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The Ethics of Trade Association Codes of Ethics

One of the functions that trade and professional associations often perform is to help “regulate” the business conduct of their members, often through the vehicle of “codes of ethics”. When properly applied, “self-regulation” of this type can protect consumers, reduce regulatory burdens for industry members, and enhance an industry’s reputation with government bodies and the public at large.

That said, it is clear that self-regulation by associations can create competition law issues if rules and regulations are adopted and enforced in such a way as to restrict competition. In particular, concerns can arise when associations seek to dictate the terms on which members are able to compete ag [...]

Follow-Up Note on Another Missed Opportunity for the Administration of Justice Across Europe

Last week, the Council gave itself another shot at improving the functioning of the General Court of the European Union (the ‘General Court’). And once again, it failed. Following an already disappointing episode in March 2014,1 the Council again placed the equality between member states at the top of its priorities, by doubling up the number of judges at the General Court. This may admittedly help the General Court reduce its backlog but was certainly not the “most cost-effective” way to do so. There was, indeed, a much easier way out.

By way of a reminder, reforming the General Court has been on the table for several years. Everyone agrees this reform is now urgently needed to [...]

United Kingdom: High Court provides guidance on application of limitation periods in damages actions

The High Court has recently provided guidance on the application of limitation periods in competition damages actions. In Arcadia v Visa, it ruled that a substantial part of the claimant’s claim, which dated back to 1977, should be struck out for having been brought too late, so reducing the claimed damages by around £500 million. The Court subsequently awarded costs against the claimants on an indemnity basis, ruling that the claim for the period outside of the limitation period (which was held to have started running in 2007) was hopeless and bound to fail.

The Court concluded that, since before 2006 at the latest, the claimants (a group of major retailers) had possessed (or could re [...]

United Kingdom: CMA consults on draft Annual Plan for 2015/2016

The Competition and Markets Authority (“CMA”) has recently published its draft Annual Plan for 2015/2016, its second year of operation after assuming the functions of the Competition Commission and the competition functions of the Office of Fair Trading (“OFT”) on 1 April 2014. Together with a Strategic Assessment of the risks that consumers and markets face (also published on 27 November 2014), this provides valuable guidance on the CMA’s likely enforcement priorities through to April 2016 and beyond.

Whilst in some areas (notably merger control), the CMA’s work is predominantly responsive to levels of activity in the economy, the CMA has considerable discretion in the cartel, [...]

Competition Law Root & Branch Review: Harper Draft Report Released

Co-authored by Ayman Guirguis (Partner), Jackie Mortensen (Senior Associate), Asa Lam (Lawyer) & Jessica Qiu (Lawyer).

 

On 22 September 2014 the much anticipated Draft Report of the ‘root and branch’ review of the Competition and Consumer Act 2010 (Cth) (Act) (Harper Review) was released.

The proposed recommendations of the Harper Review panel (Panel) are far reaching, touching on all areas of Australia’s economy, including:

  • seeking to simplify the Act and enhancing its effectiveness by:
  • reformulating the prohibition against misuse of market power to target conduct that has the purpose or likely effect of substantially lessening competition;
  • simplifying the cartel conduct provisio [...]
Q and A on Canadian Merger Control

General overview of the key merger control regimes in Canada

Competition Act

Canada’s Competition Act (the Act) authorises the Commissioner of Competition (the Commissioner) to challenge
merger transactions that are likely to prevent or lessen competition substantially in a relevant market affecting Canada. The
Commissioner heads the Competition Bureau (the Bureau) which is responsible for investigating merger transactions to
determine if they are likely to have the proscribed anti-competitive effect.

The definition of ‘merger’ for these purposes is quite broad. In addition to acquisitions of control (defined as the acquisition
of a greater than 50% interest in the target entity), a [...]

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