sustainable, inclusive economic growth and long-term macroeconomic stability, in the world’s third poorest country measured by gross domestic product (GDP) per capita. The programmes will address transparency in debt management and the natural resource sector.

Unlike many of Mozambique’s other partners, the World Bank did not cut off financial assistance entirely after the scandal of Mozambique’s “Hidden Debts” became public knowledge in April 2016. World Bank aid continued, but in relatively small amounts, project by project.

Now the bank seems prepared to return to the modality of direct budget support. Pswarayi-Riddihough said that the improvement in good governance supposedly recorded in recent years contributed to the resumption of World Bank support. She claimed that this was an important step toward regaining the trust of the country’s partners.

Major work had been undertaken around questions of transparency and good governance, she alleged – but admitted that Mozambican civil society is continuing to demand greater advances in these areas. Mozambique’s new programme with the International Monetary Fund (IMF), she added, could give a strong signal to the market. Indeed, it will send a strong signal to all of Mozambique’s partners.

The agreement between Mozambique and the IMF, approved by the IMF Executive Board, will make $456 million available to the country. An amount of $91 million will become available immediately. At the time, Tonela said the agreement with the IMF marked the start of a new phase, leading to the resumption of sustainable growth of the Mozambican economy.

With an approximate population of 30 million, Mozambique is endowed with rich and extensive natural resources but remains one of the poorest and most underdeveloped countries in the world. It is a member of the Southern Africa Development Community (SADC).

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Adesina Seeks US Support to Fund $1.5bn Africa Food Plan

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AFDB Africa Food Plan

By Adedapo Adesanya

The President of the African Development Bank (AfDB) Group, Mr Akinwumi Adesina, has appealed to the United States to back the institution’s $1.5 billion emergency food production plan which seeks to avert a looming food crisis in Africa caused by Russia’s war in Ukraine.

Mr Adesina was part of a team that testified about global food insecurity and persisting impacts of the COVID-19 pandemic before the US Senate subcommittee on State, Foreign Operations and Related Programs.

Senators Chris Coons (Delaware), Lyndsey Graham (South Carolina), Dick Durbin (Illinois), Chris Van Hollen (Maryland) and Roy Blunt (Missouri) also participated in the hearing.

Senator Coons, Chair of the Senate subcommittee, stressed that the US should move fast and provide sufficient funding, saying, “We should be concerned and even alarmed about the widening food security crisis that this war is causing for hundreds of millions far beyond Eastern Europe.”

On his part, Senator Graham expressed support for the establishment of a global fund for food security.

Speaking live via videoconference from Accra, Ghana, Mr Adesina said the proposed Africa Emergency Food Production Plan would result in the rapid production of 38 million tons of food across Africa over the next two years.

“The African Development Bank, with your support, is prepared to meet this new challenge and others head-on,” he said.

He explained that the plan is anchored on the provision of certified seeds of climate-adapted varieties to 20 million African farmers and with the disruption of food supplies arising from the Russia-Ukraine war, Africa faces a shortage of at least 30 million metric tons of food, especially wheat, maize, and soybeans imported from the two countries.

Speaking further, the AfDB chief said the lender would invest $1.3 billion in the plan’s implementation and called on the US to make up the funding balance.

“With US support to reduce the $200 million financing gap – we can ensure the Africa Emergency Food Production Plan’s success,” he said.

The Africa Emergency Food Production Plan is currently before the bank’s Board of Directors for approval.

Also providing testimony were Mr David Beasley, Executive Director of the World Food Programme and Ms Tjada D’Oyen McKenna, Chief Executive Officer of non-governmental organization Mercy Corps.

Ms McKenna said, “A perfect storm is leading to heightened global food insecurity, worse, much worse than the previous food crises over the past decade.” She cited the Covid-19 pandemic and climate change as factors sharpening the current food insecurity.

Mr Beasley said food insecurity had already begun to rise sharply before the war. He said 135 million people were acutely food-insecure before the onset of the pandemic. “COVID comes along and that number went from 135 million to 276 million people marching toward starvation.”

Mr Adesina, then, emphasized that the African Development Bank’s food production plan would foster the production of nutritious food rather than simply calories.

“One of the things we will be supporting through this emergency food production plan is bio-fortified foods. Sorghum fortified with iron. Nutritional supplementation is important,” he said

The bank’s president also said the AfDB was setting up meetings with international fertilizer companies to discuss ways to ensure that African farmers continued to have access to such inputs.

“If we don’t solve the fertilizer problem, we cannot solve the food problem.

According to him, the Africa Emergency Food Production Plan would have a long-term impact on Africa’s food productivity.

The initiative will “drive the structural changes in agriculture, to unleash the full potential of Africa to become a breadbasket to the world.”

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Elon Musk Puts Twitter Acquisition on Hold

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Elon Musk

By Adedapo Adesanya

In a new turn of events, Elon Musk on Friday put his $44 billion deal to acquire  Twitter Inc temporarily on hold.

The world’s richest man is carrying out the decision to put the Twitter acquisition on hold citing pending details in support of the calculation that spam and fake accounts indeed represent less than 5 per cent of users.

“Twitter deal temporarily on hold pending details supporting calculation that spam/fake accounts do indeed represent less than 5% of users,” Mr Musk tweeted on Friday.

This latest move sent the shares of the social media company falling 18 per cent to $37.10 in premarket trading, their lowest level since he disclosed his stake in the company in early April and subsequently made a best and final offer to take it private for $54.20 per share.

Twitter had earlier this month estimated that false or spam accounts represented fewer than 5% of its monetizable daily active users during the first quarter when it recorded 229 million users who were served to advertise.

Mr Musk, a self-proclaimed free speech absolutist, had said that one of his priorities would be to remove “spam bots” from the platform.

This is the latest drama ensuing from the deal after its General Manager of Consumer, Mr Keyvon Beykpour, was relieved of his job on Thursday as part of a major shake-up in the company heralding Elon Musk’s takeover.

The disappointed Beykpour took to the social medial platform to announce the termination of his appointment and said he got the shocking message while still on paternity leave.

According to him, the CEO of Twitter, Mr Parag Agrawal asked him to leave “after letting me know that he wants to take the team in a different direction.” Mr Beykpour, says he never imagined leaving Twitter in such a manner and time.

Mr Musk has other specific plans for Twitter products like verifying users who pay for Twitter Blue subscriptions, charging for embedded tweets, and other changes designed to grow Twitter revenue and users.

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